Royal Prerogative (United Kingdom)
Encyclopedia
The Royal Prerogative
is a body of customary authority, privilege, and immunity, recognised in the United Kingdom as the sole prerogative of the Sovereign
. Many of the executive
powers of British government, vested in a monarch, have been bestowed under the mandate of the Royal Prerogative.
Prerogative powers were formerly exercised by the monarch acting alone. Since the 19th century, 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 is constitutionally empowered to exercise the Royal Prerogative against the advice of the prime minister or the cabinet, but does so only in emergencies or where existing precedent does not adequately apply to the circumstances in question.
Today the Royal Prerogative is concerned with several areas critical to the government of the United Kingdom, including the conduct of foreign affairs, defence, and national security. The monarchy has a significant constitutional presence in these and other areas, but very limited power, because the prerogative is nowadays in the hands of the prime minister and other ministers or other government officials.
The Royal Prerogative has been called "a notoriously difficult concept to define adequately", but prominent constitutional theorist A. V. Dicey
has written that:
The Diceyan view is the one most commentators follow, but some constitutional lawyers prefer the definition given by William Blackstone
:
The two views are divergent. Dicey's opinion is that any action of governance by the monarch beyond statute is under the prerogative. Blackstone, however, maintains that the prerogative simply covers those actions that no other person or body in the United Kingdom can undertake, such as the dissolution of Parliament.
The Royal Prerogative originated as the personal powers of the monarch. From the 13th century in England
, as in France
, the monarch was all-powerful, but this absolute power was checked by "the recrudescence of feudal turbulence in the fourteenth and fifteenth centuries". An early attempt to define the Royal Prerogative was stated by Richard II
's judges in 1387
.
During the 16th century, this "turbulence" began to recede, and the monarch became truly independent. Under Henry VIII
and his successors, the king was the head of the Protestant English church
, and therefore not answerable to the clergy. The rise of Parliament in this period, however, was problematic. While the monarch was "the predominant partner in the English constitution", the courts stopped short of declaring him all-powerful, recognising the role that Parliament played. In Ferrer's Case, Henry recognised this, noting that he was far more powerful with the consent of Parliament than without. Nowhere was this more apparent than in the matter of taxation: Sir Thomas Smith
and other writers of the period pointed out the monarch could not impose taxation without Parliament's consent.
At the same time, Henry and his descendants normally followed the will of the courts, despite the fact that they were theoretically not bound by judges. William Holdsworth infers that by regularly asking the legal officers of the crown and judiciary for legal advice and consent, Henry recognised the need for a stable government to follow the law. He also contends that the view that the law is supreme over all "was the view of all the leading lawyers and statesmen and publicists of the Tudor period". It was accepted that while the King had "unfettered discretion", he was limited in areas where the courts had imposed conditions on the use of the prerogative, or where he had chosen to do so.
The first dent in this stability came about in 1607, with the Case of Prohibitions
. James VI and I
claimed that as monarch, he 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, stating that while the monarch was not subject to any individual, he was subject to the law. Until he had gained sufficient knowledge of the law, he had no right to interpret it; Coke pointed out that such knowledge "demanded mastery of an artificial reason ... which requires long study and experience, before that a man can attain to the cognizance of it". Similarly, in the Case of Proclamations
in 1611, Coke held that the monarch could only exercise those prerogatives he already had, and not create new ones.
With the Glorious Revolution
, the monarchy of the House of Stuart
fell, and William III
became King of England. At the same time the Bill of Rights 1689
was drafted, which cemented the monarch's subservience to Parliament. It specifically limited the Royal Prerogative, with Article 1 holding that the "power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal", and article 4 confirming that "levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal". The Bill also confirmed that Parliament had the right to limit the use of remaining prerogatives, as evidenced by the Triennial Act 1694, which required the monarch to dismiss and call Parliament at certain times.
