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Published: Fri, 02 Feb 2018
What Are Prerogative Powers
“The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them.”
Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others  2 All ER 244
Giving examples, explain what is meant by “prerogative powers”. Critically evaluating Lord Browne-Wilkinson’s statement, discuss the relationship between prerogative powers and statute.
In order to perform their constitutional functions, the Government, personified by the Crown, need to have powers grounded in law, in accordance with the rule of law. These powers derive, inter alia, from common law in form of prerogatives powers (‘prerogatives’). This essay explains what is meant by “prerogative powers”, evaluates Lord Browne-Wilkinson’s statement and discusses the relationship between prerogative powers and statute.
The Royal prerogative was defined by Blackstone as “that special pre-eminence which the King hath over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity”. AV Dicey refers it to the “residue of discretionary power or arbitrary authority left in the hands of the Crown.” Thus, it can be seen that prerogatives are common law powers which are recognised by the court. More importantly, they legitimize executive actions without the need for an Act of Parliament.
Prerogative powers can be separated into areas relating to foreign affairs and domestic affairs. Foreign affair prerogatives can be subsumed under the power to declare war or peace, power to enter treaties, recognition of foreign States, diplomatic relations and disposition of armed forces overseas. Within the domestic category falls summoning and the dissolution of Parliament, appointment of ministers, royal assent to Bills, granting of honours, defence of the realm, protective jurisdiction (over children), power to stop criminal prosecution, granting of mercy and pardon, regulation of the terms and conditions of civil service and rights to royal fish and swans.
The UK constitution is founded on the ‘principle’ 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.
Lord Browne-Wilkinson states that unless the Parliament has expressly or by implication extinguished the prerogatives, they continue to exist. Certainly, there is evidence to support this argument. The Bill of Rights 1689 settled that Parliament could limit or abolish prerogatives, temporary suspend them by legislating in areas hitherto covered by prerogatives (Attorney General v De Keyser’s Royal Hotel Ltd  AC 508) or amplify them in the Act of Parliament (R v Secretary of State for Home Department, ex parte Northumbria Police Authority . Further, where there is a conflict between a prerogative and a statute, the latter prevails (De Keyser’s); this is in line with the constitutional principle of parliamentary supremacy (the right of Parliament to make or unmake any law, which cannot be overridden by any other body). Therefore, if the line of argument of parliamentary supremacy is to be followed then Parliament indeed is supreme, and prerogatives only exist to the extent that Parliament has not extinguished them. Further, in De Keyser’s Lord Atkinson suggested that if the statutory power was repealed in the future, it would be possible to act under the prerogative again, which demonstrates that prerogatives can be suspended. Thus if not repealed, they will remain in existence – thus supporting Lord Browne-Wilkinson’s view.
However, the case of R v Secretary of State for the Home Department, ex parte Northumbria Police Authority  illustrated that even though the Police Act 1964 gave police powers it did not exclude the Home Secretary using his prerogative powers. More importantly, it pointed to the fact that Parliament does not even have the right to know what the prerogative powers are. Thus, contrary to Lord Browne-Wilkinson’s statement how can Parliament extinguish prerogative powers when the realm of such powers is so vast that the range of governmental prerogatives poses a question whether there is sufficient constitutional control over the use thereof? For example, Brazier points out that the list of prerogatives is not definitive and not always clear, thus undermining a key constitutional principle-the rule of law. Although, ministers are accountable to Parliament for the use of prerogative powers they are only accountable after the event. Thus, highlighting that prerogative powers are still an important tool which can be used by ministers without much restraint.
In conclusion, it is true that prerogatives can be abolished, limited, suspended or supplemented by Parliament thus in agreement with Lord Browne Wilkinson’s statement. However, it is important to remember that despite attempts to regulate the usage of prerogative powers they still remain an important source of the UK constitution.
Word count 743
B) Assume that, in the light of a terrorist threat to the UK posed by the state of Mythia, the UK’s Secretary of State for Defence (‘the Defence Secretary’) has decided, against the advice of his senior military advisers, to place armed troops on the streets of major UK cities. The Defence Secretary states that he is using prerogative powers relating to defence of the realm. However, campaign groups are considering whether they can launch a legal challenge to the Defence Secretary’s decision.
(i) Explain the extent to which the exercise of prerogative powers is subject to review by the courts, and consider whether the present exercise of such powers by the Defence Secretary is likely to be reviewable.
The traditional view was that the courts could not create nor question how a prerogative power had been exercised. Although, the courts have the capacity to establish whether a prerogative existed, its scope and extent (Burma Oil v Lord Advocate). In Laker Airways ltd v Department of Trade  QB 643 Lord Denning stated that “the law can (..) intervene if the discretion [under prerogative] is exercised improperly or mistakenly”.
