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Royal Prerogative Introduction In this chapter we examine a controversial source of power for government, known as prerogative powers.

. These powers originally derived from the authority of the monarchy, but have evolved to enable government ministers, on behalf of the Crown, to take executive action in a number of important areas of policy and administration. We will first compare prerogative powers with statutes and a disputed additional 'third source power' which, it is argued, gives ministers power to act where there is no statute forbidding the action. The different categories of prerogative power will be examined, as well as a list of ministerial executive powers.

After briefly discussing the monarch's remaining constitutional powers, as well as the concept of Crown immunity, we will review some definitions of prerogative powers as well as academic discussion on them. Next we will consider the relationship between prerogative powers and statute as well as some key cases on the judicial review of prerogative powers. iven the controversial nature of these powers, we will consider proposals for reform and the arguments between pragmatism and principle. !inally, we will review how what is probably the most important prerogative power of all " the power to declare war " was exercised before the invasion of Ira in !""# and the contrasting approaches of #udges and politicians to subse$uent reform.

$.% Comparing sources of legal authority for public bodies %tatute vs &oyal 'rerogative (efore considering prerogative powers in detail, it is helpful to distinguish them from alternative sources of legal authority. In a parliamentary democracy the main alternative source is, of course, statutes. We have already seen how key statutes such as the )onstitutional &eform and overnance Act *+,+ have effected ma#or changes in the constitution and most public bodies in the -nited .ingdom such as the %cottish overnment, Welsh Assembly overnment, local authorities, etc. derive their powers from various statutes. &ach statute '(ct of Parliament) is created after a process of scrutiny and amendment by both *ouses of Parliament.

+nly once both *ouses have voted in favour of the ,ill will the -ueen be re uired. by convention. to give the royal assent. Prerogative powers, on the other hand, are a set of residual legal powers that are treated by the courts as being part of the common law. The monarch and government ministers exercise them in the name of the 'Crown'.

$.%.! '/hird source' of authority0 In addition to statute and prerogative powers, some academics and judges have argued that 12 government ministers and some other public bodies possess general common law powers that give them residual powers to act without statutory or prerogative authority where their actions will have no legal conse uences for others. This is referred to as the 'Ram doctrine' after 3ir 4ranville Ram, a civil servant who first described it. The &am doctrine has been considered in several cases.

)ourt" when no legal conse$uence the no need legal sources to #ustify the govt action In 5alone v 5etropolitan Police Commissioner /,0102 it was revealed that the police had tapped the applicant3s phone. At this time there was no statute authorising legal phone tapping, nor was any prerogative power claimed. o 4egarry 5) stated6 o If the tapping of telephones...at the re$uest of the police can be carried out without any breach of the law, it does not re uire any statutory or common law power to justify it6 it can lawfully be done simply because there is nothing to make it unlawful.

4alone later won his case at the 7uropean )ourt of 8uman &ights /7)t8&2 and the Interception of /elecommunications (ct %678 was subse uently passed allowing the *ome 3ecretary to tap telephones in regulated circumstances.

The &am doctrine was later reviewed by the Court of (ppeal in R 'on the application of 3hrewsbury and (tcham ,C) v 3ecretary of 3tate for Communities and 9ocal 4overnment /*++92, where a minister published a white paper setting out her proposals for reorganising local government in %hropshire without using a statutory consultation scheme. :iffering views were expressed about the scope of the &am doctrine. )arnwath :; stated6 o o I would be inclined respectfully to share the view of the editors of de %mith that '/he extension of the Ram doctrine beyond its modest initial purpose of achieving incidental powers should be resisted in the interest of the rule of law'.

o ,y contrast Richards 9; drew an analogy with the powers of a corporation /e.g. a company26 o It is still necessary to explain the basis on which that ordinary business of government is conducted, and the simple and satisfactory explanation is that it depends heavily on the 'third source' of powers, i.e. powers that have not been conferred by statute and are not prerogative powers in the narrow sense but are the normal powers /or capacities and freedoms2 of a corporation with legal personality.

AcTiviTy <hat difficulties arise in relation to the 'third power' doctrine0 :oes it have implications for the rule of law0 A key difficulty lies in the inherent uncertainty caused by government ministers being permitted to act without any specific authority. It is a key principle of the rule of law that members of the public and government officials should be able to find out about the scope of legal powers before they are exercised.

The argument that the power should only be exercised if there are no legal conse uences for others, does not recognise the difficulty of anticipating how a decision will affect people's rights in the future. The use of this argument in 5alone v 5etropolitan Police Commissioner /,0102 has implications for personal freedoms. such as the right to privacy.

