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Definition, history and overview of prerogative powers

Introduction.

The term prerogative refers to powers which are unique to the sovereign. Prerogative powers are sometimes referred to as royal prerogative. Technically this is correct, as the powers belong to the Monarch, however by convention they are in practise exercised by the prime minister and in some cases by cabinet members.[1] The term royal prerogative is sometimes used to cover all the powers of the Sovereign, or at least those which the Sovereign does not share with his subjects.[2] Sometimes it refers to the powers of the Sovereign in relation to his subjects, as distinct from ‘acts of State’ done in relation to foreign affairs.[3] Colin Munro, professor of Constitutional law, at the University of Edinburgh, defined the royal prerogative as, ‘’comprising those attributes belonging to the Crown which are derived from common law, not Statute, and which still survive’’.[4] The royal prerogative amounts to the residue of the Crown’s unique common law powers which were above and beyond those shared with other legal persons.[5]

The royal prerogative powers are residual because it has long being recognised that the Crown can not create new prerogative powers and that Statute can curtail prerogative powers.[6]

The history of the prerogative illustrates the struggle for power within the United Kingdom between the Crown and Parliament.[7] According to Richard Ward, professor of law and John Marston, ‘’The case of prohibitions established that certain prerogatives were exercisable only through the courts; the power of the Monarch to judge in his own courts was delegated irretrievably to the courts. The case of proclamations confirmed that the King might encourage subjects to keep laws but that he might not make laws generally by way of proclamation. It also decided that whether or not a prerogative exists or not is a matter for the courts and not for the Crown’’.[8]

This essay will examine the nature of prerogative powers and explain how far the courts can impose responsibility for their use. I will start by looking at a brief history of prerogative powers

A brief history of prerogative powers.

The term royal prerogative originated at a time when the Monarch’s personal power was not fettered by the shackles of a constitutional Monarchy.[9] Royal prerogatives were attributes which of necessity inhered in Kings as the governors of the realm.[10]

The medieval King was both feudal lord and head of the Kingdom. He could not be sued in his own courts and there was no court in which the King can be sued.[11] The King possessed a residual power of doing justice through his Council where the courts of common law were inadequate.[12] The common law judges in the case of Prohibitions del Roy[13], held inter alia that, the right of the King to administer justice no longer existed and that the king could only make laws through Parliament.[14]

Absolute or extraordinary prerogative meant those powers which the King could exercise in his discretion.[15]

The problem of the absolute prerogative of power was confronted firstly by the Bill of Rights 1689, which declared illegal certain specific uses and abuses of the prerogative and secondly by the growth of responsible government and a constitutional Monarchy.[16]

Today, the term royal prerogative is applied to those legal attributes of the Crown which the common law recognises as differing significantly from those of private persons.[17]

Except where prerogative powers involve the personal discretion of the Queen, prerogative powers are exercised by and on behalf of the government of the day. For their exercise, just as for the use of statutory powers, ministers are responsible to Parliament.[18]

Nature of Prerogative powers.

Under the United Kingdom’s unwritten constitution, there exists no formal and agreed text as to the prerogative.[19] John Alder, Professor of law at University of Newcastle- upon-Tyne defined royal prerogative as, ‘’a collection of special powers, rights and immunities vested in the Crown that is not conferred by Parliament’’.[20] Prerogative powers are powers which are inherent and peculiar to the Crown. They emanate from common law and not Statute. The powers are residual and majority of the powers are exercised by the executive government in the name of the Crown and no Act of Parliament is necessary to confer authority on the exercise of such powers.[21]

Prerogatives consists of legal attributes and matters merely of convention or practice. The courts will recognise in appropriate cases, that these attributes exist, and when necessary, enforce them.[22]

This means that the no new prerogatives can be created, but it is possible for the courts to enforce the application of existing prerogatives. In BBC v. Johns[23], the Court held interalia that no new prerogative can be created. However, existing prerogative powers can be adapted to meet modern day needs. See R. v Secretary of State for the Home Department, ex p Northumbria Police Authority.[24]

New prerogative powers can not be created neither can an existing prerogative be expanded. Prerogative powers are a residue of what was possessed by medieval kings and queens. What remains is left to the executive by the grace of Parliament, for Parliament can abrogate or diminish the prerogative, like any other part of common law.[25]

Prerogatives that remain are very important relics. The conduct of foreign affairs is carried on mainly by reliance on the prerogative, as are the control, organisation and disposition of the armed forces. Parliament is summoned and dissolved by virtue of prerogative power and under the prerogative, royal assent is given to Bills.[26]