One of the monarch's historic prerogatives was the dissolution of Parliament, which was "perhaps the most important residual prerogative exercised personally by the sovereign, and represents the greatest potential for controversy". This prerogative was normally exercised at the request of Parliament and the prime minister
, either at his or her discretion or following a motion of no confidence
. The last time the monarch unilaterally dissolved Parliament was in 1835, when Earl Grey
resigned as prime minister; although he had a fully functioning cabinet capable of carrying on without him, William IV
chose to force it out of office. Constitutional theorists have differing views as to whether this 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".
The monarch could force the dissolution of Parliament through a refusal of royal assent
; this inevitably lead to a government resigning. By convention, the monarch always assents to bills; the last time the royal assent was not given was in 1704 during the reign of Queen Anne
. This does not mean that the right to refuse has died; George V
believed 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". The royal prerogative to dissolve Parliament was abrogated by the Fixed-term Parliaments Act 2011.
The appointment of the prime minister is also, theoretically, governed by the Royal Prerogative. Technically the monarch may appoint as prime minister anyone she wants to appoint, but in practice the appointee is always the person who commands a majority in the House of Commons. Usually, this is the leader of the political party which 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. In this situation, constitutional convention is that the previous incumbent has the first right to form a coalition government and seek appointment. If the prime minister decides to retire in the middle of a parliamentary session, as Anthony Eden
did in 1957, the queen has no discretion. There is usually a "prime minister-in-waiting" who commands the support of the majority of the Commons; he or she will near-automatically be appointed.
. Pardons may be used to eliminate the "pains, penalties and punishments" which come from a criminal conviction, although they do not remove convictions themselves. This power is commonly exercised on the advice of the Secretary of State for the Home Department; the monarch has no direct involvement in its use. Exercises of this power may also take the form of commutations, a limited form of pardon where the sentences is reduced, on certain conditions. The granting of a pardon is not subject to judicial review, as confirmed by Council of Civil Service Unions v Minister for the Civil Service
, but the courts have chosen to criticise its application or lack thereof, as in R v Secretary of State for the Home Department, ex parte Bentley. Granting nolle prosequi
is done by the Attorney General of England and Wales (or the Scottish or Northern Irish equivalent) 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 of Patents, and does not count as an acquittal; the defendant may be brought before the courts on the same charge at a later date.
. Once territory has been annexed, the monarch has complete discretion as to what extent it will take over the former government's liabilities; this was confirmed in West Rand Central Gold Mining Company v The King. The monarch also has the power to alter British territorial waters and cede territory. Her freedom to do this in reality rather than theory is doubtful, in that it would involve depriving British citizens of their nationality and rights. When the island of Heligoland
was ceded to Germany in 1890, Parliamentary approval was first sought. The monarch can also regulate colonies and dependent territories by exercising the prerogative through Orders in Council. The courts have long fought with the monarch's use of this power; in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
, the Court of Appeal ruled that using Orders-in-Council to frustrate judicial rulings was an unlawful abuse of power, although this was later overturned.
Passports are also regulated by the prerogative, although there are statutory grounds. Under the common law, citizens have the right to freely leave and enter the United Kingdom. In R v Foreign Secretary ex parte Everett, the courts held that it was their right to review situations where a British citizen has been granted or withheld a passport. The writ of ne exeat regno is also used to prevent a person leaving the country. The right to form treaties is a disputed prerogative power; under Blackstone's definition, a prerogative power must be one unique to the monarch. However, because a treaty cannot interface with United Kingdom law without an enabling Act of Parliament (such as the European Communities Act 1972
), the monarch alone cannot bring one into force.
, the Order of the Thistle
, the Royal Victorian Order
and the Order of Merit
, which the monarch has complete discretion to grant. 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. 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. The prerogative empowers the monarch to appoint bishop
s and archbishops in the Church of England
, and to regulate the printing and licensing of the authorised Church of England version of the Bible
.
R v Secretary of State for the Home Department, ex parte Northumbria Police Authority, recognised that the prerogative also includes the power to "take all reasonable steps to preserve the Queen's peace", and in 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]".
