Royal prerogative in the United Kingdom

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chivalric orders
are regulated under the royal prerogative.

The royal prerogative is a body of customary authority, privilege, and immunity attached to the British monarch (or "sovereign"), recognised in the United Kingdom. The monarch is regarded internally as the absolute authority, or "sole prerogative", and the source of many of the executive powers of the British government.

Prerogative powers were formerly exercised by the monarch acting on his or her own initiative. Since the 19th century, by convention, the advice of the prime minister or the cabinet—who are then accountable to Parliament for the decision—has been required in order for the prerogative to be exercised. The monarch remains constitutionally empowered to exercise the royal prerogative against the advice of the prime minister or the cabinet, but in practice would likely only do so in emergencies or where existing precedent does not adequately apply to the circumstances in question.

Today, the royal prerogative is available in the conduct of the government of the United Kingdom, including foreign affairs, defence, and national security. The monarch has a significant constitutional weight in these and other matters, but limited freedom to act, because the exercise of the prerogative is conventionally in the hands of the prime minister and other ministers or other government officials.

Definition

William Blackstone, who maintained that the royal prerogative was any power that could be exercised by only the monarch

The royal prerogative has been called "a notoriously difficult concept to define adequately", but whether a particular type of prerogative power exists is a matter of common law to be decided by the courts as the final arbiter.[1] A prominent constitutional theorist, A. V. Dicey, proposed in the nineteenth century that:

The prerogative appears to be historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown. The prerogative is the name of the remaining portion of the Crown's original authority ... Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative.[2]

While many commentators follow the Diceyan view, there are constitutional lawyers who prefer the definition given by William Blackstone in the 1760s:[3]

By the word prerogative we usually understand that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of common law, in right of his regal dignity ... it can only be applied to those rights and capacities which the King enjoys alone, in contradiction to others, and not to those which he enjoys in common with any of his subjects.[2][4]

Dicey's opinion that any action of governance by the monarch beyond statute is under the prerogative diverges from Blackstone's that the prerogative simply covers those actions that no other person or body in the United Kingdom can undertake, such as declaration of war.[2] Case law exists to support both views. Blackstone's notion of the prerogative being the powers of an exclusive nature was favoured by Lord Parmoor in the

De Keyser's Royal Hotel case of 1920, but some difficulty with it was expressed by Lord Reid in the Burmah Oil case of 1965. A clear distinction has not been necessary in the relevant cases, and the courts may never need to settle the question as few cases deal directly with the prerogative itself.[5]

History

Prior to the 13th century, the English monarch exercised supreme power, which was checked by "the recrudescence of feudal turbulence in the fourteenth and fifteenth centuries".[6] The royal prerogative was a way to exercise his power without the consent of others but its limits were unclear and an attempt to legally define its scope was first made in 1387 by Richard II.[7][8]

This "turbulence" began to recede over the course of the 16th century and the monarch became truly independent when

courts recognised the growing importance of Parliament by stopping short of declaring him all-powerful.[6] In Ferrer's Case,[9] Henry accepted this restriction, believing he was far more powerful ruling with the consent of Parliament than without, especially in the matter of taxation. Sir Thomas Smith and other contemporary writers argued the monarch could not levy taxes without Parliamentary approval.[10]

Sir Edward Coke (1552–1634); considered the leading jurist of his time, his rulings helped define the limits of the prerogative

Henry and his descendants normally followed legal decisions, even though in theory they were not bound by them. One suggestion is they recognised stable government required legal advice and consent, while "all the leading lawyers, statesmen and publicists of the Tudor period" agreed everyone was subject to the law, including the king.[11] Although possessing "unfettered discretion" in when to use the prerogative, the monarch was limited in areas where the courts had imposed conditions on its use or where he had chosen to do so himself.[12]

James I of England challenged this consensus in the 1607 Case of Prohibitions, arguing the king had a divine right to sit as a judge and interpret the common law as he saw fit. Led by Sir Edward Coke, the judiciary rejected this idea on the grounds that while not subject to any individual, the monarch was subject to the law. Until he had gained sufficient knowledge of the law, he had no right to interpret it which Coke also pointed out "requires long study and experience, before that a man can attain to the cognisance of it". In the 1611 Case of Proclamations, Coke further ruled the monarch could only exercise existing prerogatives, not create new ones.[13]

