Monday, October 23, 2006

Royal Prerogative - Public Law

Royal prerogative is the constitutional inheritence from the centuries prior to the existence of parliament. It is a collection of powers which are wide ranging and in terms of strict law, it belongs to the Crown alone. Today the majority of these powers are exercised by the government of the day or by the judiciary in the name of the Crown.

Blackstone defines prerogative as "that special pre-eminence which the King hath over and above all other people..."

AV Dicey refers it to the "residue of discretionary power or arbitrary authority left in the hands of the Crown .."

Therefore, it can be seen that prerogatives are basically common law powers which are recognised by the court. These prerogative powers legitimise executive actions without the need for an Act of Parliament.

Blackstone separates the prerogative into areas realting to foreign affairs and domestic affairs. Foreign affair prerogatives can be subsumed as:
  1. The power to declare war or peace;
  2. Power to enter treaties;
  3. Recognition of foreign States;
  4. Diplomatic relations; &
  5. Disposition of armed forces overseas.
Within the domestic category falls:
  1. Summoning and the dissolution of Parliament;
  2. Appointment of ministers;
  3. Royal assent to Bills;
  4. Granting of honours;
  5. Defence of the realm;
  6. Protective jurisdiction (over children);
  7. Power to stop criminal prosecution;
  8. Granting of mercy and pardon;
  9. Regulation of the terms and conditions of civil service; and
  10. Rights to royal fish and swans.
The dissolution of Parliament lies within the prerogative of the Crown. The Crown has the right to disolve Parliament on its own initiative, and also the right to refuse a dissolution as requested by the Prime Minister.

The dismissal of His government by King William IV in 1835 reveals the constitutional danger of the exercise of monarchical power. The King misjudged the strength of public opinions against the government. Bahegot evaluates this situation and described it as the last precedent for royal onslaught on a ministry - they will leave a ministry trusted by Parliament to the judgement of Parliament. It is suggested that 'a Royal dissolution in our times will be unconstitutional' (Marshall, 1984). With parliamentary process of government functioning correctly, there should never be a situation arising in which an exercise of prerogative power by the Crown would become necessary.

In Divey view, a dissolution is allowable, or necessary, whenever the wishes of the legisture are, or may fairly be presumed to be, different from the wishes of the nation.

The UK constitution is founded on the idea of the Rule of Law which concerns the allocation of power and the control of its exercise.

The control of civil service is vested in the Crown. In reality, civil servants have no contractual relationship with the Crown as their salaries and benefits are prescribed by statute, but for the most part, the civil service is governed under the prerogatives.

Consistent with the doctrine of Parliamentary Sovereignty, Parliament has the right and power to abolish or preserve prerogative powerts. Parliament can through its scrutiny procedures call on the government to account for its exercise of the prerogative.

Parliament may declare certain former prerogative powers to be unlawful and place them firmly within parliament's power (example: The Bill of Rights 1689). However, unless the prerogative is expressly abolished, it will remain as a source of power but one which cannot be exercised while a statute regulating the same subject is in force.

In terms of judicial control, the courts have always taken the view that they are the arbiters of whether or not a prerogative power exists. The case of BBC v Johns (1965) makes it clear that no new prerogative can be extablished.

In the case of Laker Airways v Dept of Trade (1977), it was held by the court that a prerogative - in this case the treaty-making power - could not be used to defeat a right granted under an Act of Parliament.

Similarly, in R v Secretary of State for Home Dept ex parte Fire Brigade Union (1995), the House of Lords ruled that the Home Secretary had no power under the prerogative to amend the Criminal Injuries Compensation Scheme (which was set up under the prerogative), where an Act of Parliament provided for its amendment (eventhough the relevant provisions had not been brought into force).

As regard to Justiciability, the courts regard themselves as competent to review the existence of the prerogative. In the leading case of GCHQ, the House of Lords were unanimous in holding that prerogative powers are capable of judicial review in its exercise. The principles established in the GCHQ case is that (1) the courts had the jurisdiction to review prerogative acts in the same manner as under an Act of Parliament; and (2) the court would only review prerogative acts which do not involve matters of high policy best determined by the executives.

In conclusion, royal prerogative has been seen to be an elusive constitutional animal which is capable of appearing in any form and under any unforeseen circumstances. The case of Northrumbria Police Authority illustrate the fundamental difficulty of identifying and defining prerogative power.

It can be agreed that there is little to suggest that replacing such power by statute, even if they could be identified, would lead to fewer abuses of power. For this reason, the prerogative is unlikely to retain its uncertain form, thus leaving to government a residue of largely uncontrolled power.

1 comment:

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