In simple terms, the prerogative is used 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", her role involves no exercise of discretion.
Today, some prerogative powers are directly exercised by ministers without the approval of Parliament, including the powers of declaring war and of making peace, to issue passports, and to grant honours. Prerogative powers are exercised nominally by the monarch, but on the advice of the prime minister
(with whom the monarch meets on a weekly basis) and on the advice of the cabinet
. 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.
which have seriously limited the use of prerogatives. In 1915, the Lords decided in Re Petition of Right, which concerned the British Army
's seizure of a commercial airfield for military purposes during wartime. The government argued it was to defend against an invasion; the courts held that for the prerogative to be exercised, the government must demonstrate that an invasion situation exists. This was backed up by The Zamora, where the Privy Council
held generally that to exercise a power not granted by statute (such as a prerogative) the government must prove to the court that the use is justified. The next limitation came in Attorney General v De Keyser's Royal Hotel Ltd
, where the House of Lords confirmed that no new prerogative powers could be created, and that a statutory provisions 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".
This principle of statutory superiority was extended in Laker Airways Ltd v Department of Trade, where it was confirmed that prerogative powers could not be used to contradict a statutory provision, and that in situations where the power and the statute were designed to be used side by side, the power could only be used to further the aim of the statute. Another extension came with R v Secretary of State for the Home Department, ex parte Fire Brigades Union
, where the Court of Appeal
held that even if a statute had not yet come into force, the prerogative could not be used to alter this statute to "conflict with Parliament's wishes".
consider this appropriate:
During the 1960s and 70s, this attitude began to change. In R v Criminal Injuries Compensation Board, ex parte Lain, the courts held that prerogative powers could be reviewed if they were being used to perform a "judicial" task; the issues at hand were ones that the courts were easily able to decide. The Laker Airways case lent further weight to the idea that prerogative powers should be subject to stronger judicial review, with Lord Denning saying that "seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive". The most authoritative case on the matter is Council of Civil Service Unions v Minister for the Civil Service
, generally known as the GCHQ case. The House of Lords
confirmed that the application of judicial review would be dependant on the nature of the government's powers, not their source. Foreign policy and national security powers are considered outside the scope of judicial review, while the prerogative of mercy is considered within it, as per R v Secretary of State for the Home Department, ex parte Bentley.
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.
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized 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...
is a body of customary authority, privilege, and immunity, recognised in the United Kingdom as the sole prerogative of the Sovereign
Monarchy of the United Kingdom
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
. Many of the executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
powers of British government, vested in a monarch, have been bestowed under the mandate of the Royal Prerogative.
Prerogative powers were formerly exercised by the monarch acting alone. Since the 19th century, the advice of the prime minister
Prime Minister of the United Kingdom
The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the Head of Her Majesty's Government in the United Kingdom. The Prime Minister and Cabinet are collectively accountable for their policies and actions to the Sovereign, to Parliament, to their political party and...
or the cabinet
Cabinet of the United Kingdom
The Cabinet of the United Kingdom is the collective decision-making body of Her Majesty's Government in the United Kingdom, composed of the Prime Minister and some 22 Cabinet Ministers, the most senior of the government ministers....
—who are then accountable to Parliament for the decision—has been required in order for the prerogative to be exercised. The monarch is constitutionally empowered to exercise the Royal Prerogative against the advice of the prime minister or the cabinet, but does so only in emergencies or where existing precedent does not adequately apply to the circumstances in question.
Today the Royal Prerogative is concerned with several areas critical to the government of the United Kingdom, including the conduct of foreign affairs, defence, and national security. The monarchy has a significant constitutional presence in these and other areas, but very limited power, because the prerogative is nowadays in the hands of the prime minister and other ministers or other government officials.
Definition
A. V. Dicey
- References :...
has written that:
The Diceyan view is the one most commentators follow, but some constitutional lawyers prefer the definition given by William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
:
The two views are divergent. Dicey's opinion is that any action of governance by the monarch beyond statute is under the prerogative. Blackstone, however, maintains that the prerogative simply covers those actions that no other person or body in the United Kingdom can undertake, such as the dissolution of Parliament.
