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The constitutional Convention of the United Kingdom and its commonwealth is of course of an un-codified nature and its contents do not belong in one particular source. The academic ‘Geoffrey Marshall’ formulated what was in his mind a clear distinction between what are regarded as being the laws of the land which are creations of statute or in parallel the common law and the Constitutional Convention. Marshall said that “Conventions are non-legal rules regulating the way in which legal rules shall be applied”. It is with this clearer understanding of the convention that the nature and importance of mainly the royal prerogative and other non-legal rules under the convention may be discussed.
Dicey defined the Royal prerogative by concluding “The prerogative appears to be historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown…from the time of the Norman conquest down to the revolution of 1688, the crown possessed in reality many of the attributes of sovereignty. The prerogative is the name of the remaining portion of the crowns original authority…Every act which the executive government can lawfully do without the authority of an Act of parliament is done in virtue of the prerogative”. In past times the monarch’s position was seen as being of complete absolutism. Absolutism had derived from the divine right of Kings Doctrine which firmly promoted the theory that the monarch exercises his power by the will of God. King James 1 made a statement in 1610 which in part said “Kings are not only Gods lieutenants on earth…but even by God himself they are called Gods”. The nature and relationship of Prerogative and statute are of course different, the one being founded in the common law and the other constructed by way of parliament. Summarily the British system of rule and its application of prerogative powers have dramatically changed since the totalitarian era of monarchial rule. The Kings authority was challenged in a series of cases. In (Prohibitions del Roy) it was daringly declared by Judges that the king no longer held authority to dispense justice. This was preceded by the Civil war headed by Oliver Cromwell and the Glorious revolution in which Prince William of Orange invaded with his Protestant army. The Bill of Rights was created in 1689 with the consent of Prince William and his wife Mary Stuart. The Bill of Rights reduced the number of powers and level of authority exercised by the monarch. The prerogative would eventually be administered in the name of the Crown by an elected Government. Prerogative powers are of course in modern times intrinsically linked to the rule of law and separation of powers doctrines that exist as part of the United Kingdom’s constitution. Denise Meyerson of the Macquarie Law Journal summarized the opinions of Dicey on the rule of law as being “the need to curb the conferral of discretionary power on government officials in the interests of certainty and predictability; the ability to seek a remedy in independent courts should the government act illegally; and the importance of equality before the law”. The separation of powers doctrine and its mechanism which allows the scrutiny of the different functions of Government by way of checks and balances and the rule of law would be decisive in the creation of the judicial review process and its correlation with prerogative powers. Statutory powers were reviewed on the grounds of illegality, irrationality and procedural unfairness as derived from the (Wednesbury) case. Judges would only review prerogatives on the basis of illegality. Importantly, Parliament could have tackled the area of limited judicial review of prerogatives by (1) creating legislation as to make prerogative powers fully reviewable. (2) “Place specific prerogatives powers on a statutory basis, and so make them amendable to full Wednesbury review”. The very notion of limited judicial review would appear to go against the very ideals of procedural justice; however, judicial decisions would be based upon the notions of Parliamentary Sovereignty. “Parliament… has… the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. Parliament is not bound by its predecessor”. The idea of supremacy became apparent in (Attorney-General v De Keyser’s Royal Hotel) in which the Government had seized property by way of the Defence of the realm (consolidation) Act 1914. It was held as a general rule that if situations occurred in which prerogative power and statute dealt with the same subject matter; prerogative would be held in abeyance to statute.
Separately, the relationship between the prerogative and courts was demonstrated in (Burmah Oil) when the court claimed to be the final arbiter of prerogative powers in allowing compensation for (denial damage) after the destruction of oil installations in Rangoon. The relationship between the prerogative and Parliament is one in which Parliament does not have to gain consent or approval for its application. This was demonstrated in recent years with the often resented decision to wage war in the Middle East by Tony Blair of the Labour party.
In earlier cases statute’s influence would see Judges only claiming if a prerogative power existed. In the (Petition of Rights) the government had seized an airfield by prerogative measures and the court felt that it was their role as to decide whether an invasion type scenario had been in existence. They found that the flying of a then modern airship over British airspace was comparable to an invasion by way of land but the Judges were not willing to challenge the decisions of those in command that made the decision to administer the prerogative. During a time of varied judgments there were a number of cases that went against the traditionalist grain. A radical decision was made in (Laker Airways) when Lord Denning commented prerogative powers in regards to the Anglo-American Bermuda Bi-Lateral Air Agreement regulating civil air transport. He said “seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive”. Full reviewability of prerogative was allowed in (Council of Civil Service Unions v Minister for the Civil Service) in relation to industrial action taken by employees of G.C.H.Q. The then Conservative leader Margaret Thatcher in true tradition attempted to stop industrial action taken by employees. She attempted this by application of (the Civil Service Order in Council 1982, Art.4) Thatcher threatened employees with redeployment if they did not resign their union membership. The union claimed that her actions were conducted in a procedurally unfair manner. The House of Lords articulated the general principle that henceforth the way in which a particular prerogative had been used should be regarded as reviewable providing the subject-matter of the decision in issue could be treated as justifiable or amendable to the judicial process. Lord Roskill concluded that it was the nature of the power and not the source that was important in reviewability. In relation to the case, Sir Louis Blom-Cooper said” The general approach by their Lordships was that only Government could decide what national security required”. Post GCHQ cases including (Abbasi) questioned the concept of justiciability.
