Emergency powers and the withering of the Royal Prerogative

Abstract

A feature common to most governments in different time periods and places is that they possess exceptional powers applicable to emergencies. These authorities are necessary but vulnerable to abuse. Democracies seek to create and restrain such powers through constitutional texts and supplementary legislation. In the UK, lacking a written constitution, many of these executive entitlements have traditionally derived from the Royal Prerogative. This constitutional source comprises a group of residual monarchical authorities that have largely devolved in practice to ministers. As an historical entity the prerogative can only fully be understood in its more recent manifestations through taking a long-term perspective. It has often attracted controversy on the grounds that it is not subject to sufficient levels of what would now be termed accountability. At various points reform has been demanded and sometimes achieved. Since the later decades of the 20th century there has been an erosion of the prerogative, including its emergency powers facets. Parts of it have transferred to a statutory basis, while those elements that remain have become subject to enhanced legal and political constraints. This trend was part of a wider process of constitutional transformation traceable to the 1950s. Early in the twenty-first century the Royal Prerogative, already undergoing change, moved further to the centre of the constitutional reform agenda. This heightened salience arose from altered global security concerns, and associated developments in UK external policy. The Iraq conflict especially encouraged a focus on the powers under which the UK participated in this action. Calls for change, aimed at giving Parliament an enhanced role in war-making and over other matters, followed. Eventually a broad government reform package appeared. A convention regarding parliamentary consultation over engagement in armed combat developed. But features of the prerogative have persisted, including those allowing for government to act in the most perilous of circumstances. A thorough eradication of the Royal Prerogative could require a more complete overhaul of UK governmental arrangements, embodying them in a written constitution.

Keywords:

• UK constitution
• emergency powers
• parliamentary reform
• royal prerogative
• UK constitutional reform

Notes on contributor

Andrew Blick is Lecturer in Politics and Contemporary History at the Institute of Contemporary British History (ICBH), King's College London. He was formerly Senior Research Fellow in the Centre for Political and Constitutional Studies, ICBH, and Senior Research Fellow at the Democratic Audit, University of Liverpool. He is the author of People Who Live in the Dark: The History of the Special Adviser in British Politics; and a forthcoming work, Beyond Magna Carta: A Constitution for the United Kingdom. He has acted as a consultant on constitutional issues for organisations including the United Nations Development Programme and the UK National Audit Office; and undertaken research projects for the Rowntree Trust, Carnegie UK, the German Marshall Fund, and the Madison Trust. He was an intern at 10 Downing Street during 1999, and a researcher for Graham Allen, MP from 2002–04.

Notes

1. See, for example, A.W. Brian Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (Oxford: Clarendon, 1994). In this instance, the powers involved were derived from statute, not from the Royal Prerogative.

2. As took place in Germany in the 1930s. See Michael Burleigh, The Third Reich: A New History (Basingstoke: Pan, 2001).

3. See, for instance, arrangements under the 1978 Constitution of Spain. Victor Ferreres Comella, The Constitution of Spain (Oxford: Hart, 2013).

4. See Samuel Rawson Gardiner, ed., The Constitutional Documents of the Puritan Revolution (Oxford: Clarendon Press, 1906).

5. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis: Liberty Fund, 1982), 282.

6. See Maurice Sunkin and Sebastian Payne, eds., The Nature of the Crown (Oxford: Oxford University Press, 1999).

7. See, for example, Robert Blackburn, ‘Monarchy and the Personal Prerogatives’, Public Law 3 (2004): 546; and A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, 15th ed. (London: Longman, 2010), chap. 12.

8. Ministry of Justice, Review of the Executive Royal Prerogative Powers: Final Report (London: Ministry of Justice, 2009). I have omitted from this account of the review prerogative powers abolished since its publication, especially those relating to the management of the Civil Service.

9. Ibid., 30–4.

10. See Bill of Rights 1689, art 4; The Case of the King's Prerogative in Saltpetre (1606) 77 ER 1294; R v. Hampden (1637) 3 Cobb.St.Tr. 826; David Lindsay Keir, ‘The Case of the Ship-Money’, Law Quarterly Review 52 (1936): 546; Michael Mendle, ‘The Ship Money Case, the Case of Shipmony, and the Development of Henry Parker's Parliamentary Absolutism, The Historical Journal 32 (1989): 513; and Burmah Oil Co. Ltd. v. Lord Advocate [1965] AC 75.

11. Interpretation and citation in Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010), 379.

12. See Jonathan Scott, England's Troubles (Cambridge: Cambridge University Press, 2000).

13. Walter Bagehot, The English Constitution (London: Fontana, 1963), 289. Arthur Ponsonby subsequently reproduced this remark in the work cited below.

14. Arthur Ponsonby, Parliament and Foreign Policy (London: Union of Democratic Control, 1915), 8.

15. See Defence of the Realm Act 1914; and Emergency Powers (Defence) Act 1939.

16. See Jon Moran and Mark Pythian, eds., Intelligence, Security and Policing Post-9/11: The UK's Response to the ‘War on Terror’ (London: Palgrave Macmillan, 2008); and S. McKay, Covert Policing: Law and Practice (Oxford: Oxford University Press, 2011).

17. Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374. See also Clive Walker, ‘Review of the Prerogative: The Remaining Issues’, Public Law (1987): 62; and Rebecca Moosavian, ‘Judges and High Prerogative: The Enduring Influence of Expertise and Legal Purity’, Public Law (2012): 724.

