Prerogative powers or the royal prerogative
Prerogative powers or the royal prerogative are defined by A.V. Dicey as being “…the remaining portion of the Crown's original authority, and it is therefore… the name for 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”. Today, there are still many prerogative powers available to ministers and the Monarch, and these powers are often exercised without restraint and in controversial situations. I believe that prerogative powers are still important, and that they are not subject to tough enough Parliamentary and judicial scrutiny, and I will support this by examining the available prerogative powers and their usage as well as the limited restraints from Parliament and the judiciary on their use.
History Of Prerogative Powers:
Formally in the United Kingdom, executive power is vested in the Crown, however in reality this is not the case. Traditionally this was the stance in the UK, however in modern times the most important prerogative powers are available only to the Prime Minister and other cabinet ministers. However the Monarch still has some personal prerogative powers at their disposal, but these are now mostly carried out on the advice of the Prime Minister.
Main Prerogative Powers:
When looking at domestic affairs, the personal prerogative powers of the Monarch include immunity from taxation (although since 1993 Queen Elizabeth II has voluntarily paid taxes on her private income); immunity from prosecution; appointment of honours; appointment of the Prime Minister; dismissal of government; dissolution of Parliament and granting the Royal Assent. However some powers are merely formalities and the Monarch has to follow convention in their exercise whilst other powers are exercised on the advice of the Prime Minister. As Bagehot put it, the Monarch still has: “the right to be consulted, the right to encourage and the right to warn” in terms of the powers available to the Monarch towards their government. The prerogative powers of the ministerial executive include the power of pardon; the Crown not being bound by statue unless the statue implicitly states otherwise; the Crown being the preferred creditor; the power to issue passports, and to regulate the civil service. Looking at foreign affairs, prerogative powers include the power to conclude treaties and to declare and conduct war. New prerogative powers cannot be created today, however an existing power can be applied to a new circumstance. The vast array and scope of these powers, and the fact that these powers are often exercised with limited Parliamentary and judicial scrutiny (explored below) confirm that prerogative powers are still an important part of the United Kingdom's constitution.
Parliamentary Scrutiny Of Prerogative Powers:
Currently, Parliamentary scrutiny of the exercise of prerogative powers is weak. I will explain how and why this happens, and describe to what extend scrutiny takes place.
Some have described the power to declare and conduct war as “the most significant of the prerogative powers”, yet this power remains exclusively in the hands of the Prime Minister and the cabinet, as the Monarch is the commander-in-chief of the armed forces.; although since the Bill of Rights 1689 the consent of Parliament is required for the maintenance of the armed forces during times of peace., In theory there is no limitation on the executive in deploying the armed forces, however in practice Parliament would be consulted as occurred with the invasion of Iraq in 2003, yet many MPs including William Hague expressed that he felt the vote had been given “as a kind act of generosity by the Government”. Thus in theory there could be no scrutiny by Parliament in the event of going to war, even though it could involve thousands in the armed forces and be paid for using taxpayers' money.
The signing of foreign treaties is another prerogative power available to the executive. Parliament is required to ratify signed treaties, however only treaties which change UK law have to be debated by Parliament. This gives Parliament no ability to carry out scrutiny when it comes to treaties which do not amend UK law, even though they may be important treaties with other countries or supra-national organisations.
Prerogative powers allow ministers to manage the civil service and gives them the ability to create primary legislation under the prerogative by an Order-in-Council. No statute is needed to give this legislation authority, although an act of Parliament can override it as confirmed in Council of Civil Service Unions v. Minister for the Civil Service. Legislation made by ministers in this way, although rarely done, does not allow Parliament to scrutinise what has been made into law, and it allows ministers to circumvent Parliament thus making the executive more powerful than the legislature.