$.! Categories of prerogative powers The *ouse of Commons Public (dministration 3elect Committee in 4arch *++< produced an influential report, =Taming the prerogative.> It identified three broad categories of prerogative powers.

$.!.% /he -ueen's constitutional prerogatives ?although have legal authority but exercise according to )onvention@ These are the personal discretionary powers retained by the Aueen. The report states6 o They include the rights to advise. encourage and warn 5inisters in privateB o to appoint the Prime 5inister and other ministers= o to assent to legislationB o to prorogue or to dissolve ParliamentB /in grave constitutional crisis2 to act contrary to or without 5inisterial advice.

o In ordinary circumstances the Aueen, as a constitutional monarch, accepts 5inisterial advice about the use of these powers if it is available, whether she personally agrees with that advice or not. o That constitutional position ensures that 5inisters take responsibility for the use of the powers. We have already considered in )hapter C the extent to which the -ueen does. in fact. have any real personal role in the appointment of a new Prime 5inister.

A)TI5ITD Consider the following news story in which the -ueen attended a meeting of the cabinet> www.bbc.co.uk?news?uk@ politics@!"$8$#7! A%7@%!@!"%!B :o you think there are any constitutional issues arising from this historic event0 &ric Pickles stated6 '<e are her cabinet, we operate for her. 3he was sat in the seat where the Prime 5inister traditionally sits and, given it3s her cabinet, she can come any time she wants.3 /his raises some concerns about a blurring of the constitutional roles of elected politicians, who are accountable to Parliament, and an unelected head of state. 3ome students may uestion whether the cabinet in :ecember !"%! had more important priorities for discussion than royal table mats.

$.!.! /he Crown's legal prerogatives /hese are legal. rather than constitutional. prerogatives and include a number of historical remnants such as the Crown's right to sturgeon, certain swans and whales. +ccasionally. these rights can cause a measure of confusion as seen in the following story about sturgeon .

AcTiviTy Consider the following on the -ueen's right to any sturgeon landed in the 1nited 2ingdom> http>??news.bbc.co.uk?%?hi?wales? #$$C""#.stm :o you think it is appropriate for the -ueen to have the right to receive such a rare fish in the event of it being caught0 (rguably, the role of the -ueen seems inappropriate and there is no reason why the fish could not be dealt with in the same way as any other protected fish. In any case, it seems unlikely that the -ueen would ever want such a large fish personally

)rown not bound by Act 4ore importantly, the report highlights the principle that the Crown is presumed by the courts not to be bound by an (ct of Parliament unless it expressly, or by clear implication, states that it is bound. %ee, for example, s.%DD of the 9ocalism (ct !"%%> ,<< Application of this 'art to the )rown o An amendment made by this 'art in " o the Town and )ountry 'lanning Act ,00+, o the 'lanning /:isted (uildings and )onservation Areas2 Act ,00+, o the 'lanning and )ompulsory 'urchase Act *++<, or o the 'lanning Act *++9, binds the Crown.

Immune from criminal offences" )rown can do no wrong Another crucial rule is that the Crown and 'emanations of the Crown' are immune from prosecutions for criminal offences /'the Crown can do no wrong32.

AcTiviTy6 7xport good belong to )rown &eview the material in the following link about )rown immunity in relation to arms exports6 www.gov.ukEcrown" immunity"of"controlled"military"and" dual"use"items <hich legislation is the Crown not subject to0 <hat do you think the justification might be for this immunity0 &xport Control (ct !""! and &xport Control +rder !""7. <eapons and other dual@use goods may be needed urgently for the protection of ,ritish diplomatic staff. Felays in granting export licences could be disastrous.

If the goods are owned by the Crown, there should be sufficient protection against the risk of them falling into the wrong hands. AcTiviTy6 <hat is the legal status of the Crown in relation to health and safety legislation0 The )rown is subject to the *ealth and 3afety at <ork etc (ct %6$D, but cannot be prosecuted for breaches. <hat is a Crown censure0 This is the end result of an administrative process which replaces a prosecution. It is the way in which 8%7 formally records its decision that, but for Crown immunity, the evidence of a Crown body's failure to comply with health and safety law would have been sufficient to provide a

realistic prospect of securing a conviction.

In what circumstances will trade union or other safety officials be excluded from the hearing0 /rade union or other safety officials will be excluded from the hearing due to6 o national security o a relevant person does not consent o a rule or enactment prohibits it. :o you think that this administrative procedure is an appropriate replacement for a trial in a magistrates' court0 &elatives of victims of accidents caused by the Crown body might have particular concerns about the lack of transparency in the decision making and, of course, the fact that no individual or organisation will have the stigma of a criminal conviction.

There is no opportunity in the process for witnesses to be heard in public.

