5.1.2 The Royal Prerogative Lecture

The History of the Royal Prerogative

Throughout the UK’s constitutional history, the relationship between the monarch and Parliament has been subject to change. The Magna Carta 1215 was a key turning point in this relationship, when the feudal barons forced the monarch to recognise that his subjects had rights.  This resulted in a limitation on the monarch’s power which prior to this time was absolute.  A series of struggles after this date included the removal of Richard II from the crown in 1399 for the failure to rule according to the law.

The Statute of Proclamations in 1539 removed the power of the monarch to rule by proclamation. The Prohibitions del Roy case, along with a number of other cases in the early 1600 placed limitations on the monarch’s power.  The culmination of this ongoing dispute between the monarch and Parliament was the Bill of Rights 1689.Parliament however, remained dependent on the monarch to call Parliament. A number of the historical kings and queens failed to do so, illustrating the difficulties that can be presented by the monarch to the function of democracy in the UK.

Parliament has limited the monarch’s powers which has led to a constitutional as opposed to an absolutist monarch. The outcome of this historical struggle is that the royal prerogative is now largely ambiguous. Payne has argued that it is easier to define the prerogative powers by only considering their justifications and their historical establishment. He cites the lack of certainty in the prerogative powers as problematic in that this is likely to violate the rule of law.

S. Payne ‘A critique of prerogative powers’ (Institute of Advanced Legal Studies Workshop: The Crown and Public Law, 21 January 1994, London), pp.1-3, argues:

“A. The powers of the prerogative, as the case law suggests are vague.

   B. The answer to the question, what powers exists, may be resolved by the concept of necessity. Prerogative powers are those powers that inhere by necessity in the Crown. For instance, the power to secure the safety of the realm… But there is something odd in the acceptance of the transmission of such powers across the centuries.”

Since the existence of the Royal prerogative in the seventeenth century was established when the King was the Chief Executive; when the relationship between the ruler and rules was established upon a form of contractual agreement. There was also an essential religious element to the Kings powers; the implication existed that the King's leadership would conform to Christian beliefs and obligations. Payne suggests that prerogative powers have not been reformed because Parliament has not questioned their theoretical background and their underlying purposes, which are now outdated. They were established in a time when the monarch had absolute power, which was derived from God.

  1. What is the Royal Prerogative?

Personal and political prerogative powers cover those areas that the monarch used to be able exercise without any further authorisation or consultation.  Such powers reflected the areas which were covered by prerogative powers: foreign affairs, national defence and national security as well as appointing certain office holders and granting honours.  Prerogative powers are created in common law so are not codified in any form, as a result they are not always easy to discern. Constitutional conventions, which are non-legal practices have been established over time to place limits upon prerogative powers. These conventions are also considered to be due for reform.

No new prerogative powers can be made; instead all new constitutional and administrative powers are established by Statute. Prerogative powers are however, subject to possible development in order to meet the needs of present day necessities. Parliament has more power over the executive when using a Statutory as opposed to prerogative power. The courts are also able to determine the extent and existence of prerogative powers and to ensure that they are being used legally, rationally and procedurally correctly.

The Scope of the Royal Prerogative

Scholars such as Blackstone and Dicey have attempted to define the scope of prerogative powers. Blackstone's approach to the royal prerogative was a restrictive approach:

Blackstone's Commentaries on the Laws of England (8th edition, Clarenden Press, 1778) p.232 "...in its nature singular and eccentrical that it can only be applied to those rights and capacities which the king enjoys alone...and not to those which he enjoys in common with any of this subjects".

In Blackstone's view, the royal prerogative is a special branch of the common law that is unique to the monarch and is to be exercised by the head of state. It is an area of law that remains largely uncodified; the royal prerogative was a term that encompassed all of the residual powers retained by the Crown, other than those reserved to Parliament.  If this was correct these powers were extensive as they were all the powers that the monarch enjoyed prior to the Magna Carta, but which Parliament had not removed by statute.