The power to cede British territory and to alter and declare the limits of British territorial waters is another set of prerogative powers available to the executive without the scrutiny of Parliament. Although since the Island of Rockall Act 1972 it is unlikely that the Crown would cede British territory without the approval of Parliament the option is still available. Furthermore, even though most prerogative powers concerned with immigration have now been exercised under the Immigration Act 1971, the issue and revocation of passports is still based on the prerogative. Hence Parliament play no part in the scrutiny of who is restrained from leaving the United Kingdom and who is recalled back from abroad during times of peace, even though this interferes with the individuals autonomy and the justification given for doing this may not be sound.
The Monarch has retained the prerogative powers of honours and appointments; this allows them to important appointments such as that for ministers, judges, the civil service and other important public appointments. The power of giving honours such as peerages and other political honours such as knighthoods is also at the disposal of the Monarch. These appointments and honours are given on the advice of the Prime Minister, and although the House of Lords Appointments Commission advises the Prime Minister on peerages, there is no opportunity for Parliamentary scrutiny in the exercise of this prerogative power. This means that in some cases the Prime Minister can virtually appoint who he sees fit, and Parliament has no chance to scrutinise the people who have been appointed in important public office positions, which means that people are put into positions of great power without a full scrutiny by the democratically elected representatives of the people they are about to serve. Furthermore having this prerogative power may lead to corruption - as what was uncovered in the Cash for Honours scandal in 2006 and 2007, where it emerged that political parties had been offering peerages in exchange for donations and loans. It is likely situations such as this would not have occurred had Parliamentary scrutiny been allowed.
It seems farcical to say that in a democracy it is acceptable that only a Prime Minister and his ministers can decide some matters of great importance at the expense of a full debate by the elected representatives of the electorate. It is sufficient to say that there is weak Parliamentary scrutiny of the exercise of prerogative powers, and this seems unfair and unjust as it appears to be an almost legal loophole which allows a select group of people to circumvent Parliament and avoid a democratic debates on what could be very controversial issues.
Judicial Scrutiny Of Prerogative Powers:
Judicial scrutiny of the usage of prerogative powers is relatively frequent compared to the opportunities for Parliamentary sovereignty. However the majority of the time, the courts seem to stick to the conditions and powers outline in the United Kingdom constitution and agree with the Crown on its usage of prerogative powers. Hence there tends to be weak scrutiny; I will analyse how any why this comes about and how much scrutiny actually occurs.
Firstly looking at the extent of prerogative powers - as I said above, new prerogative powers cannot be created, but existing ones can be applied to new cases. In the case of R v. Secretary of State for Home Affairs, ex p Northumbria Police Authority it was held by the Court of Appeal that the Home Secretary retained the power of an ancient prerogative to keep the peace even in times of non-emergency. Judicial scrutiny was weak here probably because the court was reluctant to get involved in the controversial subject of police powers.
A statute is the highest form of law and it can abolish a prerogative power. Judicial scrutiny on this matter occurred early in the 20th century in the case of AG v. De Keyser's Royal Hotel whereby the Lord Dunedin said that “...if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules”. This decision confirmed the previous statement I made, and showed that using greater powers of scrutiny can limit the power of the government.
However in more recent times the judiciary has been reluctant to heavily scrutinise the prerogative powers of the Crown, and the House of Lords especially tends to rule in favour of the government. The case of R (Bancoult) v. Secretary of State for Foreign Affairs was a highly controversial one. The background to this case was that in 2004 Orders-in-Council were used to overturn a decision which stated that the exile of the indigenous people who lived in a British Indian Ocean Territory was unlawful, only for the High Court and subsequently the Court of Appeal to rule that the orders-in-council were unlawful. The case was then appeal to the Lords who ruled that actions of the ministers were legal as they were prerogative powers. The numerous different judgments and appeals in this case demonstrate that the courts do have some powers of judicial scrutiny, however the Lords are less enthusiastic about performing a detailed analysis and would rather follow the existing constitution and the prerogative powers set out in it.