$.!.# Prerogative executive powers /hese are the prerogative powers that have been delegated to ministers by the sovereign. Parliament is not involved in their exercise and ministers are able to act without the authority of an (ct of Parliament. The 8ouse of )ommons 'ublic Administration %elect )ommittee report /aming the prerogative highlighted the fact that 'arliament has in the past limited or abolished individual prerogative powers and has replaced others with legislation, including the Interception of )ommunications Act ,09G and the )onstitutional &eform and overnance Act *+,+. Eonetheless, the remaining powers are still important and extensive.

:ist of executive power The best description of the extent of ministerial executive powers is to be found in the 4inistry of ;ustice report, /he governance of ,ritain, review of the executive royal prerogative powers6 final report, Hctober *++0 at6 www.peerage.orgEgenealogyEroyal" prerogative.pdf. The annex to the report contains the following list6

5inisterial prerogative powers 4overnment and the Civil 3ervice o 'owers concerning the machinery of overnment, including the power to set up a department or a non"departmental public body o 'owers concerning the civil service, including the power to appoint and regulate most civil servants o 'ower to prohibit civil servants and certain other )rown servants from issuing election addresses or announcing themselves, or being announced, as a 'arliamentary candidate or a 'rospective 'arliamentary candidate o 'ower to set nationality rules for 3non"aliens3 " (ritish, Irish and )ommonwealth citiIens " concerning eligibility for employment in the civil service

o 'ower to re$uire security vetting of contractors working alongside civil servants on sensitive pro#ects o 'owers concerning the Hffice of the )ivil %ervice )ommissioners, the %ecurity 5etting Appeals 'anel, the Hffice of the )ommissioner for 'ublic Appointments, the Advisory )ommittee on (usiness, the )ivil %ervice Appeal (oard and the 8ouse of :ords Appointments )ommission, including the power to establish those bodies, to appoint members of those bodies and the powers of those bodies

;ustice system and law and order o 'owers to appoint Aueen3s )ounsel o The power to make provisional and full order extradition re$uests to countries not covered by 'art , of the 7xtradition Act *++J o The prerogative of 4ercy o 'ower to keep the peace

Powers relating to foreign affairs o 'ower to send ambassadors abroad and receive and accredit ambassadors from foreign states o &ecognition of states o overnance of (ritish Hverseas Territories o 'ower to make and ratify treaties o 'ower to conduct diplomacy o 'ower to ac$uire and cede territory o 'ower to issue, refuse or withdraw passport facilities o &esponsibility for the )hannel Islands and Isle of 4an o ranting diplomatic protection to (ritish citiIens abroad

Powers relating to armed forces. war and times of emergency o &ight to make war or peace or institute hostilities falling short of war o Feployment and use of armed forces overseas o 4aintenance of the &oyal Navy o -se of the armed forces within the -. to maintain the peace in support of the police or otherwise in support of civilian authorities /e.g. to maintain essential services during a strike2 o The government and command of the armed forces is vested in 8er 4a#esty o )ontrol, organisation and disposition of armed forces o &e$uisition of (ritish ships in times of urgent national necessity o )ommissioning of officers in all three armed forces o Armed forces pay o )ertain armed forces pensions which are now closed to new members

o War pensions for death or disablement due to service before C April *++G /section ,* of the %ocial %ecurity /4iscellaneous 'rovisions2 Act ,011 provides that the prerogative may be exercised by Hrder in )ouncil2 o )rown3s right to claim 'riIe /enemy ships or goods captured at sea2 o &egulation of trade with the enemy o )rown3s right of angary, in time of war, to appropriate the property of a neutral which is within the realm, where necessity re$uires o 'owers in the event of a grave national emergency, including those to enter upon, take and destroy private property

5iscellaneous o 'ower to establish corporations by &oyal )harter and to amend existing )harters /e.g. that of the (ritish (roadcasting )orporation, last amended in ;uly *++C2 o The right of the )rown to ownership of treasure trove /replaced for finds made on or after *< %eptember ,001 by a statutory scheme for treasure under the Treasure Act ,00C2 o 'ower to hold public in$uiries /where not covered by the In$uiries Act2 o )ontroller of 8er 4a#esty3s %tationery Hffice as Aueen3s 'rinter6 the power to appoint the )ontroller the power to hold and exercise all rights and privileges in connection with prerogative copyright

o %ole right of printing or licensing the printing of the Authorised 5ersion of the (ible, the (ook of )ommon 'rayer, state papers and Acts of 'arliament o 'ower to issue certificates of eligibility in respect of prospective inter"country adopters /in non" 8ague )onvention cases2 o 'owers connected with prepaid postage stamps o 'owers concerning the visitorial function of the )rown

