Royal prerogative powers

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A newly formed government in the UK prepares to sign a far-reaching international agreement, called the Portshire Accord, with a neighboring state. The agreement aims to regulate import and export quotas for essential goods and services. However, Parliament has previously enacted the Essential Goods Regulation Act 2010, which comprehensively governs all such trade matters. Government ministers argue that treaty-making is a royal prerogative, claiming they do not require parliamentary approval to finalize the Portshire Accord. Concerned lawmakers challenge the government's position, insisting that relying on prerogative powers here may conflict with existing legislation.


Which of the following is the best statement regarding the government’s reliance on the royal prerogative in this scenario?

Introduction

Royal prerogative powers are the residual authorities held by the Crown under common law, fundamental to the constitutional framework of the United Kingdom. Originating from historical monarchic rule, these powers persist alongside modern democratic governance. Understanding their nature, scope, and limitations is necessary for comprehending the complexities of the UK's uncodified constitution.

Historical Evolution of Royal Prerogative Powers

Royal prerogative powers trace back to medieval England, reflecting the sovereign's authority to govern independently of parliamentary intervention. Over centuries, these powers have been reshaped, mirroring the shift from absolute monarchy to constitutional democracy in the UK.

Significant historical milestones include:

  1. Magna Carta (1215): Established that the monarch is subject to the law, marking the beginning of legal limitations on royal authority.
  2. The English Civil War (1642–1651): Challenged the extent of the king's power, leading to increased parliamentary influence and the temporary abolition of the monarchy.
  3. Bill of Rights (1689): Further curtailed royal prerogatives, asserting parliamentary supremacy and laying the groundwork for a constitutional monarchy.
  4. Case of Proclamations (1611): The courts affirmed that the monarch could not create new prerogative powers, ensuring that existing powers could not be expanded unilaterally.

Today, while the royal prerogative remains vested in the Crown, its exercise is carried out by government ministers. This transition ensures that executive powers are subject to parliamentary oversight and judicial review, aligning with democratic principles.

The Role of Royal Prerogative Powers Today

In modern governance, royal prerogative powers still play an important role, enabling the government to act swiftly in certain areas without new legislation. These powers, however, are exercised with caution and accountability.

Foreign Affairs

Under the royal prerogative, the government manages various aspects of foreign relations:

  • Treaty-Making: Negotiating and entering into treaties with other nations.
  • Recognition of States and Governments: Deciding which foreign entities the UK formally acknowledges.
  • Passports: Issuing and revoking passports that allow citizens to travel internationally.

Defense and National Security

Prerogative powers authorize actions concerning national defense:

  • Deployment of Armed Forces: Sending troops abroad without prior parliamentary approval.
  • Declaration of War and Peace: Officially starting or ending hostilities with other nations.

Appointments and Honors

These powers allow the Crown, on ministers' advice, to:

  • Appoint Ministers and Judges: Filling key positions within the government and judiciary.
  • Grant Honors: Bestowing knighthoods, peerages, and other recognitions for service to the nation.

Functioning of Government

Prerogative powers affect the operation of Parliament and the government:

  • Summoning and Dissolving Parliament: Deciding when Parliament meets or is dissolved, akin to setting the dates for important meetings in an organization.
  • Royal Assent: The monarch's formal approval that turns a bill into law, much like the final signature required to enact a new company policy.

Justice

Under certain circumstances, the government can exercise mercy:

  • Granting Pardons: Forgiving individuals for offenses, known as the royal prerogative of mercy.

These powers assist in effective governance but are exercised within the bounds of legal constraints and democratic accountability.

Royal Prerogative and Parliamentary Sovereignty

Prerogative powers must operate within the framework of parliamentary sovereignty. So, how do these powers interact with statutory law?

  1. Supremacy of Statute Law: If a prerogative power conflicts with an Act of Parliament, the statute prevails. In Attorney General v De Keyser's Royal Hotel Ltd (1920), the House of Lords held that when Parliament has legislated on a matter, the government cannot rely on prerogative powers to override or bypass the statute.