Today, the courts are nowadays able to scrutinize the manner in which such powers are exercised. One route is through an action under the Human Rights Act 1998 which provides a mechanism whereby an aggrieved person may challenge an act or omission of the executive in the UK courts. The other main route is through the mechanism of judicial review, it was established in Council of Civil Service Unions v Minister for the Civil Service  1 AC 374 (GCHQ) that the exercise of prerogative power can be subject to judicial review and courts would only review prerogative acts which do not involve matters of high policy best determined by the executives.
The Defence Secretary is a member of the executive, thus empowered to use prerogative powers. The grounds he is using (the defence of the realm) are non-justiciable (GCHQ). In Council of Civil Service Unions v. Minister for the Civil Service their Lordships required that the evidence that national security was an issue be presented. Therefore, as long as the Defence Secretary can satisfy this requirement, the courts will abdicate the judicial function. Moreover, in R v Ministry of Defence, ex parte Smith Brown LJ stated: “beyond the court’s purview [are] only cases involving national security properly so-called” – matters “touching on the defence of the realm” and involving determination “whether… the armed forces [should be] disposed of in particular manner”. It seems that the Defence Secretary acted within his prerogative powers, provided that there is no Act of Parliament which overlaps the said prerogative. Had this been the case, the Defence Secretary would not be able to rely on the prerogative, he would have to exercise the powers conferred on him by the statute (De Keyser’s). Only then would his actions be subject to judicial review.
Therefore, the Defence Secretary’s exercise of the said prerogative powers will not be subjected to judicial review as it concerns national security, a non-justiciable sphere of prerogative powers.
The UK government subsequently decides to introduce new legislation in Parliament to respond to the terrorist threat. The relevant Bill begins its parliamentary stages in the House of Commons. However, the Home Secretary is opposed to the Bill, as are a majority in the House of Lords.
(ii) Explain what steps (if any) the Home Secretary and the House of Lords respectively could take to try to prevent the Bill from becoming law.
Under the constitutional convention of collective ministerial responsibility, ministers must abide by the unanimity rule: “the government is united and speaks with one single voice” (Marshall). The Ministerial Code, paragraphs 2.1-2.3 specifically imposes this principle on ministers. If a minister disagrees with governmental policy, he may either resign and criticize that policy or accept the policy and support it publicly, through votes and speeches (Attorney-General v. Jonathan Cape Ltd  QB 752). Therefore, there is nothing that the Home Secretary could do to stop the Bill – even if he resigned and criticized the Bill publicly, he is unlikely to influence the process of the Bill becoming law
The House of Lords (Lords) can scrutinize the Bill and highlight any areas which they have any concerns with. The Lords has a small degree of residual power to amend or reject the bill passed by the House of Commons (Commons). However, the power to prevent the Bill from becoming law is severely restricted by the Parliament Acts of 1911 and 1949. Under these Acts, certain types of bills may be presented for the Royal Assent without the consent of the Lords. That is to say, the Commons may, as a result of these Acts, override a veto by the Lords in certain instances. In addition, the Lords is prohibited under these Acts from delaying a money bill (i.e. a bill which, in the view of the Speaker of the Commons, solely concerns national taxation or public funds) for more than one month. Moreover, other public bills may not be delayed by the Lords for more than two parliamentary sessions, or one calendar year.
Thus, it will be unlikely that the Lords would be able to prevent the Bill from becoming law. Although, they can ensure it receives greater scrutiny by returning it to the Commons.
The Bill is passed by the House of Commons. Following last-minute political negotiations, it is also passed by the House of Lords. However, the Queen expresses (via her Private Secretary) her disquiet about the Bill and the circumstances in which it was passed, and is considering withholding Royal Assent to it.
(iii) Advise the Queen’s Private Secretary as to the Queen’s constitutional position, in particular as to whether she can withhold Royal Assent to the Bill and whether any decision by her to do so could be open to legal challenge.
In the United Kingdom the Royal Assent is a constitutional convention whereby assent to legislation is granted by the Sovereign. Once a bill is presented the Queen has three formal options. Firstly, She may grant the Royal Assent, thereby making the bill an Act of Parliament. Secondly, the Queen may withhold the Royal Assent, thereby vetoing the bill although this has only been exercised once in 1708. It remains, however as one of the reserve powers of the monarch. Finally, the Sovereign may reserve the Royal Assent; that is to say, defer a decision on the bill until a later time.
Under modern constitutional conventions, the Queen acts on the advice of her ministers. Since these ministers most often maintain the support of Parliament and are the ones who obtain the passage of bills, it is highly improbable that they would advise the Queen to withhold Assent. An exception is sometimes stated to be if Bills are not passed in good faith, though it has been difficult to make an interpretation on what this might constitute.
If it can be proved that this Bill was not passed in good faith the Queen could withhold Royal Assent.
Legally then, the Queen can refuse the Royal Assent although by convention she confers her assent to Bills presented to her. If the Queen decided to withhold her assent, the courts would not be able to enforce the grant of Royal Assent. She would act morally unconstitutionally, but not illegally. If such situation recurred over a period of time, the convention that the Queen grants Royal Assent to the Bills would disappear as being not followed.
Word count Part A 743 Part B 972
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