Prerogative Powers in The Context of The UK Constitution - Essay Example

? Prerogative powers in the context of the UK Constitution Introduction Unlike other democratic nations, the United Kingdom has no written constitution. In simple terms, there are is no single document that expresses itself as the State’s highest or fundamental law, hence it is often termed as an ‘unwritten’ or ‘uncodified’ constitution.1 Instead, the UK constitution is derived from a number of sources, many parts of which are found in a written form (hence, an uncodified constitution). Britain’s lack of a codified constitution is primarily owing to the fact it has slowly evolved over centuries, highlighting the comparative stability of the nation’s political order. The UK constitution collectively is an accumulation of different conventions, treaties, judicial rulings, and statutes. The British constitution (comprising of a set of guiding principles and laws) is derived from a large number of sources that include: Royal prerogative powers Conventions Statute EU Treaties Common law Authoritative statements made in print, as in law books. Royal prerogative laws existed prior to the current form of the UK parliament. Officially, the right to exercise prerogative laws are retained by the Queen. However, in actual practice Ministers of the Crown, which comprise of the British Cabinet, exercise majority of these laws. The powers, as vested by the royal prerogative laws, are termed as Royal prerogative powers. On the other hand, statutes are laws that are passed by the UK Parliament; hence, they refer to laws that are considered as the highest form of law for all governmental activities. This essay briefly examines differences that exist between Royal prerogative powers and statutory powers, while analysing and deriving that prerogative powers in their current form are not compatible as regards executive accountability, and needs modification to ensure better governance. Discussion Prerogative powers and statutory powers: The royal prerogative is a set of established privileges, immunities and authority, acknowledged in the UK as the sole right of the Sovereign. A majority of the executive powers, vested in the queen and exercised by the UK cabinet, have been accorded under the royal prerogative laws. Historically during middle ages in the UK, the king used royal prerogative powers to enforce his will during the process of decision-making, which purportedly aimed at public good. However, from 19th century, various reforms took place and by convention, it became compulsory to take into account the advice given by Ministers of the Crown or the Prime Minister, who in turn are accountable to the UK Parliament for their decision while exercising prerogative powers.2 Under the constitution, the queen retains his or her powers to exercise Royal Prerogative laws against the advice of the UK Cabinet or the Prime Minister, however in actual practice the queen can only act as such during emergencies or where there are no precedent cases that can be applied suitably to that specific situation. Currently, the royal prerogative laws encompass various areas that are significant and critical to the United Kingdom, including country’s security, defence, and foreign affairs. While the queen’s name is officially present in all the aforementioned areas, in reality she exercises very little power, because currently royal prerogative power is vested mainly in the hands of the Cabinet ministers and the prime minister. While delineating prerogative powers, there have been difficulties in giving it a clear definition. As the Select Committee on Public Administration Fourth Report framed it in their review, “The royal prerogative itself is a notoriously difficult concept to define adequately.”3 A V Dicey, a well-known theorist on the UK constitution suggested that Royal prerogative can be delineated as, “The prerogative appears to be historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown. The prerogative is the name of the remaining portion of the Crown's original authority and it is therefore…the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers.”4 It is also extremely difficult to assess the exact scope of the Royal prerogative power. The ambit and existence of the royal prerogative powers fall within the jurisdiction of the UK common law, and the courts often act as a final arbiter in deciding whether a certain prerogative law can be exercised, as was evident in the ruling “The King hath no prerogative, but that which the law of the land allows him.”5 However, the chief difficulty is that many prerogative powers completely lack judicial authority. In such cases, the Parliament must rely on various legal precedence, statements published by earlier governments, case histories or legal textbooks, some of which date more than two centuries back; as for example, the most comprehensive book extensively consulted for matters pertaining to prerogative powers is written by Joseph Chitty published in1820.6 In face of a lack of clear delineations on the extent, nature and scope of royal prerogative laws, the powers vested with the Cabinet Ministers and the Prime minister can