Tutor Feedback Activity - Public Law Question on Royal Prerogative Powers assignment help

Tutor Feedback Activity Guide - Royal Prerogative Powers Question

Public law question:

Evaluate the scope, accountability and contemporary relevance of the royal prerogative powers. To what extent, if at all, do the constitutional powers of the monarch require reform.

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Tutor Feedback Activity

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Evaluation of Royal Prerogative Powers and the Need for Reform

Word Count: 1,485 words

Introduction

The royal prerogative represents residual powers historically held by the Crown that remain exercisable without requiring parliamentary approval. These powers, now largely exercised by ministers in the name of the Crown, encompass significant areas including foreign affairs, defence, and the administration of justice. This essay evaluates the scope, accountability mechanisms, and contemporary relevance of prerogative powers, before assessing the extent to which constitutional reform is necessary. While prerogative powers retain practical utility in certain contexts, their scope remains problematically broad, accountability mechanisms are inadequate, and several areas require statutory intervention to align with modern constitutional principles of democratic legitimacy and parliamentary sovereignty.

Scope of Royal Prerogative Powers

The scope of prerogative powers is substantial and touches multiple aspects of governance. Historically defined by Dicey as the residue of discretionary power left in the hands of the Crown, these powers have evolved through judicial interpretation and political convention rather than comprehensive codification. The major categories of prerogative power include the conduct of foreign affairs, defence and national security, the administration of justice, and various civil service matters.

In relation to foreign affairs, the prerogative encompasses treaty-making, diplomatic relations, and the recognition of foreign states. The government retains exclusive authority to negotiate and ratify international treaties without formal parliamentary approval, as demonstrated in the Case of Proclamations (1611) and reaffirmed in contemporary practice. While the Constitutional Reform and Governance Act 2010 introduced the Ponsonby Rule requiring treaties to be laid before Parliament, this represents information-sharing rather than meaningful parliamentary control, as Parliament cannot prevent ratification.

Defence powers under the prerogative include the deployment of armed forces, declaration of war, and military operations. The government deployed forces to Iraq in 2003 relying on prerogative powers, though a parliamentary vote occurred as a matter of political convention rather than legal requirement. This illustrates how prerogative powers in the defence realm remain legally unfettered despite evolving political practice.

The justice prerogative includes the power to grant pardons, mercy, and manage prosecutions. The Attorney General exercises prerogative powers over certain prosecutions, and the Home Secretary may grant pardons or commute sentences. Additionally, the Crown retains prerogative powers over the civil service, issuing and withdrawing passports, and granting honours.

Importantly, the scope of prerogative has been limited through the principle established in the Bill of Rights 1689 that prerogative cannot be used to alter statute law or levy taxation. Furthermore, the common law principle confirmed in Attorney General v De Keyser's Royal Hotel (1920) established that where statute covers the same ground as prerogative, the statutory provision prevails and the prerogative is displaced. However, beyond these limitations, the boundaries of prerogative power remain imprecise and contested.

Accountability and Justiciability

Accountability mechanisms for prerogative powers have evolved significantly but remain incomplete. Traditionally, prerogative powers were considered non-justiciable, meaning courts would not review their exercise. The landmark case of Council of Civil Service Unions v Minister for the Civil Service (1985), commonly known as the GCHQ case, fundamentally changed this position. Lord Roskill held that prerogative powers are subject to judicial review depending on their nature and subject matter, not their source.

The GCHQ case established that many prerogative powers could be reviewed for procedural impropriety, illegality, and irrationality. However, Lord Roskill identified certain prerogative powers that remain non-justiciable due to their subject matter, including treaty-making, defence of the realm, grant of honours, dissolution of Parliament, and appointment of ministers. This distinction between justiciable and non-justiciable prerogatives created a framework that persists today.

Subsequent cases have expanded judicial oversight. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2008), the House of Lords reviewed Orders in Council made under prerogative, demonstrating willingness to scrutinise even sensitive foreign policy matters where fundamental rights are engaged. More recently, R (Miller) v Secretary of State for Exiting the European Union (2017) confirmed that prerogative powers cannot be used to alter domestic law or rights established by statute, requiring parliamentary approval for triggering Article 50.

Despite these developments, significant accountability gaps remain. Political accountability through Parliament is hampered by the absence of statutory requirements for parliamentary approval in most prerogative areas. Ministers exercise prerogative powers with limited parliamentary scrutiny, and constitutional conventions requiring parliamentary involvement lack legal enforceability. The ministerial responsibility doctrine provides theoretical accountability, but its practical effectiveness is questionable given government control of the parliamentary agenda.

Contemporary Relevance

The contemporary relevance of prerogative powers is contested. Proponents argue that prerogative retains important flexibility allowing government to respond swiftly to emergencies, conduct foreign relations effectively, and manage day-to-day governance without legislative delay. The COVID-19 pandemic demonstrated the value of executive flexibility, though emergency powers relied primarily on statutory authority through the Civil Contingencies Act 2004 and emergency legislation.