(rchaic prerogative powers The nature of the prerogative has changed over time. 8istorically, the &oyal prerogative has been described as the residual powers of the )rown. In particular, there are some powers, which can be described as residual powers, relating to small, specific issues or which are a legacy of a time before legislation was enacted in that area. It is unclear whether some of these prerogative powers continue to exist. o uardianship of infants and those suffering certain mental disorders o &ight to bona vacantia o &ight to sturgeon, /wild and unmarked2 swans and whales as casual revenue o &ight to wreck as casual revenue o &ight to construct and supervise harbours o (y prerogative right the )rown is prima facie the owner of all land covered by the narrow seas ad#oining the coast, or by arms of the sea or public navigable rivers, and also of the foreshore, or land between high and low water mark o &ight to waifs and strays

o &ight to impress men into the &oyal Navy o &ight to mint coinage o &ight to mine precious metals /&oyal 4ines2B also to dig for saltpetre o rant of franchises /e.g. for markets, ferries and fisheriesB pontage and murage2 o &estraining a person from leaving the realm when the interests of state demand it by means of the writ ne exeat regno o The power of the )rown in time of war to intern, expel or otherwise control an enemy alien.

$.# :efinitions of prerogative powers We have already seen how difficult it has been for academic commentators and #udges to devise definitions of important topics in public law which are generally accepted. /he same problem applies in the case of prerogative powers. Ficey defines it as6 o 3The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown' /Introduction to the study of the law of the constitution2. This succinct summary highlights the fact that these are powers retained by the Crown which have not been abolished by Parliament or replaced by statutes.

Ficey>s explanation show no different with the power exercised by statute, in fact the different is the power only special to 4onarch Apart from stating that the powers are discretionary, the definition fails to explain how they are different from powers exercised under statute. (lackstone states6 o We usually understand that special pre"eminence which the .ing hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity...It must be in its nature singular and eccentrical AspecialB= that it can only be applied to those rights and capacities which the 2ing enjoys alone. in contradistinction to others, and not to those he en#oys in common with any of his sub#ects. /William (lackstone )ommentaries on the law of 7ngland.2

(lackstone makes a key distinction between these powers which only the monarch or Crown can exercise, such as the right to make war or conduct diplomacy. and those powers which ordinary members of the public can exercise. for example to make contracts.

AcTiviTy !ind in :exis or Westlaw ,urmah +il Company v 9ord (dvocate /,0CG2 and answer the following $uestions6 %ummarise the facts of the case. Furing the %econd World War, (ritish armed forces, on behalf of the )rown, destroyed oil refineries and other related assets belonging to the appellants in order to prevent them falling into the hands of the invading ;apanese army. The appellants sought compensation /he case applied the law of which of the following jurisdictions> 3cotland, although Lord Reid did not believe that the result of the case would have been different if either alternative had been applied.

<hat do you think is the significance of the section of the 3cottish (ct %$"# which 9ord Reid uoted0 It underlined the fact that the power of making war was not the sole responsibility of the Crown, but reserved the power of the Crown to act on its own to repel an invasion or internal revolt " emergencies where immediate action would be re uired. Fid :ord &eid believe that the case law supported the use of prerogative powers in this way without compensationK No. 8is analysis of pre",0,< case law and the cases arising out of the !irst World War held that compensation was payable

$.D Relationship between prerogative and statutory powers If on whole ground of royal prerogative can be carried out by using prerogative then statute is uphold Parliament can abolish or limit prerogative powers. Alternatively, it may choose to pass legislation replacing a particular prerogative power. Fifficulties have arisen where a prerogative power has not been formally abolished but legislation has been passed that conflicts with it. In such circumstances, the $uestion arises6 can the government choose to use the prerogative power rather than the statutory powerK

In (@4 v :e 2eyser's Royal *otel /,0*+2, a hotel had been re$uisitioned during the !irst World War. Re uisitioning under the prerogative power would not have re uired the government to pay compensation but, inconveniently, there was also a statute applying to this situation which provided that compensation should be provided. The *ouse of 9ords held that the government was obliged to follow the statute and pay compensation.

:ord Funedin stated6 o It is certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. o Hn this point I think that the observation of the learned 4aster of the &olls ?in the )ourt of Appeal@ is unanswerable. 8e says 3What use would there be in imposing limitations if the )rown could, at its pleasure, disregard them and fall back on prerogativeK3 Note that 9ord :unedin referred to the 'whole ground' in this uote. <here the overlap between the prerogative power and the statute is less clear@cut, the courts may take a different approach.

