Pubic Law

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An important site in the British Constitution, although far more important in the past than today, is the royal prerogative. The United Kingdom has a constitutional monarchy, not an absolute monarchy. This means that the monarchy is apolitical and impartial. The defining characteristic of the prerogative is that its exercise does not require the approval of Parliament.

A V Dicey defines the Royal prerogative as ‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. William Blackstone however describes the prerogative more tightly, as those powers that ‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’.

Barnett describes the prerogative today as ‘this ill defined reservoir of power’.

After the glorious revolution and after the enactment of the Bill of Rights 1689, Monarch has become a Constitutional Monarch i.e. the Monarch has limited prerogatives bestowed on her.

This is in line with A V Dicey's first postulate that no one should be punished save where he has committed a distinct breach of the law, and then only by the ordinary courts and in the manner prescribed by law, it necessarily warrants the controls and limits by separating the powers of the organs of the state with check and balance mechanism, though most prerogatives today are performed by the Executive.

The royal prerogative concerns ‘those inherent legal attributes which are unique to the Crown’ (De Smith Constitutional and Administrative Law (1998)). Whilst some of these do still remain vested in the Monarch in person, by convention most (in volume and significance) are now exercisable only by Ministers of the Crown. It is true that, by convention again, the Queen must be consulted and, as Bagehot put it, she has ‘the right to be consulted, the right to encourage, the right to warn’ (The Law of the Constitution (1867)), but in reality the royal prerogative now amounts to powers of the Her Majesty’s elected government.

Some key areas of British system of government are still carried out by means of the Royal Prerogative. However the usage of the Royal Prerogative has been diminishing.

The prerogative gives the prime minister and his government almost unchecked powers not only to make war abroad, but also to deploy troops at home (to maintain the peace), to make and ratify treaties, to conduct foreign policy, to negotiate for the United Kingdom in the European Union and on other multilateral bodies, to share in NATO's decision-making, to represent Britain at the United Nations, to organise and re-organise the civil service, to grant and revoke passports, to dissolve Parliament, to dispense peerages and honours, to appoint senior judges and to stop prosecutions.

These rights are medieval in origin and are formally used by ministers (and officials) on the Queen's behalf. In effect, they give ministers wide-ranging executive powers that may be exercised without parliamentary approval or scrutiny. Parliament does not even have the right to know what these powers are. Ministers shrug off parliamentary questions about them by saying that it would be impossible to list them, that records are not kept of their use and that it would not be practicable to do so.

A classic example of abuse of power in the name of Royal Prerogative is when Tony Blair took the country to war.

The scope of the royal prerogative power is notoriously difficult to determine as there are many prerogative powers, for which there is no recent judicial authority and sometimes no judicial authority at all. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists.

The courts could determine the existence and extent of a prerogative power, they could not question or review the manner in which a prerogative...
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