Important Element of the UK Constitution

“Prerogative Powers Remain An Important Element Of The United Kingdom’s Constitution. Should They Be Subject To Greater Parliamentary And Judicial Scrutiny?”

Dicey referred to the prerogative powers as ‘The residue or arbitrary authority which at any time is legally left in the hands of the crown.’ Although the Crown technically refers to the Monarch and also Government, the use of the personal prerogatives of the Monarch is very limited and this question requires a more intent focus on the exercise of prerogative powers by Ministers, which have a much greater scope for misuse. The fact that decisions of Government can be made, without any statutory authority or the verification of Parliament raises issues of the legality of Government. When Dicey stated his theory on the ‘Rule of Law’, as being a key characteristic of the British Constitution, he noted the importance of the conformity of Government to the law when exercising its authority. Therefore, it is clear that the prerogative today may pose a threat to this fundamental constitutional principle. Moreover, in light of the fact that the British Constitution has no codified form it is these political and democratic ideals that provide for the legality of Government, rather than the safeguards included in a written constitution. Lord Acton has said that ‘Power tends to corrupt and absolute power tends to corrupt absolutely’ This is an indication that if allowed too much free reign the executive may begin to act unlawfully. This leads me to my assertion that the current position surrounding prerogative powers is that although there are many potential checks and balances on them, they require a greater formalisation, establishing exactly what the Government are allowed to do, as otherwise there will be no clear method of bringing ministers to account when they are alleged to have acted unlawfully using a prerogative power.

Given the importance of the areas in which the prerogative powers are used today, such as in decisions over whether to go to war, it is clear that the correct balance must be achieved in regulating them, to ensure democracy, but at the same time allowing Government to function effectively, as they provide great flexibility. A key principle underlying democracy in this country is that it is possible for Government to be removed if they lose support of the House of Commons. This is because the Government get their authority from Parliament, who the people have elected. Moreover, this principle is tied in with the idea of Ministerial accountability. However, there appears to be a hindrance to this mechanism of ensuring Ministerial accountability, as with our current first past the post electoral system, it will be the party with the majority in the Commons who make up the Government. Therefore, it is hard to imagine a situation where Parliament removes a Government. This has led to some to refer to the UK constitution as the ‘insiders constitution’, as so much power is concentrated in the central executive.

Another key constitutional principle to evaluate is that of the separation of powers between the three branches of Government. Each branch; the legislature, the executive and the judiciary have their own sphere of power. Therefore, it is vital that each acts as a check and balance on the others, to ensure that democracy prevails. To answer this question it is necessary to examine the relationship of both the Legislature and the Judiciary with the Executive, under this doctrine. Firstly, as the politician Leopold Amery noted ‘Government and Parliament, are separate and independent entities, fulfilling two distinct functions of leadership, direction and command on the one hand, and of critical discussion and examination on the other.’ This shows the intended balance is that Parliament scrutinises the action of Government. This was extended by a recent report by the Hansard Society, which laid down seven principles around which it said reform should take place, notably, that ‘Parliament should be at the apex of the system of scrutiny of the executive.’ However, it is certainly hard for Parliament to fulfil this role as, although, Lord Dunedin stated that ‘if the whole ground of something which could be done by prerogative is covered by statute, it is the statute that rules’ showing that, without explicitly limiting a prerogative power, Parliament could check the prerogative uses by covering them with statute, unless Parliament were to legislate on every single area which the prerogative covers, it will not be a definitive remedy as there would still be many powers not overridden by any relevant statute.

Moreover, whilst new Prerogatives cannot be created they can be applied in a new context, and therefore, effectively developed further. This was shown in the case of R v Secretary of State for Home Affairs, ex p Northumbria Police Authority [1988] 2 WLR 590 where the Home Secretary used his prerogative powers to supply the Chief Constable with equipment even though it would usually be the duty of the Police Authority. Therefore, it is clear that there is no all-encompassing rule preventing the development of the prerogative powers, and therefore, Parliament are unable to be a watchdog for all their potential uses, as they simply may not have foreseen them all.

