<\/p>\n
According to Dicey, the prerogative is merely \u2018\u2019the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown\u2019\u2019 [1<\/a>]<\/span> . In other words the prerogative power is the exclusive right, power or authority that is given to an individual or a particular group by the government or state. The powers may be exercised by the King himself or his Ministers and the court recognises the royal prerogative as part of the common law. The nature of the prerogative is summarised by the following three categories [2<\/a>]<\/span> :<\/p>\n Monarch\u2019s constitutional prerogatives:<\/p>\n The right to appoint and dismiss a Prime Minister and other Ministers<\/p>\n The right to dissolve Parliament<\/p>\n The right to give assent or dissent to bills<\/p>\n Legal prerogatives of the Crown:<\/p>\n Crown immunity<\/p>\n The Crown is not bound by statute except when it is expressed by words<\/p>\n Executive prerogatives:<\/p>\n Declaring war<\/p>\n Issuing and withdrawing passports<\/p>\n Appointment of the Queen\u2019s Counsel<\/p>\n Making and sustaining peace<\/p>\n Granting honours<\/p>\n Making and endorsing treaties<\/p>\n In the 17th century prerogative powers were heavily relied upon by Stuart Kings [3<\/a>]<\/span> as they tried to govern the country or state without the need to seek the Parliament\u2019s approval or consent. The Stuart Kings\u2019 attempt to establish independence from the Parliament encouraged similar developments in other European countries where rules were recognized by absolute monarchies. In the year 1689 the Bill of Rights established that parliamentary sanction was necessary to maintain a standing army and for the power of taxation. It allowed the Parliament to also take part in the exercise of certain prerogative powers.<\/p>\n In the year 2003 Tony Blair made use of the prerogative power as the Prime Minister of Britain and declared war with Iraq without acquiring parliamentary approval prior to his declaration [4<\/a>]<\/span> . According to the article \u2018\u2019Blair’s power to go to war comes under assault on two fronts\u2019\u2019 [5<\/a>]<\/span> the Prime Minister can use the royal prerogative to declare war with another country and he\/she is not at all obliged to discuss the decision with the Parliament. Declaring war is a prerogative power that falls under the category of foreign affairs. The decision of going to war is a very important one for any country and historically the sovereign had the privilege and the power to declare war. However over time the power was progressively shifted to the Prime Minister and the House of Lords Constitution Committee has expressed concern regarding this matter. They aim to hold an inquiry and try to persuade Tony Blair so that he gives Parliament the final say on whether or not Britain should send troops to go into battle. The issue of the article highlights the fact that a decision as crucial as the declaration of war should certainly be discussed and evaluated by a larger population than simply by the Prime Minister and his\/her Ministers and therefore greater Parliamentary scrutiny is vital and necessary.<\/p>\n Currently parliamentary involvement is very much limited regarding the deployment of armed or military forces. One of the main concerns of the parliament\u2019s limited involvement in this matter is legitimacy [6<\/a>]<\/span> . The concerns regarding legitimacy are about the exercise of the prerogative powers and their source of authority. Lord Lester found it unusual that the Crown was able to exercise prerogative powers without Parliamentary approval simply based on medieval notions of Kings practicing these powers to govern the state while the parliament was completely deprived of voicing their opinions with regards to the decisions taken by the Kings. Intellectuals like Mr Sebastian Payne and Professor McEldowney expressed their complete accordance with this viewpoint by saying that \u2018\u2019Parliament should be the source of Government\u2019s power\u2019\u2019.<\/p>\n It has also been mentioned that if parliamentary involvement in the decision-making process is increased then it would lead to better decisions because they will then be better prepared and more considered, that too by a larger group of people. It will also be a more democratic decision due to the fact that the whole House of Commons is taking part in the process. A decision regarding the deployment power is considered to be taken in a \u2018\u2019vacuum\u2019\u2019 if the Prime Minister is the only one behind the decision. Therefore if the decision was thoroughly scrutinised then it would be more thought through and there would be less scope of mistakes and errors. This would be advantageous for those who are associated with the outcome of the decision because a slight mistake in the decision regarding the deployment of armed\/military forces could be gravely hazardous.<\/p>\n According to Rt Hon Lord Hurd [7<\/a>]<\/span> of Westwell \u2018\u2019any major military action should have explicit parliamentary approval\u2019\u2019. He said that individuals of a country going to war with another country is a major decision as it involves the individuals killing and being killed on behalf of the country. This grants on them a huge responsibility and also a huge risk which has an impact on their lives, families and the whole nation to which the individuals belong to. The decision of killing and the possibility of being killed in the process is a crucial decision that gets imposed upon individuals. It may be the most important act they carry out in their lives and that demands scrutiny by the whole of the House of Commons. The use of military force also enables and authorises individuals to make use of lethal forces and weapons against others. Parliament has the right to know when and where these forces are being used and give their opinions when such a decision is made. Therefore such government decision should be backed up by very strong authority, namely the House of Parliament and they should be allowed to exercise greater scrutiny.<\/p>\n Ministers use prerogative powers to grant and revoke passports. However Lord Lester highlighted that one of the most fundamental Human Rights is the right to movement (article 13 (1)) [8<\/a>]<\/span> and that it is not usual for this right to be exclusively subject to prerogative powers and beyond the parliament\u2019s reach. Therefore the right to grant and revoke passports should certainly be subject to greater parliamentary scrutiny because that will then enable better judgement due to the greater number of people involved in the decision-making process.