After the

Triennial Act 1694, which required the monarch to dismiss and call Parliament at certain times.[14]

Prerogative powers

Legislature

William IV
, the last monarch to arbitrarily dissolve Parliament by using the royal prerogative

The power to dissolve parliament is "perhaps the most important residual prerogative exercised personally by the sovereign, and represents the greatest potential for controversy."

prime minister, either at his or her discretion or following a motion of no confidence. Constitutional theorists have had differing views as to whether a unilateral dissolution of Parliament would be possible today; Sir Ivor Jennings wrote that a dissolution involves "the acquiescence of ministers", and as such the monarch could not dissolve Parliament without ministerial consent; "if ministers refuse to give such advice, she can do no more than dismiss them". A. V. Dicey, however, believed that in certain extreme circumstances the monarch could dissolve Parliament single-handedly, on the condition that "an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors ... A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation."[16]

The monarch could force the dissolution of Parliament through a refusal of

George V had been privately advised (by his own lawyer, not by the Prime Minister) that he could veto the Third Irish Home Rule Bill; Jennings writes that "it was assumed by the King throughout that he had not only the legal power but the constitutional right to refuse assent".[17] The royal prerogative to dissolve Parliament was abrogated by Section 3(2) of the Fixed-term Parliaments Act 2011,[18] and revived by the Dissolution and Calling of Parliament Act 2022, which repealed the 2011 Act.[19] Section 6(1) of the 2011 Act however specifically stated that the monarch's power to prorogue Parliament is not affected by the Act.[20] Nonetheless, the Supreme Court's 2019 judgment in Miller II
established that the prerogative of prorogation is not absolute.

The appointment of the prime minister is also, theoretically, governed by the royal prerogative. Technically the monarch may appoint as prime minister anyone he wants to appoint, but in practice the appointee is always the person who is best placed to command a majority in the House of Commons. Usually, this is the leader of the political party that is returned to Parliament with a majority of seats after a general election. Difficulties may result with a so-called hung parliament, in which no party commands majority support, as last occurred in 2017. In this situation, constitutional convention is that the previous incumbent has the first right to form a coalition government and seek appointment.[21] If the prime minister decides to retire in the middle of a parliamentary session, then unless there is a clear "prime minister-in-waiting" (e.g. Neville Chamberlain in 1937 or Anthony Eden in 1955) the monarch in principle has to choose a successor (after taking appropriate advice, not necessarily from the outgoing prime minister), but the last monarch to be actively involved in such a process was George V, who appointed Stanley Baldwin rather than Lord Curzon in 1923. In more modern times, the monarch left it to the politicians involved to choose a successor through private consultations (Winston Churchill in May 1940, Harold Macmillan in January 1957, Alec Douglas-Home in October 1963). Nowadays, the monarch has no discretion, as the governing party will elect a new leader who will near-automatically be appointed as he or she commands the support of the majority of the Commons (most recently Theresa May in 2016, Boris Johnson in 2019, Liz Truss and Rishi Sunak in 2022).[22]

Judicial system

The most noted prerogative power that affects the judicial system is the

Attorney General of England and Wales (or the equivalent in Scotland or Northern Ireland) in the name of the Crown, to stop legal proceedings against an individual. This is not reviewable by the courts, as confirmed by R v Comptroller-General of Patents, ex parte Tomlinson,[26][27] and does not count as an acquittal; the defendant may be brought before the courts on the same charge at a later date.[28]

Foreign affairs

The royal prerogative is in much use in the realm of foreign affairs. It is the monarch who recognises foreign states (although several statutes regulate the immunities enjoyed by their heads and diplomatic representatives), issues declarations of war and peace, and forms international treaties. The monarch also has the power to annex territory, as was done in 1955 with the island of

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2),[32] the Court of Appeal ruled that using Orders-in-Council to frustrate judicial rulings was an unlawful abuse of power, although this ruling was later overturned.[33]