History
Kingdom of England
The Kingdom of England was, from 927 to 1707, a sovereign state to the northwest of continental Europe. At its height, the Kingdom of England spanned the southern two-thirds of the island of Great Britain and several smaller outlying islands; what today comprises the legal jurisdiction of England...
, as in France
Kingdom of France
The Kingdom of France was one of the most powerful states to exist in Europe during the second millennium.It originated from the Western portion of the Frankish empire, and consolidated significant power and influence over the next thousand years. Louis XIV, also known as the Sun King, developed a...
, the monarch was all-powerful, but this absolute power was checked by "the recrudescence of feudal turbulence in the fourteenth and fifteenth centuries". An early attempt to define the Royal Prerogative was stated by Richard II
Richard II of England
Richard II was King of England, a member of the House of Plantagenet and the last of its main-line kings. He ruled from 1377 until he was deposed in 1399. Richard was a son of Edward, the Black Prince, and was born during the reign of his grandfather, Edward III...
's judges in 1387
.
During the 16th century, this "turbulence" began to recede, and the monarch became truly independent. Under Henry VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
and his successors, the king was the head of the Protestant English church
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
, and therefore not answerable to the clergy. The rise of Parliament in this period, however, was problematic. While the monarch was "the predominant partner in the English constitution", the courts stopped short of declaring him all-powerful, recognising the role that Parliament played. In Ferrer's Case, Henry recognised this, noting that he was far more powerful with the consent of Parliament than without. Nowhere was this more apparent than in the matter of taxation: Sir Thomas Smith
Thomas Smith (diplomat)
Sir Thomas Smith was an English scholar and diplomat.He was born at Saffron Walden in Essex. He was educated at Queens' College, Cambridge, where he became a fellow in 1530, and in 1533 was appointed a public reader or professor. He lectured in the schools on natural philosophy, and on Greek in...
and other writers of the period pointed out the monarch could not impose taxation without Parliament's consent.
At the same time, Henry and his descendants normally followed the will of the courts, despite the fact that they were theoretically not bound by judges. William Holdsworth infers that by regularly asking the legal officers of the crown and judiciary for legal advice and consent, Henry recognised the need for a stable government to follow the law. He also contends that the view that the law is supreme over all "was the view of all the leading lawyers and statesmen and publicists of the Tudor period". It was accepted that while the King had "unfettered discretion", he was limited in areas where the courts had imposed conditions on the use of the prerogative, or where he had chosen to do so.
The first dent in this stability came about in 1607, with the Case of Prohibitions
Case of Prohibitions
Case of Prohibitions [1607] is a historical English court decision by Sir Edward Coke. Before the Glorious Revolution of 1688, when the sovereignty of Parliament was confirmed, this case wrestled supremacy from the King in favour of the courts....
. James VI and I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
claimed that as monarch, he had a divine right to sit as a judge and interpret the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
as he saw fit. Led by Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, the judiciary rejected this idea, stating that while the monarch was not subject to any individual, he was subject to the law. Until he had gained sufficient knowledge of the law, he had no right to interpret it; Coke pointed out that such knowledge "demanded mastery of an artificial reason ... which requires long study and experience, before that a man can attain to the cognizance of it". Similarly, in the Case of Proclamations
Case of Proclamations
The Case of Proclamations [1610] was a court decision during the reign of King James I which defined some limitations on the Royal Prerogative at that time. Principally, it established that the Monarch could make laws only through parliament...
in 1611, Coke held that the monarch could only exercise those prerogatives he already had, and not create new ones.
With the Glorious Revolution
Glorious Revolution
The Glorious Revolution, also called the Revolution of 1688, is the overthrow of King James II of England by a union of English Parliamentarians with the Dutch stadtholder William III of Orange-Nassau...
