“Prerogative Powers Remain An Important Element Of The United Kingdom’s Constitution. Should They Be Subject To Greater Parliamentary And Judicial Scrutiny?” Discuss.
Prerogative powers have widely been accepted to be one of the many sources of the British constitution. As times have changed so to has the way in which prerogative powers are exercised. Within the following essay, I will briefly be concerned with the historical development of the prerogatives and the role that they play within the constitution in today’s society. I will highlight the change in the way the powers are executed as politics and the politic system has developed. I hope to demonstrate the many Parliamentary and judicial mechanisms that are used to scrutinise and control these discretionary powers, will introduce some of the reasons why greater scrutiny is desired but most importantly will deduce whether greater scrutiny is actually required or is simply just preferred.
I: The History Of Prerogative Powers
Prerogative powers, often referred to as the royal prerogatives, developed from a time when the monarch was both a feudal lord and head of state. The king thus had powers afforded to him for the purposes of preserving the state from foes, along with feudal powers to act for the public good. There is no one single, accepted definition of what prerogative powers are. Two of the most widely accepted definitions were those provided by A V Dicey and William Blackstone. Blackstone described the powers as powers ‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects,’ a definition that was favoured by the courts in the De Keyser’s Royal Hotel case. Despite this, I find myself agreeing more with the definition laid down by A V Dicey; ‘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.’ Dicey’s definition is somewhat broader to that of Blackstone’s and as such is capable of taking into account the historical developments that have resulted in a change to the way in which the majority of prerogative powers are exercised.
As history quite clearly shows, prerogative powers were traditionally exercised solely by the Monarch. However, as time has past, the distinction between the Monarch acting in their personal capacity and the Monarch acting as head of state became more prominent. The government system and the matters faced by government became more intricate and complicated and powers were devolved from the monarch to his or her advisers, who in modern times take the form of government ministers exercising powers in their own right or on behalf of the Monarch.
II: Extent Of Prerogative Powers Today
In modern times, the majority of governmental matters depend on statute, though there are still powers relating directly to the monarch that have their source bedded deep in common law. As the years have past certain prerogative powers have ceased to be used and there has been a great deal of uncertainty when attempting to apply ancient powers into modern times. As a result, it is difficult to produce a definitive list of powers still in use today.
There have been many constitutional lawyers, such as Bradley and Ewing, who have attempted to produce lists of the main areas in which prerogative powers are still used today. The list delivered by Bradley and Ewing included powers relating to the legislature, the judicial system, and foreign affairs. To make the analysis of the powers today more succinct and easy to follow, I will continue by following the distinctions advocated in the report provided by the House of Commons Public Administration Select Committee entitled, ‘Taming the Prerogative: Strengthening Ministerial Accountability to Parliament.’ Within this report, the prerogative powers were divided into three categories; the Queen’s constitutional prerogatives, the legal prerogatives of the crown and prerogative executive powers.
The Queen’s prerogative powers refer to those personal prerogatives left solely in the hands of the monarch. The most common powers that are found in this category include the right to appoint Prime Ministers, to right to advise Ministers in private, the right to go against ministerial advice, the right to provide assent to legislation and the ability to dissolve Parliament. While these powers theoretically rest in the hands of the monarch, the government and Parliament, still have a great deal of control and some powers are simply invoked in a customary way, with the majority of these powers being used on advice of ministers.
Legal prerogatives of the crown include the powers inferred on the monarch ‘as the embodiment of the crown.’ This category contains powers and rights that are more legalistic in nature and includes some of the bizarre legal rights of the sovereign i.e. the right to certain swans etc, but also includes two main powers still exercised to this day. These comprise of the power that the Crown is above the law and as such immune from prosecution and tax and the fact that the Crown is not bound by statue unless by express words or necessary implication.
Prerogative executive powers form the section of powers that are now mostly exercised by government ministers in their own right or on behalf of the crown. It is this set of powers that is most often subjected to scrutiny and debate. The most well known and well used of these powers include the declaration of war and deployment of the armed forces overseas, the conduct of diplomacy overseas and at home, appointment of government ministers and the issuing of appointments i.e. honours, peerages, judicial posts etc.
Contrary to popular belief, the prerogative powers used today are not unlimited. Both the courts and now Parliament provide extensive control and scrutiny mechanisms.