A judgment delivered in the

Court of Appeal in 1988 (ex parte Everett), and re-stated in a ruling of the High Court delivered in July 2016,[34] confirmed that granting or withdrawing British passports has always been an exercise of the royal prerogative, and continues to be exercisable at the Secretary of State's discretion.[35]

Under the common law, citizens have the right freely to leave and enter the United Kingdom. In

ne exeat regno is also used to prevent a person leaving the country. The right to make treaties is a disputed prerogative power: under Blackstone's definition, a prerogative power must be one unique to the monarch.[37]

Other prerogative powers

Monarchs also have power to exercise their prerogative over the granting of honours, the regulation of the armed forces and ecclesiastical appointments.[38] Although the granting of most honours is normally decided by the executive, the monarch is still the person who technically awards them. Exceptions to this rule are membership of the Order of the Garter, the Order of the Thistle, the Order of Merit, the Royal Victorian Order and the Royal Victorian Chain, which the monarch has complete discretion to grant.[39] In relation to the armed forces, the monarch is the Commander in Chief, and members are regulated under the royal prerogative. Most statutes do not apply to the armed forces, although some areas, such as military discipline, are governed by Acts of Parliament. Under the Crown Proceedings Act 1947, the monarch is the sole authority for the armed forces, and as such their organisation, disposition and control cannot be questioned by the courts.[40] This exercise of prerogative power gives the Crown authority to recruit members of the armed forces, appoint commissioned officers, and establish agreements with foreign governments to station troops in their territory.[41]

The prerogative empowers the monarch to appoint bishops and archbishops in the Church of England,[42] and to regulate the printing and licensing of the Authorised (King James) Version of the Bible.[43] The monarch also exerts a certain influence power on his or her weekly and closed conversations with the Prime Minister of the United Kingdom.[citation needed]

Burmah Oil Co. v Lord Advocate, the House of Lords took the view that it extended to "doing all those things in an emergency which are necessary for the conduct of [the Second World War]."[44]

Use

Today, the monarch exercises the prerogative almost exclusively in line with the advice of the government. Leyland notes that:

The present Queen ... is kept very closely in touch with the exercise of governmental power by means of a weekly audience with the prime minister during which she is fully briefed about the affairs of government ... [But it] should be emphasised that the prime minister is not under any obligation to take account of royal opinions.[45]

In simple terms, the prerogative is used by the prime minister and cabinet to govern the realm in the name of the Crown; although the monarch has the "right to be consulted, the right to encourage, and the right to warn", an action in that role involves no exercise of discretion. Under the right to warn, the monarch may present the prime minister with reasons to reconsider a choice, but the choice remains with the prime minister.[46]

Today, some prerogative powers are directly exercised by ministers without the approval of Parliament, including the powers of declaring war and of making peace, the issue of passports, and the granting of honours.

prime minister (whom the monarch meets weekly) and of the cabinet.[48] Some key functions of the British government are still executed by virtue of the royal prerogative, but generally the usage of the prerogative has been diminishing as functions are progressively put on a statutory basis.[49]

Limitations

Several influential decisions of the

Attorney General v De Keyser's Royal Hotel Ltd (1920),[53] where the House of Lords confirmed that a statutory provision in an area where prerogative powers are in use "abridges the Royal Prerogative while it is in force to this extent – that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance".[54]

This principle of statutory superiority was extended in Laker Airway Ltd v Department of Trade, concerning the revocation of a commercial airline operator's licence (December 1976),

Court of Appeal held that even if a statute had not yet come into force, the prerogative could not be used to "conflict with Parliament's wishes" (in that case using its discretion to choose a start date to delay, perhaps indefinitely, the introduction of a statutory compensation scheme).[58]

Whilst the royal prerogative is deployed by the UK government when making (and unmaking) treaties, the Supreme Court held in

Article 50 of the Treaty on European Union). Instead legislative authority via an Act of Parliament was required by the Government. The Court's reasoning in the initial hearing was that such a notice would inevitably affect rights under domestic law (many EU rights having direct effect in the UK). On the assumption – later proven false[note 1] – that triggering Article 50 would inevitably result in Brexit, using the prerogative in this way would therefore frustrate the intention of Parliament to confer those rights. This reasoning was maintained in the subsequent Supreme Court hearing, although that judgement devoted more attention to the fact that Parliament had voted the UK into what was then the EEC by statute in 1972, which under the principle of De Keyser's Hotel (1920) superseded the normal prerogative power to enter into treaties. Following this decision, Parliament decided to provide legal authorisation to the Government to serve a notice in accordance with Article 50. This was duly granted in the European Union (Notification of Withdrawal) Act 2017 and Theresa May exercised the power on 29 March 2017.[citation needed
]

Judicial review

Before the modern judicial review procedure superseded the petition of right as the remedy for challenging the validity of a prerogative power, the courts were traditionally only willing to state whether or not powers existed, not whether they had been used appropriately.

