Chapter 5: Royal Prerogative

Question 1

What is the definition of Royal Prerogative by A.V Dicey?

Answer 1

“The residue of discretionary or arbitrary authority, which at any time is legally left in the hands of the Crown… Every act which the executive can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative…”

Question 2

What are the 5 points/characteristics of RP by Hallaire Barnett?

Answer 2

1. The powers are inherent in, and peculiar to the Crown (can only be exercised by the Crown/Crown’s name)
2. Powers derived from common law
3. Powers are residual (It’s exercised in the hands of the Crow)
4. Majority of the powers are exercised by the executive government in the name of the Crown
5. There is no need for statute to allow authority to RP

Question 3

Who exercises RP?

Answer 3

Some executive power are sourced by the Crown, and exercised in respect of the Crown. That consist of

• Minister of Crown
• Prime Minister

Question 4

How do courts interfere with the exercise of RP?

Answer 4

Courts test the validity of royal prerogatives if there is Parliamentary intervention (where they cross the line with Legislation) to reduce its scope of abolishing any of the prerogatives altogether

Question 5

Only when did judicial review begin to interfere with royal prerogatives?

Answer 5

• Before, courts did not interfere with the exercise of RP.
• Until 1984, where the case of Council of Civil Service Unions v Minister for the Civil Service [1985] - ruled that the exercise for the power could prima facie be amenable to judicial review and the court’s supervisory role could only be displaced by the concept of justiciability

Question 6

What are the nature/characteristics & issues of RP today?

Answer 6

1. A constitutional issue with interference of relationships between the governmental bodies
2. RP that are mostly exercised by the executive in the name of the Crown.
3. Personal prerogatives of the Crown
4. Prerogative notion today (beliefs)
5. Limitations to the actual power exercisable by the Crown himself

Question 7

What is the constitutional issue with interference of relationships between the governmental bodies

Answer 7

A constitutional issue with interference of relationships between the governmental bodies. The relationship between statute (L) and prerogative (E); Control, judicial (J) or political, of the prerogative (E).
The** King is part of the Legislature** (Parliament comprises of the Crown, Lords and the Commons). The King is also the fountain of justice - the entire administration of justice is conducted in the name of the Crown

Question 8

What are the RP that are most exercised in the name of the Crown?

Answer 8

RP that are mostly exercised by the executive in the name of the Crown. The most important residual powers are the dissolution of Parliament and appointment of the Prime Minister. The former was statutorily superseded by the Fixed-term Parliament Act 2011 and dissolution of parliament was no longer in the hands of the Monarch.
The Dissolution and Calling of Parliament Act 2022 statutorily resurrected RP of dissolving Parliament upon the advice of the PM

Question 9

What are the personal prerogatives of the Crown?

Answer 9

Granting honours

1. Order of Merit
2. Orders of the Garter and Thistle

3 other rights (according to Bagehot in ‘the English Constitution’)

1. Right to be consulted
2. Right to encourage
3. Right to warn

Question 10

What are the prerogative notions today?

Answer 10

1. The Crown never dies
2. Crown is never an infant
3. Crown can do no wrong

Question 11

What are the 2 limitations to the actual power exercisable by the Crown himself

Answer 11

1. Majority of the powers are exercised by his Majesty’s government or** His Majesty’s judges in his name**
2. The existence and the scope of a purported prerogative power is subjected to the scrutiny of the courts (i.e. GCHQ,Miller 1 & 2). Although this isn’t equivalent to the control of the prerogative, but only its purported exercise

Question 12

What type of prerogatives are there?

Answer 12

Foreign affairs

Domestic affairs

Question 13

What are the list of prerogatives that are in Foreign affairs and Domestic affairs?