  2. Abeyance Doctrine: When Parliament legislates in an area previously governed by the prerogative, the prerogative power becomes dormant. The case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) demonstrated that the government could not use prerogative powers where Parliament had enacted legislation, even if the legislation was not yet in force.

  3. Judicial Review: Courts can review the exercise of prerogative powers to ensure they are used lawfully. In Council of Civil Service Unions v Minister for the Civil Service (1985), the House of Lords confirmed that certain prerogative powers are subject to judicial scrutiny.

  4. Constitutional Conventions: While not legally enforceable, conventions guide how prerogative powers should be used, promoting accountability and adherence to democratic norms.

This interaction reinforces the principle that the government must act within the law, respecting the supremacy of Parliament.

Case Studies: Prerogative Powers in Action

Examining real-world examples helps illustrate the practical significance of royal prerogative powers.

The Brexit Legal Battles

Miller v Secretary of State for Exiting the European Union (2017): The government intended to trigger Article 50, beginning the UK's withdrawal from the EU, using prerogative powers. The Supreme Court ruled that parliamentary approval was required because triggering Article 50 would affect domestic law and individual rights established by the European Communities Act 1972.

This case affirmed that prerogative powers cannot be used to alter domestic law or rights without Parliament's consent.

Military Action Without Parliamentary Approval

In 2018, the UK government authorized airstrikes in Syria without prior parliamentary approval, invoking prerogative powers concerning national defense. This action sparked debate over the extent and oversight of such powers, highlighting tensions between swift executive action and democratic accountability.

Prorogation of Parliament Controversy

R (Miller) v The Prime Minister (2019): The government advised the Queen to prorogue (suspend) Parliament for five weeks during a critical period of the Brexit process. The Supreme Court unanimously ruled that the prorogation was unlawful because it prevented Parliament from carrying out its constitutional functions without reasonable justification.

This landmark decision demonstrated that even prerogative powers relating to the functioning of Parliament are subject to legal limits.

Looking Ahead: Challenges and Reforms

Royal prerogative powers continue to change, raising questions about their place in modern democracy.

  • Codification Debates: Some advocate for prerogative powers to be codified in statute to improve transparency and accountability, clarifying their extent and limitations.

  • Parliamentary Oversight: Ongoing discussions consider increasing parliamentary scrutiny over prerogative powers, especially regarding military deployment and treaty-making.

  • Judicial Role: Courts have shown a willingness to review the exercise of prerogative powers, but the boundaries of judicial intervention remain a topic of debate.

  • Post-Brexit Considerations: The UK's departure from the EU has reignited discussions about the balance of power between the executive and Parliament, particularly in international agreements and domestic legislation.

Other common law countries, like Canada and Australia, have taken steps to define or limit prerogative powers through constitutional conventions or statutes, offering models for potential UK reforms.

Conclusion

Royal prerogative powers are an essential yet complicated component of the United Kingdom's constitutional framework. Their coexistence with statutory law necessitates careful management to uphold both effective governance and democratic accountability. The interaction between these ancient powers and modern legal principles is evident in key judicial decisions. For instance, the Miller cases highlight the limitations placed on prerogative powers when they intersect with parliamentary sovereignty and individual rights.

Understanding the scope, limitations, and application of royal prerogative powers allows for a comprehensive analysis of constitutional issues within the UK's uncodified constitution. These powers demonstrate how historical authority adjusts to contemporary legal standards, reflecting the dynamic nature of constitutional law.

Acquiring detailed knowledge of these concepts, including relevant case law and the mechanisms regulating the exercise of prerogative powers, is important for anyone studying for the SQE1 FLK1 exam. Recognizing how these powers operate in practice deepens the appreciation of the UK's constitutional complexities and prepares candidates for challenging questions they may encounter.

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