Prerogative Powers are Undemocratic

“Prerogative powers are undemocratic. They allow the executive too much power.

Description”

Introduction

            Amidst the raging debate regarding constitutional reform in Britain and the future of the monarchy, not much attention seemed to have been given to the excess powers held by the prime minister courtesy of the Queen's name, through the royal prerogative[1].   In this case, prerogative powers refer to those powers previously enjoyed by the monarch, but have since been delegated to the prime minister. The royal prerogative or prerogative powers can be defined as “...the remaining portion of the Crown's original authority, and it is therefore... the name for the residue of discretionary power left at any moment in the hands of the crown, whether such power be in fact exercised by the King himself or by his Ministers”[2].  Since prerogative powers are arbitrary[3], they do not therefore require parliamentary consent.  Prerogative powers afford the Prime Minister to dominate and enjoy greater control over other arms of the government, including military and foreign policy powers[4]. To-date, the Monarch and ministers still enjoy various prerogative powers, which are usually exercised under controversial circumstances and without restraint[5]. This essay seeks to establish what constitutes prerogative powers and to argue that since prerogative powers originate from royal rule as opposed to parliament, they confer too much power on the executive, and are out of tune with the modern idea of constitutionalism, and are hence undemocratic.

Prerogative powers

            The royal prerogative entails several privileges or powers that were previously undertaken by the monarch but are now performed by the Prime Minister in the name of the Crown[6]. In essence, the Prime Minister derives authority to perform these privileges or powers from the Crown, as opposed to Parliament. There are various examples of such privileges and powers:

The right to make treaties and declare war

            The Royal Prerogative grants the Prime Minister, who acts on behalf of the Crown, the powers to make decisions regarding the armed and defence forces. This is a long-standing constitutional practice that can be traced as far back as the 1698 Bill of Rights[7]. This implies that the executive arm of the government holds the liberty to act in this particular field, while Parliament does not have a legally and formally established role on the matter.  What this Prerogative power of the executive in matter war means is that the Government retains the freedoms to act without restrain, and could theoretically enable the government to indirectly pursue national interests. As a result, for centuries, the Prime Minister has exercised the Royal Prerogative without having to consult Parliament and the citizens[8]. This particular royal prerogative has been historically been described as being fundamentally undemocratic, with the result that the judiciary has repeatedly described it as ‘the clanking of mediaeval chains of the ghosts of the past[9]. Moreover, the manner in which prerogative powers are exercised is out of tune with the basic constitutional values that Britain upholds namely, the rule of law and parliamentary supremacy.

             Even though parliamentary approval is not commonly required prior to taking action, ministers in the government are accountable to Parliament for their decisions and policies[10]. In addition, decisions arrived at by the Government to deploy armed forces do not undergo judicial review and thus circumvent normal procedures of democratic control[11]. It is important therefore to urgently re-assess the balance between effective prosecution of war in modern era and the demands for democratic accountability[12]. Such a balance was exemplified in the war on Iraq in 2003. While the Royal prerogative powers permits the Government to declare war with another state and consequently deploy its armed forces without first having to seek parliamentary approval, Tony Blair, the then British Prime Minister, agreed to a parliamentary vote in order to decide whether Britain would be sending its troops to Iraq. Since then, calls have been made to make it mandatory that Government should always seek Parliament’s consent prior to assuming any action in future conflicts. This was addressed in the 2004 report issued by the Public Administration Select Committee of the House of Commons on the issue of Ministers' prerogative powers. In this report, the committee recommended that "any decision to engage in armed conflict should be approved by Parliament, if not before military action then as soon as possible afterwards"[13].

The right to issues orders to armed forces

            The Prime Minister also enjoys Royal prerogatives in terns of issuing orders to the armed forces[14]. Again, the minister is not required to seek parliamentary approval before doing this.  However, the Government can decide on the extent to which Parliament should be involved in such matters but there are no legal requirements that govern the Government's course of action in such matters[15].  Accordingly, the Prime Minister preserves the discretion to seek parliamentary approval on his/her policies with respect to an international crisis. Considering that no two international crises can ever be the same, there are differences in terms of whether Parliament ought to be involved in such decisions, or not[16]. Many have over the years criticised the idea that the Cabinet and the Prime Minister could take the country to 'war' by exercising the privilege accorded to them by the Monarchy since medieval times[17]. The fact that Parliament is not involved in such decisions could be interpreted as a sign that there lacks democratic accountability regarding the most crucial decision that a government could ever make[18].

The right to dissolve Parliament

            Prior to 2011, the prime Minister, through the prerogative powers had the authority to dissolve Parliament and set a new date for the next general election following the completion of a parliamentary term[19]. Usually, the sovereign would be subject to the Prime Minister's advice but this particular area of the Prerogative powers was the center of a raging debate amongst scholars.  However, the passage of the 2011 Fixed-term Parliament Act nullified the Prime Minister's prerogative authority to dissolve parliament[20]. The 2011 Act further provided a definite date for the next general election (in this case, the Act provided that the date for the general election would be on the first Thursday of May 2015).   Additionally, the Act provided that future Parliaments would be in office for a 5 year period and that the term would be fixed[21]. Therefore, the Act apparently took away the Prime Minister’s power to identity a date for the election based on his own discretion. Before the passage of the 2011 Act, Her Majesty the Queen retained the prerogative authority to dissolve Parliament prior to the completion of its maximum term in office of 5 years.   However, the Prime Minister would normally make such a request.

