9 PREROGATIVE POWERS AND CASE STUDY ON THE DEPLOYMENT OF ARMED FORCES ABROAD CENTRAL ISSUES A fundamenta !"#n$#!

! e %f t&e $%n't#tut#%n is that e(e$ut#)e a$t#%n mu't *e *a'ed %n e+a f%undat#%n', Most !u* #$ *%d#e' a"e -$"eatu"e' %f 'tatute. e'ta* #'&ed */ an A$t %f Pa" #ament. o Statute provides their legal powers. o M#n#'te"' #n t&e U0 +%)e"nment are in a different position, because the e+a f%undat#%n f%" '%me %f t&e#" '!e$#f#$ a$t#%n' #' !"e"%+at#)e !%1e" o S%me a$t#%n' %f t&e m%na"$& $ent"a t% t&e "unn#n+ %f t&e $%n't#tut#%na '/'tem also have their source in prerogative powers.

 UK government ministers and some other public bodies t&at a"e n%t $"eatu"e' %f 'tatute ma/ a '% $ a#m t% *e a* e t% $a""/ %ut '%me 2#nd' %f a$t#%n *e$au'e t&e"e #' n% e+a !"%&#*#t#%n on them doing so. o This is called the -t&#"d '%u"$e. %f aut&%"#t/ under the Ram d%$t"#ne., o The e(#'ten$e %f t&#' f"eed%m %f a$t#%n is $%nt"%)e"'#a and &a' n%t /et *een 'ett ed */ t&e $%u"t', There are fe1e" %!!%"tun#t#e' t% &% d m#n#'te"' t% a$$%unt 1&en +%)e"nment u'e' #t' !"e"%+at#)e !%1e"' than when it exercises powers $%nfe""ed */ 'tatute, o P"e"%+at#)e !%1e"' ma/ t&e"ef%"e *e t&%u+&t t% *e %ut %f 'te! with m%de"n $%n't#tut#%na "e3u#"ement',

 4ud#$#a $%nt"% %)e" t&e e+a #t/ %f t&e e(e"$#'e %f !"e"%+at#)e !%1e"' has increased in recent ears, but '%me important t pes of action are "e+a"ded */ t&e $%u"t' a' n%n56u't#$#a* e and a"e effe$t#)e / #mmune f"%m 6ud#$#a %)e"'#+&t, !n this chapter we use a case stud on the !%1e" t% de! %/ a"med f%"$e' abroad to illustrate these issues. o De$#'#%n' to deplo "ritish armed forces abroad &a)e a !"e"%+at#)e !%1e" a' t&e#" '%u"$e, o !n the past, 'u$& de$#'#%n' 1e"e ta2en 1#t& m#n#ma !a" #amenta"/ %)e"'#+&t. o A $%n't#tut#%na $%n)ent#%n ma/ &a)e de)e %!ed t&at Pa" #ament '&%u d de*ate and a!!"%)e de! %/ment', but the '$%!e %f t&#' $%n)ent#%n #' n%t 'ett ed,

o C%mm#ttee' #n t&e H%u'e' %f C%mm%n' and t&e L%"d' &a)e !"e''ed f%" d#ffe"ent "ef%"m' designed to ensure that #arliament has a greater influence.

INTRODUCTION $# unfit to modern constitution and urged to be reform Section % of this chapter, S%u"$e' %f e+a aut&%"#t/, considers the various e+a f%undat#%n' %n 1&#$& !u* #$ *%d#e' ma/ *a'e t&e#" e(e$ut#)e a$t#%n', Section &, P"e"%+at#)e !%1e"', examines prerogative power'a '%u"$e %f !%1e" !%''e''ed %n / */ m#n#'te"' #n U0 +%)e"nment and t&e m%na"$&'in more detail. (ere we will see that the $%nt#nued e(#'ten$e %f !"e"%+at#)e !%1e"' #n t&e U0 $%n't#tut#%n has been a '%u"$e %f de*ate for several ears. Man view the e(#'ten$e %f t&e'e !%1e"' as being #n$%n'#'tent 1#t& m%de"n n%t#%n' %f t&e "u e %f a1, !a" #amenta"/ dem%$"a$/, and effe$t#)e a$$%unta*# #t/ %)e" +%)e"nment a$t#%n.

 A long)running campaign b bac*bench members of #arliament +M#s, and peers saw several un'u$$e''fu attem!t' t% introduce #rivate Member-s "ills to "ef%"m !"e"%+at#)e !%1e"'. The highl respected H%u'e %f C%mm%n' Pu* #$ Adm#n#'t"at#%n Se e$t C%mm#ttee +#AS., $a""#ed %ut 'e)e"a #n3u#"#e' #nt% )a"#%u' a'!e$t' %f t&e !"e"%+at#)e.

$eform too* place in piecemeal form /hile Ton "lair was #rime Minister +0112)%332,, little progress was made. The +%)e"nment a+"eed #n !"#n$#! e t&at t&e $#)# 'e")#$e %u+&t t% *e ! a$ed %n a 'tatut%"/ f%%t#n+ rather than continue to be regulated by prerogative powers, but was slow to introduce legislation to implement this. Things changed dramaticall during %332. The +%)e"nment a$$e!ted f%" t&e f#"'t t#me t&at "ef%"m' %u+&t t% *e #nt"%du$ed t% +#)e Pa" #ament +"eate" $%nt"% %)e" m#n#'te"' decisions t% de! %/ B"#t#'& a"med f%"$e' a*"%ad, The !a$e %f $&an+e 3u#$2ened fu"t&e" 1&en G%"d%n B"%1n too* over as #rime Minister in 4une %332. A large part of &#' -G%)e"nan$e %f B"#ta#n. "ef%"m a+enda was

de'#+ned t% m%de"n#7e !"e"%+at#)e !%1e"'. 5eplo ment of arm remain controversial part While the prerogative relating to treaties and the civil service has now been reformed, '%me %f t&e m%'t #m!%"tant !"e"%+at#)e !%1e"' "ema#n un"ef%"med, The stor of progress towards reform is examined in section 6, $eforming ministerial prerogatives. Section 7 contains a .ase stud 8 deplo ment of "ritish armed forces abroad. This issue has att"a$ted mu$& attent#%n in recent ears, e'!e$#a / f% %1#n+ t&e 1a" #n I"a3 and t&e de! %/ment %f f%"$e' t% Af+&an#'tan and m%"e "e$ent / #n L#*/a,

 The $%nt"%)e"'/ 'u""%und#n+ t&e'e %!e"at#%n' &a' "e#nf%"$ed $a ' f%" "ef%"m that would increase #arliament-s involvement in these profoundl important decisions. The case stud shows, &%1e)e"8 t&at a""#)#n+ at "ef%"m' 1&#$& a"e a$$e!ta* e t% a t&%'e $%n$e"ned #' n%t !"%)#n+ ea'/.

SOURCES OF LEGAL AUTHORITY 9egal authorit ) govt act based on law "efore considering prerogative powers in more detail, we need to understand the legal con)text in which the exist. As we have alread seen, it is a fundamenta !"#n$#! e %f t&e $%n't#tut#%n that !u* #$ *%d#e' mu't &a)e e+a aut&%"#t/ f%" t&e#" a$t#%n'. This re:uirement, *a'#$ t% t&e "u e %f a1, is a#d d%1n #n $a'e' 'u$& a' Ent#$2 ) Ca""#n+t%n +in which searches under a general warrantwere held to be unlawful,.

9egal sources) Statute, #rerogative, rd & source /hat is the source of the legal authorit on which a public bod ma rel as the legal foundation for its executive action; !n countries 1#t& 1"#tten $%n't#tut#%n', the text of the $%d#f#ed $%n't#tut#%n ma/ !"%)#de a d#"e$t e+a f%undat#%n f%" fun$t#%n' %f !u* #$ *%d#e',

 /ithout such a foundation in the United Kingdom, there are t&"ee ma#n '%u"$e' %f e+a aut&%"#t/ on which a public bod ma see* to rel 8 Statute a1' o The vast ma<orit of public bodies trace their legal !%1e"' t% 'tatute' %" de e+ated e+#' at#%n made under statutes. o A %$a aut&%"#t/ !%1e"' 'tem f"%m e+#' at#%n, as do the powers of the Scottish =overnment, /elsh Assembl =overnment, and >orthern !reland ?xecutive. o T&e'e *%d#e' a"e t&e"ef%"e '%met#me' de'$"#*ed a' -$"eatu"e' %f 'tatute., because t&e/ &a)e %n / t&%'e !%1e"' t&at a"e e(!"e'' / %" #m! #$#t / $%nfe""ed %n t&em */ 'tatute a1,

 P"e"%+at#)e !%1e"'' o We 1# e(am#ne t&e $%nt"%)e"'/ over how these powers should be defined later in this chapter. o @or now, 1e $an 'a/ t&at !"e"%+at#)e !%1e"' a"e a 'et %f '!e$#f#$ e+a !%1e"' that are a$$e!ted */ t&e $%u"t' as !a"t %f t&e $%mm%n a1. o T&e/ ma/ *e e(e"$#'ed %n / */ t&e m%na"$& and U0 +%)e"nment m#n#'te"' acting #n t&e name %f t&e C"%1n.

 T&#"d '%u"$e. !%1e"' o Pu* #$ *%d#e' t&at a"e n%t -$"eatu"e' %f 'tatute, o United Kingdom +%)e"nment m#n#'te"', for example, ma also $ a#m t% *e a* e t% ta2e a$t#%n because there is n% a1 !"e)ent#n+ t&em f"%m d%#n+ '%, o !n other words, the a$t#%n #n 3ue't#%n #' n%t aut&%"#7ed */ 'tatute or a specific prerogative power, *ut #t #' 'a#d t&at t&e *%d/ &a' a f"eed%m %f a$t#%n similar to that of a private individual. o !f this t&#"d '%u"$e. #' $%nf#ned t% a$t#)#t#e' 'u$& a' ente"#n+ #nt% $%nt"a$t' for the suppl of goods, t&en t&e"e ma/ *e n% %*6e$t#%n t% t&em, o !f, &%1e)e", these t&#"d '%u"$e. !%1e"' a"e u'ed f%" +%)e"nmenta a$t#)#t#e', then the are a $au'e f%" $%n$e"n,

A"+ument9 !nsufficient control over the "ills passed C%nt"%)e"'#e' and problems surround the creation and e(e"$#'e %f ea$& %f t&e'e '%u"$e' %f !%1e". @or example in "e at#%n t% 'tatute a1, we will see that $"#t#$' a"+ue that the UK #arliament provides #n'uff#$#ent $%nt"% %)e" t&e !a''#n+ %f B# ' and de e+ated e+#' at#%n, the ob<ects of which are %ften t% $%nfe" e(e$ut#)e !%1e"' %n m#n#'te"' and %t&e" !u* #$ *%d#e'. The !%1e"' t&at a"e $%nfe""ed are often ver *"%ad / d"afted t% +#)e t&e !u* #$ *%d/ #n 3ue't#%n a +"eat dea %f d#'$"et#%n as to if, when, and how the are exercised.

A"+ument8 #rerogative not conferred b #arliament so not sub<ect to same level of parliamentar discussion over the provision The use and $%nt#nued e(#'ten$e %f !"e"%+at#)e !%1e"' has been a matte" %f dee! $%nt"%)e"'/ for man ears. "ecause !"e"%+at#)e !%1e"' a"e n%t $%nfe""ed */ Pa" #ament and &a)e n%t *een 'u*6e$t t% t&e 'ame e)e %f !a" #amenta"/ d#'$u''#%n as have statutor provisions +and *e$au'e +%)e"nment need n%t %*ta#n t&e f%"ma a!!"%)a %f Pa" #ament before using them,, man :uestion 1&et&e" #t #' a!!"%!"#ate f%" +%)e"nment t% &a)e !"e"%+at#)e !%1e"', T&e/ a"+ue t&at t&e'e !%1e"' '&%u d e#t&e" *e a*% #'&ed %" ! a$ed %n a 'tatut%"/ f%%t#n+.

A,PREROGATIVE AND STATUTORY POWERS COMPARED

B,A THIRD SOURCE OF AUTHORITY: $am 5octrine) govt able to act without authoriAation of legal sources

provided there is no legal conse:uence from the act There is a school of thought +advanced b government, and accepted b some scholars and <udges, that, in addition to specific statutory or prerogative powers, U0 +%)e"nment m#n#'te"' and some other !u* #$ *%d#e' +but onl those that are not creatures of statute-, also !%''e'' +ene"a $%mm%n a1 !%1e"', B,V, Ha""#' "efe"' t% t&e'e a' t&e -t&#"d '%u"$e. %f e+a aut&%"#t/ for government action +the other two being statute and the prerogative,.

 The idea that t&e"e a"e 'u$& !%1e"' #' a '% $a ed t&e -Ram d%$t"#ne., after the government law er who set out an explanation for their existence in a memorandum in 0167. Under this doctrine, #t #' 'a#d t&at t&e +%)e"nment' $%mm%n a1 !%1e"' a %1 m#n#'te"' "e'#dua f"eed%m t% d% t&#n+', 1#t&%ut 'tatut%"/ %" !"e"%+at#)e aut&%"#t/, which have n% e+a $%n'e3uen$e' for %t&e"'.

!.

Telephone tapping) it is lawful unless there is law make it unlawful

!n .hapter B, we loo*ed at the decision of Sir $obert Megarr C. in Ma %ne ) Met"%!% #tan P% #$e C%mm#''#%ne", /e saw that, during Mr Malone s trial for handling stolen goods, it emerged that the police had, with a warrant obtained from the (ome Secretar , secretl monitored and recorded his telephone conversations. Malone unsuccessfull sought a declaration that this covert tapping was unlawful. At the time, no statute expressl authoriAed telephone tapping, nor, in this case, did the police or (ome Secretar claim to have an specific legal power under the prerogative to authoriAe the interception.

 Ma %ne ) Met"%!% #tan P% #$e C%mm#''#%ne" D0121E o !f the tapping of telephones b the #ost Fffice at the re:uest of the police can be carried out without an breach of the law, #t d%e' n%t "e3u#"e an/ 'tatut%"/ %" $%mm%n a1 !%1e" t% 6u't#f/ #t9 it can a1fu / *e d%ne '#m! / because t&e"e #' n%t&#n+ t% ma2e #t un a1fu , @ollowing a successful application to the ?uropean .ourt of (uman $ights b Mr Malone, the law on telephone tapping was altered b the !nterception of Telecommunications Act 01G7, which gave the (ome Secretar specific statutor powers to authoriAe tapping in defined circumstances. Malone no longer regulates what is lawful in this particular context, but the more general :uestion remains whether the government does, indeed, have freedom to act in some situations without specific legal authorit ;

!!.

Ma*ing discretionar benefits pa ments to widowers) no denial no recognized as well

(arris accepts that the third source of authorit &a' n%t *een un#)e"'a / "e$%+n#7ed b the UK courts, although he sa s that its existence ;a!!ea"' t% &a)e *een +#)en #m! #$#t 'u!!%"t. */ the ma<orit of the H%u'e %f L%"d' in R <H%%!e"= ) Se$"eta"/ %f State f%" W%"2 and Pen'#%n'. Under the Social Securit .ontributions and "enefits Act 011%, women whose husbands die are eligible for a welfare benefitH until recentl , however, there was no corresponding benefit for men whose wives die. The government accepted that this ine:ualit was wrong and agreed to change the law. /hile plans were being made to do so, a group of widowers campaigned for discretionar pa ments to be made to them e:uivalent to those paid to women.

 Fne of the issues was 1&et&e" t&e +%)e"nment &ad !%1e" t% ma2e t&e !a/ment'. Although there is n% '!e$#f#$ !"e"%+at#)e !%1e" t% ma2e 'u$& !a/ment', it accepted that there was a common law power to ma*e ex gratia pa ments. (owever it 'u$$e''fu / a"+ued t&at t&e fa# u"e t% ma2e t&e !a/ment' 1a' n%t un a1fu because it was <ustified b the legislation. /hile the case ma offer implicit support for the existence of t&#"d '%u"$e. !%1e"', n%ne %f t&e 6ud+e' e(!"e'' / #nd#$ated that the +%)e"nment $%u d u'e t&e'e $%mm%n a1 powers to ma*e pa ments to widowers. !ndeed, the .ourt of Appeal re<ected thisH in the (ouse of 9ords, L%"d N#$&% ' 1a' )e"/ $aut#%u' 'a/#n+ onl that W&et&e" t&e C"%1n8 #n e(e"$#'e %f #t' $%mm%n a1 !%1e"'8 $%u d a1fu / &a)e made >,,, ? !a/ment' t% 1#d%1e"' #' a

d#ff#$u t 3ue't#%n 1#t& fa"5 "ea$&#n+ $%n't#tut#%na #m! #$at#%n'. !!!. $eorganiAing local government ) rd divergent view on 3 sources The scope of the $am doctrine was considered more full b the .ourt of Appeal in R <%f S&"e1'*u"/ and At$&am BC= ) Se$"eta"/ %f State f%" C%mmun#t#e' and L%$a G%)e"nment. The UK minister responsible for local government in ?ngland and /ales decided that she wanted to loo* into reorganiAing councils in Shropshire, a scheme that would involve abolishing some smaller councils. A statutor framewor* for consulting about proposals li*e this existed under the 9ocal =overnment Act 011%.

 The minister decided not to use the statutor consultation scheme, because she alread had plans to introduce a "ill to #arliament to replace that framewor*. (er department went ahead and published a /hite #aper setting out the government-s proposals for Shropshire. A local authorit that was under threat of abolition challenged the legalit of this wa of proceeding. All three 9ords 4ustice agreed that the claimant-s appeal should be dismissed +for reasons not relevant here,, but the expressed differing views on the scope and significance of the concept of a third source- of power, be ond statutor and prerogative powers.

R <S&"e1'*u"/ and At$&am BC= ) Se$"eta"/ %f State f%" C%mmun#t#e' and L%$a G%)e"nment Fnl can used for public benefit and identifiabl governmental purposes Ca"n1af& L49 Unli*e a local authorit , the C"%1n #' n%t a $"eatu"e %f 'tatute, As a matter of capacit , n% d%u*t8 #t &a' !%1e" t% d% 1&ate)e" a !"#)ate !e"'%n $an d%. But as an organ of government, #t $an %n / e(e"$#'e t&%'e !%1e"' f%" t&e !u* #$ *enef#t, and for #dent#f#a* / ;+%)e"nmenta ; !u"!%'e' 1#t&#n #m#t' 'et */ t&e a1, Apart from authorit , ! would be inclined respectfull to share the view of the editors of de Smith that IThe extension of the $am doctrine be ond its modest initial purpose of achieving incidental powers should be resisted in the interest of the rule of

lawI Jde SmithIs 4udicial $eview +Bth edn, para 7)3%7,.

Dnot so importantE !t was however unnecessar to invo*e the concept of a third source- of power to explain the Secretar of State-s powers to prepare and publish a /hite #aper8 that was simpl a necessar and incidental part of the ordinar business of central government-, according to .arnwath 9<.0G 5ismissing the appeal, .arnwath 94 held that it was ca constitutional principle of some importance that local authorities should be able to rel on the safeguards of a statutor frameKwor* for the processes leading to decisions of this importances it was, however, Iimpossible to avoid the conclusion that #arliament has +if onl retrospectivel , given its stamp of approval to the procedure in this case,01 because b the time the <udicial review had been heard, a new statutor scheme for consulting on local government reorganiAation had been enacted.

C%nt"a't9 Should not have such restriction, government as corporation with legal personalit R#$&a"d' L4 d#d n%t '&a"e Ca"n1at& L4.' Ireservations about the extent of the common law powers of the .rown-8 !t is still necessar to explain the basis on which ordinar business of government is conducted, and the simple and 'at#'fa$t%"/ e(! anat#%n #' t&at #t de!end' &ea)# / %n t&e @t&#"d '%u"$e@ %f !%1e"', i.e. !%1e"' t&at &a)e n%t *een $%nfe""ed */ 'tatute and a"e n%t !"e"%+at#)e !%1e"' in the narrow sense but a"e the n%"ma !%1e"' <%" $a!a$#t#e' and f"eed%m'= %f a $%"!%"at#%n 1#t& e+a !e"'%na #t/,

 (e held that #t 1%u d *e 1"%n+ t% #nt"%du$e 3ua #f#$at#%n' t% t&e#" e(e"$#'e such as that the powers a"e %n / -f%" t&e !u* #$ *enef#t. %" f%" -#dent#f#a* / A+%)e"nmenta B !u"!%'e'.H Ian limiting principle would have to be so wide as to be of no practical utilit or would "#'2 #m!%'#n+ an a"t#f#$#a and #na!!"%!"#ate "e't"#$t#%n u!%n t&e 1%"2 %f +%)e"nment..

!C.

