The Operation of the Royal Prerogative - Term Paper Example

The Royal Prerogative Introduction: The Constitution of the U.K. differs from other countries such as the United s in that it is not codified. The monarch or Sovereign of the UK is referred to as the crown, who is the royal head of State as well as the Head of the church. One of the distinctive aspects about the Crown is the possession of royal prerogative powers. Up to the 17th century, it was the kings and queens who had absolute power, but after the English civil war and revolution of 1688, it was Parliament that was given dominance over the monarchy. But all Government actions are still taken under the name of the Crown and the prerogative refers, both historically and legally, to the power of the Crown. While in earlier years, prerogative power was vested only in the Crown, it is a controversial power in this day and age. When assessing the royal prerogative powers in conjunction with the uncodified nature of the U.K. Constitution, there exists considerable scope for an abuse of executive power to take place, thereby contravening the principles of a democracy in which it is the people who are the ultimate source of power. Analysis: The United Kingdom is a Constitutional monarchy, with executive power purportedly vested in the Crown. However, in reality, the business of Government is carried out by the Ministers of State in the name of the Crown. The Queen is still considered the Head of State in relation to foreign affairs and the power to summon and dissolve Parliament and the appointment of the Prime Minister are also residual legal powers that remains vested in the Crown1. While the United Kingdom does not have a formal written and codified Constitution, there is an unwritten set of rules comprised of the Acts of Parliament, judicial decisions as well as political practices that form the basis of Constitutional practice within the U.K2. The Royal Prerogative comprises those powers belonging to the Crown that arise out of the common law and are unique only to the Crown. In Chitty’s view, these powers possessed by the Crown are a part of the reciprocal relationship and duties that exist between a monarch and subjects3. While the subjects owe the monarch the duty of allegiance and loyalty, the monarch has the duty to provide protection to his subjects. According to Chitty, the Royal Prerogative is much needed because “the rights of sovereignty, or supreme power, are of a legislative and executive nature, and must, under any form of Government, be vested exclusively in a body or bodies, distinct from the people at large.”4 Dicey defines the Royal prerogative as “the name for the remaining portion of the Crown’s original authority” or the “reside of arbitrary and discretionary powers legally left in the hands of the Crown” and the scope of this power extends to “every act which the executive Government can do without the authority of an Act of Parliament.”5 Blackstone has defined the Royal Prerogative as the “special pre-eminence which the King hath over and above all persons , and out of the ordinary course of the common law, in right of his regal dignity. It signifies in its etymology (from prae and rogo) something that is required or demanded before, or in preference to, all others ……and…..[is] only applied to those rights and capacities which the King enjoys in contradistinction to others.”6 (Blackstone, 151). On the basis of these two historical definitions, Barnett infers that there are two deductions that can be made. They are as follows7: (a) there are certain powers that are inherent in and uniquely peculiar to the Crown; (b) these royal powers are derived from the Common law; (c) these powers are residual powers; (d) most of the powers exercised by the executive Government occurs in the name of the Crown; and (e) no Act of Parliament is required to be in place before such powers are conferred or before the due exercise of these powers. In the present day, the Crown plays a ceremonial rather than a legal role. The major functions that fall within the scope of the prerogative include (a) the power to summon and dissolve Parliament (b) the power to elect the Prime Minister and (c) the power to give royal assent to legislation. The Crown can also bestow honors such as the Order of Merit, the Order of the Garter and the Order of the Thistle. In a legal sense, the Crown has the right to be consulted on all legislation and all other matters pertaining to the business of running the country8. Additionally, the executive is allowed to assume some of the inherent powers of the Crown implied under the Royal Prerogative during times of crisis, for the protection of overriding public interests. This is where the danger arises. While the current exercise of the royal prerogative is largely ceremonial, the executive assumption of prerogatives can be potentially dangerous, in terms of overriding the rule of law decreed by the will of the majority, in accordance with the basic rules of a democracy. For instance, in describing the powers of the Queen by virtue of exercise of the Royal Prerogative, Baghelot states, “The Queen could, by prerogative, upset all the action of civil Government within the Government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenseless against foreign nations.”9 This is the potential of the power possessed by the Crown under the Royal Prerogative, although it is purportedly limited by its exercise through the executive and