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Royal Prerogative
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The Royal Prerogative is a body of customary authority, privilege, and immunity, recognised in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the Sovereign alone. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of their state, are carried out. Individual prerogatives can be abolished by Parliament, although in the United Kingdom special procedure applies.
Though some republican heads of state possess similar powers, they are not coterminous, containing a number of fundamental differences.
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The Royal Prerogative is a body of customary authority, privilege, and immunity, recognised in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the Sovereign alone. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of their state, are carried out. Individual prerogatives can be abolished by Parliament, although in the United Kingdom special procedure applies.
Though some republican heads of state possess similar powers, they are not coterminous, containing a number of fundamental differences. See reserve powers.
While prerogative powers were originally exercised by the monarch acting alone, and do not require parliamentary consent, they are now always exercised on the advice of the Prime Minister or the Cabinet, who is then accountable for the decision to Parliament. There may be situations in which the monarch could choose to exercise the Royal Prerogative without the advice of the Prime Minister and the Cabinet. Such situations are rare, and generally only occur in emergencies or where existing precedent does not adequately apply to the circumstances in question. In many liberal-democratic constitutional monarchies, such actions could precipitate a constitutional crisis.
Not all constitutional monarchs have royal prerogative that can be exercised independently however. For example, the King of Sweden and the Emperor of Japan have specific government duties that cannot be exercised with any degree of individual discretion, no matter what the circumstance.
Definition
In the Kingdom of England (up to 1707), the Kingdom of Great Britain (1707–1800) and the United Kingdom (since 1801), the Royal Prerogative historically was one of the central features of the realm's governance.
Constitutional theorist AV Dicey gives the standard definition of what prerogative powers are:
Ministerial exercise of the monarch's prerogatives
Today, some prerogative powers are directly exercised by ministers without the approval of Parliament, including, in the United Kingdom, the powers to regulate the civil service, issue passports and grant honours. Some prerogative powers are exercised nominally by the monarch, but on the advice of Prime Minister, with whom the monarch meets on a weekly basis, and on the advice of Cabinet of the United Kingdom. Some key areas of the British system of government are still carried out by means of the Royal Prerogative, but its usage has been diminishing as functions are progressively made statutory.
Contrary to widespread belief, the Royal Prerogative is not constitutionally unlimited. While the sovereign has the right to publish new law, it is a form of reserve power not constitutionally used. (Her Majesty, as Head of State of the United Kingdom and the other Commonwealth Realms, has the right to use the Royal Prerogative over any nation where she is Head of State.) In the Case of Proclamations (1611) during the reign of King James I/VI, English common law courts judges emphatically asserted that they possessed the right to determine the limits of the Royal Prerogative. Since the Glorious Revolution (1688), which brought co-monarchs Queen Mary II and King William III to power, this judicial interpretation has not been challenged by the Crown.
No new prerogative powers can be created; BBC v Johns (1965). However, existing prerogatives such as the power of "Declaring War and Making Peace" can be modified to cover new situations, as seen in ex p Northumbria Police Authority (1989), which saw this prerogative evolved to include the ability to "keep the peace" and hence allow the Home Secretary to equip his forces with plastic baton rounds and CS gas.
Furthermore, where a discretionary prerogative power is justiciable, its exercise can be challenged by judicial review on the same grounds as that of discretionary powers vested in the executive by statute. This is elucidated by Lord Diplock in Council of Civil Service Unions v Minister of State for Civil Service (1985)
Examples
Among the powers possessed by the monarch in the United Kingdom under the Royal Prerogative are:
The prerogative also traditionally included duties, not just rights. The foremost of these were the defence of the realm and the keeping of the Queen's peace.
In regard to the monarch's prerogative of the awarding of dignities and honours, in practice most British Orders of Chivalry are conferred on the advice of the Prime Minister. However, the monarch retains the exclusive right of conferring the Order of the Garter, the Order of the Thistle, the Order of Merit, the Royal Victorian Order and the Royal Victorian Chain, along with the grant of arms.
The monarch is also immune from prosecution in the courts, though the scope of the immunity that once attached to the Crown has reduced. (The ostensible logic for this is that the Queen is present in all courts and acts as the prosecuting authority in most criminal cases, either directly or indirectly: she cannot therefore sue or prosecute herself or judge her own case. However, this logic can be said to be flawed because there appears no problem in judging her own cases as prosecutor, or as claimant in civil litigation. The explanation most commonly offered in texts on Crown immunity is that "the Queen can do no wrong", and therefore cannot be held liable for breaches of contract or in tort). In particular, several Acts of Parliament have allowed agents of the Crown (i.e., government employees) to be sued in the courts. The Queen's daughter, the Princess Royal, actually has a criminal record (for not keeping her dog under control).