Answer 13

Foreign affairs

1. Power to make declarations of war and peace
2. Power to enter into Treaties (when exiting treaties that have been affected by legisislation, may require parliamentary approval if it affects domestic law)
3. The recognition of foreign States
4. Diplomatic relations and granting diplomatic protection to British Citizens abroad
5. Disposition of armed forces overseas (Needs to be done together by the PM and the SS for Defence)
6. Governance of British Overseas Territories

Domestic affair

1. Appointment of Ministers (prerogative of the Monarch by advice of the PM - convention)
2. Royal assent to Bills
3. Dissolution and Calling of Parliament as revived under the Dissolution and Calling of Parliament Act 2022
4. The granting of honours
5. Defence of the realm
6. The keeping of peace
7. The parens patriae wardship jurisdiction of the courts
8. The power to stop criminal prosecutions - ‘nolle prosequi’
9. The prerogative of mercy
10. Reduction of sentences
11. Pardoning of offenders (partial or total)
12. Regulations of the terms and conditions of the Civil Service
13. The right to treasure trove, and to royal fish and swans

Question 14

What is dissolution of parliament?

Answer 14

Prior

1. The dissolution of Parliament was prior to 2011, which was perhaps the most important residual prerogative exercised personally by the Sovereign and represents the greatest potential for controversy
   Then came Fixed-term Parliament Act 2011 (created many rules)

Then came Fixed-term Parliament Act 2011 (created many rules)

1. It brought in fixed term five-year Parliaments and** placed the dissolution of Parliament on a statutory basis**
2. The Act provided for fixed days for parliamentary elections, ordinarily held on the first Thursday in May every five years
3. The dissolution of Parliament occurred automatically under the provisions of the Bill, thus removing the power of the Crown to dissolve Parliament

Until the Dissolution and Calling of Parliament Act 2022 revived it (24 March 2022)

1. It revived the prerogative power to dissolve Parliament and to call a new Parliament ‘as if the Fixed-term Parliament Act 2011 had never been enacted’
2. It further states that ‘the exercise (or purported exercise) of powers relating to the dissolution of Parliament, and the calling of a new Parliament, is non-justiciable and cannot be reviewed by a court or tribunal.’

Question 15

How does RP work in appointment of the PM work?

Answer 15

Normally - monarch appoints (by convention)

• By convention, the Monarch appoints the person who can command a majority in the HOC
• Who under normal circumstances will become the leader of the political party which secures the** greatest number of parliamentary seats** in the general election

Rare circumstance (but not that rare either) - coalition

• However, the difficult position arises where the election produces no outright winner resulting in no one party having a majority (a hung parliament)
• Happened in 1974, the Conservative party lost the General Election by small number of seats and entered negotiations with other political parties in order to form a coalition government.

Question 16

What is the prerogative of mercy?

Answer 16

Two aspects of power

1. To grant pardons
2. Power to enter nolle prosequi

• In the proceedings on indictment, the Attorney General, in the name of the Crown, can enter a nolle prosequi the effect of which stops the legal proceedings

Question 17

What is the RP of law enforecement?

Answer 17

• For many legal proceedings, the consent of the AG is required. The AG has discretion weather to institute proceedings
• In Gouriet v Union of Post Office Workers [1978], the discretion was tested. COA held that there was no power to review the exercise of the AG’s decision. Lord Denning MR (in the minority), held that the refusal (or withholding consent) by the AG to give reasons for refusing was contrary to the ROL

Question 18

What are the 4 granting of honours?

Answer 18

1. Order of Garter
2. Order of Thistle
3. Royal Victorian Order
4. Order of Merit

Question 19

What is the RP of the regulation of the Civil Service?

Answer 19

This control was vested in the Crown and civil servants, like Ministers, were servants of the Crown. However, the appointment was subject to ‘good behaviour’ although in practice, civil servants would not be dismissed other than for misconduct (Fulton Committee Report)

• Although salaries and other benefits are by virtue of statute most part of the Civil Service was governed under prerogative
• Constitutional Reform and Governance Act 2010 - Represented the most recent constitutional reform on the royal prerogative. The Act established a statutory basis for the appointment and management of civil service

Question 20

What is the RP of regulation of Armed Forces?

Answer 20

• Members of the armed forces are regulated under RP
• The Sovereign is Commander-in-Chief of the armed forces whose control, organisation and disposition are within the prerogative andcannot be questioned in any court of law

Question 21

What is the RP of Acts of State?

Foreign affairs

Answer 21

Acts in relation to foreign affairs

• An act of the executive as a matter of policy performed in the courts of its relations with another State, including its relations with the subject of that State. Unless they are temporarily within the allegiance of the Crown.
  It includes the recognition of foreign States and government, diplomatic relations. including the sending of diplomats and the reception of foreign diplomats (declarations of war and peace and the annexation or cession of territory)

Question 22

What is the RP of Declarations of war and peace?