When less clear"cut then &oyal prerogative can be used In & v %ecretary of %tate for the 8ome Fepartment, ex p Eorthumbria Police (uthority /,0902 the prerogative power to keep the -ueen's peace within the realm was discussed. The government had established a central store of rubber bullets and )% gas /controversial riot control e$uipment2 to which chief constables of police forces would have access without re$uiring the approval of their police authorities /local bodies established to hold police forces accountable2. %ection D'D) of the Police (ct %6CD stated6 o The police authority for any such police area may...provide and maintain such vehicles, apparatus, clothing and other e$uipment as may be re$uired for police purposes of the area.

In the )ourt of Appeal, )room" ;ohnson :; stated that s.D did not give the police authority a 'monopoly' on supplying e uipment to the police in their area. /herefore. the government could use the prerogative power as well.

Controversial> )ourt show that even though 4inister has the power to decide to bring the Act into force, but when he decided not to do so, and continue to use &' power over the same area as Act will covered, he cannot do so. 8owever, there are remain other 4inisters did not bring the relevant Act into forces In a more complex case, & v %ecretary of %tate for the 8ome Fepartment, ex p the Fire ,rigades 1nion /,00G2, the issue related to whether or not the government could use its prerogative powers in a way that would mean that an (ct of Parliament would not be 'brought into force'. In this case, the )riminal In#uries )ompensation %cheme had been introduced under prerogative powers. /he Criminal ;ustice (ct %677 had provided for a replacement /more generous2 statutory scheme but had not been brought into force.

The 3)ommencement3 section of the (ct had given the 3ecretary of 3tate the power to bring the (ct into force but in ,00< he announced that he would not do so and would. in due course. propose legislation to repeal the relevant sections. 8e would simply amend the existing scheme. :ord (rowne"Wilkinson in the 8ouse of :ords, in the ma#ority #udgment, held that the 3ecretary of 3tate did not have an unchecked power as to whether or not to bring relevant sections of the (ct into force. 8e stated6 o 4y :ords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute and, to an extent, to pre"empt the decision of 'arliament whether or not to

continue with the statutory scheme even though the old scheme has been abandoned. Fespite this #udgment, it remains the case that significant changes in the law passed in a number of statutes have not been brought into force by the relevant 3ecretaries of 3tateB in some cases the sections are repealed without ever having been brought into force.

$.8 ;udicial review of prerogative powers 'ower conferred by &' can be reviewed #udicially The issue of whether or not the courts will be prepared to examine the use of a prerogative power through judicial review was considered in )ouncil for )ivil %ervice -nions v 4inisterfor the )ivil %ervice /,09<2 ?4C*- caseB 8ere, the issue was the removal of the rights of workers at the overnment )ommunications 8ead$uarters / )8A2 to belong to a trade union. These rights were removed by an order in council under a prerogative power because of the particular sensitivities arising from )8A3s role in electronic intelligence gathering.

lidewell ; in the 8igh )ourt granted the application for #udicial review, highlighting the government3s lack of consultation, stating6 o I can see no reason in logic or principle why an exercise by a 5inister of a power conferred by an +rder in Council should not be subject to the same scrutiny and control by the courts as would be appropriate for the exercise of the same power if it had been granted by statute.

)ourt show will review the executive>s royal prerogative application but not on non"#ustifiable issue such as national security The government appealed " and was ultimately successful in the *ouse of 9ords " on the grounds that the failure to consult, although against the principles of natural #ustice, was taken on the grounds of national security and was therefore 'non@ justiciable'. that is, something into which the courts could not en$uire. Eonetheless, the key result of the case remains that the courts will. in principle. be prepared to grant a judicial review of the exercise of prerogative power.

(nother non@justifiable area6 foreign affair issue prevailed which not so fundamental /K2 In R ',ancoult) v 3ecretary of 3tate for Foreign and Commonwealth (ffairs /*++,2 two Hrders in )ouncil relating to the troubled history of the Chagos Islands in the Indian Hcean were challenged. /he inhabitants of these islands, part of the (ritish Indian Hcean Territory colony, were forcibly removed in ,01, when the main island, Fiego arcia, was leased to the -%A as a military base. Although compensation was later paid, the exiled inhabitants continued to challenge the prerogative Hrders in )ouncil in a number of different legal challenges.

In the *ouse of 9ords the basic right to #udicial review of Hrders in )ouncil themselves /rather than merely executive action under them, as in the )8A case2 was accepted. 9ord *offmann said> o ...I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action. Eonetheless. the majority of the *ouse of 9ords rejected the applicants' claim. It held that the inhabitants' right of abode was not sufficiently fundamental that it could not be touched by the Crown's prerogative powers. In legislating for a colony, the Crown did not have to have regard only, or even predominantly, for the

immediate interests of the inhabitants. /here had been no clear and unambiguous promise that the Chagossians would be allowed to return and therefore no legitimate expectation had been created. In the end, as in the )8A case, the *ouse of 9ords' deference to the decisions of the Crown, in this case in relation to foreign affairs. prevailed. Although it is always important to be careful when reading descriptions of cases by non"lawyers. it is difficult not to be hugely sympathetic towards this unhappy community.