A.V. Dicey, The Law of the Constitution(10th edn, MacMillan, 1959) pp.434-5 "The prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which is at any time given time legally left in the hands of the Crown... Every Act which the executive government can lawfully done without the authority of an Act of Parliament is done in virtue of this prerogative."

This extract is quite broad and suggests that the royal prerogative covers any legal power that Parliament did not remove from the monarch. The courts have tended to follow definition more in line with Dicey's stance. As a consequence, there is some disagreement about the nature and extent of the prerogative powers. The broad headings of prerogative powers have been discussed in Parliament, by academics and lawyers, and by the judiciary.

One of the leading cases on the royal prerogative is British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, CA, Lord Justice Diplock at 79:

"...[I]t is 350 years and a civil war too later for the Queen's courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints on citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension".

Examples of the royal prerogative

  • The legislature and legislation - the opening and dissolution of Parliament and providing royal assent to legislation.
  • Appointments to certain state offices and award of honours - including the PM and the senior judiciary.
  • Courts and the justice system - prerogative or mercy and the Attorney General’s representative of the Crown in legal proceedings.
  • Foreign affairs - including the issue of passports, the signing of treaties, the recognition of diplomats and foreign states.
  • Defence - including the deployment of forces abroad, acts as commander in chief of armed forces.
  • Emergency powers related to national security.
  • Creation of bodies by charter - including universities, and professional bodies.

The lack of documentation regarding the prerogative makes it unclear. An attempt was made to quantify these powers after the House of Commons Public Administration Select Committee made a requestin 2003. Blackburn considers the modern constitutional practice largely removes the monarch's discretion in the exercise of the prerogative powers and her duties are often in real terms formal or ceremonial in nature.

B.S. Markesinis, 'The royal prerogative revisited' [1973] 32((2) Cambridge Law Journal, 287, 309 argues that "...the residue of executive powers, immunities or other attributes which the government possess without the authority of Parliament, but which can be withdrawn - expressly or impliedly - by Parliament".

Key Case: It was established in Mersey Docks and Harbour Board v Cameron(1865) 29 JR 483 that the Crown is exempt from law unless the law states that the Crown is bound by it.

Key Case: This was affirmed in British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, CA. Council for the BBC in this case made six propositions in formulating an argument for appeal in the case, the sixth point was that (6) Non-traditional provinces of government are within the purpose of the government if the Crown as constitutional asserted that they are within the provinces of the government. Lord Justice Wilmer stated he felt this proposition incorrect in that it is incorrect to suggest that the Crown has ever asserted that broadcasting should be within the provinces of government...

Key Case: The Crowns immunity to the law have been reiterated by Lord Keith in Lord Advocate v Dumbarton District Council [1990] 2 AC 580, these immunities also apply to crown servants undertaking certain activities of the state.

Exam Consideration: Possible essay questions include a description of the Royal Prerogative, its nature, scope and justiciability. You may wish to start with Blackstone and Dicey's alternate explanations. This includes the fact that Dicey refers to prerogative powers as 'residual powers'.

  1. What are the Monarch’s Personal Powers?

These can be distinguished into two types: personal prerogative powers of the monarch and the political prerogative powers. Personal prerogative powers are linked to the monarch's status of head of state. The prerogative powers of ministers are those that are exercised by ministers in her name. The idea that such powers are personal (Ivor Jennings, Cabinet Government, CUP, 1959) implies an element of personal discretion. The political reality is however, that such powers are not personal discretionary powers, but are constitutional duties to be carried on the advice of the Prime Minister. There are two important personal prerogative powers of the monarch:

  1. The Appointment of the Prime Minister

The monarch must appoint the person who has the best chance of commanding a majority in the commons, which is usually the leader of the party who wins the most seats after a General Election. There are two possibilities where a monarch may be required to intervene in the appointment of the Prime Minister (PM).

