PREROGATIVE POWERS

PREROGATIVE POWERS

The roots of the British Constitution are embedded in its prerogative powers. Traditionally, all the powers of the state were vested with the monarch of the British Empire. During those times, the King or the Monarch was the feudal lord as well as the head of state. However, not much clarity is available on the exact powers included in the Royal Prerogative, as it is often referred to. These powers were formed during a different era and have undergone major changes both in terms of objectives as well as execution. The royal prerogative can be defined as those powers which are the residue of the Crown when they took active participation in the governance. [1] In the current time, these powers refer to the agreements made, announcing wars, employing the army, governing the civil body, and delivering mercies. The prerogative powers are now carried out by the ministers, or when personally carried by the Crown, are taken under the direction of the ministers. Thus, a distinct trait of the prerogative power is that it doesn’t necessitate the prior approval of the Parliament.

Initially, the prerogative was exercised solely by the Monarch or Crown. With the passage of time, the decision made by the Monarch in a personal capacity and those as the head of state became more distinct. With the government dealings becoming more intricate and complex, the powers got transferred from the monarch to his or her ministers, which presently forms the executive ministers exercising their discretionary powers either in their own capacity or at the behest of the Crown. [2] Thus, the executive powers that the ministers possess in current times, are an extension of the traditional prerogatives that had percolated down from the monarch. These are said to be the most crucial powers the government possesses.

The Parliament wasn’t involved in the transfer of the prerogative powers to the ministers. This implies that though these prerogative powers are in effect, they are not regarded as strict law if exercised by the Ministers. In the absence of these traditional powers, the ministers would have to seek permissions of equal stature from the “primary legislation”. [3] However, the ministers tend to take their own liberty and often exercise them without seeking any prior consent from the parliament. In spite of the ever-increasing reach of the prerogative powers of the ministers, Parliament is not being side-lined. Parliament has the authority to dissolve, modify and even curtail prerogative powers by an Act of Parliament. For instance, The Welsh Church Act 1914 empowers all the Churches of England in Wales, and in this process, the Monarch lost all the powers relating to the selection of bishops for the Church of Wales. [4]

Additionally, the Parliament can make a prerogative power to fall under the statute, if the situation demands. This implies that these powers would come instantly under the jurisdiction of Parliament and allows the Parliament to exercise all sorts of inspection and regulation upon it. The basic intention of this stance is to ensure that the person exercising such powers is made accountable for his / her actions.

The Ministers providing advice to the Crown and carrying out prerogative powers on her behalf are held answerable to Parliament. The Ministers are not only accountable to the Parliament, their actions are even scrutinised by the Departmental Select Committees. For instance, the Prime Minister is made to undergo questioning two times a year by the Liaison Committee. [5]

Moreover, Parliament’s consent is needed whenever prerogative powers exercised are related to expenditure even if it is general in nature. [6] The Ministers are able to exercise prerogative powers only if they get funds from the Parliament. Further, the Parliament also has control on the prerogative power by the way of controlling supply. The Ram doctrine states that the minister has been given the liberty to execute any powers as exercised by the Monarch. However, an exception is levied where the ministers are precluded from the same, either expressly or by implicitly[7]

Nevertheless, the Parliament’s regulation over the prerogative powers has its limitations. Though previously the Parliament had curtailed or ended individual prerogative powers, it could only partially restrict the Ministers’ prerogative powers. The Ministers continue to enjoy sufficient powers which don’t require the Parliament’s consent. It’s quite surprising that in the age of the Right to Information, Parliament still doesn’t have the right to know about these powers. Ministers have been deflecting the Parliament’s queries regarding the Ministers’ prerogative powers stating that it wasn’t practical to maintain records of the events during which these powers were exercised.[8] However, the Ministers are definitely answerable to the Parliament for using prerogative powers as much as they would have been for actions done under statutory or common law. The only difference is that they are answerable only after the occurrence. The United Kingdom is one such shining example of a state which authorises Ministers to exercise certain powers without seeking parliament’s consent. However, this is quite unlikely in the case of democracies which doesn’t have such provisions in the constitution granting such powers.[9]

To conclude, ministers are definitely answerable to the Parliament for exercising prerogative powers at the behest of the government. They could be questioned in the Parliament by the Public Administration Select Committee only after exercising the prerogative powers since prior consent of the Parliament is not needed, United Kingdom permits its Ministers to exercise certain powers without seeking Parliament’s approval. Some of the major policies and decisions executed by the government using prerogative powers such as the signing of pacts and positioning of the army don’t require any prior official approval from the Parliament.

References

Poole T, ‘United Kingdom: The royal prerogative’ [2010] 8 (1) International Journal of Constitutional Law 146

Hill M, Sandberg R and Doe N, Religion And Law In The United Kingdom (1st edn, Kluwer Law International 2011)

Ministry of Justice, 'Review Of The Executive Royal Prerogative Powers: Final Report' (2009)

Public Administration Select Committee, 'Taming The Prerogative: Strengthening Ministerial Accountability To Parliament' (House of Commons 2004)

Weait M and Lester A, 'The Use Of Ministerial Powers Without Parliamentary Authority: The Ram Doctrine' [2003] Public Law https://papers.ssrn.com/sol3/papers.cfm?abstract_id=649162