The Royal Prerogative in The
On the logic of A.V. Dicey and Sir William Blackstone, these prerogatives are residuary and discretionary Crown powers. This makes them exhaustive and limited unlike statutes which are ever-proliferating. New claims of executive powers are capped. Their long judicial recognition is necessary for validation and to guard against abuse of power. To exemplify, let us say that an education minister purports (s)he has the power to fine parents who do not send their children to school. Its determination is hinged on statutory or judicial acknowledgement. If such source-tracing is missing, there is no power to fine parents. Thus, the aggrieved parents have a cause for judicial review against the delinquent minister. Looking at their discretionary nature, it transpires that their use is not subject to parliamentary, judicial or public approval. However, recent developments show this is not always true. The tale of British withdrawal from the European Union (EU) is evident of it. In Miller No. 1, it was held that Art. 50 of the Treaty on the Functioning of European Union could not be triggered by former prime minister Theresa May without parliamentary approval. Resultantly, European Union (Notification of Withdrawal) Act, 2017, was enacted.
There is no denying that they are vast powers calling for stringent legal accountability. However, equally important is the executive discretion. To achieve this accountability-discretion balance, the Courts have worked out a practical formula. They are committed to review all executive powers except ones of political character, including promise of referendum, decision of war and peace, decision of state welfare, etc. Thus, when the British Broadcasting Corporation (BBC) argued in BBC v Jones that it was immune from taxation, as it was emanation of the Crown, the proposition was refused by the Court. It reasoned under the spirit of the Glorious Revolution of 1688 that the Parliament is the only authority for imposing taxes and exempting someone from those. Its power was constrained to check it for correct interpretation. In all other situations, a clear statute was a final word of law. The Court, thus, accepted the power shift from Crown to the Parliament and its subjection to the latter. It also accepted the supremacy of the legislative will over the executive will. It plainly cleared that governmental powers and immunities are exercised through a statute. They exist by force of law. Therefore, if a statute did not provide for tax-immunity for BBC, the judiciary will not invent it.
Similarly, in de Keyser’s Royal Hotel when the government decided to pay the hotel owners lesser compensation than available under the statute, the Court refused to uphold it. The reason laid out was that the prerogative could not be used to defeat the parliamentary intent. What the people’s representatives’ uphold, forfeits the executive whim. In Sandiford, the denial of the British government to give legal aid to its citizen in Indonesia was said to be inappropriate use of power. It was termed as abuse of power because it was applied rigidly without consideration of the extraordinary circumstances of the claimant. It was held that prerogative power was not subject to the doctrine of unfettered discretion. This meant that for as long as the power existed, it was up to the executive to decide how it applied. The choice was theirs. They could apply it rigidly or flexibly. Either way the exercise of power would be respected by courts to avoid fusion of power.
Other account of judicial inclination to executive will is a matter of national security. It led to non-justiciability of ex-Prime Minister Margaret Thatcher’s decision to end Trade Union membership of GCHQ employees. Likewise, in Bancoult No. 2, it became one of the grounds for refusal of Chagosians’ right to abode in Chagos Islands. Furthermore, in Chandler v DPP, it became a reason for conviction of demonstrators. Never ending, it was the prime reason behind conviction of innocent demonstrators in Jones and Ors.
On the flip side, stand the successful claims. For example, in Fire Brigades Union case, discretionary award of compensation was restrained from defeating statutory scheme. In a similar vein, in Smith & Others, the Ministry of Defence was held accountable for poor preparation of soldiers commissioned to Iraq in 2003.
In spite of this judicial check, there are calls for reform of the prerogatives. There are two ways forward: One is the pragmatic approach and the other is the principle approach. The former propagates gradual statutory control of prerogatives and is advocated by Lord Hurd. The latter suggests wholesome statutory coverage and is supported by William Hague. The first is plausible as it resonates with British values such that it allows room for evolutionary changes as opposed to overnight overhaul. It makes a strong case against floodgates of litigation as it tackles one problematic prerogative at a time. It also bolsters rule of law for it waits for the executive will for reform. However, it falls short of keeping a safe check on government’s consistent change of structure of local government. Therefore, there should be hands-on approach to this matter. Nevertheless remaining problematic, executive powers should be rectified through pragmatic approach because it fits well into the fix-as-the-problem-arise constitutional history of the UK.
The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be contacted at: firstname.lastname@example.org