Discuss whether it is possible or desirable to codify the Royal Prerogative.

Political thinkers Rousseau, Locke and Montesqieu claimed that the powers of government should be limited, divided and checked. The principle is that there should be a division of government executive, legislative and judiciary powers into three separate arms or institutions that act separately and are independent of one another (members of one branch cannot be members of either of the other two). Australia’s constitution separated powers by delegating the legislative power to Federal parliament (s.1), executive power to the Governor General (s.61) and the Judiciary to the High Court (s.71). However due to Westminster conventions (adopted from the British system of parliament) commonly practiced by the Australia government, the members of the executive (cabinet) are selected from the legislative by the Prime Minister (going against the concept of having no cross-branched members). The PM (also Westminster convention) is not mentioned in the constitution and yet exercised executive power; for example in 2003 PM John Howard exercises (s.68) by sending troops to Iraq. The constitution also provides the executive with the power to appoint the High Court Judge (s.72) and thus is could be argued that the executive has power over the Judiciary in that sense; However the constitution actively safeguards the position of the Judiciary by stating the High Court Judge “Shall not be removed except by the Governor-General in Council, on an address from both Houses of the

After reading Machiavelli’s The Prince and watching Shakespeare’s Henry V in class, one begins to notice similarities between the authors’ idea of what a “perfect king” should be. The patterns between the ideal ruler of Shakespeare and the ideal ruler of Machiavelli can be seen in numerous instances throughout this story. For the duration of this essay, I will compare the similarities in both pieces to give the reader a better understanding of how Shakespeare devised his view of what a “perfect king” should be.

The Supremacy of the monarchy is the monarchical state of being superior more than all others in power which refers to the Bristish Law’s called Magna Carta, common law and precedent. The Magna Carta is a charter that King John of England was forced to seal and sign the Magna Carta, otherwise he would be considered shameful and unjust. Magna Carta is still one of the most influential documents that is a part of our law which exhibits the idea of liberation of citizens. King Henry II developed a system of travelling judges (circuit judges) who would visit villages, resolve conflicts, heard cases and created new laws which is now considered common law. According to the textbook, common law has three meanings. It refers to the law that comes from Britain, it means a law that is common is all… law that applies to all subjects in the land and it also means law that is based on the best decision of judges. Common law is the law that is the same for every individual and should be obeyed by everyone equally and ethically. Common law is also seen as a precedent because the past decisions of the judges were recorded and were used for alike cases or conflicts. In short, the Supremacy of The Monarchy developed from the Magna Carta, common law, court system and precedent that helped our Canadian law develop to make it

Before evaluating whether or not Parliament is sovereign, it’s important to define what sovereignty means. Sovereignty can be split into two; political and legal. Legal sovereignty is the ultimate power to make laws which will be enforced within the state. Members of Parliament and the Prime Minister have ultimate legal power because they propose and enforce legislation. Citizens have no legal sovereignty because they don’t play a role in the legislative function even though pressure group activity may influence decisions. Political sovereignty is where real political power lies, and depending on the situation political sovereignty doesn’t always lie within Parliament. Critics have argued that due to recent changes, Parliament is no longer

First, the Magna Carta gives everyone a fair opportunity. Which includes the king, government, and everyone else. For example, “first, that we have granted to god, by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired”

Evaluating the Argument that Powers and Privileges of Parliament Increased Steadily at the Expense of Royal Power

Absolutism is an absolute monarch in which both kings and nobilities help superior power over the rest of the population. Their goals was the control every aspect of society, to rule with their right and ways. French Monarchy was led by King Henry IV, Louis XIII, minister Cardinal Richelieu, and most importantly, Louis XIV. These leaders were all challenged by authority such as nobles during their effort to establish an absolutist regime. Absolutism was looked upon by several nobles and people in society due to all the power being claimed by just a couple of people. King Louis was thrown in this position as age 5 right in the middle of chaotic and messy time. His goal was the centralize government, attain religious unity, and secure power. Therefore, he avoided giving many people rights, he didn’t want anyone to rise above his stature of authority. However, in order to run the country, the King or leader had to deal with many problems. These rulers/kings all had many different obstacles they had to overcome in order to establish this absolute authority. Problems included, the Nobles exercising power to kill the King’s run, large influence of religious minority, and lastly would be cultural/regional differences. Every King and authority involved in creating this royal power contributed in many different aspects to reach past these obstacles put before them.