Whilst there is no legal requirement for Government to consult Parliament over the use of prerogative powers, in reality both convention and the fear of negative political consequences would dictate that in some areas the executive would respect the position of Parliament and consult it first. However, constitutional conventions, which deal mainly with the distribution of power and political accountability, are fraught with problems, especially as there is no higher power who is able to decide if one has been broken, and moreover, they can be broken in an act of good faith and so are not an effective check on the use of prerogative powers. In addition, although convention dictated that Tony Blair consulted Parliament before invading Iraq under, it has now come to light that even with this scrutiny, that it was ineffective in ensuring that the war was a legal process as it emerged that there were no ‘Weapons of Mass Destruction’ which Blair based his argument on.

Even despite these problems, it has actually been stated by Russel and Sciarra that the House of Lords has been more assertive and willing to oppose Government, since the removal of Hereditary Peers, as there may be fewer party ties. Moreover, it appears that the growing stature of Select Committees within Parliament has acted as a further check on Government. It is the role of the Committees to investigate areas of Government and produce critical reports, ensuring Ministerial accountability. However, whilst accepting the standing of these committees the Government has made it difficult to examine the decision-making process too intently, so it has a limited effect for monitoring the use of prerogative powers and other actions of Government. The Principle of Ministerial Accountability will go some way to ensuring that the executive does act within the limits of its powers. However, it appears that as ministers are able to delegate work to executive agencies they can dodge potential problems. Hybrid authorities, such as the Prison Service, to whom the power of the executive is dispersed, are less accountable, making it harder to monitor behaviour under prerogative powers. Moreover, worries have come about that the House of Commons lacks the political will to guarantee that Government bodies are held accountable and are unwilling to be too interfering. Therefore, some recent reform, such as the development of the Joint Committee on Human Rights in 2001, has emphasised what the position of Parliament is, in regards to scrutiny of the executive and as a constitutional watchdog.

The relationship between the Executive and the Judiciary is another aspect of the regulation of executive action under prerogative powers. Nolan L.J said that ‘The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.’ A key principle, therefore, is that of Judicial Independence, which ensures that their integrity and impartiality is upheld as they will not be under the influence of ministers. The removal of judicial powers from the Lord Chancellor, a cabinet minister sitting in the House of Lords, by the Constitutional Reform Act 2005, was intended to uphold this principle. Further, the establishment of a new Judicial Appointments Commission in 2006, to act as an independent advisory body and the fact s(3) of the act highlights the importance of the ‘ continued independence of the judiciary’, enhances the idea of the separation of powers. Finally, a new Supreme Court was set up by this reform, replacing the House of Lords as the highest court, and according to Lord Phillips of Worth Matravers, its first president ‘The object is to give formal effect to an important constitutional principle — the separation of powers’ These efforts should enable to judges to act as a check and balance on the power of the executive.

The judiciary are able to scrutinise the actions of the executive in a number of ways. Firstly, prior to the case of R v Criminal Injuries Compensation Board, ex p Lain the Courts had been unable to control the way in which the prerogative powers were utilised. In this case it was decided that the High Court were able to review the actions of the Board, which had been formed under the royal prerogative. Moreover in the GCHQ case Lord Diplock said that just because ‘a decision making power is derived from a common law and not a statutory source, it should be immune from judicial review’ was not reasonable, and therefore, Government’s decisions made under the prerogative power were amenable to judicial review. Although, this was qualified by the fact that only ‘justiciable powers’ were subject to it, this was a massive stride in terms of bringing the prerogative powers under greater scrutiny, ensuring that Governmental bodies act in a manner which respects the fundamental principles of public law, such as democracy and equality. On the other hand, in cases where Government uses its powers to make decisions over national security, especially considering recent worries over terrorism, the courts powers to review these actions are limited as they were taken in a time of emergency.

