The Royal Prerogative today refers to ‘those legal attributes of the Crown which the Common law recognises at differing significantly from those of private persons.’ Both the monarch and the government need powers to execute their constitutional functions. The rule of law obliges these powers are chastised in law and the Parliament has also put some prerogatives on a constitutional basis. Traditionally, the Monarch may reign, but the Sovereign by constitutional convention came to act on governmental advice, so that prerogative powers came to be used by ministers on the Sovereign’s behalf. On the other hand, Parliament was not directly involved in that transfer of power.
To start with, the Government should have more say on the prerogative decision-making powers. The Parliament is not totally feeble, in the past; it has partial or eradicated individual prerogative powers and has also put some powers under statutes. Conversely, these restrictions on minister’s prerogative powers are still very weak and restricted to control the prerogative decision-making powers. Ministers still have very extensive opportunity to act without referring or seeking approval from the Parliament. “Perhaps more surprisingly in an era of increasing freedom of information, Parliament does not even have the right to know what these powers are.” Ministers have denied giving a clear response on the exercise of the Minister’s prerogative power, that ‘records are not kept of the individual occasions on which those powers are used, and that it would not be practicable to do so’. Ministers have also declined to produce a ‘precise list of these powers. Rt Hon John Major, when he was Prime Minister, has asserted that “it is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers.” These undefined powers of the Prime Ministers granted by the prerogative should subject to greater Parliamentary scrutiny; Ministers should be answerable to the Parliament for the exercise of these powers. These supremacies should be also subject to Parliamentary approval just like ‘things done under statutory or common law authority.’ Nonetheless, the departing prerogatives are stagnant totally in the hand of the Ministers, on behalf of the Crown, that they are only accountable to the Parliament after the event.
The conduct of foreign affairs by the government remains a very high degree of reliance on the prerogative powers. The core prerogative powers includes the achievement of additional territory, the creation of treaties, the setting out of the armed forces on operations overseas, the recognition of overseas states, the accreditation and reception of diplomats and the most ‘significant of the prerogative power’ which is the authority to declare wars. After the speech of the PASC’s chairman, Tony Wright, “The case of war powers is especially significant.”
Even though the Commons had an opportunity to vote on the decision to invade Iraq, there is no assurance that this chance will be approved in future. This is an extremely unsatisfactory state of affairs; Parliament must have the right to assert that governments consult it correctly before troops are sent into battle. Alike many other prerogative acts, it should not be left to ministers. “The legislation we are considering will give Parliament the right to demand a real say.” I personally cannot agree more with MR. Wright’s view on the extent of which the prerogative powers can be exercised on the ‘going to war’ dispute. Notwithstanding the recent involvement of the Parliament in decisions on military action, I personally believe that we should increase Parliamentary influences and involvement on this aspect. Rt Hon Lord Hurd of Westwell believed that ‘modern conditions demanded that any major military action should have explicit Parliamentary approval.’ Harmonising with Lord Hurd, there should be a very strong and powerful authority body behind the government’s decision in going to war. There is an urgent need for legislation that calls for a statutory obligation for the Ministers to seek consult and approval from the Parliament before declaring wars. Rt Hon William Hague MP concerned that in instance of conflict, government concern was not sufficient: “I think that actually should be laid down in an Act of Parliament or in the Standing Orders of the House- the power to commit troops to action needs codifying, so that parliamentary approval is required before it takes place or soon as possible thereafter if the circumstances do not permit such a vote to be taken beforehand.” Agreements are another important subject in foreign affairs for which ministers do no need Parliamentary approval. Agreements can involve, for example, monetary matters which with serious effects on Britain and the World, including agreements between the United Kingdom and organisations such as the World Trade Organisation and the IMF. So far, the Ponsonby rule does not require either House should debate the measure or agreements are no longer under restriction to high diplomacy and security. Therefore, agreements should be subject to higher degree of Parliamentary scrutiny. Lord Lester of Herne Hill commented that ‘Parliament has almost no role in the process of ratification of important treaties and it is done entirely under the prerogative.’ There is certain effect put forth by agreements on the UK law that ought to be subject to greater Parliamentary scrutiny.
With respect to Civil Service, ministers carry out the administration of it under prerogative powers, regulated by Orders in Council that can be modified, supplemented or reserved without Parliamentary approval. Conversely, the Government, following the publication of the draft Civil Service Bill by the Select Committee, announced that a draft Bill would be published in the present Session of Parliament. There is also increasing urge from the public that Parliament should be asked to favour all foremost government reorganisations. The eliminating and amalgamation of governmental department should require Parliamentary approval and be subject to greater Parliamentary scrutiny. Likewise, there is also a need that the public appointments, which is now under minister’s prerogative power, must also subject to a higher degree of Parliamentary scrutiny. I personally am inspired by the idea that successful candidates for major appointments may be asked to attend hearing in which select committees could question their capability for the post.
With concern to the human right matter, passports should not be granted and revoked by ministers without consulting the Parliament. Agreeing to Lord Lester, “it seems to me entirely anomalous that the right to freedom of movement, which is a fundamental right, should be subject, at least in theory, entirely to the prerogative, unregulated by Parliament.”
The prerogative powers and the courts
The monarch is protected from prosecution in the courts, the King or the Queen could not be sued in his or her own courts. By tradition, the courts do not want to interfere with the prerogative powers; the courts have a very limited control on the use of these powers. They can analysis the legality of the exercise of some prerogatives, but they do not have a responsibility over all of them, they only have jurisdiction to inquire into the level and existence of prerogative powers but not the exercise of them. In R v. HomeSecretary, ex p Northumbria Police Authority, the Court of Appeal said that the provision of the equipment was authorised by the Police Act 1964, but also by the royal prerogative. The court has to decide the existence of a ‘prerogative to enforce the keeping of what is popularly called the Queen’s peace within the realm.’ Croom-Johnson LJ established that this act is carried out under ‘undoubted right to see that crime is prevented and justice administered.’ The supply of baton rounds and CS gas hence was held to fall within the power of the prerogative. The courts, in fact, has very partial justifiability, Lord Wolf and Jeffrey Jowell described these limits as ‘Yet there are some decisions that the courts are ill-equipped to review; those which are not justifiable, either because they admit of no objective justification or because the issues they determine are polycentric in effect.’ The courts should have further say and justifiability on prerogative powers and therefore, prerogatives should be subject to greater judicial scrutiny.
Prerogative powers play a major role in United Kingdom’s constitution; it grants powers for the Crown and the Ministers to be able to perform their constitutional tasks. Certain prerogatives also enable fast track to legislation which speed up the enactment of it. Yet, the Parliament has a very limited control over prerogative powers, the list of ministerial executive prerogatives is still remain ambiguous and the Parliament has no say over the exercise of these powers by the Ministers. On matters relating to declaration of wars, agreements and treaties, Parliament should have more involvement and stronger influences on and ministers should seek Parliamentary approval. In managing civil affairs, prerogative powers should be answerable to the Parliament and ministers should not exercise their discretionary powers over civil affairs without consulting the Parliament. I personally do not think we should abolish the Royal Prerogative, however, to a large extent, I believe some prerogatives should be subject to greater Parliamentary and judicial scrutiny.
Written by: Md Monir Hossain