subject to the scrutiny of the Courts. Since the U.K. does not have a codified Constitution formally set out in writing, there is no formal agreement on what exactly constitutes the powers under the Royal Prerogative, neither are the three branches of Government granted equal powers. Parliament has been deputed as the supreme authority to make the laws of the land, through the principle of Parliamentary Sovereignty. “In theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority.10 There is no formal separation of powers between the three branches of Government – the executive, the legislature and the judiciary. Monstesquieu has stated that it is only by apportioning power between the different players in Government that minimal opportunity will exist for an abuse of such power.11 This apportioning of power is often laid out in the written rules and principles of law that constitute a country’s Constitution, but in the absence of a codified Constitution, the UK has no such formally spelt out apportioning of power between the various arms of Government. In a democracy the separation of powers among the various branches of Government is necessary to ensure that there is a balanced exercise of power. But in practice, the functions of the executive and legislature are often mingled with that of the judiciary, since ministers who implement new acts are also involved in legislation, similarly judges in the House of Lords are also entitled to participate in the legislative business of the Upper House.12 Moreover, judicial independence under the UK Constitution is not exclusive of political interests. Judges are appointed by the Lord Chancellor, thus their functions cannot be judicially impartial, while the Chancellor and Judges also sit in the House of Lords, therefore their decisions cannot be seen to be politically impartial either13. In the balance of division of powers within the UK, Parliament emerges supreme and therefore this leads to a centralized form of Government. Tension between the legislature and the executive may also pose problems in interpretation in the Courts, especially in prerogative powers accorded to the executive. In Laker Airways Ltd v Dept of Trade14 Lord Denning defined the prerogative as a “discretionary power exercisable by the executive government” in cases such as the “war prerogative” or the “treaty prerogative”15 in which case, the law does not interfere with the exercise of the prerogative16 by the official concerned, since it can only be modified by Parliament itself. However, he also clarified that the law can set limits on the exercise of the prerogative, especially if it is “exercised improperly or mistakenly. That is the fundamental principle of our Constitution.”17 Lord Diplock has also stated that where the source of powers is the exercise of the prerogative, judicial reviews of such decisions may properly be undertaken.18 All this highlights the growing tensions between the three braches of Government and the scope for exercise of the legal powers inherent under the Royal Prerogative in the absence of codified guidelines on separation of powers. For instance, according to Dicey, the royal prerogative also encompasses the power of the Crown to dismiss a ruling Government with a Parliamentary majority and to dissolve the Parliament through whom the government is supported.19 Dicey states that such a dismissal can occur if “there is fair reason to suppose that the opinion of the House is not the opinion of the electors….a dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation.”20 According to Jennings, “the Queen’s function is to see that the Constitution functions in the normal manner…….she would be justified in refusing to assent to a policy which subverted the democratic basis of the Constitution ….she would not be justified in other circumstances.”21 In general, the exercise of the powers attendant with the royal prerogative in the UK has been strictly restricted, with the only exception being King William IV who dissolved Parliament in 1834-35 in an exercise of monarchial power. Jennings argues that the Crown exercising the royal prerogative and dissolving Parliament would result in a situation that is both unpolitical and unconstitutional. Under the legal position, a refusal by the Queen to grant royal assent to a bill could also be grounds for dissolution of Parliament and dismissal of Government. But in practice, no Government has been dismissed through the exercise of the monarchial power under the Royal Prerogative, not since 1783. Under such circumstances, the scope for the exercise of the royal prerogative in opposing policies which subvert the democratic basis of Government rule is limited at best. The Royal Prerogative has rarely been exercised and monarchs over the ages have been faithfully providing royal assent to bills, appointing Prime Ministers and adhering to the will of Parliament, even in those instances where it may not fully represent the will of the people. Such a feeble exercise of the Royal Prerogative does not appear to be conducive for the aggressive propagation of democracy. The maintenance of an effective system of checks and balances between the three branches is likely to be more effective in establishing the rule of law. Parliamentary sovereignty has mandated constitutional subordination of the judiciary to parliament22 and also means that UK law can override international law23, however the introduction of the Human Rights Act of 1998 was