18. See now Cabinet Office, Ministerial Code (London: Cabinet Office, 2010), https://www.gov.uk/government/publications/ministerial-code.

19. Keith Syrett, ‘Prerogative Powers: New Labour's Forgotten Constitutional Reform’, Denning Law Journal 13 (1998): 111.

20. Rodney Brazier, ‘Constitutional Reform and the Crown’, in Sunkin and Payne, The Nature of the Crown, 337–62.

21. See UN Security Council Resolution 1674 (2006), para 4, which ‘Reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’; and C.G. Badescu, Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights (London: Routledge, 2010).

22. See Clive Walker and James Broderick, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (Oxford: Oxford University Press, 2006).

23. Graham Allen, MP, ‘A Degree of Democratic Deficit’, Daily Telegraph, September 26, 2002, http://www.telegraph.co.uk/comment/letters/3582038/A-degree-of-democratic-deficit.html.

24. 50 U.S.C. ss 1541–1548. See John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of Chicago Press, 2005); and Peter Irons, War Powers: How the Imperial Presidency Hijacked the Constitution (New York: Metropolitan Books, 2005).

25. House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (2003–04 HC 422).

26. http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/pubs/reports/prerogative.htm, 2004 (accessed December 27, 2013).

27. House of Lords Select Committee on the Constitution, Waging War: Parliament's Role and Responsibility (2005–06 HL236-I), para 103.

28. Ibid., para 108.

29. Ibid., para 110.

30. Hansard (House of Commons), vol. 460 col. 582.

31. Cabinet Office, A Draft Civil Service Bill: A Consultation Document, Cm 6373 (London: Stationery Office, 2004). The degree of priority may be judged by the fact that the legislation was not finalised until April 2010 in the shape of the Constitutional Reform and Governance Act 2010 (see below).

32. Secretary of State for Justice and Lord Chancellor, The Governance of Britain, Cm 7170 (London: Stationery Office, 2007).

33. Ibid., para 14.

34. Ibid.

35. Ibid., para 26.

36. Ibid. para 50.

37. Ibid., para 24.

38. Ministry of Justice, Ministry of Defence and Foreign and Commonwealth Office, War Powers and Treaties: Limiting Executive Powers, Cm 7239 (London: Stationery Office, 2007).

39. Ministry of Justice, The Governance of Britain – Constitutional Renewal, Cm 7342 (London: Stationery Office, 2008), 3 vols.

40. See Jill Barrett, ‘The United Kingdom and Parliamentary Scrutiny of Treaties: Recent Reforms’, International & Comparative Law Quarterly 60 (2011): 225.

41. For consideration of a treaty prior to ratification by a select committee, see, for example, House of Commons Defence Committee, UK/US Defence Trade Cooperation Treaty (2007–08 HC107).

42. See Michael Head, ‘Calling out the Troops and the Civil Contingencies Act: Some Questions of Concern’, Public Law (2010): 340; and Nigel White, ‘International Law, the United Kingdom and Decisions to Deploy Troops Overseas’, International & Comparative Law Quarterly 59 (2010): 814.

43. Hansard, vol. 566 col. 1425.

44. Ibid., cols 1556–7.

45. See, for example, Jack Straw, Last Man Standing (London: Macmillan, 2012).

46. Hansard, vol. 395 col. 47; vol. 400 col. 265; vol. 401 col. 760.

47. Ibid., vol. 525 col. 700.

48. Ibid., vol. 524 col. 1066.

49. Ibid., vol. 525 col. 613.

50. Ibid., col. 799.

51. Cabinet Office, The Cabinet Manual (London: Cabinet Office, 2011), para 5.37.

52. Hansard, vol. 557 col. 1059–60.

53. See, further, Claire Mills, Parliamentary Approval for Deploying the Armed Forces: An Update (London: House of Commons Library, 2013).

54. See Mark Ryan, ‘The Fixed-term Parliaments Act 2011’, Public Law (2012): 213; and Raymond Youngs and Nicklaus Thomas-Symonds, ‘The Problem of the “Lame Duck” Government: A Critique of the Fixed-term Parliaments Act’, Parliamentary Affairs 66 (2013): 540.

55. See Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly (2003–04 HC 247); Review of Intelligence on Weapons of Mass Destruction (2003–04 HC 898); and http://www.iraqinquiry.org.uk.

56. For a flavour, see Tom Tugendhat and Laura Croft, The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power (London: Policy Exchange, 2013).

57. House of Lords Select Committee on the Constitution, Constitutional Arrangements for the Use of Armed Force (2013–14 HL 46).

58. See also two reports by the House of Commons Political and Constitutional Reform Committee: Parliament's Role in Conflict Decisions (2010–12 HC 293); and Parliament's Role in Conflict Decisions: An Update (2013–14 HC 649).

59. Graham McBain, ‘Abolishing Obsolete Crown Prerogatives Relating to the Military’, Nottingham Law Journal 20 (2011): 20; and McBain, ‘Abolishing Obsolete Crown Prerogatives Relating to: Martial Law, Conscription and Billeting’, International Law Research, 1, no.1 (2012): 13.

60. Ministry of Justice, Review of the Executive Royal Prerogative Powers: Final Report (London: Ministry of Justice, 2009), 30–4.