In foreign affairs, prerogative powers enable the government to negotiate international agreements, respond to diplomatic crises, and manage complex international relationships without exposing sensitive negotiations to parliamentary debate. The ability to deploy forces rapidly in response to security threats, as demonstrated during the Syrian crisis debates, shows the continuing operational relevance of defence prerogatives.

However, critics argue that prerogative powers are increasingly anachronistic in a modern democracy. The lack of parliamentary involvement in treaty ratification sits uncomfortably with the principle that international obligations may require domestic implementation affecting citizens' rights. The Iraq War controversy highlighted public concern that major military deployments should require explicit parliamentary authorization rather than relying on executive discretion.

Furthermore, several prerogative powers appear to have limited contemporary utility. The prerogative of mercy has largely been superseded by statutory appeal mechanisms and the Criminal Cases Review Commission. Honours could readily be placed on a statutory footing without practical disadvantage. Even in areas like foreign affairs, comparative constitutional systems demonstrate that legislative involvement in treaty-making need not paralyze effective international engagement.

The lack of codification means the precise extent of prerogative powers remains unclear. This uncertainty itself undermines constitutional clarity and predictability. While political conventions have developed constraining some prerogatives, conventions lack legal force and may be disregarded by determined governments, as concerns about potential prorogation abuse preceding the 2019 parliamentary crisis demonstrated.

The Case for Reform

The case for reform rests on several constitutional principles. First, parliamentary sovereignty, the cornerstone of the UK constitution, is undermined when significant executive powers operate beyond legislative control. Democracy requires that major decisions affecting the nation should involve elected representatives. Second, the rule of law demands clarity and predictability regarding governmental powers, which the amorphous nature of prerogative undermines. Third, accountability requires that exercises of power be subject to meaningful scrutiny and review.

Several areas require reform. Treaty-making powers should be subject to genuine parliamentary approval for treaties with significant domestic implications or those creating binding international obligations. The Constitutional Reform and Governance Act 2010 provides a foundation that could be strengthened by requiring affirmative parliamentary approval rather than mere opportunities to object.

Military deployment should be placed on a statutory footing requiring parliamentary authorization for committing armed forces to military action, except in urgent circumstances where immediate action is essential for national security. New Zealand and other Commonwealth jurisdictions demonstrate that statutory frameworks can balance executive flexibility with democratic accountability.

The appointment and dismissal of ministers, dissolution of Parliament, and other core executive powers could benefit from greater codification. The Fixed-term Parliaments Act 2011 attempted this regarding dissolution, though its operation proved problematic and it was repealed. However, this experience suggests a need for better-designed statutory frameworks rather than abandoning codification entirely.

Civil service management, passport issuance, and honours could be transferred to statutory authority without practical disadvantage while enhancing clarity and accountability. The Northcote-Trevelyan reforms and subsequent developments show that modernization of executive operations need not depend on preserving prerogative.

However, certain prerogatives may legitimately resist wholesale reform. The conduct of diplomatic relations requires confidentiality and flexibility that parliamentary involvement could compromise. Recognition of foreign governments and day-to-day diplomatic communications might appropriately remain prerogative functions, though subject to political accountability through Parliament.

Judicial review expansion, as developed since GCHQ, provides an accountability mechanism complementing potential statutory reform. Courts have proven capable of reviewing prerogative exercises for legality and rationality while respecting the government's primary decision-making authority in policy matters. Further judicial development of justiciability principles could reduce the need for comprehensive statutory replacement of prerogative powers.

Conclusion

The royal prerogative powers demonstrate concerning breadth in scope, inadequate accountability mechanisms, and questionable contemporary relevance in several key areas. While prerogative retains practical utility in certain contexts, particularly requiring swift executive action in emergencies and sensitive diplomatic contexts, the overall case for reform is compelling.

Reform is required to align constitutional practice with democratic principles of parliamentary sovereignty, legal certainty, and meaningful accountability. Treaty-making powers, military deployment, and various administrative prerogatives should be placed on statutory footings providing parliamentary involvement and clearer legal frameworks. However, wholesale abolition would be neither practical nor desirable. Some prerogative functions, particularly in foreign relations and emergency response, may legitimately require executive flexibility.

The extent of reform needed is substantial but not absolute. A balanced approach would statutorily regulate the most significant prerogatives affecting citizens' rights and national commitments while preserving executive flexibility for day-to-day governance and genuinely sensitive matters. Enhanced judicial review, stronger parliamentary conventions, and targeted statutory intervention could collectively transform prerogative powers from historical vestiges into modern, accountable governmental tools consistent with contemporary constitutional values. The constitutional powers of the monarch, now exercised by ministers, require significant reform to meet democratic expectations of the twenty-first century.