The power of the crown and the authority of the government is limited by the Declaration of Man and the Citizen. One situation where the government is limited is where “Men are born free and remain equal in rights.” (1789, Art, 1, DRMC.) The government must give all men equal rights. The rights of man include “liberty, property, security, and resistance to oppression.” (1789, Art, 2, DRMC.) Both the power of the crown and the authority of the government are limited by (1789, Art, 3, DRMC.) “no individual can exercise authority which does not emanate from it expressly.” If authority does not originate directly from the crown or a member of government, they may not exercise said authority. “The law has the right to prohibit only those actions harmful to society.” (1789, Art, 5, DRMC.) Neither the power of the crown nor government can prohibit an individual from doing something that is not harmful to society or force an individual to do “what it does not order” by obstructing or changing the law. “The right to concur personally or through their representative in its formation… must be the same for everyone.” Authority must give the same rights to everyone to “concur personally or through their representative.” (1789, Art, 6, DRMC.) In Article 8, the government or power of crown may only punish a person if “strictly and plainly necessary.” (1789, Art, 8, DRMC.) If unneccessary, a person may not be penalized by government or the power of the crown. Individuals

Charles I and the Establishment of Royal Absolutism Royal absolutism is a state of government whereby the monarch rules supreme, with virtually no legislative power placed in other organisations such as Parliament. For the people of England in the 1630s, it was a very real threat. After the dissolving of Parliament in 1629, Charles I embarked on his Personal Rule. Without analysing whose fault the breakdown in relations was, it was probably the only thing Charles could do in the circumstances. Certainly, no dialogue with Parliament was possible.

Before the Magna Carta, the monarch has all the power, and could do whatever the monarch wishes, today that would be considered being above the law. Diminishing the power of government workers, section twenty-four states "No sheriff, constable, coroners, or other royal are hold to lawsuits that should be held by the royal justices (Langton 24)". Stating no government official is above the law with no exceptions. This is to provide a uniform system of justice. Ruling under an absolute monarchy, the monarch could have someone arrested and imprisoned for no apparent reason. Imprisonment with no reason is abolished by section thirty-nine in the Magna Carta, it states "no free man shall have seized or imprisoned, or stripped of his rights or his possessions, outlawed or exiled […] except by lawful of his equals or by the law (Langton 39)". This states the monarch is no longer allowed to punish people unless found guilty by the law or by a jury. Section thirty-nine guarantees the individual convicted shall have a jury of one's peers, this section is one of the most crucial out of the document. The Magna Carta stated that no royal or government official is above the law, including the imprisonment of an individual unless for a valid reason and found

The highest rank court is the European Court of Justice, and the European Court of Human Rights. Below this, yet the highest and most powerful ranked in the United Kingdom, is the House of Lords also recognised as the Supreme Courts since 2009. The decisions of this court are binding on all other courts lower in the hierarchy. Prior to 1966 the House of Lords were too bound by their own decisions to help ensure certainty unless it was seen to be made ‘per incurium’ (by error). This meant the House of Lords could not overrule a previous decision even if it was socially outdated. This was illustrated in London Tramways v London CC where it was held certainty of the law was more important than individual hardship . However, the introduction of the Practice Statement 1966 gave the House of Lords flexibility to amend a law if it is ‘right to do so’. In the appeal documents a material change of circumstances usually has to be shown. The Practice Statement (HL: Judicial Precedent) [1966] 1 W.L.R.1234, per Lord Gardiner, argued for and against a rigid system of binding precedent and highlighted that even though certainty is of importance within the making of Laws, to follow past precedents blindly will lead to injustice. The House of Lords freed itself from a self-imposed restraint by exercising its inherent jurisdiction as a court to change its own practice.

Dicey named ‘conventions’ the non-legal rules that regulate the way legal rules are applied . Prerogative powers are legal powers held by the crown but exercised by government without the authority from parliament. There is no doubt about their importance to the British constitution but their unwritten nature has caused disputes regarding their extent. Therefore some believe that conventions and prerogative powers should be codified. This could be in legal or non-legal form. Codification might clarify their existence and extent; neither form however will generate a more effective constitution.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

A majority of judges even said obiter that Parliament could not extend its lifetime beyond five years, even if the 1911 Act was to be expressly repealed and the extension bill then passed. That leads to the question if there are basic constitutional rules that parliament simply cannot change. Lord Steyn and Lord Woolf held that the courts might have to revisit the principle of parliamentary sovereignty, if Parliament sought ‘to abolish judicial review of flagrant abuse of power by government or even the role of the ordinary courts in standing between the executive and citizens’. In such an event, the court might have to ‘qualify’ the supremacy of Parliament, ‘a principle established on a different hypothesis of constitutionalism’.

Other persuasive precedents include decisions of the Scottish courts and those made in the courts of other Commonwealth countries such as Australia and Canada. This may be because a case with these particular facts has not been heard in the English Courts before but may have been heard in another country. This was the case in R v R (1991) where the Court of Appeal and House of Lords followed previous decisions made by the Scottish courts that a man could be found guilty of raping his wife.