$.C Reforming ministerial prerogatives The 8ouse of )ommons 'ublic Administration %elect )ommittee report /aming of the prerogative /www.publications.parliament.ukEpaEc m*++J+<EcmselectE cmpubadmE<**E<**+*.htm2 identified two broad options for reform. The first approach is based on pragmatism and focuses on sub#ecting individual prerogative powers to parliamentary control on a case@by@case basis. The second approach, based on principle, seeks to introduce comprehensive legislation subjecting prerogative powers generally to parliamentary control.

$.C.% /he pragmatic approach" look at particular issue and solve but may not sufficient The report $uotes the former )onservative government minister 9ord *urd as stating6 o ...on the whole I believe the constitution evolves and is best looked at in the light of particular criticism. particular mischiefs. that can be identified and then change made, rather than examining it on a philosophical basis. which rapidly turns artificial. :ord 8urd went on to highlight the %ecurity %ervices Act ,090 and the Intelligence %ervices Act ,00< as examples of change driven by 'very practical. cogent reasons'.

:isadvantages of the pragmatic approach6 <illiam *ague expressed impatience with the piecemeal approach to legislations in the report, stating6 o one problem with gradualism...it may not actually be sufficient. o The other problem with gradualism is that it is not moving at all in some areas.

$.C.! /he principled approach The report recognised the continuing need for ministers to have executive powers which would have sufficient flexibility to respond uickly to certain urgent and dangerous events. Parliamentary scrutiny should be proportionate to these needs. Appendix , of the report contains a draft ,ill for reform drafted by Professor ,raGier. The (ill would re uire ministers to list all the ministerial executive powers available to their departments within six months of the passing of the Act. /he list would then be considered by a parliamentary committee who would be re uired to draft legislation providing for appropriate statutory safeguards where re$uired.

3uch safeguards would not be expected in all areas of the use of the prerogative. The ,ill provides for specific early legislation in three important areas6 o the decision to go to war where lives are at stake. o decisions on treaties and o the issuing of passports. The report highlights the importance of Parliament's right to know precisely what powers are being exercised by ministers. <ithout such detailed knowledge, ministers cannot be held accountable by Parliament.

:isadvantages of the principled approach> :ord 8urd raised the familiar argument used against most constitutional reforms6 o I just wonder who in this country, outside of a fairly narrow but very talented and conscientious range, would feel better off as a result of thatB who would sleep more safely in their beds= and who would think the country was better governed. *e also highlighted the amount of parliamentary time that such an open@ended reform would take.

$.$ Case study> deployment of ,ritish armed forces abroad This relates to one of the most important decisions any government can be re uired to make6 the decision to go to war As well as the cost in human lives, there are huge financial implications and risks arising from such decisions. Nonetheless, successive ,ritish governments have been very willing to use ,ritish armed forces in a variety of overseas missions including, of course, Ira and (fghanistan.

War seemed as redundant and Fevelopment of international law The traditional 'declaration of war' seems to be redundant , given developments in international law. particularly the 1E Charter. International law permits the use of force for self@defenceB if authorised by the UN Security CouncilB or, arguably, to prevent an overwhelming humanitarian disaster.

&eform $uestions6 .ey $uestions which must be considered in relation to reform are6 o <hat are the advantages and disadvantages of parliamentary involvement in the decision to deployK o <hat are the advantages and disadvantages of relying on statute rather than convention in governing the decision to deployK

$.$.% /he role of the courts" declaration of war is exclusively to the Crown A common concern among the armed forces and their supporters is that litigation in relation to war powers would undermine morale and operational effectiveness. These concerns may be overstated given that the courts have generally held that such decisions are 'non@ justiciable'. In Chandler v :irectory of Public Prosecutions /,0C<2 the appellants had been convicted under s., of the Hfficial %ecrets Act ,0,, following a protest against nuclear weapons at a -% air force base.

9ord Reid summarised the generally deferential approach taken by the courts in relation to the armed forces6 o It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised.

In R v ;ones and others /*++C2 protesters against the Ira$ War were prosecuted for breaking into military bases. /hey used. as a defence. the argument that they were legally #ustified in their actions because they were attempting to prevent the crime of aggression under international law. Their appeals were re#ected by the 8ouse of :ords. :ord 8offmann emphasised the discretionary nature of the prerogative power to make war and deploy troops abroad6

o It is of course open to the court to say that the act in uestion falls wholly outside the ambit of the discretionary power. o (ut that is not the case here. o The decision to go to war, whether one thinks it was right or wrong. fell s uarely within the discretionary powers of the Crown to defend the realm and conduct its foreign affairs.