            Another Prerogative Power available to the executive is signing of foreign treaties. Although Parliament has to sanction signed treaties, nonetheless only treaties Parliament can only debate those treaties likely to change UK law. Consequently, Parliament has no control over other treaties which do not involve changing of UK law, even in a case where such treaties are vital to the UK and other countries.

            Under Prerogative powers, managers have the authority to manage the civil service and develop primary legislation. This happens under the privilege by an Order-in-Council. While no statute is required to grant this legislation powers, it could still be overturned by an act of Parliament, as evidenced by the GCHQ case[22]. This occurred in the 1980's under the Margaret Thatcher-led Conservative government. The government thus made a ruling to the effect that all employees of the GCHQ (Government Communications Headquarters) were barred from becoming members of any trade union. In arriving at this decision, the government ruled that it was in the interest of preserving national security. The Conservative government relied on an Order of Council in order to exercise this particular Royal Prerogative Power[23].  In issuing its judgement on the case, the High Court of Justice issued a ruling that regarding the invalidity of the Order. Nonetheless, the Court of Appeal overturned this decision and maintained the significance of national security. Consequently, decisions and considerations made on such a ground ought not to be taken into account. While such legislations are rare, when ministers execute them, Parliament has no mandate to examine what it, thereby permitting ministers to bypass Parliament. Consequently, the executive exercises more powers in comparison with the legislature.

Territorial secession

            Another Prerogative power available to the executive it the authority to cede British territory, change and issue a declaration on the limits of the British territorial waters[24]. In this case, if the executive were to exercise this particular prerogative, Parliament would not have grounds to scrutinise it. While it is highly unlikely that the executive by exercising the Crown prerogative would cede British territory and fail to seek Parliament consent, the fact that the executive still has access to this particular option is yet another indication that the executive is very powerful compared to the legislature.

Immigration

            Moreover, while most prerogative powers regarding the issue of immigration are now exercised courtesy of the 1971 Immigration Act[25], the matter along with the cancellation of passports still hinges on this prerogative. Therefore, Parliament has limited say in reviewing persons who have been barred from leaving the UK, as well as individuals who may be recalled to the UK. This is the case, even as the procedure could get in the way of individual autonomy.  Another prerogative power that the Monarch still retains is that of appointments and honours. Through this prerogative, the Crown is in a position to make significant appointments, including those of the civil service, ministers, judges, and other crucial appointments in public office.

Political honours

            The Monarch also retains the power to give political honours like knighthoods as other honours like peerages. Such honours and appointments are usually given following the advice of the Prime Minister to the Monarch. While the Prime Minister might receive advice from the House of Lords Appointments Commission regarding peerages, Parliament has no say in regards to scrutinising how this particular privilege is exercised. What this means is that under certain circumstances, the Prime Minister may appoint individuals that he/she deems fit.

            The fact that the Parliament is not in a position to scrutinise individuals appointed to various notable public office positions implies that persons are appointed to positions of immense power and still evade being scrutinised by legislature who have been elected into office under a democratic process to represent the interests of the very people that those appointed into public office will serve. Moreover, such prerogative power could result in corruption. A case in point is the 2006 and 2007 discovery of the Cash for Honours scandal. In this case, it was revealed that political parties were swapping peerages for loans and donations[26]. There is every reason to believe that such situations might not have taken place if only the process of giving peerages and political honours was subjected to public scrutiny.

            It appears almost absurd to imagine that in a democratic process, the executive could make crucial decisions regarding such matters of great importance to a country and fail to solicit the opinions of Parliamentarians who represent the interests of the electorate[27]. What this appears to suggest is that Parliamentary scrutiny of the manner in which prerogative powers in the UK are exercised is very poor. This is not only unjust but also unfair because there seems to have developed a legal loophole which permits the executive to bypass the legislature in making a ruling on such matters. Consequently, the executive avoids subjecting such issues to a democratic process especially because some of the decisions are likely to be highly controversial.

Conclusion

            The arbitrary nature of Prerogative powers means that the ministers or Prime Ministers while acting on behalf of the Monarchy do not require parliamentary consent. This affords the Executive dominance and greater control over other arms of the government in such diverse areas as foreign policy, the military, and immigration. For example, the Prime Minister preserves the right to declare war without consulting Parliament. However, Tony Blair consulted Parliament before Britain joined the war in Iraq which was a break from tradition. Also, prior to 2011, the Prime Minister had powers to dissolve parliament and fixed the date for the next General Election, also these powers have since been nullified following the passage of the 2011 Fixed-term Parliament Act. However, the Executive still reserves other Prerogative powers such as on the issue of immigration and awarding of political honours.

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