A Comprehensive Analysis of Prerogative Powers and Judicial Intervention
- March 30, 2024
Introduction
In the UK, prerogative powers are known as the historically based discretionary powers that are presented by the government in multiple scenarios witnessed, and its powers are used by the Crown. The introduction of the paper evaluates the development of such talents which sheds light on their historical context and the customary restrictions it faces. The argument inserted here is regarding the case law involvement of prerogative powers that portray trends where courts highly intervene in subjects that are beyond their scope. The paper intends to critically explore this area by considering arguments in favour and against the court intervention, and with it, it works on providing a comprehensive opinion that strikes the balance between the need for judicial review by respecting the executive power.
Historical Context of Prerogative Power
The historical backdrop linked with prerogative power is significant for indicating the evolution and judicial interaction. The prerogative power is considered as the discretionary authority which was vested historically in monarch. The notion originates from England and is also exercised in foreign affair landscape along with the executive discretion and defense realm[1]. The notion is rooted in the need of monarchy for having a swift decision-making in the state matters where the power is lacked by precise framework which leaves a room for expansion and interpretation. It is believed that the prerogative powers and the historical development is marked as considerable shift in the structure of governance. From the monarchies toward the constitutional frameworks the powers are largely adapted toward societal changes[2]. For example, during 1688 amidst the glorious revolution the prerogative power scope was remodified which restrict the authority of monarch and develop parliamentary supremacy[3]. The trajectory linked with the history notably illuminates the tension in terms of the concentrated authority and the significance of check and balance considering the emerging political contexts. Moreover, the limits over the prerogative powers evolved over the period of time. It has been highlighted by the legal philosophers that the prerogative power focus on the rule of law which is significant principle limiting the actions of executives[4]. The traditional limitation on the other hand develops implicit framework which seeks to find a balance for the necessary discretion of execution and the need for highlighting the legal restraints. Precisely, the historical context linked with the prerogative power showcase evolution from the monarchical discretion toward the constitutional constraints.
The Courts and Prerogative Power
It is significant to understand the association between the prerogative power and courts which necessitate potential exploration of judicial decision, key cases and the wider influence on the principle of constitution. The examination is critical for discerning the emerging judiciary role to deal with the balance between rule of law and the executive authority[5]. There are number of potential cases surrounded by prerogative power for instance, The Case of Proclamations [1610][6] is notable for developing that the king may not enact without parliament. The case act as the notable precedent. Similarly, other case such including the R (Miller) v Secretary of State for Exiting the European Union has emerged the phenomenon of prerogative power specifically in constitutional complexities[7]. Collectively, these cases have developed a narrative concerning the evolving stance of judiciary over the executive discretion. A critical analysis of these cases showcases that the in the case of Miller, the court put the accountability for reviewing the decision of executive focusing on the parliamentary sovereignty principles[8]. The case has notably indicated the important role played by judiciary for the constitutional principles upholding which act as the check over the potential executive reach. It has been argued by the proponents that the judicial review ensures and prevents the violation of constitutions. However, it has been contending by the critics that these interventions generally encroach the power separation undermining the efficacy of executives. Therefore, is imperative to develop a significant balance between executive discretion and the oversight of judiciary as it need vigilant consideration.
Arguments in Favour of Court Intervention
The issues in justification for court intervention in issues that constitute prerogative powers is reliant on protecting the rights of individuals and their liberties that are necessary for the rule of law. In this scenario, the 1998 Act of Human Rights that involves the European Convention on Human Rights in the legislation of the UK is necessary.[9] Based on Section 6 of this Act, the courts possess the right to identify any legislation incompatible with the convention rights. This is best explained by the case of R (Privacy International) v Investigatory Powers Tribunal (2019) which portrays the role of the court in protecting the privacy rights of individuals from potential executive abuses.[10] The court provides a check over the potential abuses of the basic rights that expose the prerogative powers for the examination of the courts.
Moreover, the intervention of the court is further viewed as a major check on executive overreach. This is prominent in the renowned case of R (Miller) v Secretary of State for Exiting the European Union (2017). The Supreme Court in this case laid focus on the notion of ensuring parliamentary sovereignty through its rules that leads the government to not involve Article 50 with the permission of parliament.[11] This order focuses on the court’s role in eradicating the government from making use of prerogative powers alone in ways that resonate with the already established legal frameworks. The involvement of the courts strengthens the opinion that even prerogative powers are liable for legal accountability.[12]
Another major reason for court action in prerogative power issues is to uphold the rule of law and constitutional norms. The legality concept is expressed in decisions like R v Secretary of State for the Home Department, ex parte Simms (2000) by keeping that Parliament which does not seek to give the executive unrestricted powers.[13] Through this intervention, the judiciary makes sure that prerogative powers are used within the restrictions prescribed by law and constitutional standards that foster a legal environment in which even the government is subject to legal issues.[14]
In conclusion, reasons for the involvement of courts are dependent on the major values of safeguarding the rights of individuals restricting governmental expansion, and upholding the rule of law, as proved by major statutes, sections, and historic decisions. Apart from being casual, judicial scrutiny is portrayed as a major tool for ensuring an equitable and transparent governance structure.