geared towards bringing about a “major constitutional change” within the UK24 to guarantee individual freedoms in national law. The Human Rights Act states that UK Parliament legislation must be read and given effect to in the Courts in a way that will be compatible with Convention rights “so far as it is possible to do so”25 and if domestic legislation is found to be incompatible with individual rights spelt out in the Convention, then the judiciary has been given the power under the Act to declare the incompatibility of such legislation.26 But in practice, as pointed out by Justice Arden, Parliamentary sovereignty is still preserved and the Courts “are not given any power to strike down statues which infringe Convention rights”27, they can only make a declaration of incompatibility of UK legislation with European law.28 The absence of a codified Constitution has further exacerbated the problems inherent in the distinct and clear separation of powers between the three branches of Government. The absolute and indivisible power of Parliament may not always support the true will of the people, as should be the case in a democracy. The scope and exact nature of exercise of the Royal Prerogative is also not clear, neither has it ever been exercised in a manner that could benefit the propagation of democracy rather than the will of Parliament. In other countries, the existence of a codified Constitution has made it easier to clearly demarcate powers between the three branches of Government and also to regulate their function. This has functioned as a means to ensure the propagation of democracy through maintaining an effective system of checks and balances. In the UK, the absence of a codified Constitution does not allow for the exercise of this option. If the faith of the people in the law of the land is to be maintained, then it is vital that the rule of law be upheld by the judiciary. But the system of Parliamentary sovereignty is increasingly being challenged and found inapplicable, as in the case of Jackson and Others v HMAG29. The move towards the establishment of an independent and separate judiciary appears to be a certain future mandate as individual rights and European Law gain precedence within the UK judicial system as a consequence of the Constitutional reform Act. In view of present threats from terrorism, the Government has enacted sweeping legislation against terrorists30 tilting the balance of power in favor of the executive and undermining judicial power.31 Moreover, recent European legislation such as the European Convention of Human Rights32 has only highlighted the need to pay greater attention to the maintenance and protection of individual human rights that may increasingly be subject to unilateral executive action. There is a need to regulate the power of the executive, to ensure that adequate scope is provided for judicial protection of the human rights of individuals and an adequate balancing of powers of the three arms of Government, if the aims of democracy are to be propagated within the UK. With the help of a written Constitution, the delineation of these powers would assume more clarity and ease in application. As a result, it may be advisable to codify constitutional conventions, which up to this point have been formulated on the basis of informal political practices and judicial precedents. The function of the Royal Prerogative as set forth by Dicey and further supplemented by Jennings, appears to be the advancement of the will of the people. The powers accorded under the Royal Prerogative are substantial but the scope of their exercise is not clear and no precedent for its exercise exists in the U.K. While the objective of the Royal Prerogative appears to be to provide an effective opposing force to an arbitrary or unfettered exercise of power by Parliament, in practice this has not been the case because the Crown has generally been acceding to the will of Parliament. Hence, it appears inadequate to serve the purpose of advancing democratic aims, which may be better served through a codification of the Constitution. …………………..2513 words Bibliography * Barnett, Hilaire, 2004. “Constitutional and Administrative Law”, Routledge/Cavendish. * Blackstone, William and Cooley, Thomas McIntyre, 2003. “Blackstone’s Commentaries on the Laws of England”, The Lawbook Exchange Ltd * Bradley, A.W. & Ewing, K. D. 2003. “Constitutional and Administrative Law” (13th ed.), Harlow, Longman, pp 233. * Cheney v Conn [1958] 1 WLR 242 * Chitty, Joseph, 1820. “A treatise on the law of the prerogative of the crown”, Butterworths * Dicey, Albert Venn, 1885. “An introduction to the study of the Law of the Constitution,” Macmillan and Co. * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, (1914). Oxford: Oxford University Press * Jackson and Others v Her Majesty’s Attorney General (2005) UKHL 56 * Jennings, William Ivor, 1959. “The Law and the Constitution”, University of London Press * Justice Arden, 2004. “The interpretation of UK domestic legislation in the light of European Convention on Human Rights jurisprudence”, Statute Law Review, 25(3):166 * Laker Airways Ltd v department of Trade [1977] 2 All ER 182 at 192, [1977] QB 643 * Lord Irvine of Lairg, 2003 “Britain’s programme of constitutional change” IN “Human Rights, Constitutional Law and the development of the English Legal System.” Oxford: Hart Publishing * Oliver, D. 2003. “Constitutional Reform in the UK”, Oxford, Oxford University Press Read More