The above quote simply states that the lack of parliamentary control of the Royal Prerogative is a strength. The question is asking whether the UK constitution provides controls over the government powers which are held under the Royal Prerogative. The royal prerogative is a common law power which can be carried out without parliament’s authority. It is challenging to define what the Royal Prerogative actually is; Dicey describes the Royal Prerogative as an “act which the executive government lawfully carries out without parliament’s authority” . It is defined by Blackstone as a superiority which the king has over everyone else, these definitions express that parliament’s authority is not essential for such powers and that majority of these …show more content…
It has been established by the courts that the creation of new prerogative powers cannot be done. In the case of BBC v Johns [1965] it was held that the Crown cannot extend the scope of the existing prerogative. However it was held by the courts that it may be possible to adapt existing prerogatives to new situations. The case of R v Secretary of state for the Home Department, ex parte Northumbria Police Authority [1989] held that old prerogative can be modified to new circumstances.
Judicial review of the Royal prerogative can control the powers of the executive. The power of the courts to review the exercise of prerogative powers is very limited. As seen in Blackburn v Attorney General , Blackburn sought a statement that the government, by signing the Treaty of Rome would breach the law since the government would give up part of parliament’s sovereignty. It was held that it had the power to control whether a prerogative power existed and once it was determined that the power existed; it had no right to review the exercise of the
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The case of AG v De Keyser’s Royal Hotel [1920] is where the House of Lords rejected the government’s right to rely on the prerogative, saying that once a statute has been enacted, the prerogative power fell into ‘abeyance’. The Royal prerogative is part of the common law and statutes overrule common law therefore, statutes are more powerful than the royal prerogative. In the case of R v Secretary of state for the Home Department, ex parte Northumbria Police Authority [1989] it was held that if the prerogative confers a benefit, and the statute does not rule out the use of the prerogative then the prerogative can be used.
There are many political controls over the royal prerogative .Constitutional conventions controls the use of the royal prerogative as they are flexible and progress because of practice. Due to constitutional conventions being ‘non legal’, they are not enforceable in the courts. There are many examples of conventions, one example is the monarch will not refuse Royal Assent to a bill that has been approved by the House of Commons and the House of Lords; if the prime minister advises the monarch to assent to a bill, she will do so, and the last time a bill was refused to sign was in
However, the UK has remained the same throughout history. Some countries have changed their constitution as a result of civil disorder, while others have changed it just for the benefit of the countries. There have been many attempts in the past to change the constitutional framework of the UK. In 2003, under Tony Blair’s regime, the UK and the US controversially sent troops in Iraq on the basis that it had “weapons of mass destruction” (http://www.bbc.co.uk/news/uk-27852832) As a result a great discussion arose. Would it be any different if the power to declare war would be in the hands of the parliament instead of just the Prime Minister alone?
One of the most influential and celebrated scholars of British consistutional law , Professor A.V Dicey, once declared parliamentary soverignity as “the dominant feature of our political insitutions” . This inital account of parliamentray soverginity involved two fundamental components, fistly :that the Queen-in-Parliament the “right to make or unmake any law whatever” and that secondly “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” . However this Diceyian notion though an established principle of our constitution now lies uneasy amongst a myriad of contemporary challenges such as our membership of the European Union, the Human Rights Act and a spread of law making authority known as ‘Devolution’. In this essay I shall set out to assess the impact of each of these challenges upon the immutability of the traditional concept of parliamentary sovereignty in the British constitution.
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
In the case of Marbury v. Madison the power of judicial review was granted to the Supreme Court in 1801. The Constitution does not give power of judicial review. On Adams last day in office, several government officials upheld the case. Judicial review does not exist in countries that have a centralized or unitary form of government. The elected parliament declares it is the law of the land. Halsema Proposal to Netherlands has taken the initiative to start the process of judicial review.
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
The judges, judiciary power, ought to interpret the law by providing the justice and peace to the country. An ambiguity existed in this part, because as we already know, the RP is unchecked and absolute. Sir Edward Coke, believe that the King hath no prerogative, but that which the law of the land allows him. Lord Delvin has different perspective, and said that the court will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse. With the Devlin’s view we can clearly understand that the RP can help the executive power to protect the separation of powers. Lord Scarman assumed that the exercise of the power is subject to review with principles of the review of exercise of statutory power. It is worthwhile to consider that Lord Roskill successfully support a view which said that the orthodox view was at that time that the remedy for abuse of the prerogative lay in the political and not in the judicial field. While the RP is still exist, and also sets the directions of our lives, has to be reviewed. The key power of our unwritten constitution is to protect separation of powers, as the other powers acts with check and balances, the prerogative power should be
Lord Steyn was perhaps the most candid. While he conceded that parliamentary sovereignty is the ultimate controlling factor in the British constitution, he claimed that parliamentary sovereignty is a creation of common law and exceptional situations may arise where the courts have to step in to review legislation of the Parliament, implying that even the sovereign Parliament may be subjected to the rule of law.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
pg 296 [3] M and J Spencer “Constitutional and Administrative Law” (Sweet and Maxwell, London, 2000) pg 28 [4] http://www.guardian.co.uk/monarchy/story/0,2763,407374,00.html
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.
Historically the prerogative was exercised by the monarchy, the majority of powers are now used by ministers, and very few remained the personal preserve of the sovereign. The extent to which the judiciary and the legislature are able to regulate the exercise of prerogative powers by the executive has increased. However, there are still some who are concerned by the lack of control that can be exerted by the other constitutional bodies.
The Advantages and Disadvantages of an Unwritten Constitution in the UK The UK has an unwritten constitution unlike the U.S.A. Instead Britain's laws, policies and codes are developed through statutes, common law, convention and more recently E.U law. It is misleading to call the British constitution unwritten; a more precise form of classification would be un-codified. This means that the British constitution has no single document, which states principles and rules of a state. However, The British constitution clearly sets out how political power is allocated and where it is legally located. The British constitution is still visible and it defines composition and powers of the main offices and institutions of the state.
The foundation of the UK constitution is built upon A.V. Dicey’s orthodox theory on the doctrine of parliamentary sovereignty, that parliament has ‘the right to make or unmake any law’, Parliament cannot bind its successors, and that no institution has ‘the right to override the legislation of Parliament’ . The great benefit of the supremacy of parliament is that Acts of Parliament created by the democratically elected legislature, must be obeyed by the unelected judges. Although parliamentary sovereignty refers to shared powers, between the Monarchy, House of Commons (HoC) and House of Lords (HoL), through the Parliament Acts 1911 and 1949, the HoL lost its power of veto, and the HoC effectively enhanced its powers as the main body of government.
This type of rule of law is upheld through administrative law and by the practice of judicial review. This states out the fact that ‘no one is above the law’ , although there are some aspects that can undermine this factor. Take for instance the powers of the prime minister who’s powers are based solely on the Royal prerogative which is not subject to judicial