The Prerogative and the Courts

The courts claim that they had jurisdiction to determine the existence and extent of prerogative powers had been vigorously asserted in earlier cases like, Re Proclamations.[27] Some prerogative acts are unlikely to give rise to the possibility of challenge in the courts. For a prerogative power to be subject to review by the courts, the power in question must be justifiable and the nature of the power must be such that the courts can review. However, where an act purporting to be done under the prerogative directly affects the rights of an individual, the courts may be asked to determine a number of issues.[28]

Courts have the power to determine the existence and extent of a prerogative power. In Chandler v. DPP[29], the court held interalia that, the courts will not review the proper exercise of discretionary power, but they will intervene to correct excess or abuse. See also Laker Airways Ltd v Department of Trade.[30]

The House of Lords by a majority decision in its landmark decision in Council of Civil Service Unions v Minister for Civil Service[31], held inter alia that the courts could review the manner of exercise of discretionary powers conferred by the prerogative just as they could review the manner of discretionary powers conferred by Statute. See also R. v Home Secretary ex p Bentley[32]; R v Foreign Secretary, ex p Everett[33] and R v Home Secretary, ex p Fire Brigades Union, [34] where the government’s decision not to implement the statutory scheme and to introduce under prerogative the tariff scheme was successful challenged in an application for judicial review.

Despite subsequent decisions, the scope of the above CCSU decision remain unclear, particularly regarding the distinction between justifiable powers and non-justifiable powers.[35]

Finally, the invocation of the word prerogative no longer protects a decision from review by the courts, the courts can impose responsibility for their use, however the invocation of national security may sometimes bar the courts from judicial review of prerogatives.[36]

.

Bibliography

Alder, J( 2005) Constitutional and Administrative Law, 5th Edition, Palgrave MacMillan, London

Barnett, H (2006) Constitutional and Administrative Law, 6th Edition, Routledge-Cavendish, Oxon

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

Fenwick, H, Phillipson, G & Fenwick, P (2003) Text Cases & Materials on Public Law & Human Rights, 2nd Edition, Routledge-Cavendish, Oxon.

Marston, J & Ward, R (1997) Cases & Commentary on Constitutional and Administrative Law, 4h Edition, Pitman, London

Munro, C.R (2005) Studies in Constitutional Law, 2nd Edition, Oxford University Press, Oxford.

Parpworth, N (2006) Constitutional and Administrative Law, 4th Edition, Oxford University Press, Oxford

Phillips, O.H & Jackson (2001) Constitutional and Administrative Law, 8th Edition, Sweet & Maxwell, London

Pollard, D, Parpworth N, & Hughes, D (2001) Constitutional and Administrative Law, 3rd Edition, Butterworths, London

Thompson, B (1997) Constitutional and Administrative Law, 3rd Edition, Blackstone, London.

1


Footnotes

[1] Fenwick, H, Phillipson, G & Fenwick, P (2003) p.477

[2] Jackson, J & Leopold, p. (2001) p.304

[3] Jackson, J & Leopold, p. (ibid) p.304

[4] Munro, C.R (2005) p.256

[5] Marston, J & Ward, R (1997) p.53

[6] Marston, J & Ward, R (ibid) p.53

[7] Marston, J & Ward, R (ibid) p.53.

[8] Marston, J & Ward, R (ibid) p.53

[9] Parpworth, N (2006) p.51

[10] Munro, C.R (2005) p.257

[11] Bradley, A.W & Ewing, K.D (2007) p.254

[12] Bradley, A.W & Ewing, K.D (ibid) p.255

[13] (1607) 12 Co Rep 63

[14] Bradley, A.W & Ewing, K.D (ibid) p.256

[15] Bradley, A.W & Ewing, K.D (ibid) p.256

[16] Bradley, A.W & Ewing, K.D (ibid) p.256

[17] Bradley, A.W & Ewing, K.D (ibid) p.257

[18] Bradley, A.W & Ewing, K.D (ibid) p.257

[19] Barnett, H (2006) p.122

[20] Alder, J (2005) p.306

[21] Barnett, H (2006) p.115

[22] Munro, C.R (ibid) p.257

[23] (1964) 1 ALL ER 923

[24] (1989) 1 QB 26

[25] Munro, C.R (ibid) p.257.

[26] Munro, C.R (ibid) p.258

[27] (1611) 12 Co Rep 74 citied in Munro, C.R (ibid) p.279.

[28] Bradley, A.W & Ewing, K.D (ibid) p.263

[29] (1964) AC 763

[30] (1977) QB 643

[31] (1985) AC 374

[32] (2001) I Cr App Rep 307

[33] (1989) QB 811

[34] (1995) 2 AC 513

[35] Bradley, A.W & Ewing, K.D (ibid) p.267

[36] Munro, C.R (ibid) p.286


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