Uncertaint and the rule of law) rd able to use 3 sources of power without affect peoples right is unpredictable so against certainty issue by ROL

The argument that, in addition to statute or prerogative ministers of the .rown have further common law powers to do things that have no legal conse:uences recogniAes that government ma need incidental powers to enable it to perform its functions, but a +ene"a f"eed%m t% d% t&#n+' t&at 1# n%t affe$t !e%! e'. "#+&t' #' #n&e"ent / un$e"ta#n. As 9ord >icholls indicated in Hooper, when decisions are ta*en, #t ma/ *e #m!%''#* e t% 2n%1 1&et&e" t&e de$#'#%n 1# %" 1# n%t affe$t !e%! e'. "#+&t',

 @or example, the u'e %f $%mm%n a1 !%1e"' t% $%nfe" *enef#t' ma/ +ene"ate e+#t#mate e(!e$tat#%n' that must later be respected. !t ma be possible to *now whether actions have had legal conse:uences with the benefit of hindsight, *ut %ff#$#a ' 1# n%t ne$e''a"# / *e a* e t% !"ed#$t t&e'e $%n'e3uen$e' #n ad)an$e and t&e/ 1# t&e"ef%"e *e una* e t% 2n%1 t&at e+a aut&%"#t/ e(#'t'. As well as practical difficulties, t&#' $ a'&e' 1#t& t&e !"#n$#! e %f e+a $e"ta#nt/ t&at #' an #m!%"tant e ement %f t&e "u e %f a1,

PREROGATIVE POWERS #ower not from constitution nor #arliament M#n#'t"/ %f 4u't#$e8 T&e G%)e"nan$e %f B"#ta#n9 !n most modern democracies, the governmentIs onl powers are those granted to it b a written constitution or b the legislature. A d#'t#n+u#'&#n+ featu"e %f t&e B"#t#'& $%n't#tut#%n is the extent to which +%)e"nment $%nt#nue' t% e(e"$#'e a num*e" %f !%1e"' 1&#$& 1e"e n%t +"anted to it b a written constitution, n%" */ Pa" #ament, but a"e8 "at&e"8 an$#ent !"e"%+at#)e' of the .rown. These powers derive from arrangements which preceded the 0BG1 5eclaration of $ights and have been a$$umu ated */ t&e +%)e"nment 1#t&%ut Pa" #ament %" t&e !e%! e &a)#n+ a 'a/.

A. THE MAIN PREROGATIVE POWERS) Constitutional prerogative legal prerogative and prerogative e!ecutive power !n March %336, the (ouse of .ommons #AS. produced an influential report, Tam#n+ t&e P"e"%+at#)e, T&#' 'u")e/ed t&e u'e %f t&e !"e"%+at#)e !%1e"' and 't"%n+ / a"+ued t&e $a'e f%" "ef%"m, /e shall turn to the :uestion of reform later, but for the moment it is valuable to see what the #AS. had to sa about the scope and nature of prerogative powers. The fol)lowing extract from Taming the #rerogative identifies three groups of prerogative powers, of which the third' prerogative powers of government ministers'is the one on which the .ommittee focused its attention.

H%u'e %f C%mm%n' Pu* #$ Adm#n#'t"at#%n Se e$t C%mm#ttee8 Tam#n+ t&e P"e"%+at#)e8 5efining the Ministerial prerogative 6. !n preparing for our in:uir 1e #dent#f#ed t&"ee ma#n +"%u!' %f !"e"%+at#)e !%1e"'. This informal division allowed us to concentrate mainl on those prerogative powers which give executive authorit to Ministers D...E The three areas are described in the following paragraphs.

 7. >C't +"%u!? Dueen;' $%n't#tut#%na !"e"%+at#)e' are the personal discretionar powers which remain in the SovereignIs hands. o The include the "#+&t' t% ad)#'e8 en$%u"a+e and 1a"n M#n#'te"' in privateH o to a!!%#nt t&e P"#me M#n#'te" and other M#n#'te"'E o to a''ent t% e+#' at#%nH o t% !"%"%+ue %" t% d#''% )e Pa" #amentH o and +in grave constitutional crisis, t% a$t $%nt"a"/ t% %" 1#t&%ut M#n#'te"#a ad)#$e. !n ordinar circumstances T&e Dueen, as a constitutional monarch, a$$e!t' M#n#'te"#a ad)#$e a*%ut t&e u'e %f t&e'e !%1e"' if it is available, 1&et&e" '&e !e"'%na / a+"ee' 1#t& t&at ad)#$e %" n%t.

 That constitutional position ensures that Ministers ta*e responsibilit for the use of the powers. Although we received some evidence about the merits or demerits of these prerogaKtives, the are not the sub<ect of our in:uir , which is solel concerned with the powers of Ministers. /e are not considering an change in the constitutional position of The Lueen.

 >Se$%nd G"%u!? The e+a !"e"%+at#)e' %f t&e C"%1n, which The Lueen possesses as the embodiment of the .rown. There are man such prerogatives which are legal +rather than constitutional, in character. Se)e"a a"e &#'t%"#$a "emnant', such as the C"%1n;' "#+&t' t% 'tu"+e%n 8 $e"ta#n '1an'8 and 1&a e', and the "#+&t t% #m!"e'' men #nt% t&e R%/a Na)/, But t1% e+a !"e"%+at#)e' &a)e m%"e m%de"n e+a '#+n#f#$an$e, namel , the principle that the C"%1n <%" t&e 'tate= $an d% n% 1"%n+, and that the C"%1n #' n%t *%und */ 'tatute 'a)e */ e(!"e'' 1%"d' %" ne$e''a"/ #m! #$at#%n. Man of these legal prerogatives have been amended b parliamentar legislationH others are in need of reformH some others ma be obsolete. D... E

) #rerogative delegated to Minister, but still sub<ect to #arliament legislation and court <udicial review >F"d a"ea5 m%'t #m!%"tant? P"e"%+at#)e e(e$ut#)e !%1e"' form the categor of prerogatives which has been the main sub<ect) matter of the .ommitteeIs in:uir . H#'t%"#$a /, the S%)e"e#+n */ $%n't#tut#%na $%n)ent#%n $ame t% a$t %n M#n#'te"#a ad)#$e, so that !"e"%+at#)e !%1e"' $ame t% *e u'ed */ M#n#'te"' %n t&e S%)e"e#+n;' *e&a f. As M#n#'te"' t%%2 "e'!%n'#*# #t/ f%" a$t#%n' d%ne #n t&e name %f t&e C"%1n, so these !"e"%+at#)e !%1e"' were, in effect, de e+ated t% "e'!%n'#* e M#n#'te"'. "ut Pa" #ament 1a' n%t d#"e$t / #n)% )ed in that t"an'fe" %f !%1e", This constitutional position means that t&e'e !"e"%+at#)e !%1e"' a"e, in effect though not in strict law, #n t&e &and' %f M#n#'te"'.

 /ithout these ancient powers, =overnments would have to ta*e e:uivalent authorit through primar legislation. As with the legal prerogatives <ust outlined, the $%nne$t#%n *et1een t&e'e !%1e"' and t&e C"%1n8 %" T&e Dueen8 #' n%1 tenu%u' and technical, and the label Iro al prerogativeI is apt to mislead. D... E !t ma2e' m%"e 'en'e t% "efe" t% t&e'e !%1e"' n%t a' ;"%/a !"e"%+at#)e; *ut a' ;M#n#'te"#a e(e$ut#)e;, /e recognise that Pa" #ament is not powerless in the face of these weight prerogatives.

 !n the past, #t &a' #m#ted %" a*% #'&ed #nd#)#dua !"e"%+at#)e !%1e"', and has also put some prerogatives %n a 'tatut%"/ f%%t#n+, as with the !nterception of .ommunications Act 01G7, the Securit Service Act 01G1, and the !ntelligence Services Act 0116. Dthe .ivil Service and ratification of treaties was placed on a statutor footing b the .onstitutional $eform and =overnance Act %303E D...E Man public appointments, too, are now sub<ect to regulation and monitoring b a .ommissioner and are made in accordance with the >olan rules. The $%u"t' $an a '% "e)#e1 t&e e+a #t/ %f t&e u'e %f '%me !"e"%+at#)e', although the do not have a remit over all of them, and the courts can onl help the aggrieved citiAen after the event. D...E

) #ower without end list, and onl can accountable to #arliament after the event, unusual when govt power not from #arliament nor codified constitution C%nt#nue9 M#n#'te"'; un$e"ta#n !%1e"' "ut t&e'e "e't"#$t#%n' %n M#n#'te"'; !"e"%+at#)e !%1e"' a"e #ne)#ta* / #m#ted. M#n#'te"' 't# &a)e )e"/ 1#de '$%!e t% a$t 1#t&%ut Pa" #amenta"/ a!!"%)a . #erhaps more surprisingl in an era of increasing freedom of information, Pa" #ament d%e' n%t e)en &a)e t&e "#+&t t% 2n%1 1&at t&e'e !%1e"' a"e, Ministers have repeatedl answered parliamentar :uestions about MinistersI prerogative powers b sa ing that records are not *ept of the individual occasions on which those powers are used, and that it would not be practicable to do so.

 M#n#'te"' &a)e a '% 'a#d t&at #t 1%u d *e #m!%''#* e t% !"%du$e a !"e$#'e #'t %f t&e'e !%1e"', and have asserted that, as $t (on 4ohn Ma<or put it when he was #rime Minister I!t is for individual Ministers to decide on a particular occasion whether and how to report to #arliament on the exercise of prerogative powersI. @urther uncertaint over the scope of Ministerial power is caused b the $am doctrine, which asserts that =overnments have the power to do an thing which is not prohibited b statute or the common law. M#n#'te"' a"e $e"ta#n / a$$%unta* e t% Pa" #ament for the use of prerogative powers <ust as for things done under statutor or common law authorit . But t&e/ a"e %n / a$$%unta* e afte" t&e e)ent,

 The United Kingdom is t pical of states which permit Ministers to use certain powers without parliamentar approval, *ut #t #' &#+& / unu'ua am%n+ dem%$"a$#e' #n &a)#n+ ne#t&e" a $%d#f#ed $%n't#tut#%n n%" &a)#n+ made 'u$& e(!"e'' +"ant' %f !%1e" */ t&e e+#' atu"e.

The list of the prerogative power b Ministr of 4ustice Re'!%nd#n+ t% $%n$e"n a*%ut t&e un$e"ta#n '$%!e and e(tent %f !"e"%+at#)e !%1e"', the +%)e"nment unde"t%%2 a 'u")e/ %f $ent"a +%)e"nment de!a"tment' and a+en$#e' 1#t& a )#e1 t% %*ta#n#n+ an %)e")#e1 %f a"ea' #n 1&#$& !"e"%+at#)e !%1e"' are exercised in order to set out in one place an illustration of the contemporar prerogative This was the first time such an exercise had been underta*en and its results are to be found in the Ministr of 4ustice s $eview of the ?xecutive $o al #rerogative #owers8 @inal $eport +Fctober %331,. Ministr of 4ustice, The =overnance of "ritain, $eview of the ?xecutive $o al #rerogative #owers8 @inal $eport, Fctober %331 02. The extent of prerogative powers has never before been explored or codified on a s stematic basis within =overnment. !n order to determine the scope of such powers the

=overnment conducted a surve across all central =overnment departments and agencies between >ovember %33 2 and Ma %33G. Sixt )four departments and agencies were as*ed to identif prerogat ve powers used to perform executive functions, the exercise of which had effectivel oeen delegated to Ministers. The results of this surve are set out in the Annex to this report Dsee belowE. 0G. Although the surve involved wide internal consultation, the nature, range and complexKit of the prerogative powers meant that the surve did not attempt to provide an exhaustive list of all those that ma exist. D... E The intention was to provide an overview of areas where prerogative powers are exercised, or have been exercised recentl , in order to set out in one place an illustration of the contemporar prerogative. 01. The scoping exercise was intended to identif extant prerogative powers, whether or not the had fallen into disuse D... E Tire resulting list of prerogative powers, appended as the Annex to this report, is divided into the following main categories8

 prerogative powers exercised b MinistersH executive constitutional M personal prerogative powers exercised b the SovereignH legal prerogatives of the .rown, such as .rown immunit +to the extent that it continKues to exist in view of the .rown #roceedings Act 0162, and archaic prerogative powers, most of which are either marginal +relating to small, specific issues or largel superseded b legislation,, or no longer needed. %3. The inclusion of the fourth categor has led the =overnment to classif some prerogaKtive powers differentl from #AS.. !t has, however, followed #AS.Is example in excluding from consideration the legal prerogatives of the .rown since these powers are in no wa exercised or influenced b Ministers. %0. #AS. also excluded The LueenIs constitutional prerogatives from its consideration, in order to focus solel on the powers of Ministers. Albeit with the same intention, the =overnment has ta*en a different line, in view of the constitutional

obligation on The Lueen to exercise almost all of her constitutional prerogatives in strict adherence to Ministerial advice andMor established constitutional law. The following extract from the Annex lists the ministerial prerogative powers that were identified in the surve H it does not list the constitutional or personal prerogatives of the monarch, the powers exercised b the Attorne =eneral, the legal prerogatives of the .rown, and other archaic prerogative powers. Ministr of 4ustice, The =overnance of "ritain, $eview of the ?xecutive $o al #rerogative #owers8 @inal $eport, Fctober %331, Annex +IMinisterial prerogative powersI,

G%)e"nment and t&e C#)# Se")#$e #owers concerning the machiner of =overnment including the power to set up a department or a non) departmental public bod #owers concerning the civil service, including the power to appoint and regulate most civil servants #ower to prohibit civil servants and certain other crown servants from issuing election addresses or announcing themselves, or being announced as, a #arliamentar candidate or a #rospective #arliamentar candidate #ower to set nationalit rules for Inon)aliensI' "ritish, !rish and .ommonwealth citiAens' concerning eligibilit for emplo ment in the civil service #ower to re:uire securit vetting of contractors wor*ing alongside civil servants on sensitive pro<ects

 #owers concerning the Fffice of the .ivil Service .ommissioners, the Securit Cetting Appeals #anel, the Fffice of the .ommissioner for #ublic Appointments, the Advisor .ommittee on "usiness, the .ivil Service Appeal "oard and the (ouse of 9ords Appointments .ommission, including the power to establish those bodies, to appoint members of those bodies and the powers of those bodies

4u't#$e '/'tem and a1 and %"de" #owers to appoint LueenIs .ounsel The power to ma*e provisional and full order extradition re:uests to countries not covered b #art 0 of the ?xtradition Act %33& The prerogative of Merc #ower to *eep the peace

P%1e"' "e at#n+ t% f%"e#+n affa#"' #ower to send ambassadors abroad and receive and accredit ambassadors from foreign states $ecognition of states =overnance of "ritish Fverseas Territories #ower to ma*e and ratif treaties #ower to conduct diplomac #ower to ac:uire and cede territor #ower to issue, refuse or withdraw passport facilities $esponsibilit for the .hannel !slands and !sle of Man =ranting diplomatic protection to "ritish citiAens abroad

P%1e"' "e at#n+ t% a"med f%"$e'8 1a" and t#me' %f eme"+en$/ $ight to ma*e war or peace or institute hostilities falling short of war 5eplo ment and use of armed forces overseas Maintenance of the $o al >av Use of the armed forces within the UK to maintain the peace in support of the police or otherwise in support of civilian authorities +eg to maintain essential services during a stri*e, The government and command of the armed forces is vested in (er Ma<est .ontrol, organisation and disposition of armed forces $e:uisition of "ritish ships in times of urgent national necessit .ommissioning of officers in all three armed forces Armed forces pa .ertain armed forces pensions which are now closed to new members

 /ar pensions for death or disablement due to service before B April %337 +section 0% of the Social Securit +Miscellaneous #rovisions, Act 0122 provides that the prerogative ma be exercised b Frder in .ouncil .rownIs right to claim #riAe +enem ships or goods captured at sea, $egulation of trade with the enem .rownIs right of angar , in time of war, to appropriate the propert of a neutral which is within the realm, where necessit re:uires #owers in the event of a grave national emergenc , including those to enter upon, ta*e and destro private propert

 The Annex goes on to list various other miscellaneous ministerial prerogatives, such as the power to establish corporations b ro al charter and to amend existing charters +for example, that of the "ritish "roadcasting .orporation, or ""., was laid before #arliament in 4ul %33B and amended in March %303,, the right of the .rown to ownership of treasKure trove +replaced for finds made on or after %6 September 0112 b a statutor scheme for treasure under the Treasure Act 011B,, the power to hold public in:uiries +where not covered b the !n:uiries Act %337,H and powers in relation to the visitorial function of the .rown.

B,THE MONARCHS CONSTITUTIONAL PREROGATIVES The m#n#'te"#a !"e"%+at#)e !%1e"' are the most #m!%"tant +"%u! %f !"e"%+at#)e !%1e"' #n te"m' %f t&e da/5t%5da/ 1%"2 %f +%)e"nment and it is upon this group of prerogatives that this chapter focuses. W&# e t&e m%na"$& #' n%t #n)% )ed in ma*ing da )to)da executive decisions, as head of state '&e $%nt#nue' t% e(e"$#'e $%n't#tut#%na !"e"%+at#)e' t&at a"e %f $%n'#de"a* e #m!%"tan$e t% t&e 'm%%t& "unn#n+ %f t&e '/'tem a' a 1&% e, !n .hapter 2, we examined the constitutional status of the monarch and the meaning of the term the .rown-.

 Se)e"a e(am! e' %f t&e m%na"$&.' !"e"%+at#)e powers are considered in other chapters8 o formall a!!%#nt#n+ +%)e"nment m#n#'te"'8 #n$ ud#n+ t&e P"#me M#n#'te" +see .hapter 2,H o ma2#n+ !"e"%+at#)e e+#' at#%n. #n t&e f%"m %f O"de"' #n C%un$# +see .hapter 00, section % Frders in .ouncil on p. 662,H and o +#)#n+ "%/a a''ent t% B# ' +see .hapter 03, !n e(e"$#'#n+ t&e'e !%1e"', the m%na"$& 1# a$t #n a$$%"dan$e 1#t& $%n)ent#%n and %n t&e ad)#$e %f &e" m#n#'te"',

C,CROWN IMMUNITY Act of #arliament did not bind .rown unless expressl stated so The C"%1n. en6%/' #mmun#t#e' and e(em!t#%n' f"%m t&e a1. An A$t %f Pa" #ament #' !"e'umed n%t t% *#nd t&e C"%1n unless it e(!"e'' / %" */ $ ea" #m! #$at#%n !"%)#de' t&at #t d%e' '% +for example, the P ann#n+ A$t GHHI, s. %%B, states that T&#' A$t *#nd' t&e C"%1n D...E-, then lists some wa s in which the application of the Act is modified,. !t is for this reason that the Dueen, in her private capacit , #' n%t #a*le t% !a/ ta('a t&%u+& '&e &a' d%ne '% %n a )% unta"/ *a'#', following some public pressure, since 011%.

.rown can do no wrong unless removed b Act Moreover, the "u e %f $%mm%n a1 that the .rown and emanat#%n' %f t&e C"%1n. are #mmune f"%m !"%'e$ut#%n' f%" $"#m#na %ffen$e' +whether statutor or at common law, has significant practical conse:uences. This is reflected in the legal maxim T&e C"%1n $an d% n% 1"%n+.. @or example, until the immunity was expressly removed, the >ational (ealth Service +>(S, $%u d n%t *e !"%'e$uted f%" 'e"#%u' *"ea$&e' of health and safet lawH the >(S and .ommunit .are Act 0113 removed .rown immunit from >(S premises.

 !n %330, an emplo ee of the $o al Mint +at the time, an executive agenc of (M Treasur , was *illed at wor*. !n a subse:uent in:uir , a parliamentar select committee report stated that it is unacceptable that the Mint should hide behind .rown immunit , The following extract from evidence published with the report explains the legal bac*ground in more detail.

S$%!e8) .rown immunit does not protect executive, .annot be prosecuted Dcensure insteadE, cannot grant to individual, no immune from civil H%u'e %f C%mm%n' Se e$t C%mm#ttee %n Pu* #$ A$$%unt', $o al Mint Trading @und%330) 3%Accounts, 06th $eport, Session %33%)3&, Minutes of ?vidence, Appendix %8 Supplementar memorandum submitted b (M Treasur +(. 7GG, .$F/> !MMU>!TN @$3M #$FS?.UT!F> The #ublic Accounts .ommittee as*ed (M Treasur for a note on the =overnmentIs polic towards the .rownIs immunit from prosecution in the context of the tragic fatalit at the $o al Mint. D...E

 /hat !s O.rown immunit IO; .rown immunit means that emanations of the .rown are not susceptible to prosecution for offences either created b statute or of the common law. !t is more difficult to define precisel what is meant b an Oemanation of the .rownO, but it is clear that ministers and their departments are included. .rown immunit is toda primaril an issue of the criminal law. The .rown #roceedings Act 0162 substantiall reduced the .rownIs immunit from civil proceedings. !t is important to be clear about what C"%1n #mmun#t/ d%e' n%t !"%te$t t&e e(e$ut#)e f"%m. !t does not afford an protection from investigation, for example b the (ealth and Safet ?xecutive in the $o al Mint context.

 !n the case of legislation relating to food and health and safet , the a1 a!! #e' t% t&e C"%1n, *ut t&e C"%1n $ann%t *e !"%'e$uted unde" #t, In'tead a '/'tem %f C"%1n $en'u"e and C"%1n n%t#$e' #' u'ed, publicising the inspectorsI findings. The (S? investigation into the Mint resulted in .rown censure. C"%1n #mmun#t/ a '% d%e' n%t +"ant !"%te$t#%n t% #nd#)#dua ' f"%m !"%'e$ut#%n. !n the Mint case, a thorough investigation b #olice and (S? concluded that no 5irector or Manager could be prosecuted. C"%1n #mmun#t/ a '% d%e' n%t +#)e !"%te$t#%n f"%m a $#)# $ a#m. !n this particular case the Mint has alread written to the representatives of the deceased to confirm admission of liabilit and as*ing them to provide details of the :uantum of their claim +a schedule of dependenc ,.