  1. In the case of a Hung Parliament where no one party commands an absolute majority. In 2010, the PM in office resigned and the Queen had to request the presence of the leader of the party with the largest number of seats (the Conservatives on this occasion). The Cabinet Manual 2011 was published as a result of the Hung Parliament in 2010 and attempted to clarify the procedures for appointing a PM under such circumstances, including the protocol for the existing PM to stand down. The conflict of interest arises in such a case where the existing PM, who acts as principal advisor to the monarch may be required to advise the Queen to make a recommendation as to 'who can best command the confidence of the House of Commons in his or her place' (The Cabinet Manual¸ para 2.9). The monarch is not obliged to adhere to this advice though and may request advice from other sources. The political reality is that the Queen in such cases should initiate discussions between parties to discover whether a government could be formed by a politician who was not a party leader, or whether a coalition government could be formed, as was the case in 2010 between the Conservatives party and Liberal Democrats.
  1. In the case of the resignation or death of the PM, in 1957 and 1963 the monarch was required to exercise discretion to invite a person to be PM who would command support within the governing party. The political parties now choose their leader within their own rules.  Under stable political conditions, it is unlikely that the Queen will be required to expertize a personal discretion to select a PM. However, there may be circumstances where the implementation of normal party procedures may not achieve a result, or a deadlock occurs in the attempt to form a government where no coalition can be agreed upon, in the case where no single party commands a majority. In such situations the Queen would have to take initiatives to enable a new government to be formed.
  1. The Dissolution of Parliament

The monarch's prerogative power to dissolve Parliament was transformed in the Fixed-term Parliaments Act 2011. Prior to the 2011 Act the Queen could in theory dissolve Parliament at any time and call a General Election. Notwithstanding the 2011 Act there are situations in which Parliament can be dissolved without the government carrying out the full five-year term.

  1. In practice despite the power to dissolve Parliament at any time, the monarch acted on the advice of the PM and granted dissolution when requested. It is doubtful whether the monarch could refuse a request of a PM who commanded a majority within the House of Commons if the PM sought such a dissolution; political practice prior to 2011, accepted that a PM could choose the time for a General Election, within the five year life of the Parliament established under the Parliament Act 1911. There have been no instances of the monarch refusing a dissolution in the UK in the past 100 years.
  1. After the 2010 Election, the Liberal Democrats and the Conservative party formed an alliance to establish a coalition government in the absence of a majority being established in the House of Commons. The Fixed Terms Parliaments Act 2011 established that the newly elected Parliament would serve for a full term of five years, which would prevent either party from collapsing the coalition. This provision removes the right of the PM to determine the date of the general election. The 2011 Act is although an important constitutional innovation, it can be repealed at any time through a simple parliamentary majority. The 2011 Act was thus revealed to be little more than a legal device to cement the Coalition, in which the leader of the Conservative party in this case, effectively conceded the right to call a general election when it suited the political interests of his party.

It is likely that the 2011 Act will remove the disputed reserve power of the monarch to require a dissolution and a general election to provide a clear mandate for a controversial government proposal. The last time this power was exercised was in 1910, when George V required a general election to be held when the Liberal party proposed to remove the veto of the House of Lords in the Parliament Bill. Such a demand would not only be made with the consent of a special majority of the House of Commons under the 2011 Act.

Exam Consideration: For extra marks, you may wish to compare the views of Robert Blackburn 'Monarch and the Personal Prerogatives [2004] Public Law 546-563 and Rodney Brazier "Monarch and the Personal Prerogatives": A Personal Response to Professor Blackburn' [2005] Public Law 45-47. Both articles consider the power of the Monarch and in particular the duty to appoint the PM and the exercise of Royal Assent.

  1. Prerogative Powers and the Executive

There are a wider range of prerogative powers that were once within the realm of the Crown, but over history have transferred to government Ministers who act on behalf of the Crown in their particular area of responsibility.  The powers most considered to be in need of reform are those that relate to foreign relations; to declarations of war, to the deployment of troops abroad, the recognition of other states and their diplomatic staff. There are other powers such as those related to national security which are also subject to much debate.

