Download Public Law Essay

Public Law Essay
One characteristic of the UK’s unique constitutional framework is that it is considered a
constitutional monarchy. Discuss what is meant by “constitutional monarchy” before going on
to provide a detailed evaluation of the powers of the royal prerogative in the twenty-first
century.
This essay will look at what is meant by “constitutional monarchy”, before going on to look at
and
evaluate
the
Constitutional
powers
of
the
royal
prerogative
in
the
twenty-first
century.
monarchy
A constitutional monarchy is a form of constitutional government, where either an elected or
hereditary
monarch is the Head of State. Britain has a constitutional monarchy. The constitutional
monarchy is in which the monarch acknowledges the rights of the legislature and the executive
branch of government, it also means that ‘the monarch’s power is largely exercised by the
elected government.’ In addition, the British constitution isn’t set out in a single document.
Instead it is made up of a combination of laws and conventions.
Over time there has been a transition in the UK from an executive monarch, where the
monarch
has
total control and power of the nation, to a “constitutional monarchy where the sovereign is the
head
of
state and symbolically represents the nation, but he or she is not the head of government.”#
Constitutional monarchy has a long history in the UK, up “until the seventeenth century British
monarchs were known as executive monarchs, which means that they had the right to make
and
pass
legislation.”# Vernon Bogdanor examined that in a constitutional monarchy we find “a set of
conventions which limit the discretion of the sovereign so that his or her public acts are in
reality
those
of
ministers.”#
The effect of this transition from an executive to a constitutional monarchy is a reduction of the
monarchs powers. “A significant amount of power has been delegated to the Prime Minister
and Parliament. For example the ability to make and pass legislation is in the hands of
Parliament, and the Queen should remain politically neutral therefore not following or showing
signs
of
support
for
one
or
more
political
parties.”#
The Queen mustt therefore be looked upon as an icon with insignificant importance as she
appears to possess no real powers. However the truth is that the Queen is indeed a powerful
figure with more authority than most would realise. In the twenty-first century there are still a
few prerogative powers, named “reserve powers,”#which can be utilised by the queen under
her
own
will
and
judgement.
Prerogative
powers
The royal assent is the most well known prerogative power of the queen. It is a constitutional
convention that the queen should agree to give royal assent, by this it means whilst it is not
official law that she must agree, it is expected of her and problems could rise if she did not
agree, but in exceptional circumstances she can refuse. The Queen has not used this reserve
power since 1708 where Queen Anne withheld royal assent from the Scottish Militia Bill 1708.
In the modern day it is becoming more and more unlikely for the Queen to refuse the royal
assent as it would create tension between the Queen and the government and generally cause
political and social disruption which would not be beneficial to anyone.
The Queen also has the prerogative power to appoint a Prime Minister of her own choice. She
could also choose to appoint nobody as Prime Minister as there is no legal requirement for a
Prime Minister to even exist. Whilst this is the legal position of the appointment of a Prime
Minister, the reality is of course different. “By convention, grounded in political necessity, she
must appoint a man or woman who can form a government which will have the confidence of
the House of Commons, has an indisputable claim to be appointed Prime Minister.”#
“The Queen has the prerogative power to dismiss ‘her’ ministers, single or collectively but,
again, the legal power is overlaid by convention. In practice the fate of individual ministers is in
the hands of the Prime Minister.”#”No Prime Minister has been dismissed by the Sovereign
since 1783, when George III dismissed the fox-north coalition government. It must now be
unconstitutional for the Sovereign to dismiss the Prime Minister and his or her colleagues in all
but the most exceptional circumstances.”#The last dismissal was a very long time ago, for the
Queen to exercise her power of dismissal it would take exceptional circumstances, for example
a constitutional crisis in which action must be taken for the greater good of the nation. During a
hung Parliament, which is a period where no one political party has an out-and-out majority, it
would be considered an exceptional circumstance whereby the Queen could exercise her
prerogative power as the monarch. “The power of dismissal is said still to survive for use if a
government should act to destroy the democratic or parliamentary bases of the
constitution.”#According to Turpin and Tomkins, “dismissal of a government may still be an
available measure of a last resort, but it is likely to generate vehement public controversy.”#
“The prerogative power of dissolving Parliament belongs to the Sovereign, but its exercise
depends in ordinary circumstances on the judgment of the Prime Minister.”#Following the
constitutional convention, the prime Minister must seek permission from the Queen to dissolve
Parliament. In modern times this power is exercised on the advice of the Prime Minister and
the Queen is highly unlikely to reject a request, the last time the Queen rejected a request of
this kind was in 1923. “In general the Sovereign has the right to refuse a dissolution only where
the grant of a dissolution would be an affront to, rather than an expression of, democratic
rights.”#
The Queen is the only individual who can officially declare when the country is at war and when
war is over. This is another of the powers of the Royal prerogative, but of course, she is given
advice and told when to do so. There are many generals and high ranking people who make the
big decisions in regards to war, the Queen’s role in officially declaring or ending war is a mere
formality.