Furthermore, the enactment of the Human Rights Act 1998 in the UK had the effect of cementing the rights provided by the European Convention of Human Rights, into British Law has acted as a further check on the actions of Government. In particular section 3 and 4 have allowed for greater judicial scrutiny of the legislature and public authorities. This is because courts are bound under section 3 to ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.’ Under s(4) if they deem that the legislation is incapable of being read in a way which is compatible, they ‘may make a declaration of incompatibility.’ There has been some debate over how far the courts should go in reading legislation to be compatible. Effectively the traditional rules of interpretation no longer apply and Judges according to Lord Steyn may have to ‘adopt an interpretation which linguistically appears strained.’ To add to this Lord Nicholls later said a court is required to ‘read in words which change the meaning of the enacted legislation.’ Therefore, as orders made under their prerogative powers are deemed primary legislation they must be compatible. Once a declaration of incompatibility has been made, then Parliament, wary of political backlash, so far have taken steps to amend the offending legislation. In addition, s(6) of the Human Rights Act also states that ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’ Therefore, this is another area where it is possible for courts to scrutinise the actions of Governmental bodies acting under their prerogative.

Currently, it is possible for prerogative powers to be either restricted or eradicated by an Act of Parliament and it is clear that Gordon Brown has expressed his intention to abolish some of the prerogative powers. Moreover, the Government itself recognised in the 2007 Governance of Britain Green Paper that ‘in general the prerogative powers should be put onto a statutory basis and brought under stronger Parliamentary scrutiny and control. This will ensure that Government is more clearly subject to the mandate of the people’s representatives.’ This green paper was the result of a report made in 2004 which also said that restrictions on the use of prerogative powers were limited. The main recommendation of the report that was prerogative powers should be much more formalised and that provision should be made enabling Parliament much greater scope for managing their use. The Government responded by saying that whilst it was preferable to make use of the flexibility afforded them by the prerogative, it would be better that statute on Parliament’s role should be enacted. In introducing the White Paper in March 2008 it set out the Government’s obligation to further review the use of the Prerogative. Through this Governance of Britain reform the Government has conceded that it will no longer be able to use certain prerogatives where it challenges the ideals of democracy, taking us back to Dicey’s ‘rule of law’. However, these reforms do not extend to all of the prerogative powers. Therefore, the continued use of these is still subject to debate.

This brings into consideration whether to complete the process suggested the best solution would be to have a written constitution. I agree with the statement of Mr Stephen Hockman, Chairman of the Bar Council for England and Wales who stated that ‘the vast majority of us lack a clear and comprehensive understanding of what the terms of our constitution actually are’. Moreover, in the absence of any formal documents bringing together the exact nature of the relationship between the three branches of Government, there seems to be hesitancy when it comes to interfering with the business of the other, even when appropriate. Therefore, I believe that by enacting a written constitution it would provide a better check and balance on the actions of the executive as it would provide certainty for Parliament and the Executive on their own powers to intervene.

In conclusion, the current balance of power is too heavily in favour of the executive due to their majority in Parliament. This has the further effect of discouraging the courts from interfering where they don’t feel it is within their ambit. Therefore, even though there are mechanisms available for scrutinising use of the executive’s prerogative powers, they need to be formalised and the proper balance of powers should be set out in a written constitution to ensure that the executive is checked and democracy is maintained.

Bibliography

AW Bradley and KD Ewing ‘Constitutional and Administrative Law’ 14th Edition (2007)

John Alder ‘General Principles of Constitutional and Administrative Law’ 4th Edition (2002)

Rodney Brazier ‘Constitutional Practice: The Foundations of British Government’ 3rd Edition (1999) AV Dicey ‘An Introduction to the Study of the Law of the Constitution’ 10th Edition (1959)

Adam Tomkins ‘Our Republican Constitution’ 1st Edition (2005)

Robert Hazell ‘Constitutional Futures Revisited: Britain’s Constitution to 2020′ 1st Edition (2008)