  1. Treaty-making powers and prerogative powers

The power to negotiate and enter into international, regional and bilateral treaties is based upon the royal prerogative. The Constitutional Reform and Governance Act 2010 provides a statutory basis for the House of Commons and House of Lord to scrutinise treaties prior to ratification. Parliamentary scrutiny of treaties is controversial, since the ability of the executive to enter into international treaties has far-reaching consequences for the UK in its international relations with other states.  The UK is a dualist state and hence requires that legislation is passed, which needs to be approved by Parliament in order for international treaty law to be applied in UK domestic law.

Key Case: In Blackburn v Attorney General [1971] 1 WLR 1037, CA,the case related to the European Communities (EC) Treaty and was brought around the time of the UK's entrance into the EC. The UK was required to sign the Treaty of Rome to join the EC. Mr Blackburn sought to challenge the prerogative power of the executive to accede to this treaty arguing it would erode Parliamentary sovereignty. Lord Denning (at 1039) held, that it was not for the courts to override the crown's prerogative that is vested in the executive to negotiate and sign treaties. This action cannot be challenged or questioned by the courts. Stamp LJ, in dismissing the appeal, stated that it is for the Crown to enter into treaties, for Parliament to enact laws (which bring treaties into domestic effect) and for the courts to rule on cases which interpret these laws. The case illustrates the court's reluctance to enter a debate over what is essentially a political decision, to enter into a treaty with other states.

Key Case: In R v Secretary of State for Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552the court was unwilling to question the use of the prerogative power to sign and ratify the Treaty of the European Union. The European Union Act 2011 created a justiciable right to a referendum and consequently the denial of a referendum could have been challenged via the courts.

  1. Declaration of war and peace, deployment of troops abroad

A constitutional convention has developed over time to give Parliament a greater say in declarations of war and the deployment of troops that is a prerogative power of the executive and particularly of the Cabinet. In early September 1990, Parliament was recalled early to be informed about and to debate sending troops to the Gulf, after Iraq invaded Kuwait. This shows evidence of Parliament's view being sought prior to military action, but stops short of seeking approval. Parliament is also required to approve the funding for the maintenance of armed forces while overseas, which applies an effective constraint on the power of the executive to go to war, which was introduced in the Bill of Rights 1689.

Tony Blair, then Labour PM allowed Parliament to debate and vote on whether to go to war with Iraq in 2003. The decision was in defiance of the United Nations Security Council failure to approve military force in Iraq, which had the effect of making it an illegal invasion according to international law. He later stated that if Parliament had not approved the decision he would have not taken the country to war. However, it has now been shown since the Chilcott Inquiry that the basis upon which Tony Blair took the country to war (the existence of Weapons of Mass Destruction in Iraq) proved to be a fallacy, and to an extent Tony Blair misled Parliament in an attempt to achieve their agreement.

  1. Parliamentary Control over Prerogative Powers

Prerogative powers are capable of being abolished expressly or by implication through Statute.  Frequently Parliament has not abolished powers but has created a statutory regime dealing with the same subject.

Key Case: In Attorney-General v De Keyser's Royal Hotel [1920] AC 508a property was required for the housing of the Royal Flying Corps during WWI. Possession was taken under the Defence of the Realm Acts and Regulations. The Defence Act 1842 provided for compensation for owners during such acquisitions as was incorporated into the aforementioned Acts. The Crown argued that there was prerogative power to take land in times of emergency such as during war and that no compensation was payable.  The House of Lords (HL) held that the possession had taken place under statutory powers, which had superseded the prerogative powers. Serious doubt was expressed that a prerogative power existed for the Crown to acquire land without compensation during times of war.

On other occasions, Parliament gives an express indication that powers conferred in statute should be additional to prerogative powers, e.g. Immigration Act 1971, s.33 (5) and the Emergency Powers (Defence) Act 1939. In general, it is assumed thatstatutory powers can overrule prerogative powers where it confers benefits upon citizens, which would be undermined by the Crown's right to retain the prerogative power. In Northumbria Police (see below), the court found that even if s.41 Police Act 1964, did not express clearly that a prerogative power no longer applied, the Secretary of State should have the powers possible to 'preserve the peace of the realm' (p.53). Finally, where a statute restricting a prerogative power is repealed, the prerogative power would once more emerge.