be substantial and unlimited. Statutory powers, on the other hand, refer to the laws passed by the UK parliament. After the Glorious Revolution (1688), the UK constitution has been primarily based on the notions of parliamentary sovereignty.7 According to this theory, statutes passed by the UK Parliament form to be the highest and final legal source in the UK.8 Furthermore, the Parliament can amend the UK constitution, through new Acts of Parliament; however, this area is currently under debate after UK joined the European Union.9 A closer review of the two powers shows that despite prerogative powers carrying greater weight, the UK Parliament is not entirely powerless when dealing with issues related to prerogatives powers. It has, in some previous instances, successfully invalidated or limited prerogative powers of individual cabinet members, while placing some prerogatives laws on a statutory hold.10 This was evident in cases pertaining to the Intelligence Services Act 1994, the Security Service Act 1989 and Interception of Communications Act 1985. Some rules have been framed to accord procedural protection while ratification of treaties. As for example, the Ponsonby rule, which makes it necessary for the UK Cabinet to place any treaty to be ratified before the Parliament, at least three weeks before it is signed, and over issues of passport annulment.11 Some of the public appointments are currently monitored by a Commissioner and guided as per the Nolan rules.12 The courts are allowed to review the legal right to use prerogative power in some cases; however, they cannot address all prerogative powers. Furthermore, the courts can assist civilians only after an incident takes place. Therefore, it is clear that between prerogative powers and statutory powers within the UK constitution, the former is more powerful, ceding the UK Cabinet Ministers a wide scope to exercise powers without prior Parliamentary or legal approval. Prerogative powers and their compatibility with executive accountability under current conditions: Originally, the ruling monarch exercised the Royal Prerogative laws. However, over centuries a line was gradually drawn between the powers exercised by the king acting on behalf of the State, and the king acting in his individual capacity. As governance of the State became more intricate, power was transferred from the king to his close advisers. In the current context, the Government/Cabinet Ministers exercise majority of the royal prerogative powers, either in their individual capacity or through advice to the Queen, which she must follow as per the UK constitutional obligations. There are various theories as to what is the exact nature of the royal prerogative. Blackstone defined it as the power that “the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects.”13 A. V. Dicey provided a broader perspective where the royal prerogative laws were the remnants of arbitrary or non-mandatory authority, legally vested with the Crown at all times.14 The lack of a precise definition of royal prerogative powers has led to many controversies15 and uncertainties, and in some cases, the courts have accepted Dicey’s definition of the royal prerogative laws, while others have accepted Blackstone’s delineation. As for example, Blackstone’s notion on royal prerogative laws were favoured in the De Keyser’s Royal Hotel case;16 however, the same theory faced difficulties in the Burmah Oil case.17 While there are case laws that approve both perspectives, it has not been necessary to draw a clear line differentiating the two definitions, primarily owing to the fact there are only a small number of cases that are relevant to the prerogative law itself. It is this ambiguity, which has faced opposition from various law and social science experts. Brazier had contended, “The demand for a statement of what may be done by virtue of [The Royal Prerogative law] is of practical importance. Yet it has been said judicially that such a statement cannot be arrived at,18 because only through a process of piecemeal judicial decisions over the centuries have particular powers been seen to exist, or not to exist, as the case may be.”19 Owing to the various subjects that are covered by the Royal prerogative laws and the very nature of their ambiguity where these laws have not been exercised in recent times, it is not easy to create a list of the Royal Prerogative powers. The constitutional lawyers Bradley and Ewing had created a list that categorised the primary areas where royal prerogative laws are exercised in the current context: 20 1. Prerogative Powers as related to the UK legislature - dissolution, summoning, and proroguing of the UK parliament; acceding crown assent to bills; framing laws by Order in Council or using letters patent; framing beneficial schemes for the citizens where the UK Parliament apportions funds. 21 2. Prerogative Powers as related to the UK judiciary- different activities that are carried out by the Lord Advocate and the Attorney General; reducing, pardoning or remitting sentences of convicted criminals; making way for a special allowance to appeal to the Judicial Committee of the Privy Council.22 3. Prerogative Powers as related to foreign affairs– preparing treaties, declaring war and peace; prohibiting foreigners from entering the UK and issuing passports. 