Critically Discuss Whether Prerogative Powers Exercised By Ministers Should Be Codified In Statute. Constitutional And Administrative Law Essay

2151 words - 9 pages

Critically discuss whether prerogative powers exercised by ministers should be codified in statute.
The British constitution is unique in that it is uncodified, it has evolved over time to become what it is today. This organic growth and flexibility has enabled prerogative powers and conventions to be in use without being codified. Dicey defines prerogative powers as: “The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”[footnoteRef:1] although it is hard to find an exact definition that is accepted and is described in Smith v Ministry of Defense as ‘far from clear-cut’.[footnoteRef:2] Prerogative powers are ancient powers that can be split into three categories: The Queen’s constitutional prerogatives, the legal prerogatives of the crown and prerogative executive powers. Ministers can use a prerogative power without Parliament or the public having any representation in terms of whether not they agree to the use of the power [footnoteRef:3] this has led to the question of whether prerogative powers specifically exercised by ministers should be codified in statute. The evidence presented in several reports for e case of codification of prerogative powers is strong and in my opinion overwhelming, [1: .A.V.Dicey, Introduction to the Study of the Law of the Constitution, 10th edn. (London: Macmillan, 1959)] [2: Smith and others (FC) (A) v The Ministry of Defense (R) [2013] UKSC 41 ] [3: Ministry of Justice, The Governance of Britain, Cm 7170 (July 2007), para. 20]
for example, the fact that there have been three Private Members Bills since 2004 calling for greater parliamentary involvement in the exercise of the prerogative powers.[footnoteRef:4] [4: Select Committee on Constitution Fifteenth Report, Waging War: Parliament’s role and responsibility, Chapter 1, paragraph 2 (http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23603.htm)]
An initial argument for the codification of the prerogative powers are the principles of democracy and accountability. It is not democratic for the executive to hold such powers that enable actions that do not represent the electorate’s views. The United Kingdom is governed representatively and by using prerogative powers this decreases the legitimacy of the government’s actions, therefore going directly against the principles of a democratic and legitimate state. In regards to the prerogative power of the deployment of troops abroad, the government is under no legal obligation to obtain Parliament’s consent[footnoteRef:5]. However, in some cases there has been consultation with parliament, for example Korea, but in others, such as the Falklands, there was no vote on whether the deployment of troops should occur[footnoteRef:6]. Margaret Thatcher did not believe she needed parliamentary approval, “it is an inherent jurisdiction of the government to negotiate and reach decisions. Afterwards the House of Commons can pass judgement...

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