Tagged as: UK Law

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 his 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 1600s, 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 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 monarchy. 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 exist, 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.”

The existence of the royal prerogative in the seventeenth century was established when the King was the chief executive, and when the relationship between the ruler and the ruled was founded upon a form of contractual agreement. There was also an essential religious element to the King’s 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.

What is the royal prerogative?

Personal and political prerogative powers cover those areas in which the monarch used to be able to exercise authority 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 and 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 created; 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 a statutory rather than a prerogative power is being used. 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 one:

Blackstone’s Commentaries on the Laws of England (8th edition, Clarendon 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 his 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 comprised 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 given time legally left in the hands of the Crown... Every Act which the executive government can lawfully do 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 a 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 late 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 the award of honours – including the PM and the senior judiciary.
• Courts and the justice system – the prerogative of mercy and the Attorney General’s representation of the Crown in legal proceedings.
• Foreign affairs – including the issue of passports, the signing of treaties, and the recognition of diplomats and foreign states.
• Defence – including the deployment of forces abroad and acting as commander-in-chief of the 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 request in 2003. Blackburn considers that modern constitutional practice largely removes the monarch’s discretion in the exercise of the prerogative powers, and that his 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 prerogative comprises “...the residue of executive powers, immunities or other attributes which the government possesses without the authority of Parliament, but which can be withdrawn – expressly or impliedly – by Parliament”.

What are the monarch’s personal powers?

These can be distinguished into two types: personal prerogative powers of the monarch and political prerogative powers. Personal prerogative powers are linked to the monarch’s status as head of state. The prerogative powers of ministers are those that are exercised by ministers in his name. The idea that such powers are personal (Ivor Jennings, Cabinet Government, CUP, 1959) implies an element of personal discretion. The political reality, however, is that such powers are not personal discretionary powers but are constitutional duties to be carried out 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 that wins the most seats after a general election. There are two situations in which 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 that 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. A conflict of interest arises in such a case where the existing PM, who acts as principal adviser to the monarch, may be required to advise the monarch 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 and may request advice from other sources. The political reality is that the monarch 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 Conservative Party and the Liberal Democrats. A further example arose in 2017 when the general election produced a hung parliament and the Conservative Party formed a confidence-and-supply arrangement with the Democratic Unionist Party.
2. 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 leaders under their own rules. Under stable political conditions, it is unlikely that the King will be required to exercise 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 a case where no single party commands a majority. In such situations, the King would have to take initiatives to enable a new government to be formed.

2. The dissolution of Parliament

The monarch’s prerogative power to dissolve Parliament has a complex recent history. The Fixed-term Parliaments Act 2011 removed the royal prerogative to dissolve Parliament and replaced it with a statutory framework providing for fixed five-year parliamentary terms. The Act was introduced following the formation of the Conservative–Liberal Democrat coalition government in 2010, and was intended to prevent either coalition partner from collapsing the government by seeking an early dissolution.

However, the 2011 Act proved to be short-lived. It was widely criticised as an expedient political device rather than a principled constitutional reform, and its mechanisms were bypassed in practice: the early general elections of 2017 and 2019 were both achieved through separate Acts of Parliament (the Early Parliamentary General Election Act 2017 and the Early Parliamentary General Election Act 2019) rather than through the 2011 Act’s own provisions for early dissolution.

The Dissolution and Calling of Parliament Act 2022 repealed the Fixed-term Parliaments Act 2011 in its entirety and expressly revived the royal prerogative power to dissolve Parliament. Section 2 of the 2022 Act states that “the powers relating to the dissolution of Parliament and the calling of a new Parliament that were exercisable by virtue of Her Majesty’s prerogative immediately before the commencement of the Fixed-term Parliaments Act 2011 are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted.” Section 3 of the Act further provides that a court or tribunal may not question the exercise of these revived prerogative powers, effectively placing the dissolution of Parliament beyond judicial review.

The position today, therefore, is that the monarch dissolves Parliament on the advice of the Prime Minister, as was the convention prior to 2011. In practice, it remains the case that the monarch acts on the PM’s advice and grants dissolution when requested. It is doubtful whether the monarch could refuse a request from a PM who commanded a majority within the House of Commons. There have been no instances of the monarch refusing a dissolution in the UK in over a hundred years.

Prior to 2011, the monarch also held a disputed reserve power to require a dissolution and a general election to provide a clear mandate for a controversial government proposal. The last time this power was arguably 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. It is unclear whether this reserve power has revived alongside the general dissolution prerogative under the 2022 Act, although it is difficult to envisage the circumstances in which it would be exercised today.