III: Parliamentary Mechanisms Of Scrutiny And Control
Given that government ministers now exercise a great deal of the prerogative powers, parliament has become one of the main sources of scrutiny and control. As stated by the Public Administration Select Committee, ‘Parliament is not powerless in the face of these weighty prerogatives.’ It has been long recognised that Parliament has the power to abolish, amend or restrict prerogative powers through an Act of Parliament, either expressly or by necessary implication. To a further extent, Parliament can place a prerogative power on a statutory basis if the circumstances call for it. By doing this, the powers would fall directly within the jurisdiction of Parliament and hence every form of Parliamentary scrutiny and control can be applied. The specific issue at hand here is the desire to make a person who is exercising such arbitrary powers as accountable as possible.
When the use of prerogative powers requires the expenditure of funds, Parliament holds another control mechanism in its control of supply. This notion is very simple; unless activities can be funded, there is no realistic benefit to act. If we take the power to declare war, a power that has been described as ‘the most significant of the prerogative powers,’ it is easy to say that the government can exercise this power whenever it sees fit. However, without the backing of Parliament, providing the funding for troops and supplies, a war would not be possible.
As prerogative powers were devolved from the crown and were exercised by government ministers, the execution of prerogative powers was subject even more so to the scrutiny mechanisms of Parliament. All ministers are accountable to Parliament for all actions not just, but including the use of prerogative powers. Scrutiny in this arena takes many forms but the most prominent sources are Departmental Select Committees. Such scrutiny also extends to the Prime Minister, who in recent years, has agreed to be subjected, twice yearly, to questioning by the Liaison Committee.
IV: Judicial Mechanisms Of Scrutiny And Control
As a result of the prerogative powers having their grounding in common law, the courts hold the traditional role of controlling, and in recent years, scrutinising these powers. The Case of Proclamations (1611) holds a great deal of importance in establishing this role. In the case, the judges of the common law courts categorically declared that they possessed the right to determine the limits of the Royal Prerogative. Whenever a prerogative power is challenged, this power must be recognised by the courts. As a result, the courts define the limits and ultimately decide the existence of any alleged prerogative power.
Although for a great deal of time this power to determine the limitations of prerogative powers has been recognised, traditionally, there has been no power for the courts to monitor the way in which the powers are used. However, attitudes have changed as the process of judicial review has developed and the courts have begun to question the way in which these powers are exercised. Historically, it was thought that powers exercised under the prerogative were immune from judicial review proceedings. However, a number of cases led to the landmark decision of the House of Lords in the case of Council of Civil Service Unions v Minister for the Civil Service . The case concerned the government’s decision to no longer allow staff of the Government Communications’ Headquarters to become members of the civil service unions. Within the case a majority of the House decided that the courts ‘could review the manner of exercise of discretionary powers conferred by the prerogative just as they could review the manner of exercise of discretionary powers conferred by statute.’ For a case to be open to judicial review, the discretionary prerogative power in question must be justiciable. The issue of justiciability simply enquires into whether an issue is appropriate for or subject to court trial. Although the distinction between justiciable and non-justiciable powers remains unclear, the concept has been ‘interpreted expansively.’
Judicial review allows the actions of ministers to be challenged on the basis that he or she did not have the power to act in such a way; that the action was unreasonable, or that the power was exercised in a procedurally unfair way.
The introduction of the Human Rights Act 1998 provided another route through which the courts could challenge the manner of exercise of prerogative powers, and ultimately has strengthened the mechanisms of control. The Act provides a mechanism through which an aggrieved person can challenge an act or omission of the executive in the UK courts. The most relevant section of the Act is section 6, which provides that it is unlawful for a public authority to act in a way that is incompatible with Convention Rights.
V: Strength Of The Mechanisms
On the surface of the facts, the scrutiny and control mechanisms already in place seem to be satisfactory. However, closer inspection reveals inadequacies that at some times are quite considerable. It is certainly possible to see that in today’s political climate, where politics is extremely partisan, that the scrutiny methods employed by Parliament may not be as effective as possible. With increasing vigour members of Parliament vote in a party political way. This directly affects the mechanisms that use voting as a scrutiny mechanism. If we subscribe to the Lord Hailsham’s theory of elective dictatorship, parliament majorities along with strict party discipline mean that a government can easily win a parliamentary vote, reaching the decision that they desire. One specific prerogative scrutiny mechanism that this directly affects is Parliament’s ability to control supply.
To a further extent, this party political behaviour can easily infiltrate the Departmental Select Committees that are also used frequently for scrutiny. Departmental Select Committees are cross party committees of MPs with the purpose of scrutinising departmental decisions and executions of power. The committees are representative of the make up of Parliament and thus the party with the majority if Parliament will usually have a majority within the committee. If the issue being discussed in a committee is a contentious issue with dividing political beliefs, members of the committee may well vote as the party desires. It is possible however to argue that these failures in the scrutiny mechanisms of Parliament are not solely failures of scrutinising the execution of prerogative powers, they are in fact failures of the British political system in its entirety.