 D...E(M Treasur 5ecember %33%

D, DEFINING PREROGATIVE POWERS (aving loo*ed at the given extracts, ou might feel that ou would be able to define the prerogative if ou were as*ed to do so'but a word of caution is needed. There has been much debate among commentators about the true definition of prerogative powers-. And while prerogative powers are centuries old, #t #' !e"&a!' '%me1&at 'u"!"#'#n+ +or perhaps not, that e+a e(!e"t' 't# 'a/ t&at t&e mean#n+ %f t&e "%/a !"e"%+at#)e. "ema#n' -fa" f"%m $ ea"5$ut., >Pa/ne? .ertainl , there is no clear, single, accepted definition of the ro al prerogative and the various definitions that are offered appear to conflict with each other. Fne reason for the uncertaint is that the prerogative has been changing as it has evolved over the ears and definitions that might have been appropriate in the past might not be

appropriate toda . Two main definitions of the ro al prerogative are widel used +see "ox 1.%,.

5ice and "lac*stone-s definition D#$e/8 The "e'#due of discretionar or arbitrar authorit , which at an +#)en t#me #' e+a / eft #n t&e &and' %f t&e C"%1n B a$2't%ne8 /hen referring to the ro al prerogative, /e usuall understand that special pre)eminence which the King hath, over and above all other persons, and out of the ordinar course of the common law, in right of his regal dignit . D... !tE must be in its natu"e '#n+u a" and e$$ent"#$a H that #t $an %n / *e a!! #ed t% t&%'e "#+&t' and $a!a$#t#e' 1&#$& t&e 0#n+ en6%/' a %ne, in contradistinction to others, and not to those he enjoys in common with any of his subjects8

5ice -s definition unclear about the different with power conferred b statute although clear about residual which not abolished b statute D#$e/.' def#n#t#%n tells us that ro al prerogative powers are those discretionar !%1e"' t&at t&e C"%1n "eta#n' because the have n%t *een a*% #'&ed */ Pa" #ament %" "e! a$ed */ 'tatut%"/ !%1e"'' hence the reference to "e'#dua !%1e"'. The problem with this definition is that while it tells us that prerogative powers are discretionar and residual, #t te ' u' n%t&#n+ a*%ut t&e natu"e %f t&e !%1e"' t&em'e )e'. F%" e(am! e8 #t te ' u' n%t&#n+ a*%ut &%18 #f at a 8 t&e/ d#ffe" t% !%1e"' $%nfe""ed %n t&e e(e$ut#)e */ 'tatute,

"lac*stone-s definition clearer as refer to eccentrical nature and also residual nature which did not overruled b statute B a$2't%ne.' def#n#t#%n8 */ $%nt"a't, does sa something about the natu"e %f t&e !%1e"' t&em'e )e'. (is view is that !"e"%+at#)e !%1e"' a"e '!e$#a in that +in his eighteenth) centur language, t&e/ a"e -'#n+u a" and e$$ent"#$a .. " this, "lac*stone means that t&e'e a"e !%1e"' t&at %n / t&e m%na"$& %" t&e C"%1n can possess. P%1e"' t&at %"d#na"/ !e%! e &a)e, such as the power to ma*e contracts, to emplo people, or to establish trust funds to distribute mone , are, a$$%"d#n+ t% t&#' def#n#t#%n8 n%t !"e"%+at#)e !%1e"'. " contrast, no %ne a!a"t f"%m t&e C"%1n &a' t&e e+a aut&%"#t/ t% d#''% )e Pa" #ament or to de! %/

t&e Un#ted 0#n+d%m.' a"med f%"$e' a*"%ad, S#n$e Pa" #ament $an a*% #'& !"e"%+at#)e powers or place them %n a 'tatut%"/ f%%t#n+, 1e $an 'umma"#7e B a$2't%ne.' def#n#t#%n b sa ing that prerogative powers are those powers of the .rown that8 o &a)e n%t a*% #'&ed */ Pa" #ament or placed on a statutor footingH and o are e($ u'#)e t% t&e C"%1n,

Wade added8 Fnl alter people-s rightMstatus under laws of this countr can be regarded as prerogative #rofessor Wade a$$e!t' B a$2't%ne.' definition, but argues that a fu"t&e" $%nd#t#%n must be added'that is, the re:uirement that !"e"%+at#)e !%1e"' mu't &a)e e+a $%n'e3uen$e' in UK domestic law8 DTEhe prerogative consists of legal power'that is to sa , the abilit to a te" !e%! e.' "#+&t'8 dut#e' %" 'tatu' unde" t&e a1' %f t&#' $%unt"/ If a$t#%n d%e' n%t affe$t e+a "#+&t' under UK law, #t '&%u d n%t, according to #rofessor /ade, be considered to have been ta2en */ )#"tue %f t&e !"e"%+at#)e, !t seems then that, according to /ade, $e"ta#n de$#'#%n' t&at a"e +ene"a / a''umed t% *e *a'ed %n t&e !"e"%+at#)e are a$tua / -'!u"#%u' !"e"%+at#)e'. and not reall exercises of prerogative power at all.

) Alter civil servant conditionMappoint minister onl same as emplo er ma*e changes to emplo ee, it is not prerogative De$#'#%n' */ a m#n#'te" %f t&e C"%1n, such as that challenged in .ouncil for .ivil Service Unions v Minister for .ivil Service +the GCHD $a'e, to a te" t&e te"m' and $%nd#t#%n' %n 1&#$& $#)# 'e")ant' 1%"2 should not be $%n'#de"ed t% *e !"e"%+at#)e de$#'#%n', *e$au'e '#m# a" de$#'#%n' $%u d *e made */ an/ em! %/e". !nterestingl , for the same reason, /ade also argues that the power of the C"%1n t% a!!%#nt and d#'m#'' +%)e"nment m#n#'te"' is not a !"e"%+at#)e !%1e", !t is On%t&#n+ e 'e t&an t&e !%1e" 1&#$& a e+a !e"'%n' &a)e at $%mm%n a1 t% em! %/ 'e")ant' %" a+ent'., o Perhaps, this is same power for ordinary people to do such things, therefore no

eccentrical to Crown [Blac stone!

5 ?nter into international treat Dwithout affect domestic rightEM granting passport Dwithout has legal effect at common lawE is not prerogative Moreover, since /ade sa s that !"e"%+at#)e de$#'#%n' mu't affe$t "#+&t'8 he argues that a decision b the UK government to commit the United Kingdom to an #nte"nat#%na t"eat/ 1%u d n%t *e an e(e"$#'e %f !"e"%+at#)e !%1e"8 ent"/ #nt% t"eat#e' $ann%t, b itself, a te" "#+&t' #n d%me't#$ U0 a1. o "ust legislate by #arliament Similarl , according to /ade, the +"ant#n+ %f !a''!%"t' #' n%t a !"e"%+at#)e !%1e", because ->a? !a''!%"t &a' n% 'tatu' %" e+a effe$t at $%mm%n a1 at $%mm%n a1 1&ate)e"

A"+ument8 ?ver act will have a legal effect Sebastian #a ne criticiAes this aspect of /ade-s approach as follows. o >E?)e"/ a$t 1# &a)e a e+a effe$t somewhere along the line, for instance t&e +#)#n+ a1a/ %f m%ne/8 */ t&e C"%1n 1# 8 D...E have the legal effect of entitling Ithe recipient to retain the mone I. o The +"ant#n+ %f a !a''!%"t 1# &a)e t&e e+a effe$t %f ent#t #n+ t&at !e"'%n t% u'e t&e !a''!%"t D..,E. o E)en a t"eat/ t&at &a' n%t *een #n$%"!%"ated into domestic law ma lead to a !a"t#$u a" #nte"!"etat#%n %f a 'tatute on the presumption that legislation would not be passed in contravention of our treat obligations unless expressl stated.

) !f /ade is correct, then it will be no <udicial review #a ne is surel correct, but it is nonetheless important to understand that one implication of Wade.' a!!"%a$& #' t% na""%1 t&e "an+e of decisions that fa 1#t&#n t&e !"e"%+at#)e d#'$"et#%n of the e(e$ut#)e and !%tent#a / *e/%nd t&e "ea$& %f t&e 6ud#$#a "e)#e1. T&#' 1a' #m!%"tant *ef%"e t&e H%u'e %f L%"d' &e d #n t&e GCHD $a'e t&at !"e"%+at#)e !%1e"' $an *e "e)#e1ed #n t&e 'ame 1a/ a' 'tatut%"/ !%1e"', This brief discussion illustrates some of the problems involved in defining the ro al pre)rogative and in identif ing which powers of the executive properl fall within its scope.

(istor context show that An rights exercised b the King +or the executive, alone must be regarded as a part of sovereignt which #arliament chose to leave in his hands-) although armed forces has been left to the prerogative, but sub<ect to the power of #arliament to withhold suppl and to refuse to continue legislation essential for the maintenance of a standing arm Dso it is no sole responsibilit to the crownE At the ris* of adding further confusion, we must also be a1a"e %f t&e &#'t%"#$a $%nte(t. The importance of this is evident from 9ord $eid-s <udgment in Bu"ma& O# ) L%"d Ad)%$ate, which provides one of the most sustained <udicial discussions of the ro al prerogative. F%" n%18 %u" #nte"e't f%$u'e' %n L%"d Re#d.' 6ud+ment,

Bu"ma& O# C%m!an/ ) L%"d Ad)%$ate L%"d Re#d !t is n%t ea'/ t% d#'$%)e" and de$#de t&e a1 "e+a"d#n+ t&e "%/a !"e"%+at#)e and the conse:uences of its exercise. Apart from !n re a #etition of $ight DD0107EE and Attorne ) =eneral v 5e Ke serIs $o al (otel 9td. DD01%3E A. 73GE there have been no cases directl raising the matter for some centuries, and obiter dicta and the views of institutional writers and text writers are not alwa s ver helpful. The definition of 5ice D... E alwa s :uoted with approval D...E does not ta*e us ver far. !t is extremel difficult to be precise because in former times there was seldom a clear)cut view of the constitutional position. ! thin* we should beware of loo*ing at older authorities through modern spectacles. /e ought not to ignore the man changes in constitutional law and theor which culminated in the $evolution

 Settlement of 0BGG)G1, and there is practicall no authorit between that date and 0107. ! am no historian but ! would suppose that Maitland is as good a guide as an . !n his .onstitutional (istor he sa s8 I! do not wish ou to thin* that a definite theor to the effect that while legislative power resides in *ing and parliament, the so)called executive power is in the *ing alone, was a guiding theor of mediaeval politics. Fn the contrar , t&e #ne *et1een 1&at t&e 2#n+ $%u d d% 1#t&%ut a !a" #ament8 and 1&at &e $%u d %n / d% 1#t& t&e a#d %f !a" #ament8 1a' %n / d"a1n )e"/ +"adua /, and it fluctuated from time to time.I +p. 01B., D...E So it appears to me that we must tr to see what the position was after it had become clear that sovereignt resided in the King in #arliament.

 An/ "#+&t' t&e"eafte" e(e"$#'ed */ t&e 0#n+ <%" t&e e(e$ut#)e= a %ne mu't *e "e+a"ded a' a !a"t %f '%)e"e#+nt/ 1&#$& Pa" #ament $&%'e t% ea)e #n &#' &and', There is n% d%u*t t&at $%nt"% %f t&e a"med f%"$e' &a' *een eft t% t&e !"e"%+at#)e +see .handler v 5irector of #ublic #rosecutions DbelowE *ut 'u*6e$t t% t&e !%1e" %f Pa" #ament t% 1#t&&% d 'u!! / and t% "efu'e t% $%nt#nue e+#' at#%n e''ent#a f%" t&e ma#ntenan$e %f a 'tand#n+ a"m/8 and so also has the waging of war.

"ut it ma be interesting to note in passing the S$%tt#'& A$t8 CJHF, c. 7, which provided that ;n% !e"'%n *e#n+ 0#n+ %" Dueen %f S$%t and and En+ and '&a &a)e t&e '% e !%1e" %f ma2#n+ 1a" with an prince, potentate or state whatsoever 1#t&%ut $%n'ent %f Pa" #ament >,,,?;

 The reason for leaving the waging of war to the King +or now the executive, is obvious. D... although... >t?&e"e #' d#ff#$u t/ #n "e at#n+ t&e !"e"%+at#)e t% m%de"n $%nd#t#%n'. !n fact no war which has put this countr in real peril has been waged in modern times without statutor powers of an emergenc character. D...E

E, PREROGATIVE AND STATUTE !. >ew prerogatives cannot be created ?arlier in the chapter, we identified some differences between prerogative and statutor powers +see "ox 1.0,. Fne point made was that while #arliament regularl confers new statutor powers on government and other public bodies, ne1 !"e"%+at#)e !%1e"' $ann%t *e a$3u#"ed */ t&e e(e$ut#)e, The e(e$ut#)e $an %n / $ a#m t% !%''e'' prerogative powers #f t&e'e !%1e"' a"e a "ead/ "e$%+n#7ed */ t&e $%mm%n a1. o "alone v CP# The principle was summariAed b D#! %$2 L4 +as he then was, in BBC ) 4%&n', a case in which the .ourt of Appeal re<ected the "".-s claim to be an emanation of the .rown- and thus entitled to be immune from pa ing income tax.

BBC ) 4%&n' D01B7E .h &%, 21 D#! %$2 L4 Mr "ucher has submitted that because wireless telegraph and telephon were new inventions the .rown had a prerogative right to a monopol of their use and has chosen to exercise this monopol as respects broadcasting D...E through the instrumentalit of the "".. This contention involves adopting what he describes as a modern D... E view of the scope of the prerogative. But #t #' FKH /ea"' and a $#)# 1a" t%% ate f%" t&e Dueen;' $%u"t' t% *"%aden t&e !"e"%+at#)e. The #m#t' 1#t&#n 1&#$& t&e e(e$ut#)e +%)e"nment ma/ #m!%'e %* #+at#%n' or restraints upon citiAens of the United Kingdom 1#t&%ut an/ 'tatut%"/ aut&%"#t/ are now well settled and #n$a!a* e %f e(ten'#%n,

!!.

$elationship between prerogative and statutor powers

#arliament can abolishMreplace prerogative b Act Pa" #ament $an #m#t %" a*% #'& !"e"%+at#)e powers. !t ma also de$#de t&at t&e !%1e" '&%u d *e "eta#ned8 *ut ! a$ed %n a 'tatut%"/ f%%t#n+,

!f the whole ground of $# can be replaced b statute then statute rule O$$a'#%na /, situations arise in which Pa" #ament &a' n%t a*% #'&ed a prerogative power, *ut &a' ena$ted legislation that $%nf #$t' 1#t& t&e !"e"%+at#)e #n '%me 1a/, /here this happens, can government choose to use the prerogative rather than the statutor provisions; The situation is illustrated b the decision in Att%"ne/ Gene"a ) De 0e/'e"' R%/a (otel. This case concerned the re:uisitioning of a hotel in 9ondon during the @irst /orld /ar. T&e +%)e"nment &ad t1% 1a/' in which it could re:uisition the hotel8 */ u'#n+ a !"e"%+at#)e !%1e" and */ e(e"$#'#n+ !%1e"' $%nfe""ed */ a 'tatute,

 The difference was that, under the prerogative, compensation did not have to be paid to the owner, whereas under statute, it did. .ould the government choose to use its prerogative powers and save mone ; "oth the C%u"t %f A!!ea and t&e H%u'e %f L%"d' &e d that the +%)e"nment &ad t% u'e t&e 'tatut%"/ !%1e"', Att%"ne/ Gene"a ) De 0e/'e"' R%/a H%te D01%3E L%"d Duned#n D... I?t #' $e"ta#n t&at #f t&e 1&% e +"%und %f '%met&#n+ 1&#$& $%u d *e d%ne */ t&e !"e"%+at#)e #' $%)e"ed */ t&e 'tatute8 #t #' t&e 'tatute t&at "u e', Fn this point ! thin* the observation of the learned Master of the $olls is unanswerable. (e sa s8 I/hat use would there be in imposing limitations if the .rown could, at its pleasure, disregard them and fall bac* on prerogative;I

!f no clear)cut whether #arliament replace the prerogative Dperhaps not whole groundE then statute still can be used Another situation is that in which a statute deals with the same general sub<ect matter as a prerogative power, but, unli*e in 5e Ke sers $o al (otel, it is not clear that the use of the prerogative would be incompatible with the statute. The issue arose in the controversial decision in $ v Secretar of State for the (ome 5epartment, e( !a"te N%"t&um*"#a P% #$e Aut&%"#t/, !n 01GB, the (ome Secretar sent a circular to all chief constables in ?ngland explaining that a central store for plastic bullets and .S gas would be set up, and that chief constables could bu this crowd) control e:uipment without having to obtain the permission of their local police authorit +statutor bodies established to sub<ect police forces to local accountabilit ,.

 Man police authorities were disma ed that this e:uipment could be purchased without their involvement and the >orthumbria #olice Authorit unsuccessfull challenged the legalit of the governments scheme. The .ourt of Appeal held that the police Act 01B6 permitted the establishment of a central store and the direct suppl of this e:uipment to chief constables. !t also said that the (ome Secretar has prerogative power to maintain peace in the realm, which included power to ta*e precautionar steps to ensure that chief constables have access to a suppl of crowd)control e:uipment. This power had not been removed b statutor provisions.

$ v Secretar of State for the (ome 5epartment e( !a"te N%"t&um*"#a P% #$e Aut&%"#t/ D01G1E C"%%m54%&n'%n L4 Although there has alwa s been what is called the war prerogative, which is the .rownIs right to ma*e war and peace, Mr. Keene submitted that there is no corresponding prerogative to enforce the *eeping of what is popularl called the ILueenIs peace within the realm.I Mr. Keene based his submission b reference to .hitt Is #rerogatives of the .rown +0G%3, and pointed out that there is no power referred to in it for *eeping the peace. !t does, however, contain an extensive section on The King as the @ountain of 4usticeI and courts and gaols. The argument is that if there was no prerogative power to *eep the peace in 0G%3, at which date no organised police force existed, then all police forces exist and are controlled onl b the later statutes b which the were created, and there is no residual prerogative power to draw on in cases of necessit .

 !n contrast to this submission, F. (ood #hillipsI .onstitutional and Administrative 9aw, Bth ed. +012G,, ch. %0, p. &11 states une:uivocall 8 OAlthough the preservation of the peace, which is a $o al prerogative, is one of the primar functions of an state, the administration of the police has alwa s been on a local basis in this countr .O !t ma be that the KingIs power to establish courts and gaols and to administer <ustice was no more than the larger power to see that the peace was *ept. There were constables long before the establishment of #eelIs Metropolitan #olice in 0G%1. At all events, the assumption was earl made that *eeping the peace was part of the prerogative. D...E " its ver nature the sub<ect of maintaining the LueenIs peace and *eeping law and order has over the ears inevitabl been dealt with b statute much more than the war prerogative has been. !nstances of the wa in which such a prerogative ma be used are more readil provided b example than b being placed in categories, but ! have no doubt that the .rown

does have a prerogative power to *eep the peace, which is bound up with its undoubted right to see that crime is prevented and <ustice administered. This is sub<ect to Mr. KeeneIs next submission, which was that an prerogative power ma be lost b being overta*en b statute lawD...E. Attorne )=eneral v 5e Ke serIs $o al (otel 9td. D01%3E A... 73G was the decision which establishes that in the exercise of the war prerogative the .rownIs power to re:uisition propert had been limited b the 5efence Act 0G6% so as to re:uire compensation to be paid to the sub<ect D... E It #' $ ea" t&at t&e C"%1n $ann%t a$t unde" t&e !"e"%+at#)e #f t% d% '% 1%u d *e #n$%m!at#* e 1#t& 'tatute. /hat was said here is that the Secretar of StateIs proposal under the circular would be inconsistent with the powers expressl or impliedl conferred on the police authorit b section 6 of the #olice Act 01B6.

 The 5ivisional .ourt re<ected that submission for reasons with which ! wholl agreeH name / t&at 'e$t#%n L d%e' n%t e(!"e'' / +"ant a m%n%!% /, and that granted the possibilit of an authorit which declines to provide e:uipment re:uired b the chief constable t&e"e #' e)e"/ "ea'%n n%t t% #m! / a Pa" #amenta"/ #ntent t% $"eate %ne, Section L<L= %f t&e P% #$e A$t C9ML stated8 o The !% #$e aut&%"#t/ for an such police area ma/...!"%)#de and ma#nta#n such vehicles, apparatus, clothing and other e:uipment as ma be re:uired for police purposes of the area. T&e"ef%"e8 t&e +%)e"nment $%u d u'e t&e !"e"%+at#)e !%1e" a' 1e ,

?ven though Minister has the power to decide when the Act come into force, but if he simpl did not use it Dthat mean the Act not et come into forceE due to wish of appl $# instead, then it is unlawful because it will frustrate the intention of #arliament The (ouse of 9ords also had to consider the relationship between prerogative and statutor powers in $ v Secretar of State for the (ome 5epartment, ex !a"te t&e F#"e B"#+ade' Un#%n. !n this case, the central :uestion was whether the executive can use prerogative powers in a manner that effectivel means that an Act of #arliament will not be brought into force. The .riminal !n<uries .ompensation Scheme was introduced in 01B6 using what were claimed to be prerogative powers.&7 !n 01GG, #arliament enacted the .riminal 4ustice Act 01GG in order to place the scheme on a statutor footing. Although the statute received the ro al assent, the ena$ted

!"%)#'#%n' 1e"e %n / t% $%me #nt% effe$t -%n 'u$& da/ a' t&e Se$"eta"/ %f State ma/ >,,,? a!!%#nt. N% 'u$& da/ 1a' a!!%#nted and t&e !"%)#'#%n' t&e"ef%"e d#d n%t $%me #nt% effe$t, ?ventuall , in March 0116, the (ome Secretar told #arliament that the non)statutor scheme would be modified in a wa that would introduce a lower level of compensation pa ments than the Act envisaged. He a '% 'a#d t&at8 #n due $%u"'e8 t&e !"%)#'#%n' %f t&e C"#m#na 4u't#$e A$t C9II 1%u d *e "e!ea ed. The (ome Secretar -s decision to reduce compensation was challenged b several trade unions, which believed that their members would be disadvantaged b the failure to implement the legislation.