Wednesbury tests: whether the use was illegal. Constitutional scholars such as William Blackstone
consider this appropriate:

In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account.[61]

During the 1960s and 70s this attitude was changing, with

R v Secretary of State for the Home Department, ex parte Bentley.[62]

Reform

Abolition of the royal prerogative is not imminent, and recent movements to abolish the role of the monarchy and its royal prerogative in government have been unsuccessful.

MP and cabinet minister Tony Benn campaigned unsuccessfully for the abolition of the royal prerogative in the United Kingdom in the 1990s, arguing that all governmental powers in effect exercised on the advice of the prime minister and cabinet should be subject to parliamentary scrutiny and require parliamentary approval. Later governments argued that such is the breadth of topics covered by the royal prerogative that requiring parliamentary approval in each instance where the prerogative is currently used would overwhelm parliamentary time and slow the enactment of legislation.[65]

See also

Notes and references

  1. ^ On 10 December 2018, the Court of Justice of the European Union held that a state that had issued a notification under Article 50 was free to rescind it at will, without requiring the consent of the other Member States.[59][60]
  1. ^ Select Committee on Public Administration (16 March 2004). "Select Committee on Public Administration Fourth Report". Parliament of the United Kingdom. Archived from the original on 9 March 2021. Retrieved 7 May 2010.
  2. ^ a b c Carroll (2007) p. 246
  3. ^ Loveland (2009) p. 92
  4. ^ William Blackstone, Commentaries on the Laws of England, 1765–1769
  5. ^ Review of the Executive Royal Prerogative Powers: Final Report, Chapter Two paragraph 26 [1] Archived 2 November 2013 at the Wayback Machine
  6. ^ a b Holdsworth 1921, p. 554.
  7. ^ Keen 1973, p. 281.
  8. ^ Chrimes 1956, pp. 365–390.
  9. ^ 1 Parl. Hist. 555
  10. ^ Holdsworth 1921, p. 555.
  11. ^ Holdsworth 1921, p. 556.
  12. ^ Holdsworth 1921, p. 561.
  13. ^ Loveland 2009, p. 87.
  14. ^ Loveland 2009, p. 91.
  15. ^ Barnett (2009) p. 106
  16. ^ Barnett (2009) p. 107
  17. ^ Barnett (2009) p. 109
  18. ^ "Fixed-term Parliaments Act 2011". Archived from the original on 27 August 2019. Retrieved 11 September 2019.
  19. ^ "Dissolution and Calling of Parliament Act, 2022". legislation.gov.uk. 24 March 2022.
  20. ^ "Fixed-term Parliaments Act 2011". Archived from the original on 2 September 2019. Retrieved 7 September 2019.
  21. ^ Barnett (2009) p. 114
  22. ^ Barnett (2009) p. 115
  23. ^ [1985] AC 374
  24. ^ [1994] Q.B. 349
  25. ^ Barnett (2009) p. 116
  26. ^ [1899] 1 QB 909 (CA) (ex officio informations)
  27. . On proceedings of indictment, the Attorney General, in the name of the Crown, can enter a nolle prosequi, the effect of which stops the legal proceedings. The power is not subject to the control of the courts: R v Comptroller of Patents (1899).
  28. ^ Barnett (2009) p. 117
  29. ^ [1905] 2 KB 391
  30. ^ "West Rand Central Gold Mining Company, Limited v. The King". 1905. Archived from the original on 2 October 2017. Retrieved 16 June 2015.
  31. ^ Loveland (2009) p. 120
  32. ^ [2008] UKHL 61
  33. ^ Loveland (2009) p. 121
  34. ^ R (XH & Another) v Secretary of State for the Home Department [2016] EWHC 1898 (Admin) (Hamblen LJ, Cranston J) 28 July 2016 [2] Archived 30 July 2021 at the Wayback Machine
