How the Judiciary Controls the Royal Prerogative - Coursework Example

How the judiciary controls the Royal Prerogative s Submitted by s: Introduction The royal prerogative is a customary authority body with privileges and immunity, which is recognized in the UK as the only prerogative of the Sovereign (Smartt, 2014, p. 81). Majority of the executive authority of the British Government that are conferred in the crowned head have been bestowed under the royal prerogative’s decree. In the monarch’s constitution, majority of the prerogative powers are at present implemented by the regime of the day. Prerogative powers have broadly been acknowledged to be among the numerous sources of British constitution and the change in eras has also resulted in changes in the ways the privilege powers are applied. In most cases, prerogative powers are also called royal prerogatives and came up during a period when the monarch assumed the position of feudal lord and the head of state at the same time (Anthony, 2002, p. 30). This meant that the king possessed powers that allowed him to preserve the state from its foes, as well as feudal powers that were for the good of the public. There is no concrete definition of prerogative powers but the most broadly accepted definitions are those that were developed by A V Dicey and William Blackstone. According to Blackstone, prerogative powers are those, which are enjoyed by the King alone in comparison to others and not the ones that he is accorded in common with his subjects. Conversely, Dicey considers these powers as the residue of unrestricted power afforded at any time to the Crown regardless of whether the King exercises this power himself or he leaves it to his ministers. The definition developed by Dicey is somehow wider compared to the one associated with Blackstone and that has the capability to take into account the historical advancements that have led to a change in the manner in which most of the prerogative powers are applied. How the judiciary controls the exercise of Royal prerogative Even though the prerogative powers came up at a time that was significantly different from the present time, they have gone through transformations in purpose and the manner in which they are exercised. There are numerous powers still being exercised presently but predominantly focus on the establishment of the key types of scrutiny from parliament and the judiciary to which they remain subject. The monarch has protection from being prosecuted in the courts and from tradition; the courts avoid any form of interference with the prerogative powers as they have only a small degree of control regarding the utilization of powers in question. They have the power to analyse how legal powers exist; however, they lack any form of responsibility over laws in entirety. The only jurisdiction they have is in inquiring into the degree and existence of the powers, but not the manner in which they are exercised. For instance, considering R v Home Secretary, ex p Northumbria Police Authority, it was decided by the Court of Appeal that the equipment had been permitted by the Police Act of 1964 as well as by the royal prerogative. Since the prerogative powers are based upon common law, the courts are tasked with the traditional task of control and in the recent years, the scrutiny of the royal prerogative (Brand and Getzler, 2012, p. 220). The Case of Proclamations is significant in the establishment of this role where in the case, the judges in the common law courts firmly declared that they had the liberty to determine the restrictions of the royal prerogative. In the event that a prerogative power is challenged, the power has been acknowledged by the courts and as a result, the courts will determine the boundaries as well as the existence of the apparent prerogative power. Even though for some time this ability to decide the limitations of the prerogative powers has been acknowledged, the courts have not faced any issues in tracking the manner in which the powers are utilized. Nonetheless, perceptions have transformed since the process of judicial review has advanced and the courts have started questioning the manner in which these powers continue to be exercised. In history, it has been considered that the powers based on the prerogative had immunity from judicial proceedings regarding review. Nonetheless, various cases resulted in a landmark decision in the House of Lords in the case concerning the Council of Civil Service Unions v Minister for Civil Service, which addressed the decision of the government to stop allowing staff working at the Headquarters of the Government Communications to join civil service unions. In the case, most of the House supported the decision that the courts had the ability to review the way the discretionary powers afforded by the prerogative could be exercised in the same way they could review the manner in which the discretionary powers afforded by the statute were exercised. In order for a case to become a subject of judicial review, the power of the discretionary prerogative has to be justiciable and this involves enquiring into whether an issue is suitable for court. Even though the distinction between powers that are justiciable and those that are not is still unclear, the concept has gone through expansive interpretation. The actions of ministers can be challenged through judicial reviews founded on the fact that he or she did not have the power to an action in a particular manner, the action was not practical or that the power that has been exercised is not done using a fair approach. Another route was developed through with the introduction of the Human Rights Act of 1998 and this allowed the courts to challenge the way prerogative powers are exercised while at the same time strengthening the control mechanism (Kavanagh, 2009, p. 300). Through the Act, a person who is aggrieved has the ability to challenge an act or an omission of the executive in courts in the UK. The section that is most relevant in the Act is section six that states it is not lawful for any public authority to act in a manner that does not adhere to the Convention Rights. Capability of the mechanism The control and scrutiny instruments that already exist seem to be adequate but upon closer inspection, it is evident there are insufficiencies that might be considerable at specific times. There is a possibility of seeing that in the current political environment that is characterized by extreme enthusiasms, that the methods of scrutiny used by parliament may not have the necessary efficiency. An increase in the vigour of parliamentary members has led to them voting in a party political manner and this has a direct effect on the mechanisms that utilize voting as a mechanism to scrutinize the prerogative powers. If the theory of effective dictatorship by Lord Hailsham is considered, majorities in parliament together with restrictive party disciplines mean that a government may effortlessly win a parliamentary vote in order to reach the decision that they seek. One particular mechanism of scrutinizing the prerogative powers that is directly affect by this is the ability of the parliament to regulate supply. Additionally, this party political conduct may effortlessly subvert Departmental Select Committees, which are often utilized for scrutiny. The Departmental Select Committees are party committees constituted by members of parliament with the aim of analysing decisions of departments as well as executions of power. These committees are demonstrative of the makeup of Parliament and therefore the party with the most members if Parliament will typically have a majority in the committee. If the issue, which is under discussion in a committee, is belligerent with dividing political beliefs, the members of the committee may decide to vote in the manner in which the party wishes. However, there is a possibility to argue that these botches in mechanisms used by parliament to scrutinize prerogative powers are not exclusively failures in regards to the execution of the prerogative powers as they are failures that can be attributed to the British political structure in totality. Conclusion Prerogative powers have a significant role in the constitution of the UK as it bequests powers for the Crown as well as the Ministers to have an ability to carry out their constitutional duties. Particular prerogatives also allow fast tracking to legislations, which increase the pace of its enactment. However, parliament has a restricted regulation of prerogative powers as the list of legislative executive prerogatives remains vague and parliament has no voice over how powers are exercised by the ministers. In regards to the issues that are associated with the pronouncement of wars, treaties and agreements, there should be more participation as well as stronger influences and ministers are supposed to pursue parliamentary sanction. In the management of civil affairs, prerogative powers are supposed to be accountable to parliament and ministers are not supposed exercise any discretionary power concerning civil affairs before any consultation of parliament. There are people who argue that the royal prerogative should be abolished but it is important to consider the subjecting it to increased scrutiny by parliament and the judiciary as a mechanism to dealing with it. Bibliography Anthony, G. 2002, UK Public law and European law, Portland, Or, Oxford [England], Brand, P. and Getzler, J. 2012, Judges and judging in the history of the common law and civil law, Cambridge University Press, Cambridge. Kavanagh, A. 2009, Constitutional review under the UK Human Rights Act, Cambridge University Press, Cambridge, UK. Smartt, U. 2014, Optimize Public Law, Taylor and Francis, Hoboken. Read More