Dicey defined The Royal Prerogative “the residue or arbitrary power lawfully left in the hand of the crown.” Thus, only powers which are solely the crown’s could be considered prerogative. It is a group of powers that grants the Prime Minister, the Government and other officials the ability to make major decisions without the need to consult parliament. Although these powers were once in the Queen’s hands, they are now used by cabinet and ministers. The prerogative has been used in the past to make treaties and to deploy armed forces. The prerogative also covers the appointment and demotion of civil servant officers and ministers. The Prerogative gives the Prime Minister the power to dissolve parliaments, declare war or call for election.
The royal prerogative to mercy was used in the past to allow ministers to pardon death row prisoners. However, it is now limited to the modification of sentences. Lord Coke explains that although the king has no power to amend common law or introduce new offenses, the courts have prerogative powers. Thus, the courts can declare whether a monarch has prerogative authority and what proportion of it is used by him. This is a clear indication that the courts have the primary rule of the prerogative. Legislation has changed prerogative powers. Some of these powers have been replaced by statuary power. A-G. v De Keyser’s Royal Hotel Ltd (1920), the crown can’t exercise prerogative power if both statuary or prerogative powers co-exist. As statute always preempts prerogative, no less money could ever be paid. R.v. Secretary-of-State for the Home Department Ex Parte Fire Brigades Union (1995), found that the home secretary refused permission to select a specific time to implement the Criminal Justice Act 1989. The Home Secretary used his prerogative power to implement a substitute plan. This indicated that the Home Secretary had acted illegally and was therefore not permitted to reject legislation being implemented completely. The executive, legislative and judiciary each have their own domains which ensures separation. The prerogative cannot replace a statuary system if it is already in place. While courts cannot regulate the exercise of prerogatives, the Courts can determine the extent to which they are used. Lord Coke has stated this.
The Council of Civil Service Unions [1985] recognizes that the exercise of prerogative powers could be subject to judicial review. However, prerogative power can be subject to judicial scrutiny. This is the case in which it was. A decision that is contrary to logic or moral standards may be blocked. The courts can review the prerogative power to issue passports. R v Secretaryfor foreign and Commonwealth Affairs Ex p Everett (1985), supported GCHQ and demonstrated that the executive prerogative can be reviewed by the courts. Although formal declarations in war were historically the norm, they have been replaced by informal ones. However, overseas deployments are not permitted. This power is prerogative and the monarch has the right to choose. A new constitution provides for parliamentary participation in these decisions. The parliament did not have the votes to approve the decisions, such as the Falklands War 1982 or the Gulf War 1991.
When the United Kingdom voted to support the invasion in Iraq in 2003, the world changed. It was so controversial that the House of Commons had to approve it. The House of Commons Select Committee on Public Administration recommended that Parliamentary approval of war decisions be made. In 2007, the government stated that it would endorse a House of Commons resolution which required that the government consult Parliament before declaring war. Acts may be retroactively applicable, as in the War Damages act 1965 that reversed the House of Lords decision in Burmah Oil (v Lord Advocate) (1965). This issue was poised to be resolved with the Constitutional Reform and Governance Bill 2010. The bill included a draft section on approval by resolutions of both houses. This power cannot be exercised because the final version does not contain the proposal.
2015, the United Kingdom decided not move forward with airstrikes on ISIS in Syria. This decision was made because the government felt it would lose the House of Commons. The prerogative has many problems. It requires precision. But, Parliament is not able to use prerogative power. Prerogative powers are not available to governments, so they cannot rely on the parliament for statuary powers. Parliament should have greater control over prerogative actions. There are many ways to reform the prerogative and replace it with a law, such the Fixed Term Parliaments Act 2011. However, the prerogative power must be preserved. This can be done by a law or constitutional convention. The emerging convention on war prerogative is an example. To preserve the prerogative powers but establish the legal requirements for the consent of Parliament.
The Constitutional Reform and Governance Act 2010, which deals with international treaties, is an example. Prerogatives are the residual legal powers that a crown has above and beyond all other people. The courts have the power to rule on prerogatives and review their use. They can also control and displace them.