Royal prerogative powers still exist in many ways in the modern era, in the form of immunities, rights, duties and powers across the Legislative, Judicial and Executive areas of Government. Examples in summary include: Legislative prerogatives, an example being the giving of Royal Assent by the monarch or Attorney General/Lieutenant General in overseas territories. Assent was refused by L.G. John Bowen in Alberta Canada when the then Social Credit Government acted un-constitutionally and attempted to put banks under the direct control of the province and not the Federal Government. Judicial prerogatives include prerogative of mercy was applied recently by Jack Straw when Liverpool supporter Michael Shields was arrested for attempted murder in Bulgaria and finally deported to the U.K. Also powers may also be used to undertake legal proceedings against statutory or public bodies by the Crown with the intention of protecting the public interest. In(Gouriet v Union of Post Office Workers) the Attorney General chose not to give his consent (relator action) in support of an individual seeking action against the union which decided not to process post going to South Africa for a period of one week because of the then instilled system of apartheid. This was later supported by the House of Lords after being opposed by Denning at the court of Appeal. The Executive prerogatives include patronage in which the monarch, prime minister or Lord Chancellor etc may appoint or bestow special honours, positions or privileges upon persons. Examples being the appointment of the Church of England’s Archbishop of Canterbury Rowan Williams or the knighting of John Major by way of the Order of the Garter in (2005). In (Secretary of State for the Home Department, ex parte Northumbria Police Authority) the Secretary of State for the Home Department supplied plastic bullets and CS gas for the purpose of keeping the Queens peace by prerogative power. Nourse L.J said “A prerogative of keeping the peace existed in medieval times has not been surrendered by the Crown in the process of giving its express or implied assent to the modern system of keeping the peace through the agency of independent police forces”.
Of course a number of other non-legal rules exist under the remit of Constitutional conventions. The preconditions of the existence of any particular constitutional convention are set out in a well-known passage by Sir Ivor Jennings. “Three questions must be asked:… First, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?” Collective ministerial responsibility and its three sub divisions regulate the conduct of those in Government especially the cabinet. The confidence rule traditionally forced the government to resign if they could not gain the majority of commons support. This affected the fate of the Conservative leader Stanley Baldwin in 1924 when he failed in his political endeavours. This constitutional rule was often ignored in modern times as demonstrated by a number of Labour defeats in the 1970s in which the party refused to resign. The Government now tends to resign only if defeated by way of an explicit no-confidence motion. This happened in 1979 with the resignation of the James Callaghan’s led Labour party. The Uninamity rule requires that all cabinet members demonstrate public support for decisions made by cabinet. Michael Heseltine resigned from the Conservative Government after a dispute concerning the financial rescue of the Westland helicopter company and its financial future being placed in non European hands. In similar fashion Nigel Lawson left his position as Chancellor after Thatcher had by-passed him to attain economic advice off another. The confidentiality rule binds ministers to maintain a confidential stance whilst in Government not discussing issues relevant to the cabinet. The Crossman Diaries)- A.G. v Jonathan Cape Ltd case questioned the levels of confidentiality in regards to ministers and the issue of legality after departing from their positions. “Lord Widgerys judgment claimed (1) “the duty owed by ministers did not derive from the convention turning into law” (2) “it was created by stretching existing common law principles about confidentiality in respect of other types of relationship, particularly marriage and commercial undertakings.” Secondly he set a limitation period for issues- bar those threatening national security. Individual ministerial responsibility applies to circumstances in which Ministers should resign from their positions in cabinet. The competence rule in the 1800s expected ministers to resign for the shortcomings of those under their control. This was more relevant in times of smaller Governments. A transitional period occurred after the Crichel Down farm incident occurred in which Sir Thomas Dugdale Minister of Agriculture resigned. The Conservative Government promoted the introduction of legislation as to regulate the administrative process. The morality rule famously ended the career of the war Minister John Profumo after he had an affair with a lady who was also attached to a Russian Naval officer. This was not only immoral and dangerous in the Cold war era but Profumo later lied when questioned on the matter in the commons. Errors of Judgment were made by Conservative Edwina Currie when she made damaging comments in relation to British eggs and salmonella which severely hampered the industry. As a result of the political aftermath and media frenzy she left her post. Also Peter Mandelson left his post after loaning Geoffrey Robinson £370.000 to buy a house and in doing so failed to disclose the information.
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