  1. Prerogative Powers and the Courts

Some prerogative powers, such as the dissolution of Parliament are unlikely to give rise to challenge in the courts. Where prerogative powers directly affect the rights of an individual the courts might be required to adjudicate disputes between parties. 

Key Case: In Entick v Carrington(1765) 19 State Tr 1029, it was held that the mere plea of state necessity could not be used as a defence to an unlawful act.

AlthoughBBC v Johns [1965] Ch 32, 79 affirmed that the prerogative powers could no longer be expanded upon, they are wide and difficulties arise when courts are required to apply these ancient principles to modern situations.  It may be difficult at times to distinguish between the creation of a new prerogative and interpreting existing powers to meet the needs of the modern day.

Key Case: In R v Home Secretary, ex p Northumbria Police Authority [1989] QB 26The Home Secretary had provide CS gas and batons to the police to deal with public order situations. The Court of Appeal (CA) had to determine the existence of a prerogative 'to enforce the keeping of what is popularly called the Queen's peace within the realm'; Croom-Johnson LJ concluded that such a general power was incorporated within the Crown's 'undoubted right to see that crime is prevented and justice administered'. The supply of CS gas and batons was found to be within this general prerogative power.

Key Case: In Burma Oil Company v Lord Advocate [1965] AC 75. In 1942, British troops in Rangoon deliberately destroyed extensive oil installations to prevent them falling into enemy hands. The British government gave the oil company £4 million as an ex gracia payment, the company sued the Lord Advocate, who represents the Crown in Scotland for £31 million.  The House of Lords (HL) held that compensation could be payable by the Crown, in the exercise of the prerogative in relation to war and that the destruction of fineries did not come under the exception of 'battle damage'.

The War Damage Act 1965 subsequently barred the Burma Oil Companies claim.  The Act applied to the acts of the Crown, which destroyed property during the contemplation of war.

The Human Rights Act 1998

The growing willingness of the courts to review the exercise of prerogative powers is reinforced by the Human Rights Act 1998 (HRA), which gives the courts certain powers of review. Under the HRA, Orders in Council made under the authority of the royal prerogative are deemed to be primary legislation and must be given effect in a way that is compatible with the European Convention on Human Rights (ECHR) rights, under section 3 HRA.  Where the Order in Council is in breach of the HRA, the court must declare it incompatible under section 4 HRA.

Furthermore, section 6 HRA provides that it is unlawful for a public authority to act in a way that is incompatible with Convention rights. However, the courts have failed to restrain the executive in this regard through the application of section 6 in the following cases:

Key CaseR (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598, is a case that concerns the detention of British citizens by the US government at Guantanamo Bay in circumstance of detention, which violated their Convention rights.  Lord Steyn referred to the situation at Guantanamo as a 'legal black hole' because both Cuba and the United States denied jurisdiction over the territory, effectively enabling the United States' to torture and hold terror suspects without any recourse to Habeas Corpus, The United States' insisted that the US Constitution did not apply to the terror suspects held at Guantanamo. The Court of Appeal held that the British government is not under a duty to take positive action to prevent violations of human rights that occur outside of its jurisdiction and for which they have no responsibility.

Key Case: In R (Gentle) v Foreign Secretary [2008] UKHL 20, [2008] 1 AC 1346 - The HL found that the mothers of two soldiers killing in Iraq did not have a Convention right (under Article 2 - the right to life) to require the government to establish a public inquiry to consider whether the decision to go to war in Iraq in 2003 was compatible with the United Nations Charter 1948.  The HL held that Article 2 imposes no duty that a country not go to war in contravention of international law.