In the twenty-first century the Queen is likely to feel pressurised to never reject a request as it
could possibly cause political controversy. “The best safeguard for constitutional monarchy lies
not in any specific set of constitutional rules or conventions, but rather in a willingness on the
part of both politicians and people to preserve the role of the monarchy by avoiding actions
which have the effect of compromising its neutrality.”#The Queen is expected to be politically
neutral as she is the Head of State and should not have allegiance with one or any political
party.
Therefore, in a way, whilst the Queen has these significant powers mentioned, indirect
circumstances can limit her power as she may feel unable to use them via her own free will and
judgment as conventions tend to dictate what should be done, pressure from the Prime
Minister and advisors heavily influence decisions and the usage of the prerogative powers and
could cause political controversy. “Modern governments, having assumed that attributes of the
Crown, are invested with most of those common law powers, privileges and immunities that
formally constituted ’royal’ prerogative, but of which relatively few are not exercised or
enjoyed by the Queen in her own person.”# However, whilst this is not a power, it is certainly
an immunity which creates power, this is that the Queen is able to avoid liability under a statue,
this is known as Crown immunity. This means the Queen can not be criminally prosecuted in a
court, this gives her power above all other citizens. In the modern democratic state in which we
live there is really no justification for such immunity, however the Queen is of course excepted
not
to
abuse
this
immunity
and
she
has
always
respected
this.
It is highly arguable that whilst the Queen technically has significant power, she is most unable
to exercise it via free will. “A sceptical view of the ’personal prerogative’ of the Sovereign is
taken by Robert Blackburn, who argues that the Sovereign exercises her legal powers
exclusively in accordance with established conventions and procedures, leaving no room for
personal discretion.”#Nevil Johnson also seems to agree, “there is no prerogative power that
can in the normal conditions of political life be exercised independently by the
monarch.”#However, situations are not always occurring under ’normal conditions,’ in the
event of extraordinary or emergency conditions, for example a hung parliament, there would
be a high possibility that the Queen would indeed exercise the prerogative powers
independently.
In the twenty-first century there has been slight tension between the monarch and certain
political bodies. David Cameron, now Prime Minister and leader of the Conservative party,
called for the Queen to be stripped of many of her traditional powers in February 2006. He
called on his party’s democracy taskforce, chaired by Kenneth Clarke, to “consider the use by
ministers of the power of the royal prerogative.”#There are four main power areas in which
David Cameron wished the Queen to be stripped of and the power given to parliament, these
are being the right to declare war and send troops abroad, to make international and European
treaties, to make appointments and award honours and to make major changes in the structure
of
the
government.
He has specifically ruled out changes to what he calls “the personal prerogative powers of the
monarch, such as the power to dissolve parliament and appoint a Prime Minister.”#”Mr
Cameron is anxious to make it clear that he does not have Her Majesty in his sights, but the
powers ministers now exercise on her behalf.”#The fact that Cameron is not going after the
’personal prerogative powers’ illustrates that he is not just trying to shield Parliament from the
Queens
powers.
Former Labour MP Tony Benn become well known for his views against the royal prerogative
and he campaigned for the abolition of it. He argued that the decisions the Queen is able to
make via royal prerogative should be subject to Parliamentary scrutiny exclusively.
Conclusion
For historic and twenty-first century purposes, it is highly unlikely that the Queen will ever be
stripped of her royal prerogative powers. Due to conventions, all of the decisions she makes are
all most all pre-approved by Parliament. Some, such as Tony Benn, still feel threatened that the
Queen may act in extraordinary manner and ignore conventions and make a decision on her
own accord. However, as it has been explained, this is only likely to happen if the government is
acting in an undemocratic manner. It is a strength that the UK has a monarch and government
working together, as the Queen is an impartial person acting in a neutral manner for the
greater good of the citizens, however her royal prerogative powers has a heavily influence as
the constitutional monarchy we have in the UK separates the ceremonial and official duties of
the Queen and the government. “The monarch and prerogative powers enables stability,
continuity and a national focus, as the Head of State remains the same even as government
comes
and
go.”#
Bibliography
Hilaire Barnet, Constitutional and Administrative Law, Eight Edition Colin Turpin and Adam
Tomkins, British Government and the Constitution, Sixth Edition Vernon Bogdanor, The
Monarchy and the Constitution, Oxford University Press, 1998 Nevil Johnson, Reshaping the
British Constitution, Palgrave Macmillan, 2004 CFP Hennessy, The Hidden Wing, 1996
Hilaire
Barnett,
http://royal.gov.uk
http://politics.guardian.co.uk/
Understanding
Public
Law,
2010