Answer 22

1. Where a declaration of war has been made, the status of nationals of the enemy state within the United Kingdom is altered
2. If the Secretary of State for the Foreign Office issues a certificate to the effect that a state war exists, this must be accepted by the courts

Question 23

What is the RP of Annexation and cession of territory?

Answer 23

The Crown also has the power to alter the limits of British territorial waters

Question 24

What is the RP of issuing of passports?

Answer 24

• The conventional classification of the right to issue and withhold passports is a royal prerogative
• At common law citizens have the right to enter and leave the realm. Nevertheless, it is extremely difficult in practice to travel without a passport, which is issued under the prerogative

Question 25

What is the case that showed RP in issuing passports

Answer 25

R v Foreign Secretary Ex Parte Everett [1989]

• The court for the first time held that the granting and withholding passports was subject to judicial review by the courts

Question 26

What is the RP of treaty-making powers

Answer 26

The power to enter treaties under international law is a feature of the sovereignty of that state and it is generally regarded that such power is an emanation of the prerogative

• Being a creature of international law cannot alter national/domestic law without being given effect by an Act of Parliament
• Because of this, the European Communities Act 1972 was enacted to provide for entry and application of European Community law into the UK

Question 27

What was the case that challenged the European Communities Act 1972 ?

Answer 27

R v Secretary of State Ex Parte Rees-Mogg [1994]

1. Feb 1991, the Heads of Government of Member States of the European Community signed the Treaty of Union - Maastricht Treaty
2. Under constitutional practise in the UK, a treaty only needs to approved by Parliament if it requires a change in legislation or the grant of public money

• Issue was whether the gov had the power to ratify the treaty without the approval of the HOC
• It was clear that there was there was substantial views that opposed to the treaty on all sides of the House
• The PM announced that the Treaty would be ratified under the prerogative, thus, avoiding the risk of parliamentary disapproval

Held
* Queen’s Bench Division refused to grant application for judicial review, as the matter was within the prerogative of the Crown

Question 28

In what ways are royal prerogatives controlled/held accountable for?

Answer 28

RP are controlled by the Judiciary - by judicial review or judciial prnouncements

Question 29

Ex Parte Fire Brigades’ Union

Cases that were justiciable/subject to judicial review

Answer 29

Facts

1. The Home Secretary introduced a radical scheme different from the Criminal Injuries Compensation Scheme obligated by the Criminal Justice Act 1988

Held

1. Claiming to act under RP, held to be ultra vires
2. Further he did not have an unfettered discretion as to whether the statutory scheme as he could not, through the use of prerogative, defeat the purpose of the statute

Question 30

The Council for Civil Service Unions v Minister of State for the Civil Service [1985]

Cases that are non-justiciable

Answer 30

Facts

1. The PM, as Minister of the Civil Service, used the prerogative order to terminate the rights of workers at the Government Communications Headquarters (‘GCHQ’) to belong to trade unions
   Union sought judicial review claiming they had legitimate expectation to be consulted prior to their rights to membership being withdrawn

Held

1. HOL accepted the terms and conditions of the employment of civil servants were RP. They accepted that the employees had legitimate expectations to be consulted before their rights were affected
2. In the end, it was overridden by national security

Takeaway

• Some prerogatives exercised are not justiciable and subject to judicial review

Question 31

R v Foreign Secretary Ex Parte Everett [1989]

Cases that were justiciable/subject to judicial review

Answer 31

Held

1. Withholding of passports, were justiciable and were within the powers of the courts to review
2. Grounds for judicial review were not made out - especially for irrationality and procedural impropriety

Question 32

A-G v de Keyser’s Royal Hotel [1920]

Cases that show RP is inferior to Acts of Parliament

Answer 32

Held

1. This case showed that in the case where statutes seeks to regulate a matter previously within the realm or RP, but doesn’t abolish the prerogative#
2. Then** statute will prevail, due to legislative supremacy**
3. Therefore RP would thereby fall into ‘abeyance’ waiting to be awakened once the statute is repealed

Question 33

Laker Airways v department of Trade [1977]