, the monarchy of the House of Stuart
House of Stuart
The House of Stuart is a European royal house. Founded by Robert II of Scotland, the Stewarts first became monarchs of the Kingdom of Scotland during the late 14th century, and subsequently held the position of the Kings of Great Britain and Ireland...
fell, and William III
William III of England
William III & II was a sovereign Prince of Orange of the House of Orange-Nassau by birth. From 1672 he governed as Stadtholder William III of Orange over Holland, Zeeland, Utrecht, Guelders, and Overijssel of the Dutch Republic. From 1689 he reigned as William III over England and Ireland...
became King of England. At the same time the Bill of Rights 1689
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
was drafted, which cemented the monarch's subservience to Parliament. It specifically limited the Royal Prerogative, with Article 1 holding that the "power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal", and article 4 confirming that "levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal". The Bill also confirmed that Parliament had the right to limit the use of remaining prerogatives, as evidenced by the Triennial Act 1694, which required the monarch to dismiss and call Parliament at certain times.
Legislature
Prime Minister of the United Kingdom
The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the Head of Her Majesty's Government in the United Kingdom. The Prime Minister and Cabinet are collectively accountable for their policies and actions to the Sovereign, to Parliament, to their political party and...
, either at his or her discretion or following a motion of no confidence
Motion of no confidence
A motion of no confidence is a parliamentary motion whose passing would demonstrate to the head of state that the elected parliament no longer has confidence in the appointed government.-Overview:Typically, when a parliament passes a vote of no...
. The last time the monarch unilaterally dissolved Parliament was in 1835, when Earl Grey
Charles Grey, 2nd Earl Grey
Charles Grey, 2nd Earl Grey, KG, PC , known as Viscount Howick between 1806 and 1807, was Prime Minister of the United Kingdom of Great Britain and Ireland from 22 November 1830 to 16 July 1834. A member of the Whig Party, he backed significant reform of the British government and was among the...
resigned as prime minister; although he had a fully functioning cabinet capable of carrying on without him, William IV
William IV of the United Kingdom
William IV was King of the United Kingdom of Great Britain and Ireland and of Hanover from 26 June 1830 until his death...
chose to force it out of office. Constitutional theorists have differing views as to whether this 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".
The monarch could force the dissolution of Parliament through a refusal of royal assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
; this inevitably lead to a government resigning. By convention, the monarch always assents to bills; the last time the royal assent was not given was in 1704 during the reign of Queen Anne
Anne of Great Britain
Anne ascended the thrones of England, Scotland and Ireland on 8 March 1702. On 1 May 1707, under the Act of Union, two of her realms, England and Scotland, were united as a single sovereign state, the Kingdom of Great Britain.Anne's Catholic father, James II and VII, was deposed during the...
. This does not mean that the right to refuse has died; George V
George V of the United Kingdom
George V was King of the United Kingdom and the British Dominions, and Emperor of India, from 6 May 1910 through the First World War until his death in 1936....
believed 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". The royal prerogative to dissolve Parliament was abrogated by the Fixed-term Parliaments Act 2011.
The appointment of the prime minister is also, theoretically, governed by the Royal Prerogative. Technically the monarch may appoint as prime minister anyone she wants to appoint, but in practice the appointee is always the person who commands a majority in the House of Commons. Usually, this is the leader of the political party which is returned to Parliament with a majority of seats after a general election. Difficulties may result with a so called hung parliament
Hung parliament
In a two-party parliamentary system of government, a hung parliament occurs when neither major political party has an absolute majority of seats in the parliament . It is also less commonly known as a balanced parliament or a legislature under no overall control...
, in which no party commands majority support. In this situation, constitutional convention is that the previous incumbent has the first right to form a coalition government and seek appointment. If the prime minister decides to retire in the middle of a parliamentary session, as Anthony Eden
Anthony Eden
Robert Anthony Eden, 1st Earl of Avon, KG, MC, PC was a British Conservative politician, who was Prime Minister from 1955 to 1957...
did in 1957, the queen has no discretion. There is usually a "prime minister-in-waiting" who commands the support of the majority of the Commons; he or she will near-automatically be appointed.
