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The U.K. constitution is described as an “unwritten constitution”. However it is best described as ‘partly written and wholly un-codified.” (Budge et al, 1998)[1]Its main source is statute law. These are laws, which are passed by UK parliament, particularly important for determining the scope and power of government.
Other source is common law from which constitution authority is derived. Though common law has largely been replaced by statute law, it is very important in certain fundamental constitutional principles such as Royal Prerogative. This paper considers Royal Prerogative, which is a very special feature of UK constitution. Royal Prerogative refers to those powers left over from when the monarch was directly involved in the government.  It concerns legislature, judicial system, foreign affairs, armed forces, appointments and honors, privileges and immunities and prerogative in times of emergency. The scope of Royal Prerogative as well as reforms undertaken in this regard has been highlighted. The thesis of this paper is that UK government has resolved to increase parliamentary oversight in relation to treaties, war powers, senior appointment and management of civil service. It has suggested that prerogative powers could be candidate for abolition or reform, but their continued existence, has no significant negative effects.

Royal prerogative and its scope
Royal Prerogative refers to those powers left over from when the monarch was directly involved in the government. It gives the Crown (the monarch) special powers such as power to declare war, to make treaties, deploying the armed forces, regulating the civil service, to pardon criminals and to dissolve parliament. In today’s time, monarch exercise ceremonial roles in such matters, but royal prerogative gives immense power to ministers acting on the Queen’s behalf. Its exercise doesn’t require the approval of the parliament. [2]
Constitutional lawyers have summarized the main areas in which the prerogative is used today. It concerns legislature, judicial system, foreign affairs, armed forces, appointments and honors, privileges and immunities and prerogative in times of emergency.[3]

The scope of the Royal prerogative is difficult to determine. Court is said to be the final arbiter of the existence and extent of a particular time of prerogative power. [4] The role of the court in determining the existence and extent of the prerogative can be a significant control on the prerogative. This control is strengthened by common law which states that courts can’t create new prerogatives. Moreover the courts are now able to scrutinize the manner in which such powers are exercised. One channel it is done is through the Human Rights Acts, where an aggrieved person may challenge an act or omission of the executive in the UK. The other is the judicial review, which provides a check and balance on the actions of the ministers so that they are not unreasonable and that the powers are not exercised in a procedural unfair way. [5]

Some Acts passed in the recent years have brought significant reform, though they are not primarily aimed at reformed the Royal prerogative. For e.g. Civil Contingencies act have devised a flexible and broader framework for dealing with emergencies, covering majority of the situations which previously were under the use of Royal prerogatives. Secondly, the inquiries act 2005 replaced or reproduced all of the prerogative power to call public inquiries.

Constitutional Reforms to Royal Prerogative:
Modernization of Royal prerogative has been the central theme of the Governance of Britain agenda[6]. Governance of Britain Green Paper set out plans for wide-reaching constitutional reforms. It stated that the power of the government flowing from public should be subjected to account by the parliament.[7] It stressed that if the parliament is not able to scrutinize and challenge government actions then the voters wouldn’t believe that government wield power appropriately. More over public confidence in the accountability of the government is being lost.

In October 2009, the government published the review of the prerogative powers.[8] It stated that a number of ways can be devised to subject prerogative powers to control and examination by the parliament. These included legislation, accountability of parliament and Parliament approval of expenditure. In this case, ministers are accountable to Parliament for all their actions including those taken under the prerogative powers.
Regarding Armed forces, the Royal prerogative is a central to its organization and existence. It is one element of the complex administration structure of the armed forces. The primary prerogative power concerning armed force i.e. their deployment has already been made subject to reform proposal. [9] It has been suggested that the decision by the Government to commit forces to armed conflict should be approved by the House of Commons.[10]  Parliament exercises control over the Armed Forces through oversight on the expenditure of defense. Ministry of Defense is also subject to scrutiny by Defense Select Committee of the House of Commons. Thus, manifestations of prerogative in relation to armed forces are closely interwoven with statutory provisions.

Royal prerogative of mercy is exercised by Sovereign on ministerial advice. Secretary of State for justice is responsible for recommending the exercise of this prerogative. The grant of free pardons has declined as a result of the right to appeal in the court. It is suggested that Royal prerogative to grant free, unconditional pardons have largely been superseded by statutory provisions.