  35. ^ The Earl of Gosford, The Joint Parliamentary Under-Secretary of State for Foreign Affairs (16 June 1958). "The Withholding or Withdrawing of Passports". Parliamentary Debates (Hansard). Vol. 209. Parliament of the United Kingdom: House of Lords. col. 860–861. My Lords, the protection of a British-born subject does not derive from the possession of a passport but is the exercise of one of the normal functions of a sovereign State. No British subject has a legal right to a passport. The grant of a United Kingdom passport is a Royal prerogative exercised through Her Majesty's Ministers and, in particular, the Foreign Secretary. The Foreign Secretary has the power to withhold or withdraw a passport at his discretion, although in practice such power is exercised only very rarely and in very exceptional cases.
  36. ^ [1989] QB 811, [1988] EWCA Civ 7, [1989] 2 WLR 224 http://www.bailii.org/ew/cases/EWCA/Civ/1988/7.html Archived 7 May 2015 at the Wayback Machine
  37. ^ Loveland (2009) p. 122
  38. ^ The Appointment of Bishops Act 1533
  39. ^ Loveland (2009) p. 118
  40. ^ Loveland (2009) p. 119
  41. ^ Ministry of Justice (2009) p.14
  42. ^ Ministry of Justice (2009) p. 4
  43. ^ Ministry of Justice (2009) p. 32
  44. ^ Carroll (2007) p. 251
  45. ^ Leyland (2007) p. 74
  46. ^ Bagehot (2001) p. 111
  47. Public Administration Select Committee (2003). Press Notice no.19 (Report). Archived from the original on 4 January 2004. Retrieved 5 May 2010. Both the above links broken, original now available here Archived 28 July 2012 at the Wayback Machine
    (retrieved 9 November 2016).
  48. ^ Leyland (2007)p. 67
  49. ^ Petition of Right, In re A ('Shoreham Aerodrome Case') [1915] 3 K.B. 649, cited in The case of requisition: in re a petition of right of De Keyser's Royal Hotel Limited: De Keyser's Royal Hotel Limited v. the King (1920), Leslie Scott and Alfred Hildesley, with Introduction by Sir John Simon, Clarendon Press, 1920 [3]
  50. ^ Privy Council, The Zamora, On Appeal from the High Court, Probate, Divorce, and Admiralty Division. (In Prize.) Powers of King in Council – Royal Prerogative – Extent to which Orders in Council are binding – Inherent Powers of the Court – Preservation of Property in Specie – Neutral Cargo – Contraband – Seizure as Prize – Requisition before Adjudication – Validity – Prize Court Rules.[4] Archived 6 May 2015 at the Wayback Machine
  51. ^ Loveland (2009) p. 93
  52. ^ [1920] UKHL 1
  53. ^ Loveland (2009) p. 97
  54. ^ Laker Airway Ltd v Department of Trade [1977] QB 643, [1976] EWCA Civ 10 [5] Archived 7 May 2015 at the Wayback Machine
  55. ^ Loveland (2009) p. 99
  56. ^ 1995 2 AC 513
  57. ^ a b Loveland (2009) p. 101
  58. ^ "Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions – Case C‑621/18". InfoCuria. 10 December 2018. Archived from the original on 6 May 2021. Retrieved 13 September 2020.
  59. ^ Randerson, James; Cooper 10 December 2018, Charlie. "UK can withdraw Brexit notification, ECJ rules". Politico. Archived from the original on 17 October 2020. Retrieved 13 September 2020.{{cite news}}: CS1 maint: numeric names: authors list (link)
  60. ^ Loveland (2009) p. 102
  61. ^ Loveland (2009) p. 108
  62. ^ Leyland (2007) p. 78
  63. ^ Ministry of Justice (2009) p. 1
  64. ^ David McKie (6 December 2000). "How ministers exercise arbitrary power". The Guardian. London. Archived from the original on 11 November 2013. Retrieved 5 May 2010.

Sources

External links