Prerogative powers and the executive

There is a wide range of prerogative powers that were once within the realm of the Crown but which over time have transferred to government ministers who act on behalf of the Crown in their particular area of responsibility. The powers most frequently considered to be in need of reform are those that relate to foreign relations: declarations of war, the deployment of troops abroad, and 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 (Part 2) provides a statutory basis for the House of Commons and House of Lords 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.

2. 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. The power to commit armed forces to military action 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 – a requirement 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 taken despite the failure of the United Nations Security Council to approve military force in Iraq, which had the effect of making the invasion illegal according to international law. Blair later stated that if Parliament had not approved the decision, he would not have taken the country to war. However, the Chilcot Inquiry, which reported in July 2016, found that the basis upon which Blair took the country to war – the alleged existence of weapons of mass destruction in Iraq – was not supported by the intelligence available at the time, and that Parliament was presented with a case for war that was not justified.

The convention of seeking parliamentary approval before committing troops to military action was further tested in 2013, when the House of Commons voted against proposed military action in Syria. The then PM, David Cameron, accepted the result of the vote. However, in 2018, PM Theresa May authorised air strikes in Syria without a prior parliamentary vote, demonstrating that the convention remains non-binding. The prerogative power to deploy the armed forces remains intact and has not been placed on a statutory footing.

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.

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 that statutory powers can overrule prerogative powers where the statute 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 of the Police Act 1964 did not expressly state that a prerogative power no longer applied, the Secretary of State should have the powers necessary to ‘preserve the peace of the realm’ (p.53). Finally, where a statute restricting a prerogative power is repealed, the prerogative power may once more emerge – a principle given modern application by the Dissolution and Calling of Parliament Act 2022, which expressly revived the prerogative of dissolution following the repeal of the Fixed-term Parliaments Act 2011.

Prerogative powers and the courts

Where prerogative powers directly affect the rights of an individual, the courts may be required to adjudicate disputes between the parties.

Although BBC 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.

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 been reluctant to restrain the executive in this regard through the application of section 6 in the following cases:

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 a 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 significant 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, most notably through the Constitutional Reform and Governance Act 2010, which placed the civil service on a statutory footing and introduced a statutory framework for treaty ratification. However, since the Coalition government of 2010–2015 and successive Conservative governments from 2015, no further comprehensive reform has been undertaken. The Dissolution and Calling of Parliament Act 2022, in fact, reversed one of the few recent statutory interventions in the prerogative by restoring the dissolution power to the Crown.

In 2007, Conservative MP William Hague described an alliance between himself and Labour MP Tony Benn which illustrated the growing consensus across the political spectrum that prerogative powers were not appropriate in a modern constitution. The two MPs made a representation to the Public Administration Committee, which had 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 commentators 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 to 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 apparent, e.g. the Security Service Act 1989 and the Intelligence Services Act 1994 put the three intelligence services under statutory authority. Similar arguments were also put forward for civil service legislation and war powers. One obvious objection to the wholesale abolition of prerogative powers is the difficulty 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 problem with gradually implementing statutory change is that it may be ineffective or insufficient. A need for democratic structures was identified, and proponents of this view advocated for comprehensive legislation on the prerogative.

The options for legislation

Ministers need prerogative or executive powers; these should not be abolished entirely, as there is a need for flexibility in their decision-making processes. Lord Lester proposed the Executive Powers and Civil Service 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 the government list the prerogative powers exercised by ministers within 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 years means that it is important that Parliament supports the government in its actions.

The position supports the right of Parliament to know what powers are being exercised by ministers. It is an important principle that “Parliament should not have to contend with imprecise powers”. There is no accountability without full information being provided; without it, 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 ministers without Parliament having any input into how they are exercised; these 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 and specialised powers such as the decision to deploy armed forces abroad.

Despite these recommendations, comprehensive reform of the prerogative remains incomplete. The Constitutional Reform and Governance Act 2010 addressed some areas – notably treaty ratification and the civil service – but the broader programme of reform envisaged by the PASC has not been implemented. The events surrounding Brexit and the Miller cases demonstrated both the continuing significance of the prerogative in modern governance and the ongoing tensions between executive power, parliamentary sovereignty and judicial review. Whether future governments will take up the cause of comprehensive prerogative reform remains to be seen.

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