Arguments Against Court Intervention
The arguments that oppose court intervention in prerogative power cases majorly center on issues that relate to the separation of powers, chances of judicial overreach, and the importance of submitting to executive authority. The constitutional principle of separation of powers, including the unwritten constitution of the UK, focuses on the unique functions of the legislative executive, and legislative.[15] As per the critics, extensive participation of the court in prerogative matters could distort these changes and dissolve the delicate equilibrium intended by the Constitution. The concept of legality is focused on the discussion focusing on multiple matters which is relevant to politics that extend beyond the scope of judicial assessments.[16] This is evident from the case of Attorney General V. Jonathan Cape Ltd. (1976) which clarifies the case as the House of Lords ordered that the government’s use of war power during the time of conflicts in the Falkland Islands was not justified.[17] This decision focuses on the unwillingness of the judiciary to intervene in issues that are not considered to be innately political, further affirming the notion that various prerogative powers should be protected from judicial assessment.[18]
Other major factors constitute of concerns regarding judicial overreach and activism against the court’s actions. As per the critics they say that an overly active court can be an unduly influence over decisions involving policies that intrude the authority of the selected legislators.[19] This further sheds light on the parliamentary support that is needed for the activation of Article 50, which in the case of R (Miller) v Secretary of State for Exiting the European Union (2017) has been challenged for widening the scope of judicial review over high-stakes political affairs.[20] The opponents of this further argue that such decisions put judicial activism at stake when judges make decisions regarding policies apart from reading the law. The supporters, in addition, to the limited judicial intervention focus on the importance of deferring to executive authority specifically in issues that need rapid decisions to be made.[21] This is highlighted in the case of Council of Civil Service Unions v Minister for the Civil Service (1984) where the idea of having an executive privilege is noted as a major tool for maintaining suitable governance. As per the case, the courts have accepted the right of the government to take control of various information that deals with the interest of national security verifying the idea of the executive be given certain flexibility in specific areas.[22]
To conclude, the argument against the court intervention highlights issues related to the separation of powers, the doctrine of justiciability, the risk of judicial overreach, and the importance of deferring the executive authority. The overall opinion focuses on the importance of maintaining a balance between judicial scrutiny and executive autonomy in issues relating to prerogative power by highlighting relevant laws, cases, and constitutional principles.
Balancing Competing Viewpoints
To balance the competing opinions regarding court intervention in prerogative power issues requires a comprehensive evaluation of examples where judicial participation was justified, scenarios where actions can be excessive, and offers a middle path to ensure balance in the approach. Cases like R (Miller) v Secretary of State for Exiting the European Union (2017) where parliamentary consent is needed before Article 50 is activated.[23] The participation of the court was essential in protecting the constitutional concept of parliamentary sovereignty. The decision is made strong the executive’s accountability to the legislative reduces the potential overreach. As for the case of R (Privacy International) v Investigatory Powers Tribunal (2019), the opponents say that the courts went beyond by indulging deeply into national security issues.[24] Section 5 of the Intelligence Services Act of 1994 provides wide powers to the Intelligence Services Commissioner that open up questions regarding the courts’ engagement in identifying the actions of the executive in the sensitive arena that was excessive.[25]
Arguing over clear legal statutes that identify the scope of prerogative powers on which the middle path can be achieved. Legislation like the Constitutional Reform and Governance Act of 2010 is needed for the parliamentary approval of treaties. It brings up a more balanced approach by identifying particular areas where executive activities are needed for legislative supervision.[26] The importance of clear statutory laws ensures that courts intervene when legal boundaries are crossed while determining the executive’s discretion in cases that need an immediate response. To gain balance, a continuous debate is required amongst the judiciary, the administration, and the legislative is needed to establish fair parameters for prerogative power. To build a balance the courts must play a major role in defending constitutional principles while not overlooking executive authority, building a system where accountability and effectiveness exist under the specified legal restrictions.
