Abolishing Obsolete Crown Prerogatives Relating to the Military

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INTRODUCTION

In Britain today, there is concern at the loss of authority of Parliament. There is also the problem of how well Parliament and the Crown inter-relate in modern times. A vast number of decisions are taken in the name of that mysterious, and amorphous, entity: 'the Crown.' (1) Legal rights specific to the Crown are denominated its 'prerogatives' (2) and they are said to derive from the common law. (3) They used to be intimately connected with the sovereign in person since, in medieval times, the sovereign and the Crown were, in the eyes of the law, virtually one and the same. Today, however, the role of the sovereign is almost wholly ceremonial. Her rights remain, but they have drained away into the wider concept of the Crown: the apparatus of government and bureaucracy that operates in her name but over which she has little (or no) control. (4) Thus, there is legal fiction and reality: something prevalent with regard to the British constitution. (5)

Crown prerogatives have been described as residual rights. (6) That is, legal rights (7) not otherwise transferred (usually by legislation) to other institutions and individuals. Historically, the Crown asserted such rights when the sovereign was more powerful than Parliament. Today, these Crown prerogatives tend not only to detract from individual human rights; they also detract from the authority of Parliament. Crown prerogatives are often categorised into a number of discrete areas, viz. the rights of the Crown in relation to the: military; justice; Parliament; Church of England; commerce; revenue; land, honours and dignities; and miscellaneous. (8)

This article considers certain Crown subsidiary prerogatives relating to military matters. These prerogatives are 'executive' as opposed to 'personal' prerogatives. That is, they would be exercised today (if at all) by ministers and not by the Queen in person. It asserts that they are obsolete. If they were abolished, this would enable a clearer analysis of whether the sovereign (and the Crown in the wider sphere) should retain any responsibility over the military at all or whether it would be better for Parliament to have control over the same. In considering this topic, it may be noted there were few early legal treatises dedicated to the Crown prerogative. (9) The principal ones comprise:

(a) Staunford, Exposition of the King's Prerogative (1607); (10)

(b) Hale, The Prerogatives of the King (written c 1640's) (11) and

(c) Chitty, Prerogatives of the Crown (1820). (12)

Although the Abridgments (major and minor) (13) contain some material on the Crown prerogatives, of greater use are Coke, (14) Blackstone (15) and Halsbury. (16) There are also modern texts on constitutional law (17) and history (18) albeit these make scant reference to the prerogatives considered in this article.

PREROGATIVE TO DECLARE WAR AND PEACE

Crown prerogatives in respect of military matters stem from the legal proposition that the sovereign has the legal right (prerogative) to declare war and peace, both within, and outside, the realm. This has long been held. (19) Sir Thomas Smith, in his De Republica Anglorum, written c 1562-5, stated the position firmly (20) and, in 1765, Blackstone observed:

   [T]he king has ... the sole prerogative of making war and peace.
   For it is held by all the writers on the law of nature and nations,
   that the right of making war, which by nature subsisted in every
   individual, is given up by all private persons that enter into
   society, and is vested in the sovereign power: (21) and this right is
   given up not only by individuals, but even by the entire body of
   people, that are under the dominion of a sovereign. It would indeed
   be extremely improper, that any number of subjects should have the
   power of binding the supreme magistrate, and putting him against
   his will in a state of war. (22)

Halsbury, citing Blackstone, states: "War can be commenced or terminated only by the authority of the crown. …