The Royal Prerogative Is a Feature of the UK Constitution - Essay Example

? The Royal Prerogative is a feature of the UK Constitution in need of radical reform Introduction The constitutional monarchy of the United Kingdom forms the foundation of the governance of the country. The United Kingdom is based on constitutional hierarchy has been divided into the House of Commons (parliament) and the monarchy. The powers of these two have been over the years been intertwined and one has been largely subsumed by the other, that is, the monarchy and the parliamentary powers. These royal prerogatives include powers that solely lied in the hands of the crown, but the powers have over time been reduced, leaving the office of the prime minister, and other ministers to have a say in the matters. Analysis The exercise of the royal prerogative powers has been curtailed. These days, there has been clear demarcation of powers that has been have been delegated to both the prime minister and the crown, though much of these powers are exercisable by the prime minster. However, leaving bit of these powers in the hands of the crown has little or no effect, to such an extent that it does not make sense having these powers vested in the crown1. It is important for the people of the United Kingdom to realize that times have changed, and circumstances are different. The needs that led to bestowing such powers to the crown have now become non-existent. This leaves the royalty as a toothless bulldog that can no longer bite. In order for the United Kingdom to fully deliberate itself from the shackles of history, the royalty’s expansive powers should be fully relegated to parliament and only act as a ceremonial organ2. The monarch’s constitutional presence should no longer be a reason for debate among the intellectuals. The independence of the judiciary is achieved by ensuring that the judiciary does not act as a mouth piece of the executive. In the past, the exercise of such powers has failed to reflect the wishes of the larger interest of the people of United Kingdom, rather has been used as a tool for the monarchy to meet its personal ends3. The judiciary, on the other hand was ripped off its independences it could not question the exercise of such powers of the royalty. These tainted and undermined the performance of the judiciary. Thus, the judiciary should be guaranteed protection from the crown in order to be act without fear or favour4. The power to deal in matters of foreign affairs should be retrieved from the hands of the crown and be left with the legislature , who are in a better position to enact laws that protects the sovereignty of the united kingdom and its people and to also promote the good neighbourliness with other countries. It also advocates for better and efficient interdependence, in cases where the countries involved come in to form a major economic block5. Historically, the legislature was also at the hands of the crown and has not fully barred the monarch from exercising these powers as she still has the sole mandate to appoint the prime minster6. This greatly affects the powers and functions of the prime minster, as he or she has to act in bias, of the crown who appointed him. The prime minister then becomes a puppet for the monarch to act according to the whims of the monarch. The result is that the entire legislature is tailored to meet the desires of the crown at the expense of the interest of the citizens of the United Kingdom7. The legislature should therefore be freed from the chains of the crown, and equipping it through laws, to be able to run its affairs and make its appointment without any interference from the monarch. The bills that also come before parliament will be focusing on the larger interest of the people of the United Kingdom rather than a smaller minority which is the crown8. The ancient practice invoking the United Kingdom to be ruled according to divine rights of kings has caused the United Kingdom to lag behind from attaining democracy for its people. The prerogative power of the monarch has often been seen as being all about the power of the monarch over the citizen, and not the citizen having power over its government. It is undoubted that some of the prerogative powers of the monarch have proved to be worthless over the time and thus have been deemed redundant9. These prerogatives therefore emanate basically from the Common Law which is recognized by the courts. Consistent with the doctrine of parliamentary supremacy, parliament retains the right and power to abolish or preserve prerogative powers. Parliament can also regulate these powers by declaring that such powers are unlawful and place them firmly within the parliament’s power. However cases that have come to court have tended to decide that a prerogative power could not be used to defeat a right granted under an act of parliament10. As regards to justifiability, the courts regard themselves as being competent to review the existence of the prerogative. The prerogative powers are capable of judicial review in its exercise. Some of the prerogative powers are still exercised directly by the sovereign, for example the granting of honours. Others are of scarcely less importance, such as the declaration of war, the conduct of the foreign policy, signing of treaties, control of the armed forces, the AG’s exercise of the nolle prosequie. Arguments in favour of the abolition of the prerogative powers have been raised and a couple of reasons have been propounded for advocating of this abolition. One of the reasons levelled include that the monarchy is anachronistic and has failed to recognize the changes that surround the growing society, and also in keeping with the transition the society undergoes Secondly, the prerogative power are inherent in nature, and they keep recurring with coming of every successor. The hereditary nature has caused the exercise of the prerogative powers to be abhorred by m has their own ways of putting these powers into use. Eventually it has led to a number of negative consequences11. Another argument raised in favour of the abolition of the exercise of the prerogative powers is that the benefits and privileges given to royal family are not in line with democratic society. It is almost unbeatable that change is inevitable, and the society is not an exception to being affected by change. The society is subjected to these changes that occur, and to be able to do so, some practices need to set aside and other new changes to be adopted. The