Judicial system
The most noted prerogative power that affects the judicial system is the prerogative of mercy, which has two elements: the granting of pardons and the granting of nolle prosequiNolle prosequi
Nolle prosequi is legal term of art and a Latin legal phrase meaning "to be unwilling to pursue", a phrase amounting to "please do not prosecute". It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor's decision to voluntarily discontinue criminal charges...
. Pardons may be used to eliminate the "pains, penalties and punishments" which come from a criminal conviction, although they do not remove convictions themselves. This power is commonly exercised on the advice of the Secretary of State for the Home Department; the monarch has no direct involvement in its use. Exercises of this power may also take the form of commutations, a limited form of pardon where the sentences is reduced, on certain conditions. The granting of a pardon is not subject to judicial review, as confirmed by Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law which held that the Royal Prerogative was subject to judicial review...
, but the courts have chosen to criticise its application or lack thereof, as in R v Secretary of State for the Home Department, ex parte Bentley. Granting nolle prosequi
Nolle prosequi
Nolle prosequi is legal term of art and a Latin legal phrase meaning "to be unwilling to pursue", a phrase amounting to "please do not prosecute". It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor's decision to voluntarily discontinue criminal charges...
is done by the Attorney General of England and Wales (or the Scottish or Northern Irish equivalent) 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 of Patents, and does not count as an acquittal; the defendant may be brought before the courts on the same charge at a later date.
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 RockallRockall
Rockall is an extremely small, uninhabited, remote rocky islet in the North Atlantic Ocean. It gives its name to one of the sea areas named in the shipping forecast provided by the British Meteorological Office....
. Once territory has been annexed, the monarch has complete discretion as to what extent it will take over the former government's liabilities; this was confirmed in West Rand Central Gold Mining Company v The King. The monarch also has the power to alter British territorial waters and cede territory. Her freedom to do this in reality rather than theory is doubtful, in that it would involve depriving British citizens of their nationality and rights. When the island of Heligoland
Heligoland
Heligoland is a small German archipelago in the North Sea.Formerly Danish and British possessions, the islands are located in the Heligoland Bight in the south-eastern corner of the North Sea...
was ceded to Germany in 1890, Parliamentary approval was first sought. The monarch can also regulate colonies and dependent territories by exercising the prerogative through Orders in Council. The courts have long fought with the monarch's use of this power; in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
R v Secretary of State for Foreign and Commonwealth Affairs was a case of the House of Lords concerning the removal of the Chagos Islanders and the exercise of the Royal Prerogative. The Chagos Islands, acquired by the United Kingdom in 1814, were reorganised as the British Indian Ocean Territory...
, the Court of Appeal ruled that using Orders-in-Council to frustrate judicial rulings was an unlawful abuse of power, although this was later overturned.
Passports are also regulated by the prerogative, although there are statutory grounds. Under the common law, citizens have the right to freely leave and enter the United Kingdom. In R v Foreign Secretary ex parte Everett, the courts held that it was their right to review situations where a British citizen has been granted or withheld a passport. The writ of ne exeat regno is also used to prevent a person leaving the country. The right to form treaties is a disputed prerogative power; under Blackstone's definition, a prerogative power must be one unique to the monarch. However, because a treaty cannot interface with United Kingdom law without an enabling Act of Parliament (such as the European Communities Act 1972
European Communities Act 1972 (UK)
The European Communities Act 1972 is an Act of the Parliament of the United Kingdom providing for the incorporation of European Community law into the domestic law of the United Kingdom. It is not to be confused with the Irish law of the same name, Act No...
), the monarch alone cannot bring one into force.
Other
The monarch also has power to exercise her prerogative over the granting of honours, the regulation of the armed forces and ecclesiastical appointments. Although the granting of most honours is normally determined by the executive, the monarch is still the person who technically awards them. Exceptions to this rule are membership of the Order of the GarterOrder of the Garter
The Most Noble Order of the Garter, founded in 1348, is the highest order of chivalry, or knighthood, existing in England. The order is dedicated to the image and arms of St...