$.$.! /he convention re uiring Parliament to be involved The decision to invade Ira was politically very controversial and was discussed in a number of debates in 'arliament beforehand. )onsider the following comments about the status of these debates by ;ack %traw, the :eader of the 8ouse, after the war in *++1 /8ansard ,G 4ay *++126 o Three debates were on substantive motions6 in November *++*B in !ebruary *++JB and then, of course, in the crucial determining debate in 4arch *++J, which confirmed the decision for military action by a majority of !C#. o /hat set of debates on substantive motions established a clear precedent for the future from which I do not believe there will be. or could ever be. a departure.

AcTiviTy Read ;ack 3traw's statement again. In his description of this new convention. who makes the actual decision to deploy armed forces abroad0 The phrase 'confirmed the decision' shows that Parliament's role is to apply after the government has made the decision. It is unclear what the legal position would have been if the *ouse of Commons had voted against the decision in 4arch *++J. Certainly, the government had made commitments to its allies, in particular the -%A, beforehand and preparations and expenditure were already taking place.

1.1.J Advantages and disadvantages of parliamentary involvement Although many lawyers and politicians have supported greater parliamentary involvement in the decision to deploy armed forces abroad, but some members of the armed forces and government have opposed it.

Advantages and Fisadvantages involvement of )ommon>s permission Why did some witnesses argue that the current use of the royal prerogative to make war was less democratic than when the monarch exercised that power personallyK In the past the monarch's power was limited by the practical re uirement to get the approval of Parliament for the costs of waging war. This was a particular difficulty for Charles I in the %$th century. Eow. the Prime 5inister can make the decision and. because his party also has a majority in the *ouse of Commons, he is able to obtain approval for the expenditure with minimal effective constraints

<hy was it argued that greater parliamentary involvement would improve the morale of the armed forcesK It was felt that it was important that the armed forces knew that the country was really behind them and that they had the support of Parliament

Admiral :ord (oyce listed six aspects of an open parliamentary debate which he felt would undermine operational effectiveness. :ist them. escalation of the conflict through rhetoric decisions being skewed because Parliament would only have access to limited information compromising operational security through too much detail being revealed limiting operational flexibility if subse uent parliamentary approval is re uired when the situation changes during the conflict undermining clarity about the timetable for preparation

removing the -nited .ingdom3s 3strategic poise3 by giving the opponent early notice of intent. <hat was the expected legal impact of legislation re uiring parliamentary involvement in the deployment decisionK It was feared that individual servicemen could be prosecuted in the -. courts for an unlawful deployment. /here was also the potential risk of servicemen refusing to obey orders in respect of an unlawful deployment.

<hy was it argued that greater parliamentary involvement would undermine the morale of the armed forcesK It was argued that an 'unpredictable and damaging level of uncertainty' would be introduced to the legality of the actions of the armed forces. 5orale would also be affected if the debate and vote revealed that a large minority in Parliament opposed the military action.

$.$.D Proposals for reform Chapter 8 of the *ouse of 9ords Constitution Committee, Waging war6 'arliament3s role and responsibility, ,Gth &eport, %ession *++G"+C at6 www.publications.parliament.ukEpaE ld*++G+CEldselectEldconstE*JCE*JC+1. htm sets out its recommendations.

2ey provision6 The current use of the royal prerogative is outdated and should not continue in the *,st century. A parliamentary convention should be created determining Parliament's role in the decision@ making process. The convention should include the following features. o The government should seek parliamentary approval before deployment of armed forces outside the -nited .ingdom into actual or potential conflict. o The government should indicate the ob#ectives, legal basis, likely duration and siIe of the deployment.

o If. because of emergency and security, such prior information cannot be provided, the government should provide it retrospectively within seven days of the commencement or as soon as possible. o Parliament should be kept informed of the progress of the deployments and, if their nature changes, should be asked to renew its approval. :espite some acceptance by the 9abour government of the strength of the arguments, but no changes were made before the coalition government was formed.

$.$.8 Fighting 'and debating) the next war0 It was probably inevitable that the report of the *ouse of 9ords Constitution Committee discussed above would be heavily influenced by the controversies of the Ira <ar. Although the 8ouse of )ommons and the government have not, to date, formally accepted the proposals of the )ommittee, but it is interesting to review the behaviour of the coalition government in relation to the deployment of (ritish forces in 4arch *+,, in assisting the overthrow of Colonel 4addafi.