Cases that show RP is inferior to Acts of Parliament

Answer 33

Facts

1. In this case, the statutory right gave the Secretary of State the power to give guidance to the Civil Aviation Authority on the policy to follow in considering licensing applications

Held

1. Government could not defeat statutory right which regulated specific area by use of RP
2. Secretary of State could not give ‘guidance’ on withdrawing Laker Airways Licence
3. Which was held to be ultra vires, as it went beyond giving mere guidance and fell within the ambit of ‘instructing’ the Authority

Question 34

Secretary of State for Home Department Ex Parte Northumbria Police Authority [1998]

Answer 34

Facts

1. Police Act 1964 set out the respective powers of Home Secretary, the Police Authorities and the Chief Constable of police with regards to, inter alia, the supply of equipment to the police forces
2. The Secretary of State issued a circular that he would be making available supplies of riot control equipment to the police forces, irrespective of the approval of the police authorities
3. Northumbria Police Authority sought judicial review on the legality of the circular
   Secretary of State argued he had the power under RP to issue weapons

Held

1. COA held no monopoly was reserved to the police authority and according to the SoS had not acted ultra vires. It accepted that the Police Act 1964 had unaffected the RP to keep the peace (they could bypass the police act to supply the equipments)
2. It was also stated that the RP to take all reasonable steps to preserve the Queen’s peace remained unaffected by the Act. Which include the supply of equipment to the police forces which is reasonably required for the more efficient discharge of their duties

Question 35

R v Jones (Margaret) [2006] 2 All ER 741 - International law interfering with domestic law

Answer 35

HOL considered the legality of the Iraq war under international law could be pleaded in defence to various charges for criminal damage and/or aggravated trespass

Held

1. Court held it could not
2. The relevant statutes were domestic, and Parliament could not have intended that international law could affect its operation
3. Moreover, since foreign affairs and the deployment of armed forces were conducted under RP, the court would not inquire into such areas

Question 36

R (G) v Home Secretary [2012] EWCA Civ 867; [2013] 2 WLR 1277

Answer 36

Facts

1. Claimant was a naturalised British citizen born in Sudan, left the UK while on bail for a public order offence.
2. The Home Secretary decided to deprive him of his citizenship on the basis that it was conductive to the public good because he was involved in terrorism-related activities (Under the British Nationality Act 1981, Section 40(2), as substituted by Section 56(1) of the Immigration Asylum and Nationality Act 2006)

Held

1. Decision to exclude the claimant was taken under RP, and which did not attract any statutory right of appeal. Therefore, the C was obliged to challenge the decision by way of judicial review
2. There were 3 grounds of appeal. The 1st of which is of principal interest here. That ground was that Parliament had impliedly extinguished’ the Crown’s common law or prerogative power to exclude a person from the UK pending his appeal against a decision taken under the 1981 Act.
3. On this point Laws LJ stated: ‘By definition the prerogative power is not authorised by Parliament. It is the residue of legal authority remaining in the hands of the Crown which Parliament has not abrogated or modified. It is common ground that by virtue of its prerogative the Crown has ample power to exclude an alien from the United Kingdom, unless the power has been abrogated or modified… there is nothing in the statutory provisions… which touches on the Crown’s undoubted common law prerogative power to exclude the appellant once the Section 40(2) order had been made…’

Question 37

R (XH) v Secretary of State for the Home Department [2017] EWCA Civ 41

Answer 37

Facts

1. Claimant argued that the purported exercise of prerogative was invalid because that power had been impliedly abrogated by the Terrorism Prevention and Investigation Measures Act 2011

Held

1. Court disagreed. There being no express restriction in the Act, to succeed the claimant had to show that the prerogative was abridged or abrogated by ‘necessary implication’. Necessary implication is a strict test and in this case was not established
2. XH also claimed that there had been an interference with his rights under EU law. But courts held that the Home Secretary had shown clear justification for her action. There was a ‘genuine, present, and sufficiently serious threat to a vital national interest’.
3. COA held that the executive retained the prerogative power to refuse to issue or to cancel a passport issued to a person whom the Home Secretary was satisfied been involved in terrorist activities

Question 38

What are the 2 principal means where Parliament may curtail the use of RP (noted by Hilaire Barnett)

