Public Law in The UK: The Royal Prerogative

The Royal Prerogatives are set powers that give the prime minister and the government, the authority to make decisions without consulting parliament.[1]The royal prerogative has been described by A.V Dicey as “The residue of discretionary or arbitrary authority… legally left in the hands of the crown”.[2] The quotation outlines the historical movement of the power of the crown being transferred to the government, and through power being devolved through the monarch, The Queen is constitutionally bound to follow. The exercise of the royal prerogative by the government to deploy armed force overseas is outdated, and the legal basis for decisions concerning this is questionable. The use of royal prerogative is outdated in the 21st-century democracy as its powers have been diluted through the convention and judicial review.

Even with possibilities of reform, its past use by the government still holds controversy. The Royal Prerogative is a significant element of the UK’s government and constitution, following the overthrow of James the second in the Glorious revolution of 1688. The Bill of Rights was passed in 1689, confirming the power of parliament and its ability to deploy armed forces. Royal prerogatives however can be challenged within courts and does not have absolute power, as witnessed in the case of R (Miller) v Secretary of state of exiting the European Union, which the ruling had stated that there is no superior form of law than primary legislation, and it can only be challenged when parliament itself has made provisions for it to be allowed to happen.

In addition, the Government's use of prerogative power can also be challenged through judicial review, until 1984 the House of Lords case of Civil Service Unions v Minister for the civil service, courts would not review how prerogative powers were exercised, and only whether it existed. The use of Royal prerogative in the 21st century has caused controversy. In circumstances such as the Falklands War 1982 or the first Gulf War in 1991, there were no votes or attempt to seek approval of parliament which had caused arguments of the involvement of parliament in deploying armed forces. Tony Blair is an example of the controversy created, through initiating the invasion of Iraq, which the public was against. Even the votes for the invasion were divided and did not have a united parliament backing Tony Blair’s decision. On the other hand in Australia, the royal prerogative is limited by the constitution, unlike the UK; in Australia section 68 of the constitution gives power to the governor-general, which is a separate body to the government. There is an absence of democratic accountability within parliament when royal prerogative has been put into effect, resulting in less involvement of the parliament with regards to the armed forces. Clare Shorts had said “Going to war is one of the most important decisions… our democratically elected parliament has no formal right to debate the”, the quote conveys how the royal prerogative is not compatible in the 21st century importance of parliament collectively coming up with a solution is needed, in order to not only restore faith within the citizens of the UK but to also allow the soldiers to know that the government has its full support on the decision of war.

Not only one parties voice directs and order but the voice of the people is represented by the declaration. There have been proposed reforms of the royal prerogative by the Labour government under Gordon Brown, the green paper 2007. The green paper had plans for constitutional reforms, addressing aspects such as deploying the Armed Forces abroad, ratifying treaties, and dissolving parliament. The government also announced that it would take a review of prerogative powers of ministers, in order to limit the power of the royal prerogative. In 2011 the government had acknowledged the convention to allow the House of Commons to debate the deployment of armed forces overseas. The war in Iraq has set a precedent, making it difficult for governments in the future to take significant military action without the approval of parliament. However, it is not inconceivable that royal prerogative may be exercised as it has not been solidified into constitution therefore not ruling out the use of royal prerogative without the need of debate or the consultation of parliament.

Dr. Catherine Deployment of British military assets after the Libya campaign was in Mali 2013. It was undertaken without debate and had caused controversy and criticism amongst parliament and citizens of the UK, despite the assurance of acknowledgment of a convention which leads to inform parliament on when military action would occur. This in itself questions the credibility of such a convention and draws into question the use in the 21st century would only cause more controversy in the current social climate. There has been increased development of the convention, with regards to the parliament being given the opportunity to debate the vote of British forces being deployed in response to the alleged use of chemical weapons against civilians by the Assad regime in Syria in August 2013, and secondly another case for the actions of the Islamic State (ISIS) in Iraq 2014. Research briefing parliament.com In review the current role of parliament in regards to royal prerogative is unclear. The use of the royal prerogative is useful in emergency situations, which require a quick response, and there is a convention which indicates that parliament needs to be consulted when a decision is being made regarding deployment of armed forces.

As for the future of royal prerogative as a basis for armed intervention, would be less relevant, as the act of going into war can be seen as controversial, and will cause not only divide with parliament but also citizens of the UK, so the government would be less inclined to use that form of power, and seek alternatives as a safer option in the current social climate.