 !n a ma<orit decision, the H%u'e %f L%"d' &e d t&at #t 1a' an a*u'e %f !%1e" f%" t&e H%me Se$"eta"/ t% e(e"$#'e &#' !u"!%"ted !"e"%+at#)e !%1e"' t% #nt"%du$e a '/'tem t&at 1%u d $%nf #$t 1#t& &#' $%nt#nu#n+ dut/ t% *"#n+ t&e 'tatut%"/ '$&eme #nt% f%"$e, $ v Secretar of State for the (ome 5epartment e( !a"te t&e F#"e B"#+ade' Un#%n D0117E L%"d B"%1ne5W# 2#n'%n !t does not follow that, because the Secretar of State is not under an dut to bring the secKtion into effect, he has an absolute and unfettered discretion whether or not to do so. So to hold would lead to the conclusion that both (ouses of #arliament had passed the "ill through all its stages and the Act received the $o al Assent merel to confer an enabling power on the executive to decide at will whether or not to ma*e the parliamentar provisions a part of the law. Such a conclusion, drawn from a section to which the sidenote is O.ommencement,II is not onl constitutionall dangerous but flies in the face of common sense. D... E Surel , it canKnot have been the

intention of #arliament to leave it in the entire discretion of the Secretar of State whether or not to effect such important changes to the criminal law. !n the absence of express provisions to the contrar in the Act, the ! a#n #ntent#%n %f Pa" #ament #n $%nfe""#n+ %n t&e Se$"eta"/ %f State t&e !%1e" t% *"#n+ $e"ta#n 'e$t#%n' #nt% f%"$e is that such !%1e" #' t% *e e(e"$#'ed so as to bring those sections into force 1&en #t #' a!!"%!"#ate and un e'' t&e"e #' a 'u*'e3uent $&an+e %f $#"$um'tan$e' which would render it inappropriate to do so. !f, as ! thin*, that is the clear purpose for which the power in section 020+0, was conferred on the Secretar of State, two things follow. @irst, the Secretar of State comes under a clear dut to *eep under consideration from time to time the :uestion whether or not to bring the sections +and therefore the statutor scheme, into force.

 !n m <udgment he cannot lawfull surrender or release the power contained in section 020+0, so as to purport to exclude its future exercise either b himself or b his successors. D... E !t follows that the decision of the Secretar of State to give effect to the statement in paragraph &G of the /hite #aper +.m. %6&6, that Othe provisions in the Act of 01GG will not now be implementedII was unlawful. D...E M 9ords, #t 1%u d *e m%'t 'u"!"#'#n+ #f8 at t&e !"e'ent da/8 !"e"%+at#)e !%1e"' $%u d *e )a #d / e(e"$#'ed */ t&e e(e$ut#)e '% a' t% f"u't"ate t&e 1# %f Pa" #ament e(!"e''ed #n a 'tatute and, to an extent, to pre) empt the decision of #arliament whether or not to continue with the statutor scheme even though the old scheme has been abandoned.

 It #' n%t f%" t&e e(e$ut#)e, as the 9ord Advocate accepted, to 'tate a' #t d#d #n t&e W&#te Pa!e" +paragraph &G, that the provisions in the Act of 01GG O1# a$$%"d#n+ / *e "e!ea ed 1&en a 'u#ta* e e+#' at#)e %!!%"tun#t/ %$$u"',@ It #' f%" Pa" #ament8 n%t t&e e(e$ut#)e8 t% "e!ea e+#' at#%n. The constitutional histor of this countr is the histor of the !"e"%+at#)e !%1e"' %f t&e C"%1n *e#n+ made 'u*6e$t t% t&e %)e""#d#n+ !%1e"' %f t&e dem%$"at#$a / e e$ted e+#' atu"e as the sovereign bod . T&e !"e"%+at#)e !%1e"' %f t&e C"%1n "ema#n #n e(#'ten$e t% t&e e(tent t&at Pa" #ament &a' n%t e(!"e'' / %" */ #m! #$at#%n e(t#n+u#'&ed t&em,

 But under the principle in Attorne ) =eneral v 5e Ke serIs $o al (otel 9td. D...E #f Pa" #ament &a' $%nfe""ed %n t&e e(e$ut#)e 'tatut%"/ !%1e"' t% d% a !a"t#$u a" a$t, that a$t $an %n / t&e"eafte" *e d%ne unde" t&e 'tatut%"/ !%1e"' '% $%nfe""ed8 an pre)existing prerogative power to do the same act is pro tanto excluded.

F, 4UDICIAL REVIEW OF PREROGATIVE POWERS .ourt can review the govt action under $# unless area of non) <ustifiable !f the government claims to exercise a prerogative power and its action is challenged in <udicial review proceedings, the courts will examine whether the claimed prerogative power exists and, if it is found not to exist will invalidate an action ta*en under the purported power. Until 01G6, if the courts were satisfied that the prerogative power existed, the would not review the wa in which the power was used. T&e"e #' n%1 n% d%u*t that, in principle, $%u"t' $an "e)#e1 !"e"%+at#)e !%1e"' %n t&e 'ame +"%und' a' t&e/ $an "e)#e1 t&e 1a/ #n 1&#$& 'tatut%"/ !%1e"' are used.

 As in the case of statutor powers, &%1e)e", t&e"e ma/*e %$$a'#%n' %n 1&#$& $%u"t' 1# n%t #nte")ene because the 'u*6e$t matte" %f the power is regarded */ t&e $%u"t' a' $n%n56u't#$#a* e. +in other words, the issues are not suitable for <udicial determination,. These occasions are now becoming increasingl rare. These propositions have been established b two decisions of the (ouse of 9ords.

!.

The =.(L case) R# power can be reviewed $udicially

The first was the decision in .ouncil for .ivil Service Unions v Minister for the .ivil Service +the =.(L case,.63 !n this case, the civil service unions challenged a decision ta*en b the Minister for the .ivil Service +a ministerial post normall held b the #rime Minister, at that time Mrs Thatcher, that wor*ers at the =overnment .ommunications (ead:uarters +=.(L, the government-s electronic eavesdropping organiAation responsible for collecting intelligence, could no longer belong to a trade union. The decision was ta*en under powers conferred on the minister b the .ivil Service Frder in .ouncil 01G%, which was a legislative instrument enacted b the Lueen in .ouncil b virtue of prerogative powers.60

 The unions claimed that the courts could review the decision even though it had been ta*en under prerogative powers. The submitted that the decision had been unlawful because the government-s failure to consult before the decision breached the wor*ers- legitiKmate expectation to consultation and was therefore procedurall unfair. The government argued that prerogative powers could not be <udiciall reviewed, but that even if the could in other situations, in this case, the decision had been ta*en in the interests of national secuKrit H therefore, the courts could not intervene. The government also denied that there had been a breach of an legitimate expectation or unfairness. To the government-s disma , in 4ul 01G6, =lidewell 4 granted the application for <udicial review.

=lidewelfl 48 o I $an 'ee n% "ea'%n #n %+#$ %" !"#n$#! e 1&/ an e(e"$#'e */ a M#n#'te" %f a !%1e" $%nfe""ed */ an O"de" #n C%un$# '&%u d n%t *e 'u*6e$t t% t&e 'ame '$"ut#n/ and $%nt"% */ t&e $%u"t' as would be appropriate for the exercise of the same power if it had been granted b statute.

) Although decisions can be review and also unlawful, but involved national securit , therefore non) <ustifiable (aving established that he could intervene, =lidewell 4 went on to emphasiAe the need for government to follow the correct and fair procedure re:uired b the common law. !n the cir)cumstances, he held that the failure to consult prior to deciding to ban union membership was !"%$edu"a / unfa#", (e therefore held that the M#n#'te" &ad a$ted un a1fu /, The +%)e"nment #mmed#ate / a!!ea ed and, before the .ourt of Appeal, presented an argument that had not been explicitl put to =lidewell 4'namel , that the failure to consult was 6u't#f#ed */ t&e #nte"e't' %f nat#%na 'e$u"#t/, The C%u"t %f A!!ea a$$e!ted t&#' a"+ument and "e)e"'ed G #de1e 4.' de$#'#%n,

 !n >ovember 01G6, the H%u'e %f L%"d' u!&e d t&e C%u"t %f A!!ea , Their 9ordships held that although the failure to consult was contrar to the principles of natural <ustice, the $%u"t' '&%u d n%t #nte"fe"e 1#t& #t *e$au'e t&e de$#'#%n &ad *een ta2en %n +"%und' %f nat#%na 'e$u"#t/8 '%met&#n+ #nt% 1&#$& t&e $%u"t' $%u d n%t #n3u#"e,

) 5ivide into <ustifiable and non) <ustifiableH <ustifiable in the sense of legalit in decision ta*en under $# but not legalit of $# !n man wa s, the actual decision of the (ouse of 9ords is a t pical example of the $%u"t' *e#n+ an(#%u' t% defe" t% t&e e(e$ut#)e 1&en nat#%na 'e$u"#t/ is said to be involved. The <udgment is a landmar*, however, not because of the actual outcome, but because of what their L%"d'&#!' 'a#d a*%ut t&e !%tent#a '$%!e %f 6ud#$#a "e)#e1 #n "e at#%n t% !"e"%+at#)e !%1e"', 9ords Scarman, 5iploc*, and $os*ill indicated that the courts can, in principle, "e)#e1 t&e e(e"$#'e %f an/ !"e"%+at#)e !%1e"'8 !"%)#ded t&at t&e matte" #' 'u#ta* e f%" 6ud#$#a dete"m#nat#%n <t&at #'8 6u't#$#a* e=.

 9ords @raser and "rightman were more cautious8 1&# e t&e/ 1%u d &a)e *een 1# #n+ t% "e)#e1 t&e de$#'#%n to ban unions ta*en unde" !%1e"' de e+ated */ t&e O"de" #n C%un$# , *ut t&e/ 1e"e n%t 1# #n+, on this occasion at least, to 'a/ t&at $%u"t' $%u d a '% "e)#e1 t&e e+a #t/ %f an O"de" #n C%un$# #t'e f.

!!.

"ancoult +>o. %,

The second case is the more recent decision in $ +on the application of "ancoult, v Secretar of State for @oreign and .ommonwealth Affairs +>o. %,, This case concerned the .hagos !slands in the !ndian Fcean, which, until 01B7, were part of the "ritish colon of Mauritius. !n that ear, the islands were made a separate colon , *nown as the "ritish !ndian Fcean Territor - +"!FT,. 5uring the 01B3s, the UK government entered into negotiations with the USA over the establishment of a US militar base on 5iego =arcia, the main island in the "!FT. This re:uired the removal of the population of the territor and, in 0120, the UK govKernment, through the Lueen in .ouncil, made a piece of prerogative legislation *nown as the !mmigration Frdnance 0120, which gave power to exile the population. !n %333 +"ancoult >o. i,, the Administrative .ourt allowed the challenge of Mr "ancoult +one of the islanders affected, to the legalit of the relevant provisions of the !mmigration Frder 0120. After that decision, the government stated that it accepted the .ourt-s ruling and would not appeal.

) Frder in .ouncil itself can be challenged it legalit rather than executive action ta*en under the Frder as it is different from Act of #arliament which derive from representative character Dbe ond =.(L decisionE The government later decided, however, that "e'ett ement %f t&e #' and' 1a' n%t fea'#* e and that the territor was still wanted for defence purposes. T1% fu"t&e" O"de"' #n C%un$# were therefore made b the Lueen in .ouncil on advice of the government. These had the effe$t %f !"e)ent#n+ t&e #' ande"' f"%m "etu"n#n+ t% t&e #' and'. Mr "ancoult once again cla#med 6ud#$#a "e)#e18 t&#' t#me $&a en+#n+ t&e t1% O"de"' #n C%un$# , >ote that, in this case, M" Ban$%u t 1a' $&a en+#n+ O"de"' #n C%un$# t&em'e )e' rather than executive

actions ta*en under the Frders in .ouncil, as in the =.(L case.

 Mr "ancoult argued that the right of abode was so fundamental that it could not be removed b the .rown in an circumstancesH that the powers of the .rown were limited to enacting legislation for the Ipeace, order and good government- of the territor , that the law had to be for the benefit of the inhabitants, and that the government-s statement following "ancoult +>o. 0, gave rise to a legitimate expectation on the part of the .hagossians that the would be allowed to return to the islands. (e was successful in both the 5ivisional .ourt and the .ourt of Appeal. Fn appeal to the (ouse of 9ords, the +%)e"nment a"+ued, among other things, that the $%u"t' &ad n% !%1e" t% "e)#e1 t&e )a #d#t/ %f an O"de" #n C%un$# e+#' at#n+ f%" a $% %n/, because it was primar legislation comparable to an Act of #arliament, that, in an case, the islanders did not have the fundamental rights that the claimed, and that there was no breach of a legitimate expectation that the would be allowed to return.

 The H%u'e %f L%"d' a$$e!ted that $%u"t' $an "e)#e1 t&e e+a #t/ %f O"de"' #n C%un$# and, to this extent, it developed the law beyond the $CH% case& The following statement made b 9ord (offmann represents the overall view of the (ouse on this point. L%"d H%ffmann9 &6 !t is true that a !"e"%+at#)e O"de" #n C%un$# #' !"#ma"/ e+#' at#%n D...E &7 "ut the fact that such Frders in .ouncil in certain important respects "e'em* e A$t' %f Pa" #ament d%e' n%t mean t&at t&e/ '&a"e a t&e#" $&a"a$te"#'t#$', The principle of the sovereignt of #arliament, as it has been developed b the courts over the past &73 ears, is founded upon the uni:ue aut&%"#t/ Pa" #ament de"#)e' f"%m #t' "e!"e'entat#)e $&a"a$te".

 An e(e"$#'e %f t&e !"e"%+at#)e a$2' t&#' 3ua #t/H although it ma be legislative in character, #t #' 't# an e(e"$#'e %f !%1e" */ t&e e(e$ut#)e a %ne. Until the decision of this (ouse in .ouncil of .ivil Service Unions v Minister for the .ivil Service D01G7E A. &26, it ma have been assumed that the exercise of prerogative powers was, as such, immune from <udicial review. That ob<ection being removed, I 'ee n% "ea'%n 1&/ !"e"%+at#)e e+#' at#%n '&%u d n%t *e 'u*6e$t t% "e)#e1 %n %"d#na"/ !"#n$#! e' %f e+a #t/8 "at#%na #t/ and !"%$edu"a #m!"%!"#et/ #n t&e 'ame 1a/ a' an/ %t&e" e(e$ut#)e a$t#%n.

) Argument about @undamental right cannot be overruled b $# without #arliamentar Approval Dconstraint the $# powerE The ma<orit +9ords "ingham and Mance dissenting, nonetheless refused to accept that the Frders in .ouncil were unlawful. The main elements of the ma<orit decision on the legalit of the Frders in .ouncil ma be summariAed as follows. The O"de"' #n C%un$# 1e"e n%t "e!u+nant t% t&e C&a+%''#an'. fundamenta "#+&t of a*%de and t% "etu"n t% t&e #' and'. The "#+&t %f a*%de 1a' a $"eatu"e %f t&e a1, n%t a $%n't#tut#%na "#+&t, and t&e"e 1a' n% *a'#' f%" 'a/#n+ t&at t&e "#+&t %f a*%de 1a' '% fundamenta t&at t&e C"%1n' e+#' at#)e !%1e"' '#m! / $%u d n%t t%u$& #t. >or was there support for the proposition that, in legislating for a colon , either #arliament or (er

Ma<est in .ouncil had to have regard onl , or even predominantl , to the immediate interests of the inhabitants. !n essence, the .hagossians- right of abode was purel s mbolic, because there was no prospect of them being able to live on the islands in the foreseeable future. (aving regard to the practical interests of the .hagossians, the deci)sion to reimpose immigration control on the islands could not be described as unreasonable or an abuse of power. Moreover, there had been no clear and unambiguous promise to the effect that the .hagossians would be free to return to the islands even if the could not be resettled there and therefore no legitimate expectation had been created.62 The a"+ument t&at !"e"%+at#)e e+#' at#%n mu't "e'!e$t fundamenta "#+&t' 1a' $ ea" / an #m!%"tant e ement in "ancoult +>o. %,. !t was an argument that attracted a range of responses from the <udges, helpfull 'umma"#7ed */ Ma"2 E #%tt and Amanda Pe""eau5 Sau''#ne #n t&e f% %1#n+ e(t"a$t.

Ma"2 E #%tt and Amanda Pe""eau5 Sau''#ne9 According to 9ords (offmann, "ingham and Mance, B"#t#'& 'u*6e$t' d% en6%/ *a'#$ %" $%n't#tut#%na "#+&t' t&at $ann%t a1fu / *e %)e""#dden %" a*"%+ated */ t&e C"%1n 1#t&%ut !a"5 #amenta"/ a!!"%)a 8 t&e'e "#+&t' a$t a' e+a / enf%"$ea* e $%n't"a#nt' %n !"e"%+at#)e !%1e", These t&"ee %f t&e f#)e 6ud+e' in "ancoult "e$%+n#'e effe$t#)e / @$%n't#tut#%na @ $%mm%n a1 "#+&t' which $an %n / *e a*"%+ated <#f at a = 1#t& $ ea" and e(! #$#t !a" #amenta"/ a!!"%)a 9 the recognise certain basic common law rights which cannot be overridden or abrogated b the .rown, rights which a$t a' e+a / enf%"$ea* e $%n't"a#nt' %n !"e"%+at#)e !%1e"'

) .onstitutional right cannot L%"d' B#n+&am and Man$e include a constitutional right of abode among those rights and hold, *%t& d#''ent#n+8 t&at t&#' "#+&t #m#t' t&e '$%!e %f !"e"%+at#)e !%1e"' t% e+#' ate f%" $% %n#e'

) %ut right of abode whether is constitutional right is uncertain& C%nt#nue9 9ords "ingham and Mance include a constitutional right of abode among those rights and hold, both dissenting, that this right limits the scope of prerogative powers to legislate for colonies, L%"d Man$e te"m#n+ t&e "#+&t %f a*%de @fundamenta and8 #n t&e #nf%"ma 'en'e #n 1&#$& t&at te"m #' ne$e''a"# / u'ed #n a Un#ted 0#n+d%m $%nte(t8 $%n't#tut#%na @, L%"d Ca"'1e treated the case as raising the :uestion of Ohow nearO a "#+&t %f a*%de #' t% @*e#n+ an #na #ena* e $%n't#tut#%na "#+&t@8 a $&a"a$te"#'at#%n t&at #' 'en'e e'' #f t&e"e e(#'t n% 'u$& t&#n+'

 L%"d H%ffmann recognises a right not to be tortured as a limit on the scope of prerogative powers of colonial governance, holding that an Frder in .ouncil could not lawfull sanction torture, but, cruciall for the result in this case, den#ed t&at t&e"e 1a' a "#+&t %f a*%de, L%"d R%d+e" holds that those "ritish sub<ects residing in colonial territor d% n%t en6%/ an/ "#+&t' #mmune f"%m a*"%+at#%n */ t&e C"%1n, t%"tu"e #n a $% %n/8 &e &% d'8 $%u d *e 'an$t#%ned */ an O"de" #n C%un$#

) 'oubting e!istence of fundamental right constraint the R# power& C%nt#nue9 L%"d Ca"'1e #' %!a3ue %n t&e e(#'ten$e %f $%n't#tut#%na %" fundamenta "#+&t', doubting the existence of Ofundamental principlesO of ?nglish law et also treating the case as raising the :uestion of Ohow nearO a right of abode is to Obeing an inalienable constitutional rightO, a characterisation that is senseless if there exist no such things. D... E L%"d R%d+e" $%n$ ude' t&at #t #' @$e"ta#n / a"+ua* e t&at t&e"e #' a ;fundamenta !"#n$#! e; of ?nglish law that no citiAen should be exiled or banished from a "ritish colon O, but he also holds that those "ritish sub<ects residing in colonial territor do not en<o an rights immune from abrogation b the .rown. Torture in a colon , he holds, could be sanctioned b an Frder in .ouncil...

