Increased Parliamentary And Judicial Scrutiny
"Prerogative powers remain an important element of the United Kingdom's constitution. Should they be subject to greater Parliamentary and judicial scrutiny?" Discuss.
Introduction: Definition and nature of the prerogative
According to Dicey, the prerogative is merely ‘’the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’’  . In other words the prerogative power is the exclusive right, power or authority that is given to an individual or a particular group by the government or state. The powers may be exercised by the King himself or his Ministers and the court recognises the royal prerogative as part of the common law. The nature of the prerogative is summarised by the following three categories  :
Monarch’s constitutional prerogatives:
The right to appoint and dismiss a Prime Minister and other Ministers
The right to dissolve Parliament
The right to give assent or dissent to bills
Legal prerogatives of the Crown:
The Crown is not bound by statute except when it is expressed by words
Issuing and withdrawing passports
Appointment of the Queen’s Counsel
Making and sustaining peace
Making and endorsing treaties
The History of the Royal Prerogative
In the 17th century prerogative powers were heavily relied upon by Stuart Kings  as they tried to govern the country or state without the need to seek the Parliament’s approval or consent. The Stuart Kings’ attempt to establish independence from the Parliament encouraged similar developments in other European countries where rules were recognized by absolute monarchies. In the year 1689 the Bill of Rights established that parliamentary sanction was necessary to maintain a standing army and for the power of taxation. It allowed the Parliament to also take part in the exercise of certain prerogative powers.
Reasons to increase Parliamentary scrutiny
In the year 2003 Tony Blair made use of the prerogative power as the Prime Minister of Britain and declared war with Iraq without acquiring parliamentary approval prior to his declaration  . According to the article ‘’Blair's power to go to war comes under assault on two fronts’’  the Prime Minister can use the royal prerogative to declare war with another country and he/she is not at all obliged to discuss the decision with the Parliament. Declaring war is a prerogative power that falls under the category of foreign affairs. The decision of going to war is a very important one for any country and historically the sovereign had the privilege and the power to declare war. However over time the power was progressively shifted to the Prime Minister and the House of Lords Constitution Committee has expressed concern regarding this matter. They aim to hold an inquiry and try to persuade Tony Blair so that he gives Parliament the final say on whether or not Britain should send troops to go into battle. The issue of the article highlights the fact that a decision as crucial as the declaration of war should certainly be discussed and evaluated by a larger population than simply by the Prime Minister and his/her Ministers and therefore greater Parliamentary scrutiny is vital and necessary.
Currently parliamentary involvement is very much limited regarding the deployment of armed or military forces. One of the main concerns of the parliament’s limited involvement in this matter is legitimacy  . The concerns regarding legitimacy are about the exercise of the prerogative powers and their source of authority. Lord Lester found it unusual that the Crown was able to exercise prerogative powers without Parliamentary approval simply based on medieval notions of Kings practicing these powers to govern the state while the parliament was completely deprived of voicing their opinions with regards to the decisions taken by the Kings. Intellectuals like Mr Sebastian Payne and Professor McEldowney expressed their complete accordance with this viewpoint by saying that ‘’Parliament should be the source of Government’s power’’.
It has also been mentioned that if parliamentary involvement in the decision-making process is increased then it would lead to better decisions because they will then be better prepared and more considered, that too by a larger group of people. It will also be a more democratic decision due to the fact that the whole House of Commons is taking part in the process. A decision regarding the deployment power is considered to be taken in a ‘’vacuum’’ if the Prime Minister is the only one behind the decision. Therefore if the decision was thoroughly scrutinised then it would be more thought through and there would be less scope of mistakes and errors. This would be advantageous for those who are associated with the outcome of the decision because a slight mistake in the decision regarding the deployment of armed/military forces could be gravely hazardous.
According to Rt Hon Lord Hurd  of Westwell ‘’any major military action should have explicit parliamentary approval’’. He said that individuals of a country going to war with another country is a major decision as it involves the individuals killing and being killed on behalf of the country. This grants on them a huge responsibility and also a huge risk which has an impact on their lives, families and the whole nation to which the individuals belong to. The decision of killing and the possibility of being killed in the process is a crucial decision that gets imposed upon individuals. It may be the most important act they carry out in their lives and that demands scrutiny by the whole of the House of Commons. The use of military force also enables and authorises individuals to make use of lethal forces and weapons against others. Parliament has the right to know when and where these forces are being used and give their opinions when such a decision is made. Therefore such government decision should be backed up by very strong authority, namely the House of Parliament and they should be allowed to exercise greater scrutiny.
Ministers use prerogative powers to grant and revoke passports. However Lord Lester highlighted that one of the most fundamental Human Rights is the right to movement (article 13 (1))  and that it is not usual for this right to be exclusively subject to prerogative powers and beyond the parliament’s reach. Therefore the right to grant and revoke passports should certainly be subject to greater parliamentary scrutiny because that will then enable better judgement due to the greater number of people involved in the decision-making process.