The landmark decision in deciding the manner of exercise of a prerogative power arose from Council for Civil Service Unions v. Minister for the Civil Service in which the Lords ruled that the exercise of prerogative powers was not enough to make the minister immune from judicial review, nor did it allow them depart from their duty to act fairly. The decision in this case shows the greater usage and power of judicial scrutiny, which thus make sure that decisions taken using prerogative powers are still fair and do not allow the executive too wield too much power in an uncontrolled manner. In this particular case however, national security concerns outweighed fairness. Interestingly, the decision in this case affirmed Lord Denning's belief that he had outlined in Laker Airways Ltd v. Department of Trade where he had argued that if the prerogative power exercised had been done so improperly or mistakenly so as to impinge unjustly on the legitimate rights or interests of the subject, then the court must intervene.
Judicial scrutiny of prerogative powers doesn't seem to be as weak as Parliamentary scrutiny, but this does not mean that the level of scrutiny is thorough. The higher courts especially seem reluctant to challenge the traditional view of prerogative powers as laid out in the United Kingdom's constitution. This again allows a select group of people to have a lot of power which they can exercise unchecked by the judiciary which is impartial, neutral and makes sure that the law is fair. Although in recent times judiciary scrutiny has improved due to the implementation of the Human Rights Act 1998, this has allowed the courts to decide whether orders-in-council are compatible with convention rights. However this still means that the exercise of prerogative powers which do not concern human rights have minimal scrutiny, and courts which want to stick closely to the constitution in the exercise of prerogative powers will often (metaphorically) bend the orders-in-council to make them appear compatible with convention rights. Furthermore, judicial scrutiny is weak even with human rights issues when national security is cited by the Crown, as looked at above.
Reforms in the way prerogative powers are exercised and changes in the powers available to Parliament and the judiciary can strengthen the scrutiny of prerogative powers. Firstly I would advocate that Parliament through committees should have a right to scrutinise any actions by ministers and the Prime Ministers exercised under their prerogative powers, and if need be call upon the issue to be debated by the full house. The ideal would be that prerogative powers are removed and the powers are dealt with through statute instead, but this is unlikely to happen. Secondly, even though human rights legislation has provided the judiciary more reason to thoroughly scrutinise, their power of scrutiny should be strengthened through changing the judiciary to make it more pragmatic, hence making the judiciary more able to challenge the executive and tackle controversial political issues rather than shy away from making these decisions. In practice however, giving more power to Parliament to scrutinise may not actually affect the way prerogative powers are exercised due to MPs following party lines and the government having a majority - this is described by Hailsham as an “elective dictatorship”.
I have come to the conclusion that prerogative powers do remain an important part of the United Kingdom's constitution due to their continued use, and because of the amount of power which can be exerted by exercising prerogative powers. Parliamentary and judicial scrutiny of prerogative powers is weak, but in a modern democracy prerogative powers should be subject to greater Parliamentary scrutiny so that the will of the people can be followed in their exercise; and they should be subject to greater judicial scrutiny by a neutral and impartial judiciary who can make sure they are being exercised fairly.
Introduction to the Study of the Law of the Constitution, A.V. Dicey, 10th edition, 1959
The English Constitution, Walter Bagehot, 1867
Constitutional and Administrative Law, A.W. Bradley and K.D. Ewing, 14th edition, Pearson Education Limited, 2007
Council of Civil Service Unions v. Minister for the Civil Service  A.C. 374
R v. Secretary of State for Home Affairs, ex p Northumbria Police Authority  2 All E.R. 244
R (Bancoult) v. Secretary of State for Foreign Affairs  Q.B. 1067
Council for Civil Service Unions v. Minister for the Civil Service  A.C. 374
Laker Airways Ltd v. Department of Trade  Q.B. 643
AG v. De Keyser's Royal Hotel  A.C. 508
Bill of Rights 1689
Island of Rockall Act 1972
Immigration Act 1971
Human Rights Act 1998
Q&A: Cash-for-honours, BBC News, July 2007, http://news.bbc.co.uk/1/hi/4812822.stm
House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 422), Fourth Report of Session 2003-04
The Listener, 1976