In the case of emergency, UK government had range of non statutory powers to enable it to respond to emergencies. However Civil Contingency Act has replaced the emergency power framework set under Emergency Powers Act 1920 and Civil Defense Act 1948. Now prerogative powers can be abolished by legislation. Civil Contingency Act has “covered the field leaving no room for the continuation of the prerogative. However, important aspects remain for use in case of particular urgency or disruption. This provides a mechanism to make up for the weakness when statutory provisions are not able to respond because of insufficient time. The important priority of the government remains to guarantee safety and security of its citizens. This allows the government to retain these residual powers.

Need for Royal Prerogative:
The report published by Public Administration Select Committee rationalized the need for such powers on the ground that they are necessary for the provision of effective administration, especially in the time of national emergency. However, it is to be considered that they should be subject to more systematic parliamentary oversight.

Prerogative powers can provide flexibility in dealing with exceptional circumstances which are not covered by statutory provisions. It provides a basis on which it is possible for the government to act outside the framework of Civil Contingencies Act 2004 in circumstance of exceptional urgency or disruption. Failure to do so or doing otherwise such as enacting a statutory power can result in either broad statutory power or one that is insufficiently flexible. [11]

Further more certain prerogatives covering a wide area can’t be entangled. For example Armed forces operate through a mix of prerogatives through state and statute. Placing it in statutory basis is a complex and large-scale exercise.

Moreover, some powers are best described as “archaic”. These are prerogatives of little importance in the modern age. They comprise of small and specific issues like the Crown’s right to sturgeon wild and unmarked swans and whales.

In some case it is difficult to suggest that whether the prerogative power has been wholly replace by the statute or whether there is residual power which subsists.  Even if residual power subsists, it is rational to argue that such power provides flexibility in the time of need. Such “residual” powers are of the minor nature, more of a legacy of time. For e.g. the Treasure Act 1996 applies to all objects found after September 1997, but the prerogative is relevant for a small number of objects found before the date. In addition to this, review has resulted in the decision to preserve prerogative power for e.g. in the case of BBC charter review.
The government proposes to address the concerns against royal prerogatives on a case-by-case basis, in the light of changing circumstances however it is against the “major reform” at present[12]. The constitution is said to have evolved organically.

Residual prerogative powers are seldom exercised in their proper way. Firstly, use of the prerogative powers once considered threat to the parliament, such as the withholding the Royal Assent to legislation has fallen into disuse and it is unthinkable of its application in the today’s time. Other smaller powers have also been replaced because they have been replaced by a statutory scheme or because they have become dysfunctional. The power to amend and grant Royal charter is one such power.  Secondly, the personal prerogatives which Monarch once used on their own initiative are now merely endorsed decision. For e.g. appointment of Prime Minister or the dissolution of the parliament are now endorsed decisions of the ruling party and the electorate.       
Thirdly, the prerogative power to grant appointment and honors are no more a cause of controversy or embarrassment. The resulting decision is determined by Minister and Opposition party leaders and Monarch is merely a conduit for such state patronage. Fourthly, the prerogative power to grant mercy or pardon convicted criminals is exercised as an act of grace on the advice of Home Secretary. Such actions create little fuss in Parliament about procedural grounds though at times opposition on substantial grounds related to the case can arise. [13]

Against the backdrop of Civil Contingencies Act 2004, Inquiry Act 2005 and BBC Charter Review, Government of Britain has initiated reform to those manifestations of Royal prerogative powers which have attracted most attention and criticism. It has resolved to increase parliamentary oversight in relation to treaties, war powers, senior appointment and management of civil service. It has undergone an examination of the current state of the prerogative powers and has provided a consolidated list of prerogative powers. It is suggested that remaining prerogative powers could be candidate for abolition or reform, but their continued existence, has no significant negative effects. It is arguable to say that some of the legislation to replace the prerogatives may give arise to new risks. One risk is the unnecessary incursion into the civil liberties at one hand and unnecessary loss of flexibility to respond to unforeseen circumstance on the other hand. The government has proposed that it would be unnecessary to propose further major reform to executive prerogative powers.

About The Author: Hamid Khan is a an alumni of Lahore University of Management Sciences. He received his Master's degree in Economics from LUMS. His areas of interest includes economics and social science. He can be reached at 2hmdKhan(at-the-rate)gmail.com

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