If Parliament doesn't approve the use of most prerogative powers, where's the accountability?

Question

Anne Dennett. Public Law Directions (1 ed 2019). p 269.

12.2.3 Royal prerogative

The royal prerogative ‘encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation’ (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [47]; see generally [40–53]).

The royal prerogative has its roots in the historic powers of the monarch to govern the country but it is now closely aligned with the executive. As royal power diminished and responsible and representative government developed in the nineteenth century, many of the monarch’s prerogative powers came to be exercised by government ministers (the Crown as executive) rather than the monarch personally, although those powers are still exercised in the name of the monarch. Dicey described the royal prerogative as ‘the residue of discretionary or arbitrary

p 270.

authority, which at any given time is legally left in the hands of the Crown’ (A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London: Macmillan 1959), p 424). Blackstone defined it as special powers: ‘that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of common law, in right of his regal dignity’ (Sir William Blackstone, Commentaries on the Laws of England (1765)), but Dicey saw it as every act which the Crown can lawfully do without the authority of an Act of Parliament. Prerogative power therefore refers to the remaining rights and powers of the Crown (monarch and ministers) which they can exercise without the need for Parliament’s approval, or in many cases without reference to Parliament. Prerogative power is part of the common law and is not based in statute. (Where a prerogative power is incorporated into a statute, it becomes a statutory power; an example is the Fixed-term Parliaments Act 2011). New prerogative powers cannot be created or extended; as Diplock LJ said, ‘It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative’ (BBC v Johns [1965] Ch 32 , 79). The prerogative remains an important source of government power, enabling government to function efficiently. It is regulated by constitutional convention, and can be judicially reviewed by the courts (see section 12.2.3.5).

THINKING POINT

If Parliament does not approve the use of most prerogative powers, where is the accountability?

1. Isn't the answer in the last sentence above THINKING POINT — "constitutional convention" and judicial review by courts?

p 255.

In the UK, members of central government are drawn from Parliament: the political party with the largest number of seats in the House of Commons after a general election normally forms the new government. The executive is therefore embedded in the heart of the legislature (the Westminster system). The government is accountable to Parliament for its activities (this is the principle of responsible government) and it must command the confidence of the House of Commons in order to function. Each government needs parliamentary approval to turn its policies into law and relies on it for finance (see Table 12.1).

2. How's THINKING POINT right to assume "Parliament does not approve the use of most prerogative powers"? How can this be, when "prerogative remains an important source of government power" (above) and the government can dominate the UK Parliament (below)? p 256.

The ‘elective dictatorship’

The government can dominate the UK Parliament because of the first past the post electoral system and the lack of separation of powers between the executive and the legislature. Where a government has a large majority in the House of Commons (such as the Conservative majority of 144 in 1983 and Labour’s majority of 177 in 1997), its power is, as Lord Steyn pointed out in Jackson v AG [2005] UKHL 56, ‘redoubtable’ ([71]). This means that the government will carry votes in the House of Commons with little likelihood of losing them. About one sixth of MPs are members of the government (rising to 20 per cent of MPs if parliamentary aides are included) so their support is guaranteed; this is known as the ‘payroll vote’. This is Lord Hailsham’s ‘elective dictatorship’: dominant government at the heart of a sovereign Parliament.

Answer 1

Almost by definition, prerogative powers are beyond the direct control of Parliament and yet they remain a small but important source of executive power. The usual powers of an executive government (in the UK and indeed under any Westminster system of government) are statutory powers - an Act of Parliament grants the power and regulates its use by ministers, authorities or other agents of the executive. Hence the question, “where is the accountability?” when a government uses prerogative powers.

You have proposed the answer “‘government power’ and judicial review by the courts”. I’m not sure what you mean by suggesting that government power is a source of accountability, but judicial review is certainly relevant. While in the historical past the Courts refused to review the exercise of prerogative power (under the notion that “the King may do no wrong”), this misplaced deference to powers that are now almost exclusively exercised by government ministers, acting merely in the name of the Crown, fell away in the latter half of the 20th century. It is now accepted that the ordinary standards of judicial review apply “such as the legality principle, reasonableness, and rationality” and will only decide not to review “matters of high policy, especially on the international plane [such as] treaty-making powers”.

A second, more obvious way a government is accountable for an exercise of a prerogative power is by means of political challenge and scrutiny on the floor of the House. While the Parliament may not directly control these powers, under the principles of responsible government the prime minister and other government ministers can always be questioned, criticized and held to account in Parliament for anything they do. In the extreme, if the Commons were to really object to the use of a prerogative power it could even be a trigger for a loss of confidence and early elections.

A third source of accountability is via the Parliament’s role in the approval of the budget. Budget measures in relation to funding activities authorised by prerogative powers may become sticking points for a government’s budget.

The final way the Parliament might conceivably control a government’s exercise of a prerogative power is by legislation to bring the particular matter within the scope of a statutory power instead so that it might be regulated according to the Parliament’s wishes. This does of course face the significant hurdle of passing legislation through Parliament in the face of a hostile government with a majority. There have been a number of proposals for reform in this direction but none have been fully embraced.

Notice that most of the methods of obtaining some accountability can only be applied “after the fact” (to review an action already taken) and that all are limited in their scope and in their achievability when a government holds a strong majority.

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The final part of your question is flawed as it appears to be based upon a misunderstanding. I won’t attempt to answer it really but I’ll make these comments. When we say “Parliament does not approve (provide approval for) the particular use of prerogative power” we mean Parliament does not specifically vote on whether to use it or not. The executive government doesn’t need any law or declaration by the Parliament before proceeding. But that does not mean that each of the members of Parliament don’t personally approve of the action, and when a government has a very strong majority (as you suggest) it would indeed be the case that there would be majority approval amongst MPs for whatever their Government might do.

References:

Oxford Constitutional Law - Royal Prerogative

The Constitution of Australia: A Contextual Analysis By Cheryl Saunders