) $# itself constraint b fundamental right issue while executive Dexercise of $#E constraint to $F9 C%nt#nue9 DThe authors open their conclusion with the following statement.E !mportantl , the H%u'e %f L%"d'; de$#'#%n #n Ban$%u t is the first ?nglish decision to e'ta* #'& $ ea" / t&at t&e !"e"%+at#)e #t'e f5a' d#'t#n$t f"%m 'e$%nda"/ !%1e"' de"#)ed f"%m e(e"$#'e' %f t&e !"e"%+at#)e5e(#'t' #n t&e '&ad%1 %f t&e "u e %f a1. That is wh , for example, the ma6%"#t/ #n Ban$%u t 1%u d &a)e *een 1# #n+ t% &% d s.1 of the .onstitution Frder un a1fu #f #t &ad %ffended t&e "u e5%f5 a1 !"#n$#! e %f e+a $e"ta#nt/ b having been enacted in breach of the .hagossiansI legitimate expectations. o !n this case, court held that there is no legitimate expectation, therefore no offend with $F9 certaint principle

o !f legitimate expectation, then executive have to carr out to ensure certaint ) !t is p rrhic victor ) because indirect it mean that $# exercised b executive no need $F9, it onl related to whether against fundamental right Das it held that $F9 will constraint the executive in legitimate expectationE, same to the =.(L case that although held the $# exercised can be reviewed but go further said that national securit is non)<ustifiable Yet Ban$%u t #' a !/""&#$ )#$t%"/ f%" t&%'e 1&% "e+a"d e(e$ut#)e !%1e" a' $%n't"a#ned */ t&e "u e %f a1, This is unsurprising8 recent histor is replete with such victories in this area. The proposition in =.(L itself t&at de e+ated e(e"$#'e' %f !"e"%+at#)e !%1e" a"e "e)#e1a* e &ad t% *e '!e t %ut %f %*#te" d#$ta, but the Appellate .ommittee having held that the actual decision in 3ue't#%n 1a' n%n56u't#$#a* e %n

a$$%unt %f #t' nat#%na 'e$u"#t/ #m! #$at#%n',

REFORMING MINISTERIAL PREROGATIVES .all for reform as executive exercise the power without #arliament approval Cociferous PQ calls for reform of prerogative powers have been made since at least the 01G3s and 0113s. !n 0116, 4a$2 St"a1 MP, for example, wrote that the ;"%/a !"e"%+at#)e &a' n% ! a$e #n a m%de"n 1e'te"n dem%$"a$/8 t&e !"e"%+at#)e &a' *een u'ed a' a 'm%2e5'$"een */ M#n#'te"' t% %*fu'$ate t&e u'e %f !%1e" f%" 1&#$& t&e/ a"e #n'uff#$#ent / a$$%unta* e., 5uring the "lair governments of 0112)%332, however, the government showed no interest in placing prerogative powers on the constitutional reform agenda. !t was left to bac*benchers and the #AS. to press for the need for change, with 9iberal 5emocrat peer 9ord 9ester of (erne (ill leading the calls for his

part . !t was onl when =ordon "rown became #rime Minister in %332 that progress began to be made. As we shall see since the election of the .oalition government that progress appears to have ended. As the following comments from W# #am Ha+ue MP +then a frontbench .onservative spo*esman, now the @oreign Secretar , '&%18 t&e"e &a' *een 1#de'!"ead $%n'en'u' a$"%'' t&e !% #t#$a !a"t#e' t&at t&e u'e %f !"e"%+at#)e !%1e"' f#t' unea'# / #n a m%de"n dem%$"at#$ $%n't#tut#%n,

M", Ha+ue9 !n April %33& the right hon. Ton "enn Da veteran 9abour M# who retired in %330E and !, in what some regarded as a highl unusual alliance, made a <oint presentation to the #ublic Administration .ommittee, calling for the 1&% e %f t&e "%/a !"e"%+at#)e n%1 e(e"$#'ed */ M#n#'te"', including the power to conclude treaties, the right to reorganise =overnment 5epartments, and the administration of the honours s stem, as well as the power to enter armed conflict, t% *e *"%u+&t unde" !a" #amenta"/ '$"ut#n/ and $%nt"% , D... E The #ublic Administration .ommittee came to a clear conclusion in %336. D... E that Ot&e !"e"%+at#)e &a' a %1ed !%1e"' t% m%)e f"%m m%na"$& t% M#n#'te"' 1#t&%ut Pa" #ament &a)#n+ a 'a/ #n &%1 t&e/ a"e e(e"$#'ed, T&#' '&%u d n% %n+e" *e a$$e!ta* e t% Pa" #ament %" t&e !e%! e. D... E

D#ff#$u t t% "ef%"m8 uncertain scope, issue about executive have no such power inevitabl while need accountable to #arliament =iven the breadth of support for reform, including from those who became senior ministers, it might be thought that reformers would be pushing at an open door. "ut, of course, t&e '#tuat#%n #' n%t t&at 't"a#+&tf%"1a"d, !t is one thing to call for reforms when in Fpposition, but :uite another to ma*e changes when in government +later in the chapter we see the position ta*en b /illiam (ague now that he is the @oreign Secretar ,. Ref%"m#n+ t&e u'e %f !"e"%+at#)e !%1e"' &a' !"%)ed t% *e an e(t"eme / $%m! e( matte"'n%t ea't *e$au'e t&e !"e"%+at#)e #' u'ed a$"%'' a *"%ad and d#)e"'e "an+e %f '#tuat#%n' including decisions to go to war, the ma*ing of public appointments, decisions relating to passports, and the granting of honours.

 !n Taming the #rerogative, the #AS. considered the case for reform to be unanswerable, but each of these areas raises distinct and difficult :uestions. (ere, we are at the heart of the constitutional s stem, where the #m!e"at#)e' %f e(e$ut#)e !%1e"8 %n t&e %ne &and, and t&e !"#n$#! e' %f dem%$"at#$ a$$%unta*# #t/8 %n t&e %t&e", a"e #ne)#ta* / #n a 'tate %f ten'#%n, !n this section, we see how these tensions have affected the process of reform and nature of the solutions reached.

A,APPROACHES TO REFORM9 PRAGMATISM OR PRINCIPLE: "ased on pragmatism and principle =iven these tensions, a basic :uestion is how should reform be approached; !n its %336 report Tam#n+ t&e P"e"%+at#)e, the #AS. DPu* #$ Adm#n#'t"at#%n Se e$t C%mm#tteeE identified two broad options8 o one based %n !"a+mat#'m and o the other %n !"#n$#! e. The !"a+mat#$ approach continues the long)standing practice of 'u*6e$t#n+ #nd#)#dua !"e"%+at#)e !%1e"' t% !a" #amenta"/ $%nt"% %n a $a'e5*/5$a'e *a'#', $eform based on !"#n$#! e calls for $%m!"e&en'#)e e+#' at#%n to 'u*6e$t prerogative powers in general t% !a" #amenta"/ $%nt"% ,

P"a+mat#$) piecemeal, loo* at particular power to be change, practical rather than discuss on philosophical basis, prevent overwhelm to #arliament, no one will reall understand what is the list if ta*e principle approach The following extract is from the #AS. s discussion of the virtues of each of these approaches. Assuming that some broad legislative approach is to be ta*en, the #AS. also consider what form the legislation should ta*e, as well as the :uestion of whether special treatment should be given to particular powers and, if so, which.

 PASC8 2. 9ord (urdD73E put to us the case for continued piecemeal and pragmatic extension of #arliamentar control8 O! was brought up on a full diet of ?dmund "ur*e and on the whole ! *e #e)e t&e $%n't#tut#%n e)% )e' and #' *e't %%2ed at #n t&e #+&t %f !a"t#$u a" $"#t#$#'m', particular mischiefs, that $an *e #dent#f#ed and t&en $&an+e made, "at&e" t&an e(am#n#n+ #t %n a !&# %'%!&#$a *a'#'8 1&#$& "a!#d / tu"n' a"t#f#$#a ;;, >,,,? &1. He $#ted a num*e" %f #nd#)#dua e(am! e' #n &#' %1n M#n#'te"#a e(!e"#en$e 1&e"e !%1e"fu !"a$t#$a and !% #t#$a $%n'#de"at#%n' ed +%)e"nment t% 'u*6e$t t&e !"e"%+at#)e t% mu$& +"eate" Pa" #amenta"/ '$"ut#n/8 Oever now and then a reform, a change, becomes clearl necessar . D... E two Acts of #arliament which put under statutor power or identit the three intelligence services8 the Securit Services Act 01G1 and the !ntelligence Services Act 0116. There were, if an one is interested, ver

practical, cogent reasons which persuaded even the prime Ministers of the da , and certainl the heads of the services, that this was a good and necessar moveO. 63. 9ord (urd said that similar arguments now applied to the proposal for a .ivil Service Act and war powers. (e summarised his view b sa ing that8 Ot&e"e a"e #''ue' a t&e t#me *ut #n m/ )#e1 t&e/ a"e e''ent#a / !"a$t#$a "at&e" t&an !&# %'%!&#$a @, 60. Those %!!%'ed t% $%m!"e&en'#)e e+#' at#%n also ma*e the practical point that Pa" #ament $%u d *e$%me %)e"1&e med */ t&e ta'2 %f %)e"'ee#n+ 'u$& a 1#de "an+e %f a$t#%n' and de$#'#%n', 6%. 9ord (urd told us8 O! thin* that 9ord 9esterIs s*etch of his 73 clauses 'which, as ! understand it, would onl be a preliminar act'would occup both (ouses of #arliament for a ver long time and would be followed b a whole series of discussions.

 I 6u't 1%nde" 1&% #n t&#' $%unt"/, outside of a fairl narrow but ver talented and conscientious range, 1%u d fee *ette" %ff a' a "e'u t %f t&atE 1&% 1%u d ' ee! m%"e 'afe / #n t&e#" *ed'E and 1&% 1%u d t&#n2 t&e $%unt"/ 1a' *ette" +%)e"ned@, >,,, ?

P"#n$#! e a!!"%a$& >$%m!"e&en'#)e e+#' at#%n?) conform to #S and $F9, pragmatism will lead some area did not move at all, suit to democrac culture PASC9 67. 9ord 9ester set the argument in a broad constitutional context8O/e were all brought up in our un1"#tten $%n't#tut#%n to believe that there were t1% +"eat !"#n$#! e' to our constitution8 o one was !a" #amenta"/ 'u!"ema$/, that the executive was accountable to Parliament rather than to the ing or 'ueen( and, o secondl , the !"#n$#! e %f t&e "u e %f a1, that public powers should be exercised according to the law. T&e d#ff#$u t/ a*%ut %u" un1"#tten, flexible, permeable, !a"t m%na"$&#$a and !a"t !a" #amenta"/ $%n't#tut#%n is to ma2e 'u"e t&at t&%'e !"#n$#! e' a!! / #n !"a$t#$e@,

 6B. Mr (ague also put the general case for a formal framewor*, telling us that Othere is still a vast scope for extending parliamentar control of the ro al prerogativeO. He $a't d%u*t %n t&e n%t#%n t&at a !#e$emea approach to legislation was the most effective one, expressing his impatience O%ne !"%* em 1#t& +"adua #'m >,,, ? #t ma/ n%t a$tua / *e 'uff#$#ent, T&e %t&e" !"%* em 1#t& +"adua #'m #' t&at #t #' n%t m%)#n+ at a #n '%me a"ea'@, >,,, ? 6G. D... E Mr Allen made an important distinction between Oa democratic cultureO which he called Oour greatest strength in the UKO, and Odem%$"at#$ 't"u$tu"e'@ 1&#$& 1e"e n%t8 #n &#' )#e18 '% f#"m / e'ta* #'&ed. (e urged the .ommittee to be Ogreed and have the democratic culture and the democratic structures as wellO. D...E

 61. Most of our witnesses, therefore, felt that serious consideration should be given to legislation on the prerogative. This is new constitutional territor , but it is being explored with increasing and welcome vigour.

ScrutiniAed b #arliament must not undul hamper the governmental operation, re:uire govt to list the prerogative power and considered b (ouse committee instead of what did not covered b Act abolish at itself The options for legislation 73. /e do not underestimate the siAe and delicac of the tas*. T&e !"e"%+at#)e %ffe"' mu$&5 needed f e(#*# #t/ t% +%)e"nment and is a well)established part of the constitution. M#n#'te"' need e(e$ut#)e !%1e"', >,,, ? and '%me %f t&%'e t&#n+' &a)e t% *e d%ne 3u#$2 / #n a $%m! e( and dan+e"%u' 1%" d. It 1%u d8 t&e"ef%"e8 *e a*'u"d t% 'u++e't t&at t&e !"e"%+at#)e '&%u d *e a*% #'&ed a' an &#'t%"#$a ana$&"%n#'m and not be replaced. Pa" #amenta"/ '$"ut#n/ %f !"e"%+at#)e !%1e"' mu't n%t undu / &am!e" t&e %!e"at#%n %f

+%)e"nment, and indeed of #arliament itself. 70. "ut in the last ear or so there have been a number of practical proposals for reform, which have ta*en the debate on from the generalised 0113s expressions of concern. D...E 7%. The debate has now reached the Upper (ouse in the practical form of a "ill promoted b 9ord 9ester Dthe ?xecutive #owers and .ivil Service "illE. #rofessor $odne "raAier, the specialist adviser to this in:uir , has also put forward proposals for comprehensive legislation. (is paper containing a draft "ill +which owes much to the "ill produced b 9ord 9ester, is at Appendix 0. !t is a ma<or contribution to the debate on the prerogative. 7&. P"%fe''%" B"a7#e" %ut #ne' t1% !%''#* e a!!"%a$&e' t% e+#' at#%n. D... E he describes an Act

that would contain a ;'un'et $ au'e; for outmoded powers. !t would state that Oan/ !"e5 "%+at#)e !%1e"' 1&#$& 1e"e n%t e(!"e'' / $%nf#"med b subse:uent primar legislation b a date '!e$#f#ed #n t&e a$t 1%u d *e a*% #'&ed@, 76. 9i*e #rofessor "raAier, 1e a"e n%t att"a$ted t% t&#' e(t"eme %!t#%n, *e$au'e #t "un' t&e "#'2 %f ea)#n+ M#n#'te"' 1#t&%ut #m!%"tant !%1e"' at t#me' 1&en u"+ent a$t#%n #' "e3u#"ed, D... E "ecause there would be a deadline for enacting the legislation, mista*es could be made which could have far) reaching conse:uences for the wor*ings of government. 77. The a te"nat#)e %!t#%n for prerogative reform, set out in #rofessor "raAierIs draft "ill, is both m%"e m%de't and m%"e !"a$t#$a ,

 !t would "e3u#"e +%)e"nment t% #'t t&e !"e"%+at#)e !%1e"' e(e"$#'ed */ M#n#'te"' 1#t&#n '#( m%nt&' %f t&e A$t;' !a''#n+. The list would then be $%n'#de"ed */ a $%mm#ttee +probabl a <oint committee of both (ouses, and a!!"%!"#ate e+#' at#%n 1%u d *e f"amed t% !ut #n ! a$e 'tatut%"/ 'afe+ua"d' where these are re:uired. !t does not envisage that such safeguards will be needed in ever area where the prerogative is used.

Some area need to be legislate as soon as possible such as militar power, treat , passport issue, a mere convention is not enough PASC9 7B. In a num*e" %f a"ea', and without pre<udice to the case for a general act which would en'u"e t&at M#n#'te"' +a)e Pa" #ament #nf%"mat#%n a*%ut t&e#" !"e"%+at#)e !%1e"', '%me '!e$#f#$ ea" / e+#' at#)e a$t#%n need' t% *e ta2en, P"%fe''%" B"a7#e";' d"aft B# ma2e' !"%)#'#%n f%" t&#'8 #n t&"ee '!e$#f#$ a"ea'Nt&e de$#'#%n' %n m# #ta"/ $%nf #$t8 t"eat#e' and !a''!%"t', T&e"e a"e 't"%n+ a"+ument' #n fa)%u" %f ma2#n+ '!e$#a !"%)#'#%n f%" a t&"ee, 72. !n particular, we *e #e)e t&at an/ de$#'#%n t% en+a+e #n a"med $%nf #$t '&%u d *e a!!"%)ed */ Pa" #ament, if not before militar action then as soon as possible afterwards.

 In t&e'e m%'t 'e"#%u' %f $a'e', the de$#'#%n 1&et&e" %" n%t t% $%n'u t Pa" #ament '&%u d ne)e" *e de!endent %n t&e +ene"%'#t/ %" +%%d 1# %f +%)e"nment. A me"e $%n)ent#%n #' n%t en%u+& when lives are at sta*e. The increasing fre:uenc of conflict in recent ears is proof of the importance of ensuring that, when the countr ta*es militar action, #arliament supports the government in its decision. #rofessor "raAier also ma*es a powerful case for similar special re:uirements for earl action on decisions on treaties and passports, and we commend it to the government.

=ovt should not have imprecise power, #arliament have right to *now, it cannot be sufficient account if #arliament onl get to *now after the action is done #AS.8 71. A ma<or argument in favour of the approach suggested b #rofessor "raAier is that #arliament should have a right to *now what powers are being exercised b Ministers. As #rofessor "raAier sa s, in setting out an important principle, OM#n#'te"' '&%u d n%t &a)e #m!"e$#'e !%1e"';;, Although we have received from the =overnment a paper which contains a list of the prerogative powers +which deliberatel does not attempt to be exhaustive, this is no substitute for full reporting to #arliament. Above all, we believe that t&e"e $an *e n% effe$t#)e a$$%unta*# #t/ 1#t&%ut fu #nf%"mat#%n,

 Be$au'e Pa" #ament d%e' n%t 2n%1 1&at M#n#'te"' a"e em!%1e"ed t% d% unt# t&e/ &a)e d%ne #t8 Pa" #ament $ann%t !"%!e" / &% d +%)e"nment t% a$$%unt,

Unacceptable to #arliamentMpeople DunconstitutionalE when minister exercise the power without approval b #arliament B3. D... TEhe =overnment should initiate before the end of the current session a public consultation exercise on Ministerial prerogative powers. This should contain proposals for legislation to provide +"eate" !a" #amenta"/ $%nt"% %)e" a t&e e(e$ut#)e !%1e"' en6%/ed */ M#n#'te"' unde" t&e "%/a !"e"%+at#)e. This exercise should also include specific proposals for ensuring full parliamentar scrutin of the following Ministerial prerogative actions8 decisions on armed conflict( the conclusion and ratification of treaties( the issue and revocation of passports.

 B0. This is unfinished constitutional business. The !"e"%+at#)e &a' a %1ed !%1e"' t% m%)e f"%m M%na"$& t% M#n#'te"' 1#t&%ut Pa" #ament having a sa in how the are exercised. T&#' '&%u d n% %n+e" *e a$$e!ta* e t% Pa" #ament %" t&e !e%! e. We &a)e '&%1n &%1 t&e'e !%1e"' $an *e+#n t% *e $%n't#tut#%na #'ed, and in particular how certain *e powers can be anchored in the consent of #arliament for their exercise. !t is now time for this unfinished business to be completed.

C%mmenta"/8 ) #ragmatism ma not so enough while comprehensive not so practical as well, specific area needed to be legislate The #AS. s Taming the #rerogative report helped to frame the reform agenda. F#"'t, it 't"en+t&ened t&e $a'e f%" a m%)e a1a/ f"%m t&e !"a+mat#'m that has t pified the approach to reform in the past. Second, #t !"e'ented a $%+ent $a'e f%" d"a1#n+ a d#'t#n$t#%n *et1een e(e$ut#)e !"e"%+at#)e' #n +ene"a +which might be reformed b using generaliAed legislation of the t pe suggested b 9ord 9ester and #rofessor "raAier, and '!e$#a '#tuat#%n' t&at +#)e "#'e t% !a"t#$u a" d#ff#$u t#e'8 such as the decision to deploy armed forces abroad +often referred to as war power decisions-,.