, the Order of the Thistle
Order of the Thistle
The Most Ancient and Most Noble Order of the Thistle is an order of chivalry associated with Scotland. The current version of the Order was founded in 1687 by King James VII of Scotland who asserted that he was reviving an earlier Order...
, the Royal Victorian Order
Royal Victorian Order
The Royal Victorian Order is a dynastic order of knighthood and a house order of chivalry recognising distinguished personal service to the order's Sovereign, the reigning monarch of the Commonwealth realms, any members of her family, or any of her viceroys...
and the Order of Merit
Order of Merit
The Order of Merit is a British dynastic order recognising distinguished service in the armed forces, science, art, literature, or for the promotion of culture...
, which the monarch has complete discretion to grant. 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
Crown Proceedings Act 1947
The Crown Proceedings Act 1947 is an Act of the Parliament of the United Kingdom that allowed, for the first time, civil actions against the Crown to be brought in the same way as against any other party...
, the monarch is the sole authority for the armed forces, and as such their organisation, disposition and control cannot be questioned by the courts. 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. The prerogative empowers the monarch to appoint bishop
Bishop
A bishop is an ordained or consecrated member of the Christian clergy who is generally entrusted with a position of authority and oversight. Within the Catholic Church, Eastern Orthodox, Oriental Orthodox Churches, in the Assyrian Church of the East, in the Independent Catholic Churches, and in the...
s and archbishops in the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
, and to regulate the printing and licensing of the authorised Church of England version of the Bible
King James Version of the Bible
The Authorized Version, commonly known as the King James Version, King James Bible or KJV, is an English translation of the Christian Bible by the Church of England begun in 1604 and completed in 1611...
.
R v Secretary of State for the Home Department, ex parte Northumbria Police Authority, recognised that the prerogative also includes the power to "take all reasonable steps to preserve the Queen's peace", and in Burmah Oil Co. v Lord Advocate
Burmah Oil Co. v Lord Advocate
Burmah Oil Company Ltd. v Lord Advocate, [1965] AC 75, was a court case, raised in Scotland, and decided ultimately in the House of Lords. The case is an important decision in UK constitutional law and had unusual legal repercussions at the time....
, 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]".
Use
Today, the monarch exercises the prerogative almost exclusively in line with the advice of her government. Leyland notes that:In simple terms, the prerogative is used 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", her role involves no exercise of discretion.
Today, some prerogative powers are directly exercised by ministers without the approval of Parliament, including the powers of declaring war and of making peace, to issue passports, and to grant honours. Prerogative powers are exercised nominally by the monarch, but on the advice of the prime minister
Prime Minister of the United Kingdom
The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the Head of Her Majesty's Government in the United Kingdom. The Prime Minister and Cabinet are collectively accountable for their policies and actions to the Sovereign, to Parliament, to their political party and...
(with whom the monarch meets on a weekly basis) and on the advice of the cabinet
Cabinet of the United Kingdom
The Cabinet of the United Kingdom is the collective decision-making body of Her Majesty's Government in the United Kingdom, composed of the Prime Minister and some 22 Cabinet Ministers, the most senior of the government ministers....
. 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.
Limitations
There have been several influential decisions of the House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
which have seriously limited the use of prerogatives. In 1915, the Lords decided in Re Petition of Right, which concerned the British Army
British Army
The British Army is the land warfare branch of Her Majesty's Armed Forces in the United Kingdom. It came into being with the unification of the Kingdom of England and Scotland into the Kingdom of Great Britain in 1707. The new British Army incorporated Regiments that had already existed in England...
