Essay: Royal prerogative

As there is no single accepted definition of the ‘Royal prerogative’ various other ones are offered for conflict with each other. One of the main reasons for this uncertainty is that the prerogative has been changing in the developing years. The definition of the ‘Royal prerogative that is widely used and accepted today is that of A.V Dicey, according to whom the prerogative is merely ‘the residue of discretionary or arbitrary authority, which at any given time Is legally left in the hands of the Crown’.

In other words the ‘Royal Prerogative’ powers efficiently consists of the ones that are generally exercised without the consent of Parliament. The ones which may be exercised by the king himself or his ministers, as assigned to do so by the government or the state. These prerogatives include all the special rights, powers that belong to the crown and are accepted as inherent legal elements of the common law.

INTRODUCTION

This essay examines the Royal prerogative power of the government to declare war and deploy armed forces to conflict abroad without the approval of the parliament. However, things changed in 2003 when before the Iraq war the government agreed to a parliamentary vote. Following in the year 2004, House of Commons’ Public Administration Select Committee published a report on Ministers’ prerogative powers, recommending that in future “any decision to engage in armed conflict should be approved by Parliament, if not before military action then as soon as possible afterwards”. The Committee further proposed that the government should specify the size, objectives, legal basis and likely duration of deployment while seeking parliamentary approval.To which the government responded that they were “not persuaded” that replacing prerogative powers within a statutory framework would improve the present position. After which three private member bills have been taken forth in parliament in order to seek a larger part in the exercise of these royal prerogative powers. The purpose of this is a need for alteration in the royal prerogative powers to ensure a more direct role for Parliament to decide theses life and death issues as its replacement by a new law is next to impossible due to the difficulties of drafting one.

In the UK earlier in the 19th century, the executive power was formally vested in the crown as a tradition.However, from the background of the Royal Prerogative we can notice that it has been ‘educed’ from the constitutional settlement enshrined in the Bill of Rights 1688 which resulted in transferring certain rights to ministers which were the sole preserve of the monarch in the past. At the time the government would engage in military adventures with little or no reference to the parliament. However, this is not the case in today. As the most important prerogative powers are available only to the prime minister and other cabinet ministers. A few powers are still available to the monarch at their disposal, but as the Prime Minister himself has said that there are unlikely to to be any circumstances in which a government could go to war without the support of Parliament. As Jack Straw, the recently appointed Leader of the House of Commons,concluded that ‘decisions in respect of Iraq were agreed through clear, substantive, voteable motions that established a precedent for the future, making it very likely that any similar decisions about military action would be taken by a Parliamentary vote’.

In relation to the UK courts, ‘they have taken the view that the exercise of the deployment power is neither justifiable nor subject to review in domestic courts’, along with the judicial rulings from 1985 that completely removed the exercise of the prerogative powers from being reviewed by the courts.This in turn means that acts by individual members of the armed forces, of whatever rank, in the execution of a deployment order are themselves lawful. As the domestic courts have consistently held that the exercise of the umbrella power of deployment and its various subsidiaries are beyond their supervision. After which,the Government acknowledged in March 2011 that a convention had developed, when the then Leader of the House of Commons, Rt Hon Sir George Young MP, said:’A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter’. We propose to observe that convention except when there is an emergency and such action would not be appropriate. As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed. This is the view that the House of Lords Constitution Committee recently considered options for formalising Parliament’s role in conflict decisions in its Report on Constitutional arrangements for the use of armed force. Concluding that the existing convention was the best means for the House of Commons to be involved in decisions to use force.

Currently, the Royal Prerogative law reflects two constitutional features; that it is rooted in the common law and its exercise is governed by convention. Moreover, its use has been increasingly advanced by the progress of the conventions surrounding it and by the willingness of the courts to supervise the exercise of any prerogative powers. Since today, it has been for the courts to decide whether or not and to what extent a prerogative power has been outdated by statute. It should also be noted, as an example the prerogative powers can waste away the power of impressing into the navy after which the courts can issue the exercise of any prerogative powers to judicial control.

In conclusion I would like to note that ,as far as the future of the royal prerogative as a basis for armed intervention overseas is concerned, we can say the restriction on the deployment power will not affect the freedom which military commanders have and will continue to enjoy it. Further on we also fully accept that this controversy might have a harmful effect on the morale of the troops in the field. Thus we have to note the importance of guarding against it as this would be the case no matter what process was followed. We can do no better than repeat Lord Bramall’s view that ” the armed forces need to be reassured ‘ that they had the support of the country ‘ Parliament represents the will of the people and if Parliament supports the action’ the Armed Forces can take heart that constitutionally the country supports it’.

Source: Essay UK - http://lecloschateldon.com/essays/law/essay-royal-prerogative/


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