There is less room to criticise the judicial mechanisms of scrutiny. If anything, the recent introduction and effect of the Human Rights Act 1998 strengthened the procedure. There is one particular way however, in which it is possible to see the judicial scrutiny principles being undermined. Despite there being a rule that the courts cannot create new prerogative powers, as emphasised by Lord Diplock in the case of BBC v Johns  when he stated that ‘it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative,’ it is undermined by the courts role of identifying prerogatives that were previously of ‘doubtful provenance’. An example can be found in the case of R v Secretary of State for the Home Department, ex parte Northumbria Police Authority , in which an ancient prerogative to maintain peace was recognised allowing the police services to carry batons and CS gas.
VI: Reform Of Prerogative Powers
The inclusion of prerogative powers within the British constitution has been a contentious issue that has circulated a number of years. In the 1990s, Labour MP Tony Benn campaigned for the abolition of the prerogative powers, stating that all power exercised by the government should be scrutinised by and directly accountable to Parliament. Although the campaign failed due to the fact that there would not be enough parliamentary time to scrutinise every use of prerogative powers in today’s political system, the issue has not reduced in importance.
A number of reports have focused directly on the issue of reforming the scrutiny of prerogative powers, culminating into one final report provided in October 2009 entitled ‘The Governance of Britain: Review of the Executive Royal Prerogative Powers: Final Report.’ The paper highlighted legislation that would change the way in which number of prerogative powers are exercised, powers that have been deemed to most significant in use today including the power to declare war. The majority of these reforms would involve the introduction of legislation to take the place of the prerogative power.
I am not entirely convinced that these reforms would have a great deal of effect on the current situation. The inclusion of prerogative powers provides the government with a great deal of flexibility. The transferring of the prerogative powers would curb this flexibility and in my view would not provide any more Parliamentary scrutiny than that already experienced. Any desire by the government to put prerogative powers on a statutory basis would be based on the want to increase the legitimacy of the use of these powers and thus give the impression that government is clearly subjected to the mandate of the people.
The prerogative powers, although created in a time greatly different from today, have evolved in purpose and the way in which they are exercised. I have highlighted many of the powers still in use today but have mainly concentrating on establishing the main forms of both Parliamentary and judicial scrutiny to which they are subjected.
At first glance, the mechanisms that are currently set in place seem to be very effective. If anything, the judicial mechanisms have strengthened with the introduction of the Human Rights Act. However, upon closer inspection, weaknesses can be found in the scrutiny methods employed by Parliament. As I proceeded to explore these weaknesses it was clear to see that they were not entirely specific to the scrutiny of prerogative powers. The weaknesses are flaws found within the political system in its entirety.
I am therefore unconvinced that greater scrutiny is required. The call for greater scrutiny stems not necessarily from a need to quash an abuse of power but instead from a desire to make every person who exercises such arbitrary powers as the prerogatives, as accountable as possible to Parliament and the courts. I do not believe that accountability is the main issue that must be tackled but instead increasing knowledge of the prerogative powers still in use today, the uses of such powers and the limitations. One way to achieve this would be to place the prerogative powers that are still in use toady, on a statutory basis, thereby providing a source to which any citizen, including MPs, could refer and at the same time would introduce an element of legitimacy to the use of prerogative powers.
Acts Of Parliament
Human Rights Act 1998
Bradley and Ewing, Constitutional and Administrative Law 14th Edn (Pearson Education Ltd, 2007)
Dicey, Introduction to the Study of the Law of the Constitution, 10th Edn (London:Macmillan, 1959)
B Hadfield, in Sunkin and Payne, The Nature of the Crown.
William Blackstone, Commentaries on the Laws of England, a facsimile of the first edition of 1765-1769 (University of Chicago Press, 1979) introduced by S.N.Katz, 111
Attorney-General v De Keyser’s Royal Hotel  AC 508
BBC v Johns  2 WLR 1071
Council of Civil Service Unions v Minister for the Civil Service  AC 374
Proclamations Case (1610) 12 Co Rep 74,
R v Secretary of State for Home Affairs, ex parte Northumbria Police Authority  2 WLR 590
Journals And Reports
Review of the Executive Royal Prerogative Powers: Final Report 2009 (Ministry of Justice)
Taming the Prerogative; Strengthening Ministerial Accountability to Parliament (HC422) July 04
Lucinda Maer and Oonagh Gay, The Royal Prerogative, 30 December 2009, SN/PC/03861