privileges the royalty enjoy at the expense of the majority of the people of the UK are long out dated and irrelevant to maintain such privileges in this era12. On the other hand some critics seem to applaud the active presence of the monarchy, in the constitutional affairs of the United Kingdom and as also the use of the prerogative powers at their own discretion. The arguments include arguments include that the monarch is a non-political head of state, and as the head of state, the monarch does not have a hand in the political affairs of the government of the day. This limits the extent to which that the monarch is expected to act on, and what he or she has no authority over. The royalty is and will always be the mark of distinction of and a source of pride for the people of the United Kingdom. It is argued that the longevity and memory of the monarchy is an invaluable heirloom, and thus should continue to enjoy the protection and the immunity, together with the privileges that abound to it13. The monarch is also considered not just a head of state in the United Kingdom but is also the head of commonwealth. This being the case, any changes in the laws relating to succession to the throne or the abolition of the monarch altogether will adversely affect the member states, giving the need that the members states should as well partake in any considerations of changes regarding the monarch and its powers14. The arguments as discussed above should be all placed in a balance of convenience, to be able to come up with the right outlook of the way forward. Indeed it is true that the idea of a monarch being placed in a pedestal, with powers to command her subjects is considered obnoxious and out dated for a 21st century democracy15. It has also been observed that the concept of the monarchy is largely class-ridden, encapsulating the now acceptable idea that some persons are of higher social rank than others by right of their birth16. Many argue that these powers are more symbolic than real and therefore they cause no harm in the exercise of the prerogative power at their own discretion. This is because overhauls of the systems of governance that have been in existence since time immemorial have been deeply embedded in its history. Citizens have to owe an allegiance to a head of state17. Proponents agree that even some of those who agree in principle of the constitutional monarchy believe that the roles played in the public life by members of the extended royal family should be curtailed. So this brings us to the question, If Britain were not a constitutions monarchy, what would be its alternative? Being conferred a republic status would mean that the country will have key public offices, and in particular, the head of state would have to be elected by the citizens18. Currently, many of the prerogative powers are now exercised by the ministers who are elected representatives. The obstacles that this raises are that almost none of these powers are regulated by law. This is because the prerogative powers are not defined or contained by statute. The courts’ work have not been made any easier in interpreting the prerogative powers and due to this obstacle, the courts are unwilling to be examine the exercise of the powers. Some scholars have suggested that the codification of these powers will make the work of the judiciary easier and avoid misunderstandings19. Parliament has however taken a standing that in reality, which makes the prerogative powers not powers at all as they stem only from the will of parliament which can at any time override the interests of the monarch. Presently, the ministers who exercise the prerogative powers on behalf of the crown have to seek parliament’s approval before the use any prerogative. This promotes transparency and accountability in the legislature and also strengthens the doctrine of the supremacy of the parliament20. It is a now a long established law that parliament can override and displace the prerogative by statute. Once a prerogative has been done away with, it likely the case that it cannot be revived, unless there is a provision under the repealing enactment, makes a specific proviso to that effect. Abolition of the royal prerogative means also doing away with the residual power. Since such a residual power cannot be used to amend the general law. The prerogative must be recognized by the courts. There are some decisions the judges are ill-equipped to review; until recently the courts would not inquire into the way in which a prerogative power had been exercised. But as judicial review has developed, the attitude has changed and courts are more willing to make a review of the exercise of any discretionary power whatever source21. Conclusion The United Kingdom enjoys some features of a democracy, but the constitution is profoundly undemocratic. The United Kingdom’s constitution is unwritten, meaning that there is no single document which explains how the country is governed. This means that it requires a considerable amount of study. It is one of the least intelligible, least democratic and least accountable constitutions in the democratic world22. If the United Kingdom is to experience the benefits of being a wholly democratic society, it needs to first deal with its constitution. The constitution has been marred by continuation of arbitrary, unlimited and unaccountable power- all of which derive from the crown. Though most of these are exercised by the government, some continued to be exercised by the queen. The future of the United Kingdom lies in its own hands. It takes more than a spirited fight to achieve the desired results. If the rest of the national constitution starts to look decidedly more modern and democratic the continuation of one remaining hereditary post will start to look increasingly exposed, and will force the country into a revolution. Bibliography Abbott, L. F. (2006). "Five: "The Legal Protection of Democracy & Freedom: The Case for a New Written Constitution & Bill Of Rights"". British Democracy: Its Restoration & Extension, pp.56-68 Akehurst, M. & Malanczuk, P. (1997). Akehurst's modern introduction to international law. London: Routledge. pp. 65–66 Bagehot, Walter (2001). The English Constitution. Cambridge University Press Barendt, Eric (1997). Is there a United Kingdom Constitution. Oxford Journal of Legal Studies 137 Barnett, H. (2009). Constitutional and Administrative law (7th edition), London: Cavendish, pp.9-18 Beatson, J. (1998). 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