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Royal Prerogative Along With Statute Law
The prerogative powers of the crown or ‘Royal Prerogative’ along with statute law, is a source of executive power. Once reserved only for the reigning monarch it is now exercised mainly by government ministers or by the Queen via advice from her ministers which she is constitutionally obliged to follow.
In domestic matters the prerogative now extends to areas such as the dissolution of parliament, the calling of elections, the appointment and dismissal of ministers and the issuing and withdrawal of passports. In foreign affairs it extends to the declaration of war, the making and ratifying of treaties and the recognition of foreign states.
Dicey described prerogative powers as ‘the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown’. The Diceyan view is that the prerogative is no more than the remaining arbitrary powers of the crowns historical authority.
The remaining powers have a hugely significant constitutional importance particularly in such areas as the deployment of armed forces both within and outside the UK and the declaration of war. Decisions can be made by ministers without necessarily having the backing of parliament and there have been calls to bring all such powers with statute.
The arbitrary powers of the crown were considered as far back as The Case of Proclamations (1611) 12 Co Rep 74 when the Chief Justice Lord Coke considering a proclamation issued by the King concluded that the prerogative could not create new offences and that the King’s prerogative was determined by the laws of the land.
It is now well established that the doctrine of parliamentary supremacy dictates that parliament is the supreme law making body and legislation cannot be overridden by any other body. The prerogative by that definition therefore exists until such time as parliament removes it. As legislation increases and overlaps prerogative powers, the latter become ineffective in so much as it suspended or abolished. It can also be the case that statute and the prerogative power run hand in hand.
Landmark cases concerning the overlap of the prerogative and statute include Attorney-General v De Keyser’s Royal Hotel Ltd  AC 508 in which Lord Dunedin stated: "if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules." The court decided that the act temporarily suspended the prerogative power. There was no express indication that the act should abolish the prerogative.
In R v Secretary of State for the Home Office, ex parte Northumbria Police Authority  QB 26 the court found that the Home Secretary’s prerogative powers in defence of the realm had not been suspended by the Police Act 1964. The Home Secretary could use his prerogative power or statute and this instance the statute and prerogative supplemented each other.
In the case of R v Secretary for the Home Department, ex parte Fire Brigade Union  2 AC 513 the argument was on the basis of an Act passed but not yet put in force. In a money saving exercise the Home Secretary decided to re-introduce a non-statutory scheme without the Act having been repealed by parliament. The court found this to be unlawful and an abuse of prerogative power. It was not within the powers of the Home secretary to exercise prerogative powers that frustrated the will of parliament. Accordingly the Act suspended the prerogative power.
In 2008 the Labour government brought out a Green Paper entitled the ‘Governance of Britain’ to look into constitutional reforms that included consideration of codifying executive powers and putting them on a statutory basis. Reasons presented for this change were to ‘clarify the role of government, both central and local’ and to ‘rebalance the power between government and parliament’. The remaining arbitrary powers of the crown will become less and less if all the policies come into force.
The extent to which prerogative powers are subject to review by the courts can be traced as far back as 1611 in the Case of Proclamations. Here parliament objected to a proclamation issued by the King. The proclamation was considered by the Chief Justice who declared that the King had no power to create new offences and that the prerogative was limited by common law.
In Council of the Civil Service Unions v Minister for the Civil Service  AC 374 the case centred around the Prime Minister’s right to restrict membership of the GCHQ civil servants to a belong to a trade union. An order was made under the Royal Prerogative. The Council of the Civil Service Unions who had previously been consulted on such decisions applied for judicial review, seeking a declaration that the Ministers had acted unfairly ignoring the long established practice to consultation.
The House of Lords held that the courts could review the source of power no matter whether it came from statute or common law so long as the matter was justiciable. Lord Roskill gave examples of prerogative powers not disposed to judicial review such as ‘the making of treaties, the defence of the realm, the dissolution of parliament and the appointment of ministers as well as others’. Their Lordships stated that once they were satisfied that the minister had in fact provided evidence that national security issues had at least been taken in to consideration in coming to her decision, it was up to those responsible for national security to judge what national security requires.
On this basis the courts decided that the government were within their rights in restricting membership of a trade union.
From the scenario presented, as in Council of the Civil Service Unions v Minister for the Civil Service the prerogative could be subject to review by the courts as prerogative powers can be challenged. Whether the matter is justiciable would depend on if it fell into a justiciable category. National security is not such a category unless the decision by the defence secretary outweighs the terrorist threat to the UK and that minister can provide evidence of this. It would appear that his senior military advisors advised against the action he took and therefore the decision by the defence secretary would be open to judicial review.
The Home Secretary, whilst not agreeing with the bill could not prevent the bill becoming law. The Home secretary is bound by the convention of collective responsibility. One of the principles of this convention is that ministers must not publicly criticise government policy. The Home Secretary, whilst not supporting the bill, would not want to speak out against it as this would leave him open to having to tender his resignation.
The relevant Bill is formally introduce into the House of Commons and would continue through the second reading, committee stage and third reading where it would be passed to the House of Lords. The bill then goes through all the stages as it did in the commons. If the Bill was rejected it would be sent back to the Commons. Here it would be amended if necessary and returned to the House of Lords. If rejected for the second time by the House of Lords the bill would be presented to the Queen for Royal Assent and would become law. The Parliament Act 1911 amended by the Parliament Act 1949 prevents the Lords from blocking a bill indefinitely but allows them to delay a none money bill for a year.
The House of Lords are an unelected house and therefore do not have the right to defeat the will of the commons. Legislation introduced in response to the terrorist threat would prevail albeit delayed for a year.
The Monarch’s position is constitutional and therefore apolitical. Where bills have been passed by both house of parliament the queen should be impartial and giving assent should be a formality. Although there was some initial resistance from the Lords they have now passed the bill and for all attempts and purposes the bill has the backing of both houses. For the Queen to go against the will of parliament is overstepping her constitutional role in this area. Convention dictates that the Monarch assents to bills passed by both houses of parliament and not to assent would create a major constitutional crisis. Not since 1708 has a Monarch refused to assent to a bill and the implications for both the political scene and the Monarch could be huge.
By refusing assent would bring the Queen into the forefront of politics and would imply that she has no confidence in the present government. This could lead to the free-fall of the present government culminating in a general election. As the Queen at this point has shown her intentions to step outside convention another government could bring in changes to remove the prerogative in at least this area if not more areas in fear that the Queen may well decide in the future to use the prerogative in future against the will of the elected parliament in an attempt to build up the once held arbitrary powers associated with the Monarchy.
The assent to parliamentary bills by the Queen is governed by convention and not by legal rules and so the decision not to assent would not be open to legal challenge however this issue may be insignificant relative to the fallout from the constitutional crisis.
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