Expanding Democracy - Transferring the Crown Prerogative to Parliament

Graham S McBain

Abstract


In early times, the English legal system accorded to the sovereign many prerogatives (privileges). This was usually to enhance his status, to reflect his pre-eminence. Or it was to provide funds for him, to pay for matters under his control - such as his courts, army and navy. Over time, many of these Crown prerogatives have become uncertain, confused and obsolete. The purpose of this article is consider a number of these prerogatives and to argue either for their abolition or their transfer to Parliament.In respect of Crown prerogatives relating to the courts it is asserted that prerogatives to: (a) establish common law courts; (b) sit as a judge; (c) withdraw any matter of State from the cognisance of a court; (d) request any judge to delay giving judgment; (e) sue in whatever court the sovereign pleases; (f) be exempt from court costs; (g) possess immunity from criminal prosecution - should be abolished. Also, that the civil immunity of the sovereign should be lifted, in part.In respect of Crown prerogatives relating to the military it is asserted that prerogatives to make - and declare -war and peace should pass to Parliament. And that prerogatives to: (i) impress subjects for the navy; (ii)issue letters of reprisal and marque; (iii) issue letters of safe conduct; (iv)prohibit subjects from leaving the realm; (v) order subjects to return to the realm; (vi) dig for saltpetre (for gunpowder); (vii) impose martial law; (viii)prohibit subjects from building castles (or enter the land of other subjects to erect fortifications for the defence of the realm in war time) - should be abolished. Also, that any Crown prerogative to erect fortifications should be replaced by legislation, where required.In respect of Crown prerogatives relating to public functions, it is asserted that the Crown prerogative to compel a person to accept a public office should be abolished. And that any residual functions of the Crown to act as parens patriae should be transferred to Parliament.In respect of the Crown prerogative to make legislation in the form of issuing proclamations, it is asserted they should be replaced by Statutory Instruments, in order for Parliament to have control over the matter.

Full Text: PDF DOI: 10.5539/res.v6n1p83

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Review of European Studies   ISSN 1918-7173 (Print)   ISSN 1918-7181 (Online)

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