/o what extent do you think the coalition government did. in fact. comply with the convention proposed by the *ouse of 9ords Constitution Committee0 (pproval was sought a few days after the bombing of 9ibya had begun. ( particular effort was made to show the legal justification for the war, -N %ecurity )ouncil &esolution ,01J. /he Prime 5inister highlighted the objectives of suppressing 9ibyan air defences and protecting civilians, particularly in the rebel city of (enghaIi, by enforcing the 3no"fly Ione3.

/he deployment of R(F /yphoon jets had been revealed prior to the debate but there was no indication as to the numbers of jets involved. Importantly, there was no indication as to the likely duration of the 12 involvement @ :avid Cameron's comment that 9ibya would not become 'another Ira ' did not give even an approximate estimate.

$.7 3ummary Prerogative powers are a residual set of legal powers that are treated by the courts as being part of the common law. They are derived from monarchical power, and new prerogative powers can no longer be created. 5inisters may be called to account by Parliament after the exercise of prerogative powers. Prerogative powers may be abolished or restricted by (cts of Parliament. 3tatutes. by contrast. are the main alternative form of legal power and are created by 'arliament following debates and votes. 4inisters are fre$uently given executive powers under statutes.

A 'third source' of legal authority /also known as the 3&am doctrine32 has been proposed and discussed in several cases, including 4alone v 4etropolitan 'olice )ommissioner /,0102 and & /on the application of %hrewsbury and Atcham ()2 v %ecretary of %tate for )ommunities and :ocal overnment /*++92. 3uch a source of legal authority has been argued to provide for incidental powers that have not been specifically stated to be unlawful. The -ueen's constitutional prerogatives include the right to advise. warn and encourage ministers in private. The -ueen is expected to accept the advice of her ministers about the use of her powers. 3he may have a residual role in the appointment of a Prime 5inister when there is no party with

an overall ma#ority in the 8ouse of )ommons. The Crown's legal prerogatives include a number of historical rights such as the right to sturgeon. 4ore importantly, the Crown is presumed by the courts not to be bound by an (ct of 'arliament unless it is expressly or by clear implication stated to be bound. In addition, the )rown and 3emanations of the )rown3 are immune from criminal prosecutions. /he *ealth and 3afety &xecutive uses an alternative administrative procedure to replace criminal prosecutions of the Crown. Prerogative executive powers are delegated to ministers by the sovereign.

The 8ouse of )ommons report /aming the prerogative lists 88 separate powers, some of which are now obsolete, under the headings of6 o 4overnment and civil service o ;ustice system and law and order o Foreign affairs o (rmed forces. war and emergencies o 5iscellaneous o (rchaic. :icey defined prerogative powers as 3The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the )rown3. o ,lackstone referred to the 'special pre@eminence' of the king which is 3singular and eccentrical3 and which 3the .ing en#oys alone, in contradistinction to others3.

<here a prerogative power has not been abolished by Parliament but a statute has been passed that conflicts with it, the courts will normally follow the statute provided that there is a complete overlap6 A" v Fe .eyser3s &oyal 8otel /,0*+2. If there is a less clear@cut overlap, the courts may follow the prerogative power6 & v %ecretary of %tate for the 8ome Fepartment, ex p Northumbria 'olice Authority /,0902. The courts are prepared, in principle, to grant judicial reviews of the exercise of prerogative power /)ouncil for )ivil %ervice -nions v 4inister for the )ivil %ervice /,09<22 and prerogative legislation itself /in the form of Hrders in )ouncil in & /on the application of (ancoult2 v %ecretary of %tate for !oreign and )ommonwealth Affairs /*++,22. 8owever, judicial review was. in fact. refused in these two cases as the subject matter /national

security and foreign affairs2 was held to be 'non@justiciable'. The 8ouse of )ommons 'ublic Administration %elect )ommittee report Taming the prerogative discussed two approaches to reform> a pragmatic approach based on incremental change and a principled approach which would re$uire ministers to give details of all ministerial prerogative powers and provide for early legislation in some specific areas with further legislative change to follow. The courts have shown a particular reluctance to challenge the executive in relation to the important prerogative power to go to war and deploy troops. o This reluctance was demonstrated in )handler v Firector of 'ublic 'rosecutions /,0C<2 and & v ;ones and others /*++C2.

There appears to be an evolving convention. following the controversial Ira <ar. which re uires Parliament to become involved. The convention, as discussed in the 8ouse of :ords )onstitutional )ommittee report Waging war6 Parliament's role and responsibility, seems to re uire Parliament to approve the decisions made by the government either before or shortly after action has begun. The report discusses the advantages and disadvantages of formalising this convention, with concerns being expressed by some members of the armed forces about the effects on security and morale.