CASE STUDY9 DEPLOYMENT OF BRITISH ARMED FORCES ABROAD G t/!e %f "e$%mmended "ef%"m9 e+#' at#%n %" ne1 $%n)ent#%n t% $%n'u t Pa" #ament Fa# ed #n t&e end8 *ut %n / 2n%1 t&e !"%$e'' and #''ue' I''ue'9 $%m!"%m#'e t&e %!e"at#%na and m%"a e %f a"med f%"$ed

A. INTRODUCTION5 only brief every point in this section will e!plained in ne!t sections .ontroversial, ris* of national securit of declare war This section of the chapter is concerned with %ne %f t&e m%'t #m!%"tant8 and !%tent#a / $%nt"%)e"'#a 8 de$#'#%n' t&at +%)e"nment $an ma2e. As well as !%tent#a / "e'u t#n+ #n deat& and #n6u"/ t% '% d#e"' and $#)# #an', deplo ments $a""/ a &u+e f#nan$#a $%'t and "#'2' t% nat#%na 'e$u"#t/. !n answer to in:uiries from the (ouse of 9ords .onstitution .ommittee, the Ministr of 5efence stated that, between 0110 and %337, there had been %)e" n#net/ de! %/ment' %f B"#t#'& a"med f%"$e' a*"%adNt&e ma6%" %ne' "e at#n+ t% I"a3 <#n C99C and GHHF=8 0%'%)%8 S#e""a Le%ne8 and Af+&an#'tan,

UK does not exercise prerogative to declare war, and development of international law war as redundant /hen deplo ing armed forces, t&e Un#ted 0#n+d%m d%e' n%t e(e"$#'e a !"e"%+at#)e !%1e" -t% de$ a"e 1a"., (ouse of 9ords .onstitution .ommittee8 The Un#ted 0#n+d%m &a' made n% de$ a"at#%n %f 1a" '#n$e t&at a+a#n't S#am <m%de"n T&a# and= #n C9LG, and #t #' un #2e / t&at t&e"e 1# e)e" *e an%t&e". De)e %!ment' #n #nte"nat#%na a1 since 0167, notabl the United >ations +U>, .harter, including its !"%&#*#t#%n %n t&e t&"eat %" u'e %f f%"$e #n #nte"nat#%na "e at#%n'8 ma well &a)e made t&e de$ a"at#%n %f 1a" "edundant as a formal international legal instrument D... E

Statute vs convention :uestion The de*ate' %)e" t&#' !"e"%+at#)e !%1e" raise a number of general and specific :uestions about the nature of reform. Re+a"d#n+ t&e *e't a!!"%a$& to reform two :uestions recur, as follows. o !n the context of deplo ment decisions, 1&at a"e t&e ad)anta+e' and d#'ad)anta+e' %f !a" #amenta"/ #n)% )ement; o /hat are the me"#t' and d"a1*a$2' %f *a'#n+ "ef%"m %n 'tatute a' %!!%'ed t% $%n)ent#%n; !n this context, t&e'e a"e n%t a"$ane 3ue't#%n' %f te$&n#$a deta# . T&e/ matte" n%t %n / t% a1/e"' and e+a t&e%"#'t'8 *ut a '% t% t&%'e !e"f%"m#n+ !"a$t#$a ta'2'8

#n$ ud#n+ t% t&e a"med f%"$e' %n t&e f"%nt #ne, #ower of =ovt from $# o @rom a legal perspective, the following, more basic, :uestions about the nature of this prerogative power ma be as*ed. o @rom where does the government derive legal authorit to send armed forces abroad; o 5oes the law specif the circumstances in which this decision can be ta*en; o 5oes the law re:uire a certain procedure to be followed b government before sending armed forces abroad; o Must #arliament agree to the decision; o .an those who are affected :uestion the decision in the courts; @or now, a short answer ma be given to each of these :uestions +the answers will be developed later in the chapter,.

 T&e !%1e" %f t&e e(e$ut#)e t% 'end a"med f%"$e' a*"%ad #' a !"e"%+at#)e !%1e"Nonce exercised b the monarch personall , *ut n%1 e(e"$#'ed */ m#n#'te"',

5omestic .ourt normall hold the matter as non)<ustifiable M#n#'te"' mu't e(e"$#'e !"e"%+at#)e !%1e"' a1fu /, although, as we shall see, the courts are li*el to hold that the exercise of executive discretion #n t&#' $%nte(t #' n%n56u't#$#a* e, De$#'#%n' %f t&e Un#ted 0#n+d%m and other states to go to war mu't *e a1fu #n #nte"5nat#%na a1, Inte"nat#%na a1 !e"m#t' t&e u'e %f f%"$e in onl three situations8 f%" 'e f5 defen$eH if authoriAed b the Securit .ouncil acting under .hapter C!! of the U> .harter exceptionall H or +arguabl , to a)e"t an %)e"1&e m#n+ &uman#ta"#an $ata't"%!&e.

 D%me't#$ $%u"t' 1# n%t dete"m#ne whether actions are lawful a' a matte" %f #nte"nat#%na a19 t&e/ a"e $%n$e"ned %n / 1#t& 1&at U0 d%me't#$ a1 re:uires. >onetheless, arguments that UK law must reflect international law are increasingl made in domestic courts +see, for exam)ple, the arguments emplo ed in <$ v 4ones and ors, on p. &B&,.

>o legal procedureMobligation to deplo troop, onl convention There is n% 'et e+a !"%$edu"e t&at mu't *e f% %1ed */ m#n#'te"' when de$#d#n+ t% de! %/ a"med f%"$e' a*"%ad. The +%)e"nment #' unde" n% e+a %* #+at#%n t% %*ta#n Pa" #ament.' $%n'ent. >onetheless, the government sa s that, */ $%n)ent#%n8 Pa" #ament ma/ de*ate t&e'e de$#'#%n' and indicate its agreement or disagreement8 as we shall see, whether in fact this convention exists 'and if it does, what its precise scope is'remains somewhat contentious.

#arliament involvement in debate issue St"en+t&en#n+ Pa" #ament' #n)% )ement has been a central concern of reformers. As we shall see, however, deciding on what basis, when, and how #arliament should be involved "a#'e' a num*e" %f d#ff#$u t #''ue'. @or example, should #arliament be able to debate a decision to send armed forces abroad before the are sent or onl afterwards; !f #arliament is to be involved before armed forces are sent, should #arliament have a veto; /hat if the situation on the ground re:uires urgent or secret action; !f #arliament is involved onl after armed forces have been committed, what substantive role can it pla if it is limited to dis)cussing decisions that have alread been made;

B,THE ROLE OF THE COURTS Ministers and senior armed forces stated that litigation will reduce the morale and effectiveness of operation .oncern about the possible involvement of the courts has been one of the most important considerations in the debates about reform of the war powers prerogative. M#n#'te"' and '%me 'en#%" mem*e"' of the a"med f%"$e' argue that if reform further %!en' t&e 1a/ t% #t#+at#%n, t&#' 1# unde"m#ne m%"a e am%n+ 'e")#$e !e"'%nne and #m!#n+e u!%n %!e"at#%na effe$t#)ene''.

>ormall considered as non) <ustifiable issue b court, however, recent development ma not alwa s ma*e it immune from legal challenge .an people affected b decisions to deplo armed forces overseas :uestion the legalit of those decisions The short answer seems to be that even were the courts to accept that claimants have standing- to ma*e a <udicial review claim, t&e de$#'#%n' t&em'e )e' a"e #2e / t% *e $%n'#de"ed n%n56u't#$#a* e +see 9ord (offmann in R v 4ones and ors, considered on p. &B&,. (aving said this, given t&e "e$ent e(!an'#%n #n t&e '$%!e %f 6ud#$#a "e)#e18 de)e %!ment' #n &uman "#+&t' a18 and t&e +"%1#n+ #nf uen$e %f #nte"nat#%na a1 on domestic law, #t $ann%t *e a''umed t&at t&#' #mmun#t/ f"%m e+a $&a en+e #'8 %" 1# "ema#n8 t%ta ,

>o law has changed, deplo ment of troop are within discretion of .rown, not within court-s power to decide !t is generall said that decisions relating to the deplo ment of armed forces cannot be reviewed b the courts because the are solel for the executive. .handler v 5irector of #ublic #rosecutions76 is a leading case. Members of the .ommittee of 033 supported the aims of the .ampaign for >uclear 5isarmament +.>5, b non)violent demonstrations of civil disobeKdience. The .ommittee organiAed a demonstration at an airfield used b the US air force. !t was planned that some demonstrators would sit outside the entrance to the base, while others would get into the airfield and sit in front of aircraft so as to prevent them from ta*King off. !n the event, man demonstrators arrived, but the were stopped from entering the airfield. The were prosecuted and found guilt of conspirac to commit a breach of s. 0 of the Ffficial Secrets Act 0100, and were sentenced to terms of imprisonment. The appealed to the .ourt of Appeal and the (ouse of 9ords, essentiall arguing that the had not acted in a

manner that was pre<udicial to the safet or interests of the State in section 0 of the Ffficial Secrets Act 010C. Fn the contrar , the contended, their campaign against nuclear weapons benefited the interests of the state. Unsurprisingl this argument did not succeed. The <udges said that it was for government and not courts or <uries to decide what is in the best interest of the state. 9ord 5evlins observations in .handler are referred to in the extract from the more recent decision of the (ouse of 9ords in $v 4ones and ors, on p. &B&. The following extract is from 9ord $eid-s <udgmentH he notes that the term state7 does not mean the government7 or the executive7.

C&and e" ) T&e D#"e$t%" %f Pu* #$ P"%'e$ut#%n' >C9ML? L%"d Re#d /ho, then is to determine what is and what is not pre<udicial to the safet and interests of the State; The :uestion more fre:uentl arises as to what is or is not in the public interest. ! do not subscribe to the view that the =overnment or a Minister must alwa s or even as a general rule have the last word about that. "ut here we are dealing with a ver special matter D... E !t is in m opinion clear that the d#'!%'#t#%n and a"mament %f t&e a"med f%"$e' a"e and f%" $entu"#e' &a)e *een 1#t&#n t&e e($ u'#)e d#'$"et#%n %f t&e C"%1n and that n% %ne $an 'ee2 a e+a "emed/ on the ground that such discretion has been wrongl exercised. D... E

 An one is entitled, in or out of #arliament, to urge that polic regarding the armed forces should be changedH *ut unt# #t #' $&an+ed8 %n a $&an+e %f G%)e"nment %" %t&e"1#'e8 n% %ne #' ent#t ed t% $&a en+e #t #n $%u"t,

5 C%mmenta"/9 >N%t "e e)ant t% !"e"%+at#)e *ut "e ate t% 1a" #''ue? >ormall court will interpret whether the e+#' at#)e !%1e" >n%t !"e"%+at#)e? is properl applied b executive, but in this matter Ddeplo ment of armE, court leave it to executive !n this case, the .ourt was interpreting the words used b #arliament in the Ffficial Secrets Act 0100. #arliament had used the expression pre<udicial to the interests of the safet or interests of the state. 4ud+e' 1# n%"ma / dete"m#ne 1&et&e" e+#' at#)e !"%)#'#%n' &a)e *een !"%!e" / #nte"!"eted and a!! #ed */ m#n#'te"'. N%net&e e''8 #n t&#' $a'e, the H%u'e %f L%"d' &e d t&at #t 1a' f%" +%)e"nment and n%t f%" 6ud+e' %" 6u"#e' t% de$#de 1&at 1a' !"e6ud#$#a t% t&e'e #nte"e't',

 That the H%u'e t%%2 t&#' &and'5%ff a!!"%a$&8 e)en t&%u+& #t 1a' dea #n+ 1#t& 'tatut%"/ !%1e"'8 should be borne in mind when, later in the chapter, we consider fears that removing or diminishing prerogative powers and rooting them in statute will lead to undesirable litigation.

Ne19 .ourt can decide whether the decision fall out the discretion power Din this case is decision made under power of declaration of warE, but if go to war is to defend realm and conduct foreign affair, then it is within the power R ) 4%ne' and %"' #' a m%"e "e$ent de$#'#%n %f t&e H%u'e %f L%"d'. The facts were similar to those in .handler v The 5irector of #ublic #rosecutions. 5emonstrators who opposed the !ra: war bro*e into air force and other militar establishments, and tried to stop planes, tan*s, and other items of militar e:uipment being sent to !ra:. /hen prosecuted, the argued in their defence that their actions were legall <ustified because the were attempting to impede, obstruct, or disrupt the commission b the UK and US governments of the crime of aggres)sion, which the said was established as a crime in customar international law, and which forms part of domestic criminal law in ?ngland and /ales. Their appeals against conviction were dismissed b the .ourt of Appeal and b a

unanimous decision of the (ouse of 9ords. !n the following extract, 9ord (offmann considers the problems facing a domestic court in determining whether the UK government was committing the crime of aggression in conducting the war in !ra:. The first difficult is the theoretical one of how to determine whether the state itself, of which the courts form a part, has acted unlawfull . !n the extract, he considers the second practical difficult .

R ) 4%ne' and %"' L%"d H%ffmann9 DB7E D... E Secondl , there is the practical difficult that the ma*ing of war and peace and the disposition of the armed forces has alwa s been regarded as a discretionar power of the .rown into the exercise of which the courts will not en:uire. ! sa that it is a practical difficult because, as 9ord 5evlin pointed out in .handler v 5## D01B6E A. 2B&, G3B)G0%, the reason wh the courts cannot en:uire is not the technicalit that the powers form part of the ro al preKrogative. 9ord 5evlinIs view that the !"e"%+at#)e %"#+#n %f t&e !%1e"' d#d n%t #n #t'e f e($ ude 6ud#$#a $%nt"% 1a' aff#"med */ t&e H%u'e #n GCHD $a'e, !t is because of the discretionar nature of the power itself. As 9ord 5evlin said +atpp G31)G03,8 I/hen 9ord #ar*er of /addington in The Samora D010BE % A. 22,032 said that Those who are responsible for the

national securit must be the sole <udges of what the national securit re:uires,I he was not, ! thin*, la ing down an special constituKtional doctrine about the powers of the .rown in relation to national securit . (e was simpl stating the reason wh the court should declare those powers to be discretionar .I DBBE It #' %f $%u"'e %!en t% t&e $%u"t t% 'a/ t&at t&e a$t #n 3ue't#%n fa ' 1&% / %ut'#de t&e am*#t %f t&e d#'$"et#%na"/ !%1e". But t&at #' n%t t&e $a'e &e"e, The de$#'#%n t% +% t% 1a"8 whether one thin s it was right or wrong, fe '3ua"e / 1#t&#n t&e d#'$"et#%na"/ !%1e"' %f t&e C"%1n t% defend t&e "ea m and $%ndu$t #t' f%"e#+n affa#"'.

C,THE CONVENTION THAT PARLIAMENT BE INVOLVED .onsent from #arliament needed before declare war unless emergenc situation !n .hapter 0, we examined the characteristics of $%n't#tut#%na $%n)ent#%n' a' a '%u"$e %f "u e +%)e"n#n+ t&e *e&a)#%u" %f !u* #$ *%d#e', noting that the are e'!e$#a / #m!%"tant in regulating &%1 !"e"%+at#)e !%1e"' a"e e(e"$#'ed, !n the following extract, 4ac* Straw, then 9eader of the (ouse, explained to the .ommons the governments view of what constitu)tional conventions govern decisions to deplo armed forces, given that in each of the war situations prior to !ra:, the government had reported regularl to the (ouse of .ommons in the form of statements and the issues were often debated.

M" 4a$2 St"a1 MP9 There is no :uestion but that Ministers at that time recognised the need to gain'in one wa or another 'the consent of #arliament. D...E /hen, in %33%, militar action against !ra: loomed as a possibilit , man inside and outside this (ouse demanded that an decision be sub<ect to a substantive resolution b this place. ! pa tribute to m late and much)missed friend $obin .oo* for the wa in which, as the then 9eader of the (ouse, he faithfull represented in government this (ouseIs views. ! am glad to have wor*ed with him on this, and the .abinet unanimousl agreed his propositions. !n the event, alongside man statements, four full)length debates on !ra: were held in this place between September %33% and March %33&. T&"ee de*ate' 1e"e %n 'u*'tant#)e m%t#%n'8 in >ovember %33%H in @ebruar %33&H and then, of course, #n t&e $"u$#a dete"m#n#n+ de*ate #n Ma"$& GHHF8 1&#$& $%nf#"med t&e de$#'#%n f%" m# #ta"/ a$t#%n */ a ma6%"#t/ of %B&.D E

 T&at 'et %f de*ate' %n 'u*'tant#)e m%t#%n' e'ta* #'&ed a $ ea" !"e$edent f%" t&e futu"e from which I d% n%t *e #e)e t&e"e 1# *e8 %" $%u d e)e" *e8 a de!a"tu"e, !ndeed, as m right hon. @riend the #rime Minister put it8 The fact of the matter is that ! cannot conceive of a situation in which a =overnment D... E is going to go to war'e($e!t #n $#"$um'tan$e' 1&e"e m# #ta"# / f%" t&e 'e$u"#t/ %f t&e $%unt"/ #t need' t% a$t #mmed#ate /N1#t&%ut a fu Pa" #amenta"/ de*ate;,

D, PROS AND CONS OF PARLIAMENTARY INVOLVEMENT >o ever one support parliamentar debate on militar issue /hile the main thrust of the reform agenda has been to strengthen #arliaments role in relation to the prerogative in general, and war powers decisions in particular, n%t e)e"/%ne &a' ent&u'#a't#$a / 'u!!%"ted t&e #dea %f +"eate" !a" #amenta"/ #n)% )ement. S%me 1#t&#n +%)e"nment and t&e a"med f%"$e'8 #n !a"t#$u a"8 &a)e a"+ued a+a#n't #t.

Summar of the pro and con The case for ensuring full parliamentar scrutin - of decisions on armed conflict was considered b the H%u'e %f L%"d' C%n't#tut#%n C%mm#ttee during its in:uir into the use of the prerogative. The following extract from the .ommittee-s report 'umma"#7e' 1&at t&e C%mm#ttee 1a' t% d */ 1#tne''e'. As we might expect, views varied, with some 1#tne''e' 't"e''#n+ t&e *enef#t' and %t&e"' 't"e''#n+ t&e d"a1*a$2'.

Adv. 0) !ncrease legitimac ) govt action authoriAed b #arliament

 H%u'e %f L%"d' C%n't#tut#%n C%mm#ttee, /aging /ar8 #arliaments $ole and $esponsibilit , 07th $eport, Session %337)3B, (9 #aper %&B)! +footnotes omitted, Le+#t#ma$/9 '%u"$e and e(e"$#'e %f t&e de! %/ment !%1e" &2. A *e concern over the current deplo ment power is one of constitutional principle8 that #arliament should be the source of the =overnmentIs power and not the .rown. 9ord 9ester regarded the *e :uestion about the deplo ment power to be8 Oshould it be #arliament that is Sovereign, to whom the executive is constitutionall accountable, or should it be the Monarch;O

 (e considered it anomalous for the .rown to be able to exercise public powers without parliamentar authorit , on the basis of mediaeval notions of *ingship and through .rown Ministers. Mr Sebastian #a ne agreed8 OPa" #ament '&%u d *e t&e '%u"$e %f G%)e"nment;' !%1e",O a position also ta*en b #rofessor Mc?ldowne . !n oral evidence, #rofessor "ell noted that the !"#n$#! e %f t&e "u e %f a18 %n 1&#$& +%)e"nment' e(e"$#'e !%1e" in most constitutions in ?urope, mean' t&at t&e"e &a' t% *e a '!e$#f#$ aut&%"#'at#%n t% e(e"$#'e !%1e"'. Therefore, Ohaving a rule about aut&%"#'#n+ t&e e(e"$#'e %f !%1e"' #' 6u't a natu"a $%n'e3uen$e %f t&at !"#n$#! e@,

 &G. A number of witnesses considered that the extremel serious nature of the decision to deplo armed forces'involving possible loss of life and national conse:uences' meant that it should necessaril be underta*en, or approved, b #arliament D... E

Adv. %8 !ncreased accountabilit of decision)ma*ing) govt declare war less democratic than Monarch declare war as in the past Monarch need support from #arliament Dwar fareE but now it is #arliamentar govt Dgovt has ma<orit in #arliamentE, and mere convention not sufficient as no enough information present to #arliament 63. Several witnesses advocated greater parliamentar involvement on the grounds that the current deplo ment power lac*s sufficient accountabilit or restraint. D...E it could be said that the abilit of United Kingdom +%)e"nment' t% u'e t&e "%/a !"e"%+at#)e !%1e" t% en+a+e #n $%nf #$t #' !a"ad%(#$a / e'' dem%$"at#$ t&an 1&en t&e M%na"$& e(e"$#'ed t&e !%1e" !e"'%na /. !n the past, the M%na"$&;' !%1e" t% ma2e 1a" and de! %/ a"med f%"$e' 1a' $&e$2ed */ Pa" #ament;' $%nt"% %f t&e "e'%u"$e' ne$e''a"/ for the exercise of the power.

 N%18 t&e G%)e"nment %f t&e da/ n%t %n / e(e"$#'e' t&e "%/a !"e"%+at#)e *ut a '% +ene"a / $%nt"% ' t&e H%u'e %f C%mm%n' and therefore its power over finance 'through parliamentar ma<orities, use of the /hips and control over the parliamentar timetable'thereb undermining this historical bra*e on executive power. 60. " contrast, the G%)e"nment #n'#'t' D...E that the $u""ent !"%$e'' #' 'uff#$#ent8 O!n the United Kingdom, ministers are accountable to #arliament for all their actions. Therefore #arliament is alwa s in a position to hold the executive to account in an wa it sees fitO. D...E 6%. (owever, '%me 1#tne''e' 3ue't#%ned t&e effe$t#)ene'' %f t&e'e a$$%unta*# #t/ measures in practice. The $t (on Kenneth .lar*e M# considered that parliamentar discussion preceding both the @al*lands and Kosovo engagements curtailed real accountabilit 8OT thin*

on both occasions the =overnment, when it had parliamentar debates, put down motions on the ad<ournment precisel to ma*e sure that there was no substantive vote ta*ing place at an stage. T&e 1&% e t&#n+ 1a' u'ed m%"e a' a !"%$e'' %f e(! anat#%n and !e"'ua'#%n t&an #t 1a' %f +#)#n+ Pa" #ament a "ea 1a/ t% $&a en+e t&e de$#'#%n and t% *e a$$%unta* e fu /8 which ! thin* means throwing down before #arliament the opportunit to re<ect this polic if it wants to before an militar action ta*es place.O D... E 6&. This view was echoed in other evidence. #rofessor 4ohn Mc?ldowne , for example, told us that Pa" #ament "e #e' %n t&e G%)e"nment t% !"%)#de 'uff#$#ent #nf%"mat#%n and allow debate. (e thought the lessons of the !ra: war were that the =overnment could set the agenda, identif the issues and provide its own publicit on the need for militar action and its subse:uent outcome, ea)#n+ Pa" #ament "e at#)e / 1ea2ened,

 5emocratic Audit considered the current s stem of Ministerial a$$%unta*# #t/ t% Pa" #ament t% *e t%% *"%ad8 "et"%'!e$t#)e and )u ne"a* e t% e(e$ut#)e !%1e" t% *e an effe$t#)e $&e$2 %n t&e P"#me M#n#'te";' u'e %f t&e !"e"%+at#)e, Accountabilit was also described as problematic because, in line with all prerogative power, it is Ode!endent %n t&e +%%d1# %f t&e e(e$ut#)e %" t&e e(#'ten$e %f a $%n)ent#%n t&at Pa" #ament '&%u d *e #nf%"med@. 5r Siegler told us that !a" #ament' $%u d *e ma"+#na #'ed */ a$2 %f #nf%"mat#%n +at an rate in time to influence their decisions, or b being confronted b faits accomplis8 Othis is *nown as the de)parliamentarisation of decision)ma*ingO.