Answer 38

1. Abolish the prerogative and place it on a statutory basis, as with the Bill of Rights and the Treasure Act
2. Through its scrutiny mechanism, call the government to answer for its use of prerogatives

Question 39

What are the 7 issues that ministers conventionally decline to furnish information on and matters which are precisely those which fall within the scope of RP (Duncan v Cammell Laird [1942])

Answer 39

1. Dissolution of parliament
2. Disposition of the armed forces
3. Government contracts
4. Judicial appointments
5. Investigations by the Director of Public Prosecutions the grant of honours and broad notions of national security
6. Confidentiality
7. Public interest

Question 40

What are arguments for codifying RP?

Answer 40

1. Impossible to identify - It has never been possible to identify all prerogatives of the Crown and that their existence could be ascertained (made certain) only by means of piecemeal decisions (Ex Parte Northumbria Police Authority)
2. Lacks clarity - Barnett highlights, given the difficulties lying on the path on the exercise of the Crown’s prerogative power to dissolve Parliament according to its own initiative, Its existence is “in doubt”.
   This can be seen in Ex Parte Northumbria Police, where courts found the alleged prerogative powers of the Home Secretary existed.
   While Lord Camdem’s assertion in Entick v Carrington that if there existed authority for the lawful exercise of power, it would be found “in the books.”
3. Certainty - The process of putting prerogatives on statutory terms would clearly define the nature and scope of prerogatives.
   Even if the very existence of RP in their present unwritten form could somehow be determined accurately, the matter of their exercise remains questionable.
4. Constitutional reform and Governance Act 2010 was the recent constitutional reform on RP.
   The Act established on a statutory basis that the appointment and management of the civil service and introduced a** new parliamentary procedure** for the ratification (approval) of treaties

Question 41

What are arguments to not codify RP?

Answer 41

1. In July 2006, HOL’s Committee on the Constitution published a report entitled Waging War. Parliament’s Role and Responsibility, examined the nature of the executive’s power in relation to the fundamentals of peace and war, and concluded: “exercise of the Royal prerogative by the Government to deploy armed forces overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in the 21st century. Parliament’s ability to challenge the executive must be protected and strengthened.”
2. Committee did not favour the proposals for legislating to place the RP on a statutory basis or to make parliamentary approval a prior legal condition for use of armed forces. They argued that there should be a “parliamentary convention” determining the role Parliament in this sphere

• In 1988, Tony Benn introduced a Private Member’s Bill to place RP under statutory authority
• In 2005, unhappy with the PM, Tony Blair, which brought the UK into the Iraq War, with the Commons approval forthcoming only on the eve of fighting in March 2003
• This legal situation was concerning, which resulted in Claire Short bringing another Private Member Bill to entrench the right of Parliament to approve war. Both bills fell in parliament.

Question 42

What was the judgement given to whether Theresa May triggering Article 50 of the Treaty of the European Union was lawful in the case of Miller I?

Answer 42

On the withdrawal of EU

• UKSC dismissed the Secretary of State’s appeal. In a joint judgement of the majority, the UKSC held that the Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the EU

On the devolution issues

• Court unanimously concluded that neither Section 1 nor Section 75 of the Northern Ireland Act 1998 is of assistance in this case, that the Sewel Convention does not give rise to legally enforceable obligations (it is a convention afterall)

Question 43

What was the judgement given whether Boris Johnson on adivisng Her Majesty to prorogue parliament in Miller II?

Answer 43

• Ruled unanimously that the advice given to prorogue Parliament, and the subsequent prorogation was unlawful and of no effect
• It was ruled that it was justiciable. And that courts had been protecting parliament sovereignty by restricting the prerogative for centuries
• Judgement was given on the basis of following the 2 foundamental principles of the constitution, being parliamentary sovereignty and parliamentary accountability. Lady Hale, President of the Supreme Court, stated that parliamentary sovereignty would be undermined if the executive, via the royal prerogative, could prevent Parliament from exercising its legislative authority. On parliamentary accountability, the longer parliament was prorogued the greater the risk that an accountable government would be replaced by an unaccountable government
• Therefore, there were legal limits, as defined by the courts, on the power to prorogue. Prorogation will be unlawful if it would frustrate, ‘without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’.