Impact on Constitutional Principles
A major part of the continuous dispute is because of the impact that is portrayed on the actions of the court in prerogative power issues over constitutional principles. There are concerns over the excessive oversights about judicial would disregard some major concepts, specifically the doctrine of separation of powers.[27] The conventional understanding of the separation of powers that maintains each component of government should operate independently but cooperatively. The case of R (Miller) v Secretary of State for Exiting the European Union (2017) identifies the potential impact it has on this concept, as the courts interfered to secure the parliamentary involvement as per the Article 50 activation.[28] Opponents argue that the judgment stretched the authority set by the authority into making decisions that should be majorly political. Moreover, the interpretation of statutes and precedents makes the courts perform a major role in building constitutional standards.[29] The theory of precedent is well highlighted in the cases of R (Burkett) v Hammersmith and Fulham London Borough Council (2002), which states that the court has the power to build the legal norms. The judicial is responsible for working towards the changing constitutional dimensions by making decisions that are based on prerogative powers that pose an impact on the balance that needs to be created between powers.[30]
For building and maintaining a strong constitutional balance, legislative measures are taken which makes it easy to identify the scope of prerogative power which needs to be considered. The Constitutional Reform and Governance Act of 2010 builds the framework for parliamentary treaty approval and increasing transparency.[31] This particular legislative work towards giving a legislative base for using such prerogative powers that reduces uncertainty and allows courts to adjudicate more effectively without invading the executive authority.[32] To conclude, the impact of a court’s action related to prerogative power depends on the constitutional principles is complex. While there do exist issues regarding erosion which makes it important for the courts to build constitutional norms. Likewise, it is necessary to build a balance which is a mixture of clear legislative principles and intelligently interpreting the judicial that assists in fostering a constitutional environment where responsibility, efficacy, and the separation of powers exist together.
International Comparisons
While performing a comparison with different common law jurisdictions that sheds light on how countries deal with such prerogative powers and judicial intervention. In Canada, for example, the Charter of Rights and Freedoms as per the Constitution Act of 1982, provides the judiciary with a strong role in dealing with individual rights.[33] As per the decisions done in the case of R v Oakes (1986), it state that the Supreme Court of Canada built a proportionality test that evaluated the Charter rights limitation which portrayed the judicial framework for intervention to be the same as that of the UK.[34] Likewise, if Australia is seen, it has a written constitution and a federal system that divides power between the Commonwealth and the states. In the case of Chu Kheng Lim v Minister for Immigration (1992), the High Court of Australia focused on the need for judicial review in eradicating the decisions of arbitrary executive, which echoes the focus of the UK on safeguarding individual rights through assessing judicial intervention.[35]
The authority of the Supreme Court for judicial review that was established in the case of Marbury v. Madison (1803) brings constitutional interpretation and balances the activities of the government in the USA.[36] Cases like Youngstown Sheet & Tube Co. v. Sawyer (1952) focus on the role of the judiciary in restricting the presidential prerogative powers which focuses on a system of checks and balances analogous to that of the UK.[37] Overall, these comparisons portray that common law jurisdictions are brought together to protect the rights of individuals and limit governmental overreach through involving the judiciary. Even when these legislative frameworks differ, the main objectives remain towards maintaining the balance amongst government and defending the values of the constitution through prudent oversight are shared through all states.
Conclusion
To conclude, considering the prerogative powers and judicial intervention has seen a complex picture typified by the tension that exists between upholding constitutional ideals and preventing judicial overreach. To protect the rights of the individuals, limiting the executive overreach, and supporting the rule of law are major bases that fall in the favour of court action. However, there are concerns regarding intervention which circulates on the possibility for erosion of the separation of powers and the need for defence to executive authority. To build a balance is necessary as witnessed from the incidents when court action was justified but is excessive. The constitutional principles hold the importance which requires the need for a balanced approach that is a mixture of legislative clarity, judicial discretion, and ongoing public debate. A call to action is necessary as it works towards ongoing research and converting it to improve legal frameworks and ensure that prerogative powers are made use of with responsibility, transparency, and fulfilling the constitutional principles.
Bibliography
Cases
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115.
Attorney General v. Jonathan Cape Ltd. [1976] 1 QB 752.
Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9.
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
R v Oakes [1986] 1 S.C.R. 103.
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
R (Burkett) v Hammersmith and Fulham London Borough Council [2002] EWCA Civ 1340.
Laws
Human Rights Act 1998, c. 42.
Intelligence Services Act 1994, c. 13.
Constitutional Reform and Governance Act 2010, c. 25.