Adv. &) O"etterO decision)ma*ing if considered b both (ouses but not onl decided b #M in vacuum 66. Fther witnesses proposed that a change to the current deplo ment power was necessar because the &#+& / !e"'%na #'ed natu"e %f t&e "%/a !"e"%+at#)e !%1e" ead' t% !%%" !"%$e''e' %f de$#'#%n5 ma2#n+. .lare Short told us that because the "%/a !"e"%+at#)e !%1e" #' e(e"$#'ed */ t&e P"#me M#n#'te" a %neN1#t&%ut an/ f%"ma "e3u#"ement f%" '$"ut#n/ %" d#'$u''#%n'this can ead t% de$#'#%n' *e#n+ ta2en #n a @)a$uum@,

 A re:uirement for '$"ut#n/ */ Pa" #ament, she argued, m#+&t ead t% *ette" $%n'#de"ed and !"e!a"ed de$#'#%n'8 O!f an #rime Minister *new that he had to bring before the (ouse of .ommons'and ma be both (ouses D...E a full statement of wh and the anal sis, ! thin* that means the whole issue would have to be better scrutinised, better thought through, better prepared and the decision would be better madeO. D... E

Adv. 6) !ncrease in militar morale if more legitimate and legal <ustification 67. Several witnesses suggested that more legitimate decision)ma*ing would result in +"eate" 'u!!%"t f%" de! %/ment de$#'#%n' among the public, senior militar figures and serving troops. This opinion was evinced b a number of retired leaders of the Armed @orces. =eneral Sir Michael $ose told us8 O It 1%u d *e en%"m%u' / ad)anta+e%u' t% mem*e"' %f t&e a"med f%"$e' f%" 'u$& a f%"ma and e+a 6u't#f#$at#%n t% *e made */ t&e +%)e"nment *ef%"e ente"#n+ #nt% a"med $%nf #$t, There can be n% m%"e de*# #tat#n+ effe$t %n t&e m%"a e %f mem*e"' of the armed forces for them t% 2n%1 t&at t&e#" $%unt"/ d%e' n%t 'u!!%"t t&e m#''#%n or that the case for war #' *a'ed %n

d%u*tfu m%"a %" e+a a"+ument', A proper <ustification should alwa s be a sine :ua non for engaging in conflict. A formal re:uirement for prior parliamentar authorisation for entering into conflict situations can therefore onl be of benefit to members of the armed forces.O 6B. 9ord King also believed Over strongl indeedO that it was important to the morale of the Armed @orces to *now that the countr is reall behind them. @ield Marshal 9ord "ramall considered that the A"med F%"$e' 1%u d #2e t% 2n%1 t&"ee t&#n+' *ef%"e *e#n+ $%mm#tted to a large scale militar operationH o that the had the 'u!!%"t %f t&e $%unt"/H o that the had the 'u!!%"t %f Pa" #ament and o that what the had been as*ed to do was e+a . D... E

5isadv 0) Success of Militar based on secrec , flexible, open litigation undermine the effectiveness of operation 6G. A range of arguments against increasing parliamentar involvement in the decision to deplo armed forces was outlined to us. !n summar , the related to concerns about the possible detrimental effect on operational effectiveness and coalition)wor*ingH the importance of maintaining executive authorit over the decisionH the difficulties #arliament might have in reaching an informed decisionH the legal impact if legislation were put in place and the detrimental effect this ma have on Armed @orces morale. 61. Several witnesses regarded operational efficienc to be the 2e/ *enef#t %f t&e !"e'ent de! %/ment a""an+ement', and one which could be unde"m#ned */ +"eate" !a" #amenta"/ #n)% )ement #n t&e !"%$e''.

 @ield Marshal 9ord Cincent of .oleshill said that the 'u$$e'' %f man/ m# #ta"/ %!e"at#%n' "e #e' %n t&e need t% ma#nta#n @'e$"e$/8 'e$u"#t/ and 'u"!"#'e@, Admiral 9ord "o ce summarised his concern8 OD...E all m experience over conducting or being involved with the conduct of several wars over the last five or six ears or so is that those a #e' 1&% +% t&"%u+& t&e !a" #amenta"/ !"%$e'' a"e f"an2 / #n m/ )#e1 n%t a' %!e"at#%na / effe$t#)e a' t&%'e 1&% d% n%t >,,,?@

 9ord "o ce told us that an %!en de*ate in #arliament on deplo ments $%u d unde"m#ne '#( 2e/ a'!e$t' %f A"med F%"$e' %!e"at#%n'8 o e'$a at#n+ t&e $%nf #$t t&"%u+& "&et%"#$E o '2e1#n+ de$#'#%n' t&"%u+& a$$e'' t% %n / #m#ted #nf%"mat#%n +'#n$e a +"eat dea %f #nte #+en$e $ann%t *e "e)ea ed in public,H o o $%m!"%m#'#n+ %!e"at#%na 'e$u"#t/ */ !u* #$ / d#'$u''#n+ t%% mu$& deta# prior to actionH o o #m!a#"#n+ f e(#*# #t/ %f %!e"at#%na "e'!%n'e #f !a" #amenta"/ a!!"%)a #' "e3u#"ed f%" e)e"/ $&an+e of the situation on the groundH o unde"m#n#n+ $ a"#t/ a*%ut t&e t#meta* e f%" !"e!a"at#%n8 if it is contingent on a parliamentar debate or voteH

o "em%)#n+ t&e a*# #t/ %f Un#ted 0#n+d%m F%"$e' t% &a)e @'t"ate+#$ !%#'e@ */ +#)#n+ t&e %!!%nent ea" / n%t#$e %f #ntent,

5isadv %8 .urrent unit able to ma*e :uic* decision Dif debate, then have to wait the result from #arliamentE 70. Mr !ngram told us that in his experience coalition partners #2ed t% 1%"2 1#t& B"#t#'& un#t' *e$au'e t&e $u""ent !"%$e'' +a)e t&e G%)e"nment t&e $a!a$#t/ t% ma2e 3u#$2 de$#'#%n' a*%ut de! %/ment' and t% !"%)#de 1#de mandate' f%" B"#t#'& f%"$e',

5isadv. &) 5eplo arm is executive decision but not #arliament and people view and reaction 7%. /e have heard evidence to suggest that the "e'!%n'#*# #t/ f%" ta2#n+ t&e de$#'#%n t% de! %/ a"med f%"$e' '&%u d )e"/ $ ea" / "e't 1#t& t&e e(e$ut#)e and n%t *e d#$tated */ t&e #mmed#ate )#e1' and "ea$t#%n' %f Pa" #ament %" %f t&e !e%! e. The =overnment has clearl stated that @t&e !%1e" t% de! %/ t"%%!' #' an e(e$ut#)e !%1e", Su$& de$#'#%n' a"e */ t&e#" natu"e m%'t 'u#ta* e f%" t&e e(e$ut#)e t% ta2e;;. #rofessor 5enAa also considered the deci)sion to be essentiall an executive one8 O/hile the government which has ta*en it should be re:uired to explain and <ustif its decision to #arliament and to the people, the decision itself should not be dictated b the immediate views and reactions of #arliament or of the peopleO.

 7&. There was also concern that an increase in the involvement of #arliament might lead to attempts to pre)empt operational decisions. D... E

5isadv.&) 5ifficulties of informed decision)ma*ing) sensitive information of course cannot be revealed publicl 77. There was broad agreement that it is ne$e''a"/ t% "e't"#$t '%me #nf%"mat#%n #n a !%tent#a de! %/ment '#tuat#%n and an ac*nowledgement that t&#' $%u d $%m!"%m#'e t&e a*# #t/ %f Pa" #ament t% ma2e #nf%"med de$#'#%n' a*%ut a +#)en '#tuat#%n. .lare Short considered that a demand t% !ut 'e$u"#t/ #nf%"mat#%n #n t&e !u* #$ d%ma#n $%u d n%t *e a+"eed t%, *e$au'e #t m#+&t !ut !e%! e;' #)e' #n dan+e", but this could also be Oused as a smo*escreenO. The =overnment told us that8 OThe provision of information to #arliament on an deplo ment will alwa s be constrained b the need not to reveal sensitive information on the wa the armed forces propose to act or the extent or nature of intelligence on the forces the will act against.O D... E

5isadv. 6) 9egal impact of legislation) servicemen will be prosecuted if unlawful while the men will refuse to deplo if perceived it as unlawful !t was feared that #nd#)#dua 'e")#$emen $%u d *e !"%'e$uted in the UK $%u"t' f%" an un a1fu de! %/ment. T&e"e 1a' a '% t&e !%tent#a "#'2 %f 'e")#$emen "efu'#n+ t% %*e/ %"de"' #n "e'!e$t %f an un a1fu de! %/ment. T&e/ 1# 1%nde"ed 1&et&e" a "e3u#"ement f%" !a" #amenta"/ a!!"%)a m#+&t ead t% t"%%!' "efu'#n+ t% %*e/ %"de"' t% #m! ement a de! %/ment t&at t&e/ !e"$e#)ed t% *e un a1fu

5isadv. 7) Undermining morale b the uncertaint relied on #arliament-s approval 71. /hile we have heard evidence to suggest that greater parliamentar involvement in the deplo ment power would improve morale +paragraphs 67)62,, we also heard contrasting evidence to 'u++e't t&at #t m#+&t a$tua / unde"m#ne #t, The 9ord .hancellor and Secretar of State for .onstitutional Affairs told us that an "e't"#$t#%n %n de! %/ment might introduce an Oun!"ed#$ta* e and dama+#n+ e)e %f un$e"ta#nt/@ a' t% t&e e+a #t/ %f t&e a$t#%n' of Armed @orces on the ground. 9ord "o ce told us that the un$e"ta#nt/ t&at "e'u ted f"%m "e /#n+ %n Pa" #ament;' a!!"%)a 1%u d *e *ad f%" m%"a e, Fther concerns hinge on whether #arliament is shown to be unanimousl in favour of action, or whether divisions are exposed D... E

Up to ou, what do thin* which argument is better /eighing the arguments (ad ou been a member of the (ouse of 9ords .onstitution .ommittee, ou would have needed to assess and weigh these arguments, and form a view on whether it was desirable to increase #arliament-s role and, if so, how. 9oo*ing over the arguments, some are based on constitutional principle and others are more practical in nature. (ow are arguments on prinKciple and practice to be weighed against each other; !ncreasing the democratic legitimac of decision)ma*ing is clearl important as a matter of principle, but does it outweigh ris*s to the operational effectiveness of militar campaigns; Another problem that ou would have faced is that of weighing conflicting opinions of experts. @or example, we can see that senior militar figures differed on whether parliamentar involvement would enhance or damage morale within the armed forces. (ow would ou and our fellow committee members *now which of these views is the more li*el to be accurate; /ithout clear evidence, this is a

:uesKtion of <udgement and approach. A cautious person might ta*e a precautionar approach, whereb an ris* to morale should be avoidedH others might be inclined to press ahead with reform despite some ris*s. !t is significant in this context that the 9ord .hancellor and Secretar of State for .onstitutional Affairs argued thatcan restriction on deplo ment might introduce an Uunpre)dictable and damaging level of uncertaint V as to the legalit of the actions of Armed @orces on the ground-. !t is perhaps not surprising to find senior members of the executive arguing in favour of government retaining its discretion, nor perhaps is it surprising to see government ta*ing a precautionar approach to operational concerns'but it is interesting to see how these positions shift as the reform process evolves. @rom our perspective as law ers, another issue of interest concerns what is said about liti)gation and its effects. Several witnesses argue that if #arliament were to become involved' especiall if that involvement were secured b legislation'this would lead to possible arguments in courts on whether deplo ments were lawful

and within the terms of the leg) islation. This, in turn, it is feared, would have adverse effects on morale within the armed forces and reduce operational freedom. The implication is that reform of this nature would have a double whamm - effect8 government would now be accountable both to #arliament and the courts, and the latter might be more significant than the former. As we will see, this concern has been extremel influential in shaping the reforms.

E, RECOMMENDATIONS OF THE CONSTITUTION COMMITTEE The .onstitution .ommittee went on to emphasiAe the d namic nature of the UKs con)stitution, which it li*ened to ca living organism adapting to change as evolutionar circumKstances re:uire-. The constitution, it said, As almost infinitel flexible8 landmar* <udgments or pragmatic political deals can materiall amend the constitution as comprehensivel as primar legislation +para. 12,. The prerogative, rooted as it is in the common law and govKerned b convention, it said, reflects the abilit of the constitution to develop organicall . @or example, the .ommittee noted the change in the approach ta*en b governments when ma*ing militar decisions. (ouse of 9ords .onstitution .ommittee, /aging /ar8 #arliaments $ole and $esponsibilit , 07th $eport, Session %337)3B, (9 #aper %&B)!, para. 1G !n the nineteenth centur governments could'and on occasion did'engage in militar adventures with little or no reference to #arliament. Toda , as the #rime

Minister himself has said, there are unli*el to be an circumstances in which a government could go to war without the support of #arliament. (aving said this, the .ommittee noted that the precise meaning of the term Isupport- is unclear in this context. !t can either refer to the assumed support of #arliament +as when #arliament does not actuall disapprove of government action, or it can mean the express support of #arliament as when parliamentar support is formall given.

$ecommend8 #arliament should involve b based on convention that draw on cross)part support and consensus while re<ect legislation approach Significantl , the C%mm#ttee made t1% $ent"a "e$%mmendat#%n'9 o one 'u*'tant#)e, and o the other "e at#n+ t% met&%d %" !"%$e''. It' 'u*'tant#)e "e$%mmendat#%n 1a' t&at Pa" #ament '&%u d *e #n)% )ed as a matter of right and not onl as a matter of executive largesse . O*)#%u' / #nf uen$ed */ t&%'e 1&% fea"ed t&e ad)e"'e $%n'e3uen$e' of u'#n+ e+#' at#%n to achieve this change, it n%net&e e'' "e$%mmended t&at t&e $&an+e '&%u d *e a$&#e)ed */ u'#n+ $%n)ent#%n "at&e" t&an */ u'#n+ e+#' at#%n,

 (ouse of 9ords .onstitution .ommittee, /aging /ar8 #arliaments $ole and $esponsibilit 07th $eport, Session %337)3B, (9 #aper %&B)! +footnotes omitted, 033. The ma<orit of our witnesses agreed that it is anachronistic, in a parliamentar democKrac , to den #arliament the right to pass <udgement on proposals to use militar force in purKsuit of polic , although there was no consensus on the best means to bring that about. D... E 030. Although there have been exceptions, such as emergencies, recent histor shows that the processes leading up to deplo ments are generall protracted, allowing plent of time not onl to evaluate and plan for the action but to obtain parliamentar support. The fact that it might be inconvenient for the =overnment to see* this support is hardl a <ustification for den ing it. The =overnmentIs preparations have also been conducted under full media coverage, rendering the arguments about securit and secrec more theoretical than real. The =overnment also argues that it is in an case accountable to #arliamentH

but it seems to us that if substance is to be given to the glib cliche that O#arliament can decideO then significant ad<ustment needs to be made to the processes that are emplo ed to enable it to do so. 03%. As for the potential problem of politicisation of militar decision ma*ing, we do not believe that constraints on the deplo ment power will affect the freedoms which militar commanders have and should continue to en<o . /e full ac*nowledge that controvers at home could have a deleterious effect on the morale of the troops in the field and agree the importance of guarding against it, but note that that would be so whatever process was followed. More to the point, we believe strongl that the balance of the argument falls in favour of ensuring that those troops *now that #arliament is behind them rather than be left to speculate. D...E 03&. D... E Fur conclusion is that the exercise of the $o al prerogative b the =overnment to deplo armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war)ma*ing in our %0 st centur democrac . #arliamentIs abilit to challenge the executive must be protected and

strengthened. There is a need to set out more precisel the extent of the =overnmentIs deplo ment powers, and the role #arliament can'and should' pla in their exercise. DThe .ommittee then went on to explain wh it re<ected the use of legislation to secure #arliaments involvement.E 036. D... E @or us, the least persuasive argument is the one for a statutor solution on the lines of the #rivate Members bills that have been introduced in recent ears in both (ouses. /e have not been persuaded that the difficulties of putting the deplo ment power on a statutor basis could easil be overcome, and consider that the problems of the uncertaint generated outweigh an constitutional merits. !n our view, the possibilit 'however remote'of, for example, sub<ecting forces of the .rown to criminal prosecution for actions ta*en in good faith in protecting the national interest is unacceptable. /e also see no merit in legislative architecture which creates the possibilit of <udicial review of =overnment decisions over matters of democratic executive responsibilit . !n addition, the need to provide for Oemer)genc O exceptions would create loopholes that could be

readil exploited b a future admin) istration with ambitions less benign than those to which we are accustomed. 037. >orarewe persuaded b the proposal simpl to transfer the prerogative from the .rown to #arliament, but otherwise leave its exercise to precisel the same discretions as currentl prevail. @or the constitutional purist, it has the attraction of resolving a historical anomal and eroding the prerogative still further. "ut it would substitute a historical anomal with a political one, and signall fail to address the fundamental constitutional issue of parliamentar oversight of the decision)ma*ing process. D$ather than adopting a statutor solution, the .ommittee favoured continuing to use an approach based on convention that draws on cross) part support and consensus.E 03G. D...E !n that spirit, we recommend that there should be a parliamentar convention determining the role #arliament should pla in ma*ing decisions to deplo force or forces outside the United Kingdom to war, intervention in an existing conflict or to environments where there is a ris*

that the forces will be engaged in conflict. D... E 003. /hile not see*ing to be prescriptive, we recommend that the convention should encompass the following characteristics8 =overnment should see* #arliamentar approval D...E if it is proposing the deplo )ment of "ritish forces outside the United Kingdom into actual or potential armed conflictH !n see*ing approval, the =overnment should indicate the deplo mentIs ob<ectives, its legal basis, li*el duration and, in general terms, an estimate of its siAeH !f, for reasons of emergenc and securit , such prior application is impossible, the =overnment should provide retrospective information within 2 da s of its comKmencement or as soon as it is feasible, at which point the process in +0, should be followedH The =overnment, as a matter of course, should *eep #arliament informed of the progress of such deplo ments and, if their nature or ob<ectives alter significantl

should see* a renewal of the approval. 000. These are matters of significant constitutional interest which we publish for the infor)mation and consideration of the (ouse. /e loo* forward to receiving the =overnmentIs response, and the opportunit to debate the issues, at the earliest possible date.

F, GOVERNMENTS RESPONSE TO THESE RECOMMENDATIONS /ill not establish a new convention that #arliament should be persuaded, govt will based its own assessment to ma*e decision Dit is govt forE This report was published on %2 4ul %33B. The government assured the .ommittee that it would respond b the end of the parliamentar summer recess on 1 Fctober %33B. !n fact, the governments response was not published until 2 >ovember %33B. ?ven then, it was ver brief.

 G%)e"nment Re'!%n'e to the (ouse of 9ords .onstitution .ommitteeIs $eport /aging /ar8 #arliamentIs $ole and $esponsibilit +.m B1%&,, 2 >ovember %33B o D/e areE n%t !"e'ent / !e"'uaded %f t&e $a'e f%" >,,,? e'ta* #'&#n+ a ne1 $%n)ent#%n dete"m#n#n+ t&e "% e %f Pa" #ament #n t&e de! %/ment %f t&e a"med f%"$e'. o The e(#'t#n+ e+a and $%n't#tut#%na $%n)ent#%n is that #t mu't *e t&e G%)e"nment 1&#$& ta2e' t&e de$#'#%n #n a$$%"dan$e 1#t& #t' %1n a''e''ment %f t&e !%'#t#%n, o That is %ne %f t&e 2e/ "e'!%n'#*# #t#e' f%" 1&#$& #t &a' *een e e$ted. o "ut the matter needs to be *ept under review.

.ommittee respond b a"+u#n+ that unchec*ed b parliament also undermine the #arliament for the reason of being elected The .onstitution .ommittee was unimpressed b this response,7B which it said was inad)e:uate- and cursor -, and cfails genuinel to address the arguments or the recommendaKtions which had been made or to provide a comprehensive or stand)alone outline of the =overnment-s position in repl to our final carefull deliberated report-.72 !n relation to the governments argument that it is elected and must remain responsible for decisions, the (ouse of 9ords select committee made the following statement.

 H%u'e %f L%"d' C%n't#tut#%n C%mm#ttee o T&#' unde"! a/' t&e fa$t t&at Pa" #ament 1a' a '% e e$ted' indeed, the executive draws its strength and legitimac from a democratic #arliament'and d%e' n%t add"e'' %u" $%n$ u'#%n t&at @Pa" #ament;' a*# #t/ t% $&a en+e t&e e(e$ut#)e mu't *e !"%te$ted and 't"en+t&enedB, o !t is not sufficient simpl to assert, as the =overnment do, that Oade:uate mechanisms for intense parliamentar scrutin of executive actions are alread in placeI.