's seizure of a commercial airfield for military purposes during wartime. The government argued it was to defend against an invasion; the courts held that for the prerogative to be exercised, the government must demonstrate that an invasion situation exists. This was backed up by The Zamora, where the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
held generally that to exercise a power not granted by statute (such as a prerogative) the government must prove to the court that the use is justified. The next limitation came in Attorney General v De Keyser's Royal Hotel Ltd
Attorney General v De Keyser's Royal Hotel Ltd
Attorney-General v De Keyser’s Royal Hotel Limited [1920] AC 75 is a case in English law which is the authority for the statement that the royal prerogative is placed in abeyance when statute law can provide a legal basis for an action....
, where the House of Lords confirmed that no new prerogative powers could be created, and that a statutory provisions 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".
This principle of statutory superiority was extended in Laker Airways Ltd v Department of Trade, where it was confirmed that prerogative powers could not be used to contradict a statutory provision, and that in situations where the power and the statute were designed to be used side by side, the power could only be used to further the aim of the statute. Another extension came with R v Secretary of State for the Home Department, ex parte Fire Brigades Union
R v Secretary of State for the Home Department, ex parte Fire Brigades Union
R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513 was a House of Lords case concerning the awarding of compensation under the Criminal Injuries Compensation Scheme...
, where the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
held that even if a statute had not yet come into force, the prerogative could not be used to alter this statute to "conflict with Parliament's wishes".
Judicial review
The courts have traditionally been unwilling to subject prerogative powers to judicial review. Judges were only willing to state whether or not powers existed, not whether they had been used appropriately. They therefore applied only the first of the Wednesbury tests; whether the use was illegal. Constitutional scholars such as William BlackstoneWilliam Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
consider this appropriate:
During the 1960s and 70s, this attitude began to change. In R v Criminal Injuries Compensation Board, ex parte Lain, the courts held that prerogative powers could be reviewed if they were being used to perform a "judicial" task; the issues at hand were ones that the courts were easily able to decide. The Laker Airways case lent further weight to the idea that prerogative powers should be subject to stronger judicial review, with Lord Denning saying that "seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive". The most authoritative case on the matter is Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law which held that the Royal Prerogative was subject to judicial review...
, generally known as the GCHQ case. The House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
confirmed that the application of judicial review would be dependant on the nature of the government's powers, not their source. Foreign policy and national security powers are considered outside the scope of judicial review, while the prerogative of mercy is considered within it, as per R v Secretary of State for the Home Department, ex parte Bentley.
Reform
Abolition of the Royal Prerogative is not on the immediate horizon, and recent movements to abolish the role of the monarchy and its Royal Prerogative in government have been unsuccessful. The Ministry of Justice undertook a "review of executive Royal Prerogative powers" in October 2009. Former left wing Labour MPMember of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
Tony Benn
Tony Benn
Anthony Neil Wedgwood "Tony" Benn, PC is a British Labour Party politician and a former MP and Cabinet Minister.His successful campaign to renounce his hereditary peerage was instrumental in the creation of the Peerage Act 1963...
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.
See also
- Executive privilegeExecutive privilegeIn the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government...
- Letters patentLetters patentLetters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
- Order in Council
- Queen-in-ParliamentQueen-in-ParliamentThe Queen-in-Parliament , sometimes referred to as the Crown-in-Parliament or, more fully, as the King in Parliament under God, is a technical term of constitutional law in the Commonwealth realms that refers to the Crown in its legislative role, acting with the advice and consent of the lower...
- Reserve powerReserve powerIn a parliamentary or semi-presidential system of government, a reserve power is a power that may be exercised by the head of state without the approval of another branch of the government. Unlike a presidential system of government, the head of state is generally constrained by the cabinet or the...
- Royal assentRoyal AssentThe granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
- Royal charterRoyal CharterA royal charter is a formal document issued by a monarch as letters patent, granting a right or power to an individual or a body corporate. They were, and are still, used to establish significant organizations such as cities or universities. Charters should be distinguished from warrants and...
- Royal Order
- Royal PrerogativeRoyal PrerogativeThe royal prerogative is a body of customary authority, privilege, and immunity, recognized 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...
(including with respect to the British CommonwealthCommonwealth of NationsThe Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
) - Royal Prerogative of the Spanish monarchy