Sample Law Essay Paper on Prerogative powers

Question #: A
Prerogative powers refer to powers that are vested in the crown throughout history. For
years the prerogative powers were believed to be the divine rights that the king enjoyed over and
above everyone else 1 . They were believed to be the rights and capacities enjoyed by no one else
apart from the king. However, Wade expounded prerogative powers to include all government
actions that are not statutory. One of the prerogative powers is the prorogued parliament. The
core convention requires that the powers are exercised once the member of the cabinet and the
prime minister advocates for it. The constitutional conventions limit the exercise of prerogative
powers. Masterman and Murray argue, “Conventions are non-legal rules of conduct that have
developed over time as a result of historical practice.” 2
In De Keyser’s Royal Hotel, it was held that “prerogative law becomes unavailable when
it overlaps with statute law.” Parliamentary sovereignty was the basis of the argument for the
decision. Prerogative power would undermine the parliamentary supremacy as the executives
could act in ways that were contrary to the statutes by the employment of prerogative powers.
The Fire Brigades Union case further asserted that even the introduced statutory scheme would
place prerogative powers into abeyance. 3 The instances above the court concentrated on the
effects of the statutes on a specific scope of prerogative power and not on its use within the legal
limits that made it legitimate. The court can review the extent of prerogative powers. Lord
Hodge asserts that matters can be held non-justiciable when it lacks judicial or manageable
standards. 4 It highlights one reason why the prorogation of parliament could be termed as non-
1 Roger Masterman and Colin Murray, Constitutional And Administrative Law (Pearson Education Limited
2018).
2 Roger Masterman and Colin Murray, Constitutional And Administrative Law (Pearson Education Limited
2018).
3 Fatovic Clement, James Madison And The Emergency Powers Of The Legislature. (1st edn, " Const Stud
1 2016). 67

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justiciable, per the ruling of the divisional court. Before the Miller/Cherry, determining the non-
justiciability of the prerogative powers proved to be challenging as there lacked precedential
authority in courts. 5 Therefore, courts could not treat the question of the existence and scope of
prerogative powers contrary to the issues regarding the exercise of the powers. The divisional
court had accepted the limitations arising from the justiciability of the prerogative powers.
For long, the courts were hesitant to evaluate the justiciability of the prerogative powers.
The comment made by Lord Denning reviewed the case of prerogative powers gaining judicial
recognition. Denning’s argument was adopted by the House of the Lords in the Council of Civil
Service Unions v Minister for the Civil Service. Afterwards, it was referred to as GCHQ. 6 The
GCHQ was the ground upon which prerogative power may be justiciable. Lord Diplock stated a
list of commonly recognized head of judicial review.
Conversely, Lord Roskill listed the prerogative powers that are non-justiciable and those
that are justiciable. He asserts that “the right to challenge the exercise of prerogative power is
unqualified.” Instead, Lord Roskill believes that the justiciability of prerogative power is
dependent on the subject matter. He stated that because of the nature of certain prerogative
powers such as the making of treaties, dissolution of parliament, and defence of the kingdom and
nomination of ministers, the prerogative powers are not open for a challenge in the judiciary 7 .
Therefore, prerogative powers are only justifiable when based on the ground of national security.
Lord Diplock clearly stated, “national security is par-excellence a non-justiciable question.” 8 On

4 Fatovic Clement, James Madison And The Emergency Powers Of The Legislature. (1st edn, " Const Stud
1 2016). 67
5 Iyer Venkat, Separation Of Powers: The UK Experience. (5th edn, J Int'l & Comp 2018). 507
6 Fatovic Clement, James Madison And The Emergency Powers Of The Legislature. (1st edn, " Const Stud
1 2016). 67
7 Fatovic Clement, James Madison And The Emergency Powers Of The Legislature. (1st edn, " Const Stud
1 2016). 67

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the other hand, GCHQ noted, “the exercise of prerogative power is a justiciable matter which
depends on the subject matter of the powers.”
Question #: B
The supremacy of the law of the land and the sovereignty of parliament seem to oppose
each other. However, the sovereignty of the parliament works in favour of the supremacy of the
law of the land. A. V. Dicey stated, “parliamentary sovereignty means that the parliament, under
the English constitution, has the right to make and amend the law, and no individual or
organization can override the amendments made by the legislation of parliament.” 9 Parliamentary
sovereignty is considered a core principle of British constitutionalism. It is an all-round concept
that involves multiple concurrent powers 10 . For instance, the UK’s constitution has undergone
numerous amendments over the years.
Additionally, the unique development of the United Kingdom’s constitution is semi
written and uncodified, which makes it challenging to appreciate parliamentary sovereignty 11 .
Moreover, the parliament is evolving to accommodate the needs of the society. The existence of
juxtaposition between the practical application of parliament work and legal theory causes the
emergence of limitations of the constitution.

