The Royal Prerogative: Undemocratic Or Subject To Scrutiny And Control?

Definition of Royal Prerogative

The royal prerogative is undemocratic as it allows ministers to exercise governmental powers without the consent of Parliament.’ Discuss

The concept of Royal prerogative is very difficult to define adequately. Still it can be defined as the remaining part of the original authority of the Crown and therefore, this term is used for the rest of the discretionary powers left with the Crown, regardless of the fact if such powers are used by the King or by his Ministers. At this point, it needs to be mentioned that ‘Crown’ has not been used for referring to the monarch, who uses personal prerogatives, but it also refers to the central government or in other words the Ministers who use the executive prerogatives in the name of the Crown. There are numerous significant matters that are done by the Ministers by using the executive prerogative powers. First of all, while conducting the foreign affairs, which include recognition of States, appointment of ambassadors and the relationship between the UK government and the governments of other countries, the ministers use these prerogative powers. In the same way, the Ministers also have the responsibility to make and ratify the treaties. The stages have a significant impact on the rights enjoyed by the citizens for example the treaties related with the European Union. In the same way, the government may also control, organize and deploy the military of the country by using these prerogative powers. In the same way, the Prime Minister may also use these prerogative powers for the purpose of appointing Ministers, senior judges and civil servants.

At the same time, the Constitutional Reform and Governance Bill provides the statutory basis for managing the civil services by the Minister when it mentions that the Minister for Civil Services enjoys the authority of managing the civil services (apart from the diplomatic service), still the prerogative powers may be present in this area without any inconsistency. For example in R v Secretary of State for the Home Department, ex parte Northumbria Police Authority the police force was provided with plastic baton rounds and CS gas the Home Secretary without the consent of the local police Authority. In this regard, the Court came to the conclusion that as in this case, the prerogative has been exercised for the subjects, the supply of weapons has been made “to do everything that is reasonably necessary for keeping the Queen’s peace”. However there is a difference between executive prerogative and personal prerogative. The personal prerogative is exercised only by the monarch and not by the Ministers.

Examples of Powers Exercised by Ministers

On the other hand, the executive prerogative powers are generally exercised by the Ministers either on behalf of the Crown or in their own right. In this way, the executive prerogative powers are the set of powers that is generally subjected to debate and scrutiny. Some of the well-known examples of the executive prerogative powers include the deployment of armed forces overseas and the declaration of war. Another example of these powers can be the conduct of diplomacy at home and overseas, the appointment of owners, judicial posts, peerages etc. However, against the popular belief, the use of prerogative powers by the ministers is not unlimited these days. As a result, there is extensive control and scrutiny that takes place by the courts and also by the Parliament.

As a result of the fact that these days, a lot of prerogative powers are used by the Ministers of the government, the Parliament has also started to act as one of the main sources that provide control and scrutiny in case of the use of these powers by the Ministers. In this regard, the Public Administration Select Committee has mentioned that the “Parliament is not completely powerless when it comes to the significant prerogatives”. It has also been recognized since long that the Parliament enjoys the power of abolishing, amending or restricting the prerogative powers with the help of an Act of Parliament, either expressly or through necessary implication. At the same time, it is also available to the Parliament to place a relegated power on statutory basis if there is a need under the particular circumstances. In this way, the power will directly fall within the jurisdiction of the Parliament and therefore, every type of control and security can be applied by the Parliament in such a case. In this way, an attempt can be made to make the minister who is exercising these arbitrary powers, as accountable as can be possible under the circumstances.

In the same way, when the expenditure of funds is also involved in the use of prerogative powers, another control mechanism is available to the Parliament in case of executive prerogative powers of the Ministers. The notion behind this control mechanism is very simple, unless the activities can be funded, no realistic benefit will be there to act. For example, in case of the power to declare war, one of the powers that is generally referred to as the most important prerogative powers, it can be said that this power can be exercised by the government if it considers fit. But it also needs to be noted in this regard that without the support of the Parliament, in the form of providing funds for the troops and supplies, it will not be possible to go into the war. Due to the reason that the prerogative powers have been devolved from the Crown and these powers are exercised by the Ministers of the government, the prerogative powers have been subject to considerable scrutiny mechanisms of the Parliament. At this point, it also needs to be mentioned that all the Ministers of the government are responsible to the Parliament for their actions, including the use of prerogative powers by them. As a result, there are different types of scrutiny that has to be faced by the use of prerogative powers by the ministers. The most significant sources of such signal to be include the Departmental Select Committees. At the same time, it also needs to be noted that the Prime Minister is also covered by this scrutiny as during the recent years, he has agreed to be subjected to the questioning by the Liaison Committee.

Parliamentary Scrutiny and Control

Apart from the control and scrutiny by the Parliament, the use of prerogative powers by the Ministers is also subject to judicial control. The reason that they prerogative powers have their basis under the common law; traditionally the courts have played a role in controlling and recently even in scrutinizing the use of these powers by the Ministers. This role of the courts has been significantly established by the Case of Proclamations (1611). It was held by the judges of the common law courts in this case that they have the right to decide the limits of Royal Prerogative. Therefore whenever the exercise of a prerogative power is challenged by any person, the courts has to recognize this power. In this way, the courts can also define the limits and at the same time, decide the presence of any alleged prerogative power.

It also needs to be mentioned in this regard that although these prerogative powers have been created during the times that were usually different from the modern times, still they have evolved in purpose and also the way in which these powers are being exercised by the Ministers.

Therefore in the end, it can be said that while on the surface it appears that satisfactory scrutiny and control mechanisms are already present in case of the exercise of relative powers by the ministers. But a closer scrutiny reveals that sometimes there can be significant inadequacies present in this regard. The reason is that in the modern political climate, where the politics has become significantly partisan, the city would need methods that are used by the parliament in this regard may not prove to be as effective as required. These days, there is an increasing trend among the members of Parliament to vote according to their party politics. This has a direct impact on the mechanisms that are used by the Parliament to use voting as the scrutiny mechanism regarding the exercise of delegated powers by the Ministers.

On the other hand, the judicial mechanisms have been strengthened after the implementation of the Human Rights Act. At the same time, the weaknesses present in this regard are not only the weaknesses that exist in case of the control and scrutiny over the use of executive prerogative powers by the ministers, but weaknesses are the flaws that are present in the political system in its entirety.

Alder, J Constitutional and Administrative Law, 7th Edition 2009 , London: Pearson

Bradley and Ewing, Constitutional and Administrative Law 14th Edn (Pearson Education Ltd, 2007)

Bradley, A.W. and Ewing, K.D. Constitutional and Administrative Law 14th Edition 2007 Harlow, Pearson Longman

Dicey, Introduction to the Study of the Law of the Constitution, 10th Edn (London:Macmillan, 1959)

Case Law

BBC v Johns [1964] 2 WLR 1071

Case of Impostitions (1606) 2 St Tr 371

Case of Proclamations (1611)

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374