Royal Prerogative Powers and Common Law

The royal prerogative power is a body of customary authority, privilege and immunity recognised in common law and sometimes civil law jurisdictions possessing in a monarchy as belonging to the sovereign alone. [2] It is the means by which some of the executive powers of government, possessed and vested in the monarch are carried out [3] . They are some personal prerogative powers still been exercised by the monarch such as the appointment of the sovereign personal household members [4] . Blackstone defined Prerogative powers as ‘that special pre- eminent which the King hath, over and above all other persons, and out of the ordinary course of the common law, in right of his legal dignity’ [5] Dicey however define it differently, in Dicey’s view, everything that government can lawfully do that does not have its roots in a statute, but which could be enforced in the courts was prerogative power [6] .

There are some pre- eminent features of British constitutional history has been the gradual transfer of the exercise of these prerogatives powers from the sovereign to the ministers [7] and today the vast majority of these prerogatives in practice are exercised by the Prime Minister, cabinet and individual ministers and accountable to parliament. [8] It is also believed to be, the customary and ultimately derived from the ruler- subject relationship [9] , one which demands ruler protection both at home and abroad and from subject faithful allegiance [10] .This was explained by Nourse LJ in R v Secretary of State for Home Department, ex parte Northumbria Police Authority [11] In 17th century Stuart Kings relied profoundly on prerogative powers in the effort to govern exclusive of the sanction of parliament [12] .The common law Courts were the king’s Courts and only through them the king could exercise his powers to rule [13] . During the revolution in 1688, it was noted that the royal power to tax and to maintain a standing army was subject to parliament approval and this culminating in the Bill of Rights 1689, which declared illegal certain specific uses and abuses of prerogative. [14]

Royal prerogative by parliamentary control is in statute and political, in the later, control of prerogative is through debate and questions in parliament which has limitations. [15] There are many prerogative powers which cannot be challenge because of convention and procedures in the political sense [16] . The speaker excludes parliamentary questions on the granting of Honours, Defence, national security, the dissolution of parliament and the advice given by the Prime Minister to the crown in relation to prerogative [17] . In the area of statutory control since 1688, parliament is supreme and can abolish, amend or curtail prerogative powers. [18] When parliament legislates for a matter previously falling within the prerogative without expressly abolishing the prerogative power statute will prevail and the courts will give effect to the statute and prerogative power goes into abeyance. [19] Thus in A.G v Keyser’s Royal Hotel Ltd [20] Lord Atkinson said ‘…when a statute is passed … it abridges the royal prerogative while it is in force to this extent: that the Crown can only do the particular thing under, and in accordance with, the statutory provisions’ [21] . This was affirmed by the House of Lord now (Supreme Court) in R v Secretary of State for Home Department ex parte Fire Brigades union [22] .Another interesting case is Laker airways Ltd v Department of Trade and Industry [23] , in the judgement of Lakers’ case the court found in favour of Laker Airways on the ground that the licence granted under Statute could not be withdrawn through the use of prerogative but only by a lawful exercise of power under the Act that gave rise to the grant of the licence [24] .

Parliamentary control over prerogative power is achievable when dealing with money which must be authorised by parliament [25] , and also through the principle of ministerial responsibility. [26] Though this type of control is to be accountable to parliament, the House has limited resources to question the individual ministers’ dealings with spending in their departments. [27] A number of commentators have argued that it will be harder to eradicate some of the prerogative than to repeal previous Acts of Parliament, [28] since previous Acts can be impliedly repealed. This trend if allowed will appear to promote the status of the prerogative over Acts of parliament, [29] in direct disagreement to the basic principle that Statute is the highest form of law in the United Kingdom. [30]

Turning to the issue of judicial control of prerogative, the courts have long asserted that it is the courts to find out whether a particular prerogative power existed and whether the decision taken actually falls within the scope. [31] In Council of Civil Service Union Lord Scarman declared that “[t]oday, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter”. [32] In R (Bancoult) v Foreign Secretary, [33] the Court of Appeal held that it was time to recognise that this principle applies to all exercises of the royal prerogative, including Order in Council [34] .This was further affirmed in the House of Lord decision in Council of Civil Service Union v Minister for the Civil Service [35] (GCHQ case), Lords Scarman, Roskill and Diplock held that direct exercises of prerogative power could be reviewed. [36]

Since the GCHQ case the courts were more able to review all prerogatives other than those that relate to the matters of the political process, such as the appointment and the sacking of ministers, suspension of parliament and matters of high foreign policy and defence. [37] However, Lord Roskill list of excluded categories of prerogatives was not representative of the other Law Lords and was dealt with in the case of R v Secretary of State for foreign and Commonwealth Affairs ex parte Everett [38] ,a more recent case is Abassi v Foreign Secretary [39] .It was held that the Courts were competent to review the exercise of prerogative power of the Secretary of State to issue passports, in Everett’s case, even though the power was linked to foreign affairs and traditionally was immune from reviewable. [40] Another case falling into Lords Roskill categories of excluded prerogatives of mercy is R v Secretary of State for Home Department ex parte Bentley [41]

The Courts have generally rejected the government policy to use prerogative powers to exclude armed forces personnel who were homosexual in the case of R v Ministry of Defence, ex parte Smith. [42] Both the High Court and Court of Appeal have held that, the decision of Abassi or Smith to be susceptible to review, and affirmed that the Courts have legal obligation to review matters relating to foreign affairs and defence prerogatives. [43]

The Human Rights Acts 1998 add fresh substantive grounds to the review of prerogative which the Court must consider whether prerogative action by executives breaches a person’s Human Rights [44] .Where European Court of Human Rights (ECHR) right is an issue, Section 6 of the Act states that it is ‘unlawful for a public authority to act in a way which is incompatible with a conventional rights’. [45] Indeed, it was made clear in the (G.C.G.Q case) by Lord Roskill that there is no “logical reason why the fact that the source of the power is prerogative and not Statute should today deprive the citizen of [right to review] the manner of its exercise which he will possess were the source of the power statutory” [46] . In fact, it appears that the areas excluded from review may be shrinking, the approach of the courts in a number of key cases such as (GCHQ; Bentley; smith) [47] where two of the applicants failed and only one had a victory, [48] and if this trend continues, the extension of review in these areas may turn out to be a symbolic rather than increase legal accountability. [49] Though much may depend on how the Courts apply the Human Rights Act 1998 in practice. [50]

The government of Great Britain has set a proposal for reform in the Draft constitutional Renewal Bill and constitutional Renewal White paper in 2008 to review prerogative powers. [51] In the Draft and white paper Bills addressed some areas of prerogatives, including placing the Civil service on a statutory basis. [52] It also gave some more information about the more general review of prerogative powers. [53]

In conclusion, it is apparently clear that prerogative powers are now in the remit of judicial review [54] , and to extend that review to areas previously thought to be immune from judicial review [55] . Although there are still a great number of prerogatives still immune from judicial review and parliamentary control [56] , such as the appointment of Prime minister, over all there has been a significant change of the scope of legal accountability of the Executives [57] since the GCHQ case in relating to actions taken by executive prerogative powers. [58] Indeed, if the Human Rights Act 1998 will dominate Public law [59] .in the sense that it can shaping the way courts approach judicial review generally, it may actually have ramifications for reviewing prerogative powers. [60] Hopefully parliament and judges will insist upon much more vigorous oversight measures than the government have so far proposed

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