1. Identify and discuss the problematic aspects of prerogative powers.

Royal prerogatives refer to the discretionary powers historically vested in the

monarch, which allowed them to govern without needing parliamentary consent. In
the past, these powers were extensive, including control over the military,
lawmaking, and taxation. However, over centuries, these powers have gradually
diminished through legal reforms and the rise of democratic governance. The
monarch’s ability to exercise unchecked authority is problematic, as it undermines
democracy, the rule of law, and human rights. To safeguard these principles, the
prerogative powers have been reduced and delegated to elected representatives,
ensuring accountability within a constitutional framework. Royal prerogatives are the
powers historically held by the monarch that allow them to act without the need for
parliamentary approval. They were defined by Blackstone in 1765, as the “special
pre-eminence which the king has over and above ordinary citizens in right of his
regal dignity” and Dicey (1888) described them as the “residue of discretionary
powers” left to the Crown. These powers, once broad and discretionary, allowed
monarchs to govern unilaterally. While many of these powers remain nominally with
the Crown, today they are exercised by ministers who are accountable to parliament.
The existence of royal prerogative powers presents significant challenges to
democracy, human rights, and the rule of law. Since the monarch is not elected by
the public, exercising these powers can undermine democracy, as decisions can be
made without the consent of the governed. Additionally, the monarch’s broad powers
allow them to act above the law, threatening the rule of law by making them
unaccountable. Furthermore, unchecked authority can result in the violation of
human rights, as the monarch could, in theory, impose laws, levy taxes, or punish
individuals without judicial or parliamentary oversight. The first significant effort to
limit the royal prerogative powers came with the Magna Carta of 1215, a charter
forced upon King John by the barons. The Magna Carta stipulated that the monarch
could not punish individuals arbitrarily and could only impose penalties through the
legal system, reducing the king’s unchecked authority. This was a groundbreaking
moment as it restricted the king’s ability to punish without due process. Later reforms
included landmark legal cases that further eroded royal power. In the Case of
Prohibitions (1607), the courts ruled that the monarch could not adjudicate legal
cases, reserving that power for those trained in the law. Similarly, in the Case of
Proclamations (1611), it was established that the monarch could not make laws
unilaterally. These decisions marked a shift in power from the monarchy to the
judiciary and parliament, reinforcing the separation of powers and ensuring that legal
matters were governed by the rule of law. The Bill of Rights (1689) took further steps
to limit royal power by transferring control of taxation and the military to parliament.
This marked the final step toward making the monarch more of a symbolic
figurehead, with real political power being vested in the elected government. In
addition to legal reforms, the development of constitutional conventions played a
crucial role in curbing royal prerogatives. Starting in the 16th century, it became
customary for the monarch to delegate their remaining powers to ministers, rather
than exercising them personally. This ensured that decisions, such as the
appointment of ministers, were carried out by representatives accountable to
parliament, rather than the king alone. Over time, another convention arose,
ensuring that ministers were appointed by the Prime Minister, who in turn was
chosen by the parliament. By the 19th century, the king was required to appoint a
Prime Minister who had the confidence of parliament, linking the monarch’s role to
the democratic will of the people. Today, while prerogative powers technically remain
with the Crown, they are exercised by ministers under the scrutiny of parliament,
ensuring that these powers are constrained by democratic processes and legal
oversight. In the 20th century the courts continued to limit rp even when they were in
the hands of the ministers to uphold democracy. These limitations have been
highlighted in the following cases. Entick v carrington; the court held that police
cannot search and seize without warrant. Under the ministers the powers of the
police who previously had unlimited powers were limited. Fire Brigades union; court
held that a royal prerogative will go in abeyance(pause) when a statute is enacted by
the parliament. If there is a conflict between royal prerogative and a statute then the
act of parliament will prevail and the royal prerogative will pause. Minister will have to
follow the statue. BBC v Johns; Lord Diplock held that the courts will now no longer
increase the royal prerogatives. If the government wants a new power, they must get
it from the parliament. They need legal authority to approve any new powers. The
ministers are held answerable to the courts or public under judicial review. Judicial
review is a way for the courts to see if the government's actions are intra vires (within
legal bounds) or ultra vires(outside the legal bounds). The more judicial reviews are
conducted, the higher the chances are to uphold rule of law as the courts can make
sure that the ministers stay within their bounds of power and do not exercise more
control than necessary. The checks and balances are a great way to ensure no one
is above the law. The Government is subjected to checks and balances. Prior to
1985, judicial review of royal prerogatives was not possible. In GCHQ (1985) case
the courts for the first time held judicial review of royal prerogatives is possible
however must be such that it is appropriate for the courts to review (justiciable). It
should not be a political matter due to separation of powers as each state member
should do their job and not interfere in each other's matters. In later cases such as
Everett, Bentley, Bancoutt and Miller (2017) the courts considered more number of
matters as justiciable. The only matters that remain non justiciable are: Matters
relating to national security and deployment of armed forces abroad and the
Dissolution of parliament. Parliament has enacted various laws to limit/control or
abolish royal prerogatives. Either reduced or ended. Crown proceedings act 1947;
Abolished the crown immunity which was previously available to crown officers.
Meaning the person cannot be taken to the court. In that way that person becomes
above the law. Those ministers and other govt officers who were representing the
crown. Now this immunity was taken away from them. And they could also be
subjected to the law. Constitutional reform and governance act 2010; signing of a
treaty with a foreign country will require prior approval of the parliament. Regulating
the royal prerogatives.Fixed-term Parliament Act 2011; This act removed the
monarch’s prerogative power to dissolve Parliament. Parliament cannot be dissolved
for the entirety of 5 years. Dissolution of parliament was not possible until elections
of a new parliament. However, this was later reversed by the Dissolution and Calling
of Parliament Act 2022 and now the parliament can be dissolved again but a new
parliament has to be called again in 90 days. This power is in the hands of the prime
minister. Through the first law, prerogative powers were ended in 2011 but reinstated
again in 2022. Powers have always been reduced but in some rare moments,
powers have been increased with checks and balances in place. In addition to the
parliament limiting the prerogative powers, they also hold the ministers accountable
for exercise or royal prerogatives by questioning the ministers. By way of convention,
ministers who exercise royal prerogatives are required to answer questions in the
parliament. their response must satisfy the parliament. failure to provide a
satisfactory response will warrant resignation. In the past, this convention was weak
and ministers did escape liability and did not resign for e.g. prime minister tony blair
did not resign even when he failed to provide a satisfactory response in relation to
the Iraq war. However, in modern day this convention has been strengthened as
there would be political pressure exerted by the media in cases where there is no
satisfactory response by the minister.in conclusion, all the problems of royal
prerogatives have been addressed through various reforms. The powers today in the
hands of ministers are subjected to judicial and political controls by the courts and
parliament. This ensures that the ministers have limited powers that are regulated.
The only power which the govt today has without control is the powers relating to
armed forces. For these powers there are no strong judicial and political controls.