8 Fatovic Clement, James Madison And The Emergency Powers Of The Legislature. (1st edn, " Const Stud
1 2016). 67
9 Fatovic Clement, James Madison And The Emergency Powers Of The Legislature. (1st edn, " Const Stud
1 2016). 67
10 John WF Allison, The Westminister Parliament's Formal Sovereignty In Britain And Europe From A
Historical Perspective. (Giornale di Storia Costituzionale 2017). 57
11 John WF Allison, The Westminister Parliament's Formal Sovereignty In Britain And Europe From A
Historical Perspective. (Giornale di Storia Costituzionale 2017). 57

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There are unintended constraints that limit the sovereignty of the constitution. The
constrains seek to find parity between the unwritten constitution and parliament’s operations.
The model states that:

a) The United Kingdom’s constitution may contain some rights or rules, which are
fundamental so that the parliament cannot alter them.
b) “freedom, once given, cannot be taken away. Legal theory must give way to
practical politics.” 12
c) The courts have to observe the limits of parliamentary sovereignty.
There exists a hierarchy where the parliament is supreme, and the constitution is beneath.
However, there are principles stipulated by the constitution, which de facto binds the parliament.
Since rules restrict the parliament, then it is not sovereign anymore. In this case, the freedom of
expression limits the sovereignty of the parliament. That means the parliaments of the previous
years, which set the freedoms have limited the powers of modern-day parliament 13 .
Lord Denning argues, “legal theory must give away to practical politics.” 14 Discussions in
the houses of parliament and chambers revolve around the personal goals of politicians and
policies by political parties. That means that the laws and politics are intrinsically linked.
Although the political reality is that historically courts carry out parliament’s will, in the realm of
human rights, parliament carries out the court’s decree. That means that the amendments of the
parliament can be challenged in court.

12 Augusto Zimmermann, Sir Edward Coke And The Sovereignty Of The Law. (17th edn, Macquarie LJ
2017). 128
13 Augusto Zimmermann, Sir Edward Coke And The Sovereignty Of The Law. (17th edn, Macquarie LJ
2017). 128
14 John WF Allison, The Westminister Parliament's Formal Sovereignty In Britain And Europe From A
Historical Perspective. (Giornale di Storia Costituzionale 2017). 57

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Furthermore, “legislation against the rule of law is similar to legislation against the
constitution.” 15 In theory, the parliament is supreme such that the court cannot limit its power.
However, in practical terms, the court is already controlling the parliament to some degree. The
Supreme Court employs its prerogative power to stop a chain of reaction that may result in the
loss of individual rights 16 .

Question #: C

It Is The Foundation of Many Rights
Freedom of expression is one of the human rights covered in article 10 of the UK
constitution. It includes freedom of the press and allows people and communities to articulate
their grievances and opinions without fear. There needs to be freedom of speech for the media to
be effective. Freedom of expression enables the development and progress of society. Wayne,
Bei, and Caldwell assert “the ability to express one’s opinion and speak freely is essential to
bring change in the society.” 17 Throughout history, free speech has been the foundation of
amendment and incorporation of more rights in the constitution. For example, free speech led to
women being allowed to vote.
It Is The Key To The Spread Of Information
Knowledge is power. The freedom of spreading information online, TV, periodicals, and
radio keeps everyone aware of the events occurring around them. Therefore, individuals can take
part in communities and employ their democratic rights effectively 18 .
15 Aida Ramos, The Political And Economic Contest And Context: Scotland And England Before The
Union. (Palgrave Macmillan, Cham, 2007). 23
16 Aida Ramos, The Political And Economic Contest And Context: Scotland And England Before The
Union. (Palgrave Macmillan, Cham, 2007). 25
17 Wayne Sandholtz, Bei Yining and Caldwell Kayla, Backlash And International Human Rights
Courts." (Crisis, Accountability, and Opportunity 2018).159

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It Keeps Voters Informed
Democracy relies on citizens of a country being informed and having the freedom to
express their grievances and opinions. Citizens should be able to question the people in power
and understand the decisions that affect them. Freedom of expression is fundamental for the
democratic process as it allows people to debate, discuss, and exchange ideas 19 . Furthermore, one
can only choose a suitable candidate when they have all the facts.
Discovery Of Truth
Journalists should be free to ask difficult questions, inconsistency reports, and interesting stories
so that they can give accurate reports 20 . The freedom to discover and report what is happening
around the world enables the press put forward information to the public.

Bibliography

Masterman R, and Murray C, Constitutional And Administrative Law (Pearson Education
Limited 2018)
18 Wayne Sandholtz, Bei Yining and Caldwell Kayla, Backlash And International Human Rights
Courts." (Crisis, Accountability, and Opportunity 2018). 159
19 Wayne Sandholtz, Bei Yining and Caldwell Kayla, Backlash And International Human Rights
Courts." (Crisis, Accountability, and Opportunity 2018). 161
20 Wayne Sandholtz, Bei Yining and Caldwell Kayla, Backlash And International Human Rights
Courts." (Crisis, Accountability, and Opportunity 2018). 163

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Clement F, James Madison And The Emergency Powers Of The Legislature. (1st edn, “Const
Stud 1 2016)
Venkat I, Separation Of Powers: The UK Experience. (5th edn, J Int’ l & Comp 2018)
Allison J, The Westminister Parliament’s Formal Sovereignty In Britain And Europe From A
Historical Perspective. (Giornale di Storia Costituzionale 2017)
Zimmermann A, Sir Edward Coke And The Sovereignty Of The Law. (17th edn, Macquarie LJ
2017)
Ramos A, The Political And Economic Contest And Context: Scotland And England Before The
Union. (Palgrave Macmillan, Cham, 2007)
Sandholtz W, Yining B, and Kayla C, Backlash And International Human Rights
Courts.” (Crisis, Accountability, and Opportunity 2018)