5isagreement b the govt as well The .ommittee added that ;t&e"e #' m%"e t&an a 'u'!#$#%n %f d#'a+"eement %n t&#' matte" at t&e &#+&e't e)e ' %f +%)e"nment.. !t drew particular attention to conflicting statements made, on the one hand, b the #rime Minister and the 9ord .hancellor +favouring the status :uo,, and on the other, 'tatement' made */ t&e C&an$e %" %f t&e E($&e3ue" <G%"d%n B"%1n= and t&e Leade" %f t&e H%u'e %f C%mm%n' <4a$2 St"a1= fa)%u"#n+ "ef%"m t% #n$"ea'e Pa" #ament.' "% e.

.ommittee insist the cross)part political consensus !t concluded as follows. H%u'e %f L%"d' Se e$t C%mm#ttee9 !rrespective of the response we received, 1e $%n'#de" t&at a $"%''5 !a"t/ !% #t#$a $%n'en'u' a!!ea"' t% *e eme"+#n+ t&at t&e $u""ent a""an+ement' a"e un'u'ta#na* e, Accordingl , we are optimistic that our recommendations will be revisited in the ver near future. /e hope that this vitall important constitutional issue will then be addressed in a more satisfactor manner and we loo* forward to pla ing our part in that debate.

G,

OVER TO THE HOUSE OF COMMONS

.ommon agree that #arliament approval should be gained, as* the govt come out a proposal can pursued this goal without compromise operational issue The (ouse of 9ords .onstitution .ommittee was right'the matter did not rest there. There must have been important behind)the)scenes discussion among senior government min)isters, because, b 07 Ma %332, when an important debate too* place on the issue in the (ouse of .ommons, the government had changed its mind. The following is a short extract from a long and interesting debate. !n it, 4ac* Straw explains wh the government had been hesitant and how it proposed to push the matter forward. (ouse of .ommons (ansard, 07 Ma %332, col. 61% The 9eader of the (ouse of .ommons +SW&rX 4ade Straw,8 @or #arliament and an =overnment, no issue is of greater gravit and conse:uence than war8 whether to put our servicemen and women in

harmIs wa , in the certain *nowledge that some will be in<ured and some ma be *illedH and whether to entertain the other two certainties of war'innocent civilian casualties and considerable financial cost'along with the uncertaint of war, of unintended conse:uences. #recisel because of the seriousness of such decisions, #arliament, especiall this (ouse, has long pla ed a role in holding the #rime Minister and .abinet of the da full to account for their decisions. !ndeed, there has not been a significant armed conflict overseas since the beginning of the %3th centur in which the United Kingdom has been involved where, in one wa or another, at the time of decision or in retrospect, this (ouse has not indicated whether, and in what wa , it has consented to the ?xecutive decision ta*en. The ver :ualifications in the language that ! have <ust used, however, tell their own stor about the :uestion that lies at the heart of toda Is debate'that the power to ma*e war, and to enter into armed conflict, is currentl based on the exercise of the ro al prerogative. That, in turn, has meant that

#arliamentIs role, though substantial, is imprecise and less than well defined. D...E 9et me now deal D...E with wh there has been some hesitation in government on this issue. (esitation to ma*e more explicit our procedure has not arisen because of an nostalKgia for our s stem of government before the 0BG1 "ill of $ights. !t has done so because of concern about the adverse impact of an new process on the operational discretion of those in command and on the lin*ed abilit to respond to emergenc situations and other instances re:uiring secrec H and, above all, because of concern about the need not in an wa to com) promise the securit and well)being of our troops or damage their morale. ?ach of those concerns is ver serious and none should be dismissed. Man of them were raised b those who gave evidence to the .onstitution .ommittee in:uir D... E There are two models for ma*ing #arliamentIs role more explicit8 one is b statute, the other b resolution of this (ouse, including Standing Frders and convention. D... E As we proceed with the consultation, we will loo* at the various wa s to

achieve the ob<ec)tive that ! believe the whole (ouse shares. As it happens, the .onstitution .ommittee came down firml against the statutor route, and raised a number of ob<ections to it. D... E Aside from creating legal problems and potentiall drawing the courts into the decision)ma*ing process, a legislative framewor* would have to ensure explicitl that it did not have a negative impact on an abilit to react to emergencies. ?xamples of such emergencies might be the hostage rescue mission in Sierra 9eone or, more recentl , the UK evacuation of civil)ians from the 9ebanon, where secrec and speed, respectivel , were essential. The deplo ment of our forces in the modern world will almost alwa s be part of a coaliKtion. Timetables are not necessaril under our control, and flexibilit is needed. Fur militar involvement could be less timel , and therefore less effective, if an inflexible statutor proc)ess and legal challenges to a deplo ment further dela ed commitment. D... E The alternatives to statute could be a resolution of both (ouses, Standing Frders or con)ventions. D... E that inevitabl raises the :uestion of

differences between the two (ouses and their respective roles. Ff course, both (ouses have an absolute right to discuss decisions relating to militar action, and to be consulted and *ept informed b =overnment. (owever, in the final anal sis, the primac of the .ommons must be upheld'and ! believe that that must appl even after the other place has been reformed.

 DF% %1#n+ t&e de*ate8 t&e H%u'e %f C%mm%n' a+"eed t&e f% %1#n+ "e'% ut#%n8 $a #n+ u!%n t&e +%)e"nment t% $%n'u t and $%me *a$2 t% Pa" #ament 1#t& deta# ed !"%!%'a ' f%" "ef%"m.E The H%u'e %f C%mm%n'9 1e $%me' t&e !"e$edent' 'et */ t&e G%)e"nment #n GHHG and GHHF #n 'ee2#n+ and %*ta#n#n+ t&e a!!"%)a %f t&e H%u'e f%" #t' de$#'#%n' #n "e'!e$t %f m# #ta"/ a$t#%n a+a#n't I"a3H is of the view that it is inconceivable that an =overnment would in practice depart from this precedentH ta*ing note of the reports of the #ublic Administration Select .ommittee, (. 6%% of Session %33&) 36, and of the 9ords .ommittee on the .onstitution, (9 %&B of Session %337)3B, believes that the time has come for #arliamentIs role to be made more explicit in approving, or otherwise, decisions of the =overnment relating to the ma<or, or substantial, deplo ment of "ritish forces overseas into actual, or potential, armed conflictH recognises

the imperative to ta*e full account of the paramount need not to comKpromise the securit of "ritish forces nor the operational discretion of those in command, including in respect of emergencies and regrets that insufficient weight has been given to this in some :uartersH and $a ' u!%n t&e G%)e"nment8 afte" $%n'u tat#%n8 t% $%me f%"1a"d 1#t& m%"e deta# ed !"%!%'a ' f%" Pa" #ament t% $%n'#de",

H, GOVERNMENT CONSULTATION =ovt agree to consult from #arliament without compromise the securit $eform of the prerogative relating to deplo ment of the armed forces became one part of a broader agenda for constitutional reform being pursued b the 9abour government under the title .onstitutional $enewal-. As we have noted, in 4ul %332, the governmentYb then led b =ordon "rown'published a =reen #aper, =overnance of "ritain +.m 2023,, which set out for consultation various proposals for moderniAing the role of the executive that were designed to ma*e the executive and #arliament more accountable to the people and D... E reinvigorate our democrac . The government proposed immediate and specific changes3 to strengthen democrac and restrict the power of the #rime Minister and the executive-. !ts thin*ing is summariAed in the following extract. As ou will see, government now accepted that decisions to send armed forces to

fight abroad ought to be ta*en with #arliament-s approval. Ministr of 4ustice, 9imiting the #ower of the ?xecutive8 The =overnance of "ritain +.m 2023,, 4ul %332 @or centuries the executive has, in certain areas, been able to exercise authorit in the name of the Monarch without the people and their elected representatives in their #arliament being consulted. This is no longer appropriate in a modern democrac . The =overnment believes that the executive should draw its powers from the people, through #arliament. The flow of power from the people to government should be balanced b the abilit of #arliament to hold government to account. (owever, when the executive relies on the powers of the ro al prerogative' powers where government acts upon the MonarchIs authorit 'it is difficult for #arliament to scrutinise and challenge governmentIs actions. !f voters do not believe that government wields its power appropriatel or that it is properl accountable then public confidence in the accountabilit of decision)ma*ing ris*s being lost. That is wh the =overnment is proposing immediate and specific

changes to strengthen our democrac 'changes that will restrict the power of the #rime Minister and the executive. !t is important that the *e decisions that affect the whole countr 'such as the decision to send troops into armed conflict'are made in the right wa , and with #arliamentIs consent. The same is true of treaties that the UK ma*es with its partners in ?urope and across the world. =overnmentIs power to deplo troops and ratif treaties stems from the ro al preKrogative. !n a modern %0st centur parliamentar democrac , the =overnment considers that basing these powers on the prerogative is out of date. !t will therefore see* to limit its own power b placing the most important of these prerogative powers onto a more formal footing, conferring power on #arliament to determine how the are exercised in future. And where archaic powers are no longer in use' for example the right to impress people into the $o al >av 'the =overnment will consider options for ending them. D... E The government went on to sa that, in general, prerogative powers should be put onto a statutor basis in order

to ensure that government is more clearl sub<ect to the mandate of the peoples representatives-. !n relation to the deplo ment of armed forces, the government-s views at the time are set out in the following extract.

M#n#'t"/ %f 4u't#$e9 %7. There are few political decisions more important than the deplo ment of the Armed @orces into armed conflict. The =overnment can currentl exercise the prerogative power to deplo the Armed @orces for armed conflict overseas without re:uiring an formal parliamentar agreement. %B. The =overnment believes that this is now an outdated state of affairs in a modern democrac . Fn an issue of such fundamental importance to the nation, the G%)e"nment '&%u d 'ee2 t&e a!!"%)a %f t&e "e!"e'entat#)e' %f t&e !e%! e #n t&e H%u'e %f C%mm%n' f%" '#+n#f#$ant, non5 "%ut#ne de! %/ment' %f t&e A"med F%"$e' #nt% a"med $%nf #$t8 t% t&e +"eate't e(tent !%''#* e.

 T&#' need' t% *e d%ne 1#t&%ut !"e6ud#$#n+ t&e G%)e"nment;' a*# #t/ t% ta2e '1#ft a$t#%n t% !"%te$t %u" nat#%na 'e$u"#t/8 %" unde"m#n#n+ %!e"at#%na 'e$u"#t/ %" effe$t#)ene's. T&e G%)e"nment 1# t&e"ef%"e $%n'u t Pa" #ament and t&e !u* #$ %n &%1 *e't t% a$&#e)e t&#', >,, ?

=ovt accept establishment of a new convention to ensure that government acts with the approval of the (ouse of .ommons The =overnance of "ritain referred to the different recommendations that had been made b the #AS. +in its Taming the #rerogative report, and the (ouse of 9ords .onstitution .ommittee. As we have seen, the f#"'t %f t&e'e 'a#d t&at "ef%"m '&%u d *e *a'ed %n e+#' at#%n8 whereas the 'e$%nd 'a#d that the legislative route was not the best wa forward and instead "e$%mmended t&e e'ta* #'&ment %f a ne1 $%n)ent#%n t% en'u"e t&at +%)e"nment a$t' 1#t& t&e a!!"%)a %f t&e H%u'e %f C%mm%n', T&e +%)e"nment 'a#d t&at #t !"efe""ed t&#' atte" a!!"%a$& and !"%!%'ed t&e f% %1#n+, Ministr of 4ustice8 %1, and &3. OD...E that the (ouse of .ommons develop a parliamentar

convention that could be formalised b a resolution.O !n accordance with the motion approved b the (ouse of .ommons on 07 Ma %332, the =overnment promised to Ounderta*e further consultation on this issue before bringing forward more detailed proposals for #arliament to considerO.

I, DISCUSSION SHIFTS FROM SUBSTANCE TO METHOD9 TOWARDS A WAR POWERS RESOLUTION !ssue to be considered to reform8 operational issue, morale of armed forces, which stage involvement b #arliament, amount of info given to #arliament "etween >ovember %33B and Spring %332, the government had changed its position. /hereas, a few months earlier, the government was emphasiAing its responsibilit for deciKsions on militar deplo ments, it was now arguing the case for limiting its powers and for parliamentar involvement. !t had now accepted the substance of the case for reform of this prerogative. Attention shifted to the best means b which the reform could be achieved. "ut here, too, the government had shifted. !n >ovember %33B, it had responded to the (ouse of 9ords .onstitution .ommittees report b sa ing that it was not persuaded- of the case for cestablishing a new convention determining the role of #arliament in the deplo ment of the armed forcesH

b the spring of %332, it was proposing <ust that. =iven the fears expressed about the effect of legislation, it is not difficult to see wh , once the case for reform has been accepted on grounds of democratic principle, government would prefer to achieve reform b using convention rather than legislation. !t is not surprising, for example, that government would ta*e a precautionar approach to fears that legislative)based reform could carr ris*s to morale and other adverse operational conse:uences.

 The G%)e"nan$e %f B"#ta#n G"een Pa!e" was followed b a consultation paper that focused specificall on war powers and treaties. !n relation to war powers, this summariAed the histor of parliamentar involvement in deplo ments abroad and "e)#e1ed t&e )a"#%u' $%n'#de"at#%n' "e e)ant to deplo ment decisions, including8 o the need for %!e"at#%na f e(#*# #t/ and o the need to ma#nta#n t&e m%"ale of the armed forces. o !t also loo*ed at the definition of armed conflict7 and the problems associated with securing parliamentar involvement in emergencies or in relation to covert or secret operations8 at 1&at 'ta+e '&%u d Pa" #ament *e #n)% )ed: o And &%1 mu$& #nf%"mat#%n '&%u d Pa" #ament *e +#)en:

 !t also raised the relative standing of the two (ouses of #arliament. The following extract returns to the vexed issue of whether parliamentar involvement should be secured b statute or b convention +or b some mix,, and summariAes the advan) tages and disadvantages of the two main options. The paper noted that the (ouse of 9ords .onstitution .ommittee came out firml against putting the deplo ment power on a statuKtor basis and instead preferred to use a resolution of the (ouse of .ommons to create a new convention that would set out how #arliaments involvement would be secured.

Suggest legislation instead of convention Ministr of 4ustice, =overnance of "ritain8 /ar #owers and Treaties, .m 2%&1, Fctober %332 Should the new arrangements be contained in a freestanding convention, or in a resolution of the (ouse, or m 9egislation; 13. .onventions can ta*e a number of forms. Some of the most fundamental of the UKIs constitutional conventions are not formall set down an where outside the textboo*s, for example that which sa s that a #rime Minister defeated on a motion of confidence must resign. !n the =overnance of "ritain, the =overnment said that it would propose that the (ouse of .ommons develop a #arliamentar convention that could be formalised b a resolution.I This is one of the more formal wa s of establishing a convention. >onetheless, there clearl is a difference between a resolution, however prescriptive, and legislation. 10. The advantages of a resolution are that8

o !t can be created with less formalit and more easil amendedH @ailure to compl with it is not automaticall unlawfulH o !ts interpretation +including the meaning of an exceptions, is primaril a matter for #arliament rather than the courts through <udicial reviewH and o !t ma be less li*el to inspire speculative legal proceedings against individuals. 1%. As opposed to that, there are the d#'ad)anta+e' t&at a "e'% ut#%n >$%n)ent#%n?9 o Might appear to provide a 1ea2e" a''u"an$e %f $%m! #an$e b the government of the da H o D%e' n%t f%"ma / $%n't"a#n t&e e(e"$#'e of the prerogativeH and o W%u d *e '# ent a' t% #t' e+a effe$t %n t&e de$#'#%n' t% $%mm#t t% a"med $%nf #$t and would not ensure the complete protection of the armed forces

from an possible conse:uential legal liabilit .

"ill involved armed force not passed as other issues being raised The consultation closed in 4anuar %33G with onl fifteen responses having been submitKted. !n summar , fourteen of the respondents were in favour of the principle of providing #arliament with a role in approving the deplo ment of armed forces into armed conflict, but expressed var ing degrees of concern about the practical difficulties that would be involved. !n March %33G, the government said that while not ruling out legislation D...E a detailed resolution is the best wa forward-. A draft .onstitutional $enewal "ill was laid before #arliament on %7 March %33G. W&# e dea #n+ 1#t& a'!e$t' %f t&e !"e"%+at#)e #n $%nne$t#%n 1#t& t&e "at#f#$at#%n %f t"eat#e' and t&e $#)# 'e")#$e8 t&#' made n% ment#%n %f t&e !"e5"%+at#)e "e at#n+ t% t&e de! %/ment %f t&e a"med f%"$e',

 A 4oint .ommittee of the (ouse of .ommons and the (ouse of 9ords reported on the "ill on %% 4ul %33G, reiterating the need to strengthen parliamentar involvement in armed) conflict situations and agreeing that a cdetailed resolution approach is a well balanced and effective wa of proceeding- +para. &0G,.

4, THE CONTINUING NEED FOR REFORM .oalition in favour but not putting into agreement The C%n't#tut#%na Ref%"m and G%)e"nan$e A$t GHCH placed the civil service and the process for ma*ing treaties on a statutor footing. (owever, as expected, n% $&an+e' 1e"e made t% !"e"%+at#)e !%1e"' #n "e at#%n t% t&e a"med f%"$e', Although in its wider review- of prerogative powers, published in Fctober %331, the La*%u" +%)e"nment had stated that it was preparing a draft of a detailed (ouse of .ommons resolution setting out the processes that the (ouse of .ommons should follow in order to approve an deplo ment of the armed forces in conflicts overseas, n% d"aft a!!ea"ed *ef%"e t&e +ene"a e e$t#%n #n Ma/ GHCH.

 The C%n'e")at#)e Pa"t/.' man#fe't% !"%m#'ed t% ma2e de$#'#%n' t% 'end t"%%!' a*"%ad t% f#+&t A'u*6e$t t% +"eate" dem%$"at#$ $%nt"% B and t% en'u"e t&at Pa" #ament #' !"%!e" / #n)% )ed, The 9iberal 5emocrats were also in favour of reform. H%1e)e"8 n% ! ed+e %n t&#' 1a' $%nta#ned #n t&e C%a #t#%n A+"eement,

%300)embar* in air stri*e, (F9 committee call for reform before %307 !n Ma"$& GHCC the issue once again became prominent when the +%)e"nment de$#ded t% em*a"2 %n a#" 't"#2e' #n L#*/a 1#t&%ut 'ee2#n+ Pa" #ament' prior agreement or approval, although Pa" #ament 1a' a'2ed afte" t&e #nte")ent#%n &ad *e+un, !n the (ouse of .ommons (illiam )ague, now @oreign Secretar , said that the government would Uen'&"#ne #n a1 f%" t&e futu"e t&e ne$e''#t/ %f $%n'u t#n+ Pa" #ament %n m# #ta"/ a$t#%nB Since then the H%u'e %f C%mm%n' Se e$t C%mm#ttee %n P% #t#$a and C%n't#tut#%na Ref%"m &a' $%nt#nued t% !"e'' t&e +%)e"nment %n t&e need f%" "ef%"m and has called for this to *e unde"ta2en *ef%"e t&e end %f t&e $u""ent Pa" #ament #n GHCK.

$espond b should restricted b artificial deadline) #arliament still no formal role over it The minister responsible for constitutional reform, Ma"2 Ha"!e"8 &a' "e'!%nded */ 'a/#n+ t&at Aa num*e" %f #m!%"tant 3ue't#%n' %f deta# B need t% *e add"e''ed and these must be considered properl and $%u d n%t *e Ad"#)en */ an a"t#f#$#a dead #neB, =raham Allen M#, chair of the (ouse of .ommons #olitical and .onstitutional $eform .ommittee, has summariAed the current situation in the following wa 8 UTo all intents and purposes, a P"#me M#n#'te" &a' t&e 'ame !%1e" %)e" %u" f%"$e' a' Hen"/ V, although without the same obligation to lead them in person. Nea" / '#( $entu"#e' afte" A+#n$%u"t8 Pa" #ament 't# &a' n% f%"ma %" a+"eed "% e #n t&e de$#'#%n t% 1a" %" t&e $%ndu$t and !u"5!%'e' %f a 1a"B

CONCLUDING COMMENTS This chapter has examined the mean#n+ and t&e $%nt#nu#n+ '#+n#f#$an$e %f !"e"%+at#)e !%1e"'. !t has seen how $%u"t' &a)e e(tended t&e#" a*# #t/ t% "e)#e1 t&e e(e"$#'e %f !"e"%+at#)e !%1e"', /hile man prerogatives have now been placed on a statutor footing, t&e"e #' *"%ad $%n'en'u' t&at fu"t&e" "ef%"m' #n t&#' a"ea a"e needed t% m%de"n#'e t&e '/'tem and #m!"%)e e+a and !% #t#$a a$$%unta*# #t/. The $a'e 'tud/ %n t&e !"e"%+at#)e "e at#n+ t% t&e de! %/ment %f t&e a"med f%"$e'8 &%1e)e"8 &a' '&%1n t&at "ef%"m $an *e )e"/ d#ff#$u t t% a$&#e)e,