Constitution Act 1982, Schedule B to the Canada Act 1982, c. 11 (UK)
Journal Articles
Blick A, ‘Emergency Powers and the Withering of the Royal Prerogative’ (2014) 18 The International Journal of Human Rights 195
DICEY AV, Law of the Constitution (OXFORD UNIV Press 2019)
Rowley CK and Wu B, ‘The Demise of the Divine Right of Kings, the Decline of Monarchic Power, and the Rise of Parliament, 1689–1775’ [2014] Britannia 1066-1884 97
Wurman I, ‘In Search of Prerogative’ [2019] SSRN Electronic Journal
Feldman, David. “Prerogative powers, constitutional principles and legal wrongs: constitutional implications of the prorogation judgment.” Judicial Review 25, no. 3 (2020): 210-227.
Blick, Andrew. “Emergency powers and the withering of the Royal Prerogative.” In Contingencies, Resilience and Legal Constitutionalism, pp. 86-101. Routledge, 2017.
Endicott, Timothy. “Lawful power.” NZJPIL 15 (2017): 1.
Kershaw, David. “Excluded Categories of Prerogative Power: An Idea that Never Was.” (2023).
Craig, Paul P. “Miller, structural constitutional review and the limits of prerogative power.” Public Law (2017).
Mac Amhlaigh, Cormac. “Miller, The Prerogative and Constitutional Change.” (2017): 448-454.
Wurman, Ilan. “In Search of Prerogative.” Duke LJ 70 (2020): 93.
Greentree, Catherine Dale. “The commonwealth executive power: Historical constitutional origins and the future of the prerogative.” University of New South Wales Law Journal, The 43, no. 3 (2020): 893-929.
Midgley, Lilli. “Royal Prerogative and Constitutional Law: A Search for the Quintessence of Executive Power.” (2021): 86.
Grant, James. “Prerogative, parliament and creative constitutional adjudication: Reflections on Miller.” King’s Law Journal 28, no. 1 (2017): 35-61.
[1] Wurman I, ‘In Search of Prerogative’ [2019] SSRN Electronic Journal
[2] Blick A, ‘Emergency Powers and the Withering of the Royal Prerogative’ (2014) 18 The International Journal of Human Rights 195
[3] Rowley CK and Wu B, ‘The Demise of the Divine Right of Kings, the Decline of Monarchic Power, and the Rise of Parliament, 1689–1775’ [2014] Britannia 1066-1884 97
[4] DICEY AV, Law of the Constitution (OXFORD UNIV Press 2019)
[5] Ibid
[6] The Case of Proclamations [1610] EWHC KB J22
[7] R (Miller) v Secretary of State for Exiting the European Union
[8] Ibid
[9] Human Rights Act 1998, c. 42.
[10] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
[11] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
[12] Feldman, David. “Prerogative powers, constitutional principles and legal wrongs: constitutional implications of the prorogation judgment.” Judicial Review 25, no. 3 (2020): 210-227.
[13] R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115.
[14] Blick, Andrew. “Emergency powers and the withering of the Royal Prerogative.” In Contingencies, Resilience and Legal Constitutionalism, pp. 86-101. Routledge, 2017.
[15] Endicott, Timothy. “Lawful power.” NZJPIL 15 (2017): 1.
[16] Kershaw, David. “Excluded Categories of Prerogative Power: An Idea that Never Was.” (2023).
[17] Attorney General v. Jonathan Cape Ltd. [1976] 1 QB 752.
[18] Craig, Paul P. “Miller, structural constitutional review and the limits of prerogative power.” Public Law (2017).
[19] Mac Amhlaigh, Cormac. “Miller, The Prerogative and Constitutional Change.” (2017): 448-454.
[20] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
[21] Wurman, Ilan. “In Search of Prerogative.” Duke LJ 70 (2020): 93.
[22] Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9.
[23] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
[24] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
[25] Intelligence Services Act 1994, c. 13.
[26] Constitutional Reform and Governance Act 2010, c. 25.
[27] Greentree, Catherine Dale. “The commonwealth executive power: Historical constitutional origins and the future of the prerogative.” University of New South Wales Law Journal, The 43, no. 3 (2020): 893-929.
[28] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
[29] Midgley, Lilli. “Royal Prerogative and Constitutional Law: A Search for the Quintessence of Executive Power.” (2021): 86.
[30] R (Burkett) v Hammersmith and Fulham London Borough Council [2002] EWCA Civ 1340.
[31] Constitutional Reform and Governance Act 2010, c. 25.
[32] Grant, James. “Prerogative, parliament and creative constitutional adjudication: Reflections on Miller.” King’s Law Journal 28, no. 1 (2017): 35-61.
[33] Constitution Act 1982, Schedule B to the Canada Act 1982, c. 11 (UK)
[34] R v Oakes [1986] 1 S.C.R. 103.
[35] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
[36] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
[37] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