<\/p>\n The Prerogative of mercy is one of the prerogative powers exercised by the Crown or the government. It is a vital prerogative power which is provides a \u2018\u2019safety net\u2019\u2019 in the criminal justice system to those convicts who feel that the accusation against them is false and unjust. They can then file a petition to the Crown itself and request relief or pardon from the Crown after which the Governor-General can take one of any three of the following decisions:<\/p>\n Simply pardon or forgive the offender in question<\/p>\n Grant delay or reduce the sentence that has been given<\/p>\n Give reference of either the entire case or just part of it to the Court for further review<\/p>\n This prerogative power is only applied or sought after when all other court hearings and appeals have been tried and only if those trials have shown unsatisfactory results. The prerogative power of mercy was absolute however gradually it became subject to judicial scrutiny [9<\/a>]<\/span> . This portrays a positive event in the UK constitution as it would have been highly significant for a prerogative power such as the power of pardon or mercy to be exposed to judicial scrutiny. This is because judicial scrutiny refers to severe analysis of the prerogative powers by the courts and the pardon or mercy would only arise if there is a significant change to the previous trial [10<\/a>]<\/span> . These changes include the following:<\/p>\n If an important witness has decided to change their statement<\/p>\n If there are scientific discoveries that challenge the evidence already submitted<\/p>\n If there is a new witness<\/p>\n Therefore the court\u2019s judgement and contribution are fundamental when these new proofs or witnesses are presented so that they can be evaluated and scrutinized with the previous time. This would enable judges and the court system to come up with more effective results if they can view the facts from both times. It is after all the duty of a judge to deduce and come up with the correct decision of a case. Hence greater judicial scrutiny is vital when it comes to exercising the prerogative of mercy.<\/p>\n In Chandler v DPP [1964] A.C. 763 the appellants were members of a committee namely \u2018\u2019Committee of 100\u2019\u2019. Their main aim was to promote the purpose of the \u2018\u2019Campaign for Nuclear Disarmament via non-violent demonstrations of civil disobedience\u2019\u2019. They did this by taking part in a demonstration that was held on the 9th of December 1961. They planned that on that very day some of the members would occupy a position outside the entrance to the Wethersfield Airfield (a \u2018\u2019prohibited place\u2019\u2019 under section 3 of the Official Secrets Act 1911 [11<\/a>]<\/span> ) and would sit there for five straight hours which would prevent viewers from entering the airfield. Meanwhile other members of the committee would actually enter the airfield and sit in front of the aircraft which would ultimately prevent the aircraft from being able to take off. They wanted to reclaim the base for purposes of the civilians\u2019. The appellants were convicted for conspiracy and that they committed a breach of section 1 of the Official Secrets Act 1911 as they have entered a \u2018\u2019prohibited place\u2019\u2019. The prosecution witness gave evidence that the members entered the prohibited airfield and prevented the aircraft to take off. This hampered the safety and interests of the State and hence they have been convicted. Lord Devlin in his judgement stated that the true purpose of this demonstration by the members of the \u2018\u2019Committee of 100\u2019\u2019 was to ban the use of nuclear weapons by the country. Lord Devlin pointed out that according to the section 1 of the Official Secrets Act 1911 there would be penalties for spying \u2018\u2019If any person for any purpose prejudicial to the safety or interests of the State\u2019\u2019. However the demonstration organised by this committee proves to be highly beneficial for the state and contrary to causing detriments to the \u2018\u2019safety or interests of the State\u2019\u2019 the committee is trying to prevent the use of a lethal weapon and promote safety. Lord Devlin admitted that the Crown had the authority to exercise the orerogative powers that enabled it to control and operate armed forces, however he also emphasized that in this case \u2018\u2019the prerogative and the position of the Crown are completely irrelevant\u2019\u2019. Therefore as per Lord Devlin, it was wrong to convict these members and hence the courts should be authorised to intervene in matters where there has been an abuse of prerogative power and rectify the situation. This case proves the importance of judicial scrutiny and that it should be further exercised when certain situations arise.<\/p>\n Along with the myriad reasons supporting greater parliamentary and judicial scrutiny there are some reasons which state the contrary. Former Labour MP Tony Benn campaigned for the eradication of the Royal Prerogative and for the notion that prerogative powers that are exercised by the Prime Minister and the cabinet (which includes the Ministers) should be subject to Parliamentary scrutiny and should seek the approval of the democratically elected Members of Parliament. Unfortunately his attempts were not successful as the government rejected his campaign arguing that the sheer volume of topics covered by the Royal Prerogative would undoubtedly overwhelm and engulf the parliament. It would be time consuming thus would also slow the performance and sanctioning of legislation if the approval of parliament members were required every time the prerogative was used [12<\/a>]<\/span> . This reasoning to suppress and quash Tony Benn\u2019s attempts makes sense as it would be hectic to consult the Parliament every time a decision was to be taken concerning the Royal Prerogative. This may even weaken the Parliament\u2019s role in other important areas and may reduce its capability to carry out its other important tasks.<\/p>\nThe History of the Royal Prerogative<\/h2>\n
Reasons to increase Parliamentary scrutiny<\/h2>\n
Reasons to increase Judicial scrutiny<\/h2>\n
Detriments of increased Parliamentary and judicial scrutiny<\/h2>\n
Conclusion:<\/h2>\n