  1. Prerogative Powers and the Need for Reform

Calls for the reform of prerogative powers have been made since the 1980s and 1990s. In 1994, Jack Straw MP stated:

"[the] royal prerogative has no place in modern western democracy... [it] has been used as a smoke screen by Ministers to obfuscate the use of power for which they are insufficiently accountable."

No interest was shown in the reform of the prerogative powers during the Blair government (1997-2007). Progress was made during Gordon Brown's time in office, but since the Coalition government of 2010- 2015 and then the Conservative government of 2015, no further progress has been made.

In 2007, Conservative MP William Hague described an alliance between himself and Labour MP Tony Benn illustrated the growing consensus across the political spectrum that prerogative powers were not appropriate in a modern constitution. The two MP's made a representation to the Public Administration Committee, who concluded in 2004 that:

"the prerogative has allowed powers to move from monarch to Ministers without Parliament having a say in how they are exercised. This should no longer be acceptable to Parliament or the people [...] It is now time for this unfinished business to be completed".

Despite widespread support for reform, the implementation of such reforms has proved complex due to the wide-ranging scope of prerogative powers. There has been little consensus about how reform should be approached, with some people taking a pragmatic approach and others taking an approach based upon principle. The Public Administration Select Committee (PASC) put forward these two broad approaches in its 2004 report.

House of Commons Public Administration Select Committee, Taming the Prerogative, Strengthening Ministerial Accountability in Parliament, Fourth Report, Session 2003-04 HC 422

The Pragmatic approach - from time to time practical and political considerations led the government to subject the prerogative to much greater Parliamentary scrutiny. Periodically a necessary change to the prerogative powers becomes necessary, e.g. the Security Services Act 1989 and the Intelligence Services Act 1994 put under statutory power the three intelligence services. Similar arguments were also put forward for the Civil Service Act and war powers. One obvious opposition to the widescale abolishment of prerogative powers raise the problems of creating the comprehensive legislation that would be required to implement such changes. Such changes would occupy Parliament for a very long time.

The need for democratic structures - two principles of the constitution are parliamentary supremacy - that the executive is accountable to Parliament and not the Crown and the rule of law. The problems with gradually implementing statutory change, is that it may be ineffective or sufficient. A need for democratic structure was identified, proponents of this view advocated for legislation on the prerogative.

The Options for Legislation

Ministers need prerogative or executive powers, these should not be abolished, there is a need for flexibility in their decision-making processes. Lord Lester proposed the Executive Powers and Services Bill in 2004. One option was a sunset clause for prerogative powers that would provide that any powers not expressly provided for in subsequent legislation should be abolished. The problem with this extreme option is that it runs the risk of leaving Ministers without the power to act in certain necessary circumstances.

Professor Brazier presented a draft bill which suggested that government list the prerogative powers exercised by Ministers within the six months of the passage of the Act. A committee would review this list and legislation would be put in place where it was required. It was felt that early legislation was required in the areas of military conflict, treaties and passports. Any decision to engage in military conflict should be approved by Parliament, the increased resort to military action in recent year's means that it is important that Parliament support the government in its actions. 

The position is supported the right of Parliament to know what powers are being exercised by Ministers. It is an important principle that "Parliament should not have imprecise powers". There is no accountability without the full information being provided; Parliament is unable to hold government to account.

Recommendations

  • A public consultation exercise on ministers prerogative powers;
  • The consultation should bring specific proposals for ensuring full Parliamentary scrutiny;
  • The prerogative has permitted powers to move from Monarch to Minsters without Parliament having any input into how they are exercised, the powers need to be constitutionalised.

The PASC Taming the Prerogative report helped to frame the reform agenda, by advocating a move away from pragmatism towards a more comprehensive approach to the whole set of prerogative powers in order to achieve Ministerial accountability. It also spelled out the need to distinguish between generalised prerogative powers from specialised powers such as the decision to deploy armed forces abroad.

Exam Consideration:  Consider the pros and cons of adopting the pragmatic and principled approach to reform. The main advocates for reform in recent years have moved towards the principled approach. Try and consider your own argument to support one of these arguments.


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