Constitutional and Administrative Law - Essay Example

i. Prerogative powers are one of the most basic and important areas of constitutional law. ii. Does this ment hold good even today iii. Can prerogative powers be controlled The current verdict of the House of Lords in R v Secretary of State for the Home Department1 raises crucial constitutional doubts about the level to which the government is expected to look for Parliamentary consent for its guidelines or may depend as an alternative on prerogative commands. The significances of the ruling with regard to the Home Secretary acting illegally in inserting a revised criminal damages system under the prerogative power instead of enforcing the statutory system under the Criminal Justice Act 1988 is analysed. The challenge is that the House of Lords accomplished the right conclusion, but for erroneous causes. Griffith (1985) is extremely decisive of the comprehended deficiency of rule within Government sections. He commented that indispensable political reformation is crucial to hold back prerogative powers in any Department. Prerogative powers exist even now and it is very difficult to spot those powers precisely. For example in R v Home Secretary2 the court acknowledged the reality of a prerogative power, to preserve peace in the land and which had prior to this not been identified. Much of the constitution is principle and not law. For instance the powers of the Prime minister, as they are not law are uncontrollable by courts. This results in some doubts with regard to whether the courts are constantly eager to make certain that the government maintains its legal powers. According to Elliott & Quinn (1998, 368) "The Home Office is just one department responsible for British laws. The Law Officers' Department and the Lord Chancellor's Department also contribute to law reform. All cases brought up by the police for trial must be now taken up by the Crown Prosecution Service which is maintained by the Director of Public Prosecutions and they are answerable to the Attorney General and Solicitor General". The Criminal Injuries Compensation Scheme was a source of challenges and unavoidable especially in cases where huge sums of public money were dispersed to victims of crime. This was carried on via a non-statutory process which was governed by ministerial rules of thumb, without proper judicial purpose, or clear appellate rights (Harlow and Rawlings 1984, 388-398). After the turning point decision of R v Criminal Injuries Compensation Board3 (CICB), which demonstrated that decisions of the CICB were reviewable and set the bases for the present review of the prerogative in common. Wade (1989, pp.59-60) debated that damages of the dupes of crime does not amount to exercise of a correct prerogative at all. The reason is that it is not different in role to the institution of a private trust. This view powerfully prefers Blackstone's stress on the 'singular and eccentrical' quality of true prerogative power to the account presented by Dicey based on its discretional character (Munro 1987, ch. 8). Nevertheless, the outlook that reimbursement is prerogative theme since it is non-statutory, and is also similar to the allocation of crown payment, is too acutely entrenched in the judicial awareness to be deserted now. A V Dicey specifies the Royal prerogative as "The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown". 4 William Blackstone on the other hand identifies the prerogative more firmly. He states that prerogative powers are those powers which "the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects".5 Lord Parmoor in the De Keyser's Royal Hotel case of 1920 agreed with Blackstone's opinion of the prerogative powers.6 But Lord Reid in the Burmah Oil case of 1965 did not agree with this idea.7 The range of the Royal prerogative power is disgracefully difficult to decide. It is obvious that the continuation and degree of the power is a subject of common law. This makes the courts the final arbiter in deciding whether or not a specific type of prerogative power subsists.8 The trouble in deciding about the prerogative powers is that for many of such powers there is no recent judicial authority and for some one can find no judicial authority at all. In such situation, the Government, Parliament and the general public have to rely on statements of earlier Government practice and legal books, the most all-inclusive of which is now almost 200 years old.9 The part played by the courts in shaping the continuation and degree of the prerogative every now and then can be a noteworthy check on the prerogative. Actually the control is fortified by the common law doctrine which states that courts are not in a position to create new prerogatives. Lord Diplock in BBC v.Johns stated, "it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative." 10 Richards LJ in the case of CCSU V. Ministers11 states:"It was long considered that, whereas there could be judicial control over the exercise of statutory powers, prerogative powers were beyond the scope of judicial review". This view came to a stand still in a case in 1984, which arose from a battle between the government and the civil service unions in a decision to alter the terms and considerations of staff at GCHQ without consulting previously with the unions. The House of Lords concluded that it was not the source but the subject-matter of a command that influences whether it is prone to judicial appraisal. Thus, just because a minister is enforcing a prerogative power instead of a statutory power is not a decisive factor. The subject matter is the deciding factor with regard to the courts power to exercise the prerogative power. The application of prerogative power in UK is clear from the fact that it had made a pre-emptive attack on Iraq. The UK gave as its official legal ground for the assault of Iraq depending on the renditions of Security Council declarations. In fact the official legal advisers did not directly admit that the British attack of Iraq produced a new common law for the growth of international law, specifically a doctrine of anticipatory attack. Actually it has to be considered that the practice of a state as rooted in institutional persistence especially institutional plan for the future. Thus on this ground it is plain that the UK has dedicated itself to set a common law for preventive assault through its attack of Iraq. Word Count: 1083 Reference 1. Elliott, C. & Quinn, F. English Legal System, (1996) 1st Ed. Harlow: Longman. 2. Griffith, J.A.G. Politics of the Judiciary, (1985) London: Fontana Press 3. Harlow, C and Rawlings, R (1984) Law and Administration (London, Weidenfield and Nicholson). 4. Munro, C (1987) Studies in Constitutional Law, (London, Butterworths). 5. Wade, Sir William (1989) Constitutional Fundamentals, (London, Stevens). Read More