23 4. Prerogative Powers as related to the nation’s armed forces– the Head is the commander in chief of the armed forces of the Crown, while the organisation, management and control, of the armed forces are governed by the prerogative laws.24 5. Appointments of various ministers, public office bearers, judges; creation of peers, and conferring of decorations and honours all fall under purview of the Royal Prerogative Powers .25 6. Privileges and Immunities as accorded by the Royal Prerogative Powers disallow the Sovereign from being legally tried.26 7. The Royal Prerogative Powers during emergencies includes calling for war ships, where a financial coverage would be provided.27 Under the Crown’s personal prerogative powers, there are three main areas, which are acknowledged by the UK common law. These are the right to appoint a Prime Minister, a person who has maximum support in the House of Commons; secondly, the Sovereign reserves the right to dissolve Parliament using prerogative laws, under circumstances where the regular term for the Parliament as fixed by the statute is absent. Here the Sovereign may call for a general election. Lastly, providing royal assent to any legislation, where the queen may refuse to her royal assent (even though the last queen to refuse her royal assent to legislation was Queen Anne in 1708).28 It is clear, therefore, royal prerogative powers cover areas that are critical to the UK, as for example, foreign affairs, defence, passport allocation etc. It is also clear that owing to a lack of a precise definition, and an ambiguity as to the exact nature and scope of the laws, the Cabinet ministers tend to have limitless powers while exercising the prerogative laws. Currently the restrictions that are applicable on the Cabinet ministers' prerogative powers are extremely limited, and the ministers can act without any approval from the Parliament, while surprisingly the Parliament has no right to inquire about the ministers’ prerogative powers. The ministers have always maintained that there are no records of all individual cases where the powers have been used, and support the statement that Hon John Major made, “It is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers.”29 The Ram doctrine makes further scope for the ministers to exercise the law as they wish, where the common law or a statute cannot prohibit them.30 While it is certain that the UK Cabinet Ministers are accountable to the Parliament for exercising prerogative powers (under the authority of the common law or statutory), but it is only so after the event. This makes it imperative for the Royal prerogative laws to be modified, to restrict the unlimited powers and lack of accountability that the law accords to the UK Cabinet ministers, in the context of providing democracy and effective governance. Conclusion From the above review it can be suggested that since the royal prerogative laws cover some of the most critical areas within the UK governmental functions, it is imperative that they be so modified that the Cabinet ministers are made more accountable to the Parliament before exercising the rights. References Attoney-General v De Keyser’s Royal Hotel Limited [1920] AC 75 Barnett, H., 2005. Constitutional and Administrative Law (5 ed.) London: Cavendish. Beatson, J., 1998. Constitutional reforms in the United Kingdom. London: Hart Publishing. Blackstone, W., 1978. Commentaries on the Laws of England vol 1, New York: Garland Publishing. Bradley, A., and Ewing, K., 2006. Constitutional and Administrative Law (14th Edn). London: Longman. Brazier, R., 1999. “Constitutional Reform and the Crown.” In, M. Sunkin and S. Payne (eds), The Nature of the Crown. Oxford: OUP. Burhmah Oil Company (Burma Trading) v Lord Advocate [1965] AC 75 Chitty, J., 1820. A Treatise on the Law of the Prerogatives of the Crown. London: Joseph Butterworth and son. Dicey, A., 1959. Introduction to the Study of the Law of the Constitution (10th edn). London: Palgrave Macmillan. Gay, O., and Powell, T., 2004. The collective responsibility of ministers – an outline of the issues. Research Paper 04/82, 1-42. Accessed at, http://www.parliament.uk/documents/commons/lib/research/rp2004/rp04-082.pdf Le Sueur, A., Sunkin, M., Murkens, J., 2010. Public Law, text cases and materials. Oxford: OUP. Lewis, C., 1971. Judicial Remedies in Public Law. London: Sweet & Maxwell. Manuel v Attorney General [1983] Ch.77 [13] Proclamations Case (1610) 12 Co Rep 74, 76 R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB26, (CA) (Nourse LJ) Select Committee on Public Administration Fourth Report. Parliament of the United Kingdom (2004) accessed at, http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/42204.htm#note2 The pre-emption of Parliament - Constitution Committee, 2013. Accessed at http://www.publications.parliament.uk/pa/ld201213/ldselect/ldconst/165/16506.htm The Glorious Revolution Factsheet G4 General Series, August 2010, accessed at, http://www.parliament.uk/documents/commons-information-office/g04.pdf Read More