Although many powers are included in the royal prerogative, some powers are notable for their absence, although they could theoretically be included under the Royal Prerogative. In particular, the British monarch does not have the power to deprive an individual of his or her life, liberty or property as these rights are said to derive from the Fundamental Laws of England. As a consequence, the monarch does not have the power to tax without the consent of Parliament and this has significantly limited the power of the monarchy. The unsuccessful efforts of Charles I of England to raise money to finance the royal administration through royal prerogative sources not subject to parliamentary approval (such as the collection of ship money) was one of the major causes of the English Civil War.
Many uses of the prerogative in foreign affairs are called Acts of State. Most powers exercised by the British government in international and foreign affairs come from the Royal Prerogative. These include:
- The accreditation of diplomats;
- The granting of Sovereign Immunity;
- The negotiation of treaties.
Among the more esoteric royal prerogatives are:
- The power to order a subject not to leave the realm;
- Crown ownership of wild unmarked white swans swimming in open and common waters
- Crown ownership of royal fish, meaning sturgeons, dolphins, porpoises and whales.
Criticism
Before British involvement in the 2003 invasion of Iraq, Prime Minister Tony Blair, in a major break with precedent, sought parliamentary approval for British participation in the war. However, Parliament's decision was in constitutional terms advisory, as the actual decision would be taken by the exercise of the Royal Prerogative. Blair indicated that should Parliament not approve, he would not formally advise Queen Elizabeth II to exercise the Royal Prerogative. Given that Blair had an overwhelming Labour majority in the British House of Commons and had the support of the opposition Conservative Party, there was little likelihood that Parliament would vote down the motion recommending participation in the war. It remains to be seen whether a future government with a small majority or in a minority in the House of Commons will seek parliamentary approval before the exercise of the Royal Prerogative. Clare Short has proposed a Private Member's Bill that would remove the declaration of war from the royal prerogative.
Former left wing Labour MP Tony Benn campaigned 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. His attempts were unsuccessful, with later governments arguing 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.
The Royal Prerogative in the Commonwealth Realms
In the other Commonwealth Realms, the Royal Prerogative varies significantly from the prerogative in the United Kingdom, and is exercised by the Monarch's representative, the Governor-General. The Constitution of a Commonwealth Realm may sharply limit the prerogative in ways that do not apply in the United Kingdom and many governmental acts which would be done under the prerogative in the United Kingdom are given effect by the Constitution or Acts of Parliament in a Commonwealth realm.
The Royal Prerogative in Dependencies
Generally, the crown retains all the power of the state in a crown colony (even if in practice it is not directly exercised). Thus the royal prerogative is in theory an unlimited, arbitary authority. In British overseas territories however, each inhabited territory has a constitution by which the territory is governed locally.
The absoluteness of the royal prerogative in the colonies was however defeated in the case of Campbell v. Hall, in 1774. Campbell v. Hall decided that once a colony gained a representative assembly (or once the governor has been instructed to call one) then the royal authority is limited to the familiar prerogatives; without the assembly's consent the Crown could not raise taxation nor change the law.
Several of the colonies of the British West Indies thus became "settled colonies", and reverted to "crown colony" status only by Act of Parliament in the nineteenth century.
Controversial Contemporary Uses of Royal Prerogative
In the United Kingdom and Canada, the power to issue passports remains under the Royal Prerogative. The governments of these countries have used the Royal Prerogative to deny passports to citizens whom the US government had held, and released, from the American prison in the US Naval base at Guantanamo Bay. Martin Mubanga, who has joint citizenship with the United Kingdom and Zambia, is one of the British citizens denied a passport. Abdurahman Khadr was denied a passport by the Canadian government.
In the case of Chagos Archipelago islands, in 2000, the English High Court ruled that a local Ordinance made by the Commissioner of the British Indian Ocean Territory exiling the islanders was unlawful, a decision which was accepted by the British Foreign Secretary Robin Cook. However that Ordinance was legislation passed under authority given by the royal prerogative, not an exercise of the prerogative itself, and was overturned as being beyond the powers given. After this decision, the British Government issued an Order in Council, a primary exercise of the royal prerogative, to achieve the same objective. This Order was also ruled unlawful by the High Court, a ruling upheld in the Court of Appeal. However on Wednesday, 22 October 2008, the Government won its appeal in the House of Lords against the previous rulings. The House decided by a three-to-two majority that the Order in Council was a lawful exercise of authority .
In their speeches, the Law Lords admitted the government of the day was morally wrong to force out some 2,000 residents of the Chagos Islands, a British colony, to make way for a US air base in the 1960s. Nevetheless, the majority could not find legal fault in the Order.
See also The Royal Prerogative in Dependencies
See also
Additional reading
- Walter Bagehot, The English Constitution
- Joseph Chitty, The Prerogatives of the Crown (monograph from 1820)
- Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law
- A. B. Keith, The King and the Imperial Crown (1936)
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