Reasons to increase Judicial scrutiny
The Prerogative of mercy is one of the prerogative powers exercised by the Crown or the government. It is a vital prerogative power which is provides a ‘’safety net’’ in the criminal justice system to those convicts who feel that the accusation against them is false and unjust. They can then file a petition to the Crown itself and request relief or pardon from the Crown after which the Governor-General can take one of any three of the following decisions:
Simply pardon or forgive the offender in question
Grant delay or reduce the sentence that has been given
Give reference of either the entire case or just part of it to the Court for further review
This prerogative power is only applied or sought after when all other court hearings and appeals have been tried and only if those trials have shown unsatisfactory results. The prerogative power of mercy was absolute however gradually it became subject to judicial scrutiny  . This portrays a positive event in the UK constitution as it would have been highly significant for a prerogative power such as the power of pardon or mercy to be exposed to judicial scrutiny. This is because judicial scrutiny refers to severe analysis of the prerogative powers by the courts and the pardon or mercy would only arise if there is a significant change to the previous trial  . These changes include the following:
If an important witness has decided to change their statement
If there are scientific discoveries that challenge the evidence already submitted
If there is a new witness
Therefore the court’s judgement and contribution are fundamental when these new proofs or witnesses are presented so that they can be evaluated and scrutinized with the previous time. This would enable judges and the court system to come up with more effective results if they can view the facts from both times. It is after all the duty of a judge to deduce and come up with the correct decision of a case. Hence greater judicial scrutiny is vital when it comes to exercising the prerogative of mercy.
In Chandler v DPP  A.C. 763 the appellants were members of a committee namely ‘’Committee of 100’’. Their main aim was to promote the purpose of the ‘’Campaign for Nuclear Disarmament via non-violent demonstrations of civil disobedience’’. They did this by taking part in a demonstration that was held on the 9th of December 1961. They planned that on that very day some of the members would occupy a position outside the entrance to the Wethersfield Airfield (a ‘’prohibited place’’ under section 3 of the Official Secrets Act 1911  ) and would sit there for five straight hours which would prevent viewers from entering the airfield. Meanwhile other members of the committee would actually enter the airfield and sit in front of the aircraft which would ultimately prevent the aircraft from being able to take off. They wanted to reclaim the base for purposes of the civilians’. The appellants were convicted for conspiracy and that they committed a breach of section 1 of the Official Secrets Act 1911 as they have entered a ‘’prohibited place’’. The prosecution witness gave evidence that the members entered the prohibited airfield and prevented the aircraft to take off. This hampered the safety and interests of the State and hence they have been convicted. Lord Devlin in his judgement stated that the true purpose of this demonstration by the members of the ‘’Committee of 100’’ was to ban the use of nuclear weapons by the country. Lord Devlin pointed out that according to the section 1 of the Official Secrets Act 1911 there would be penalties for spying ‘’If any person for any purpose prejudicial to the safety or interests of the State’’. However the demonstration organised by this committee proves to be highly beneficial for the state and contrary to causing detriments to the ‘’safety or interests of the State’’ the committee is trying to prevent the use of a lethal weapon and promote safety. Lord Devlin admitted that the Crown had the authority to exercise the orerogative powers that enabled it to control and operate armed forces, however he also emphasized that in this case ‘’the prerogative and the position of the Crown are completely irrelevant’’. Therefore as per Lord Devlin, it was wrong to convict these members and hence the courts should be authorised to intervene in matters where there has been an abuse of prerogative power and rectify the situation. This case proves the importance of judicial scrutiny and that it should be further exercised when certain situations arise.
Detriments of increased Parliamentary and judicial scrutiny
Along with the myriad reasons supporting greater parliamentary and judicial scrutiny there are some reasons which state the contrary. Former Labour MP Tony Benn campaigned for the eradication of the Royal Prerogative and for the notion that prerogative powers that are exercised by the Prime Minister and the cabinet (which includes the Ministers) should be subject to Parliamentary scrutiny and should seek the approval of the democratically elected Members of Parliament. Unfortunately his attempts were not successful as the government rejected his campaign arguing that the sheer volume of topics covered by the Royal Prerogative would undoubtedly overwhelm and engulf the parliament. It would be time consuming thus would also slow the performance and sanctioning of legislation if the approval of parliament members were required every time the prerogative was used  . This reasoning to suppress and quash Tony Benn’s attempts makes sense as it would be hectic to consult the Parliament every time a decision was to be taken concerning the Royal Prerogative. This may even weaken the Parliament’s role in other important areas and may reduce its capability to carry out its other important tasks.
It has been well established that ‘’new prerogative powers cannot be invented’’  and therefore those that already exist should be well scrutinised before they are implied in order to be effective. Greater parliamentary and judicial scrutiny will improve the state in more ways than one. It will result in fair and just judgements of cases where the use of the prerogative powers have been exploited, those involved in the military will have more thought through decisions imposed on them as the risk they are taking is immense. Furthermore it will improve the decision-making process of the state as the Crown and the government will collaborate with the democratically elected parliament and the courts. This will result solely on the well-being of the state and the people.
‘’Blair's power to go to war comes under assault on two fronts’’- http://www.timesonline.co.uk/tol/news/uk/article554368.ece
Judicial Review of the Power of Pardon-http://www.legalserviceindia.com/article/l165-Power-of-Pardon.html
Elizabeth Giussani, Constitutional and Administrative Law 1st edn, Thomas, Sweet & Maxwell 2008
Chandler v DPP  A.C. 763