Chapter 8: Royal Prerogative Flashcards
1 The prerogative - overview
1.1 What is the ‘royal prerogative’?
What type of power did Tony Blair use to take the UK to war in Iraq in 2003 or Margaret Thatcher
to send the ‘task force’ to the Falkland Islands in 1982? Did this power derive from a statute
passed by Parliament, or did they use a power that came from another source entirely? The answer is the latter: the source of the power used to make these decisions came from the prerogative power of the Crown.
Prime Ministers do not require parliamentary consent
Prime Ministers do not as a matter of law need parliamentary consent to commit British troops, though Blair did seek parliamentary approval for this course of action for political reasons. That remains the position. In 2013, the House of Commons voted against possible UK military action against Syrian President, Bashar al-Assad’s government to deter the use of chemical weapons. A vote was not legally required, but it was taken (and respected) for political reasons.
1.1.1 Dicey’s definition
The prerogative: The classic, and often quoted, definition of the prerogative was laid down by
Dicey, who stated that the prerogative was:
[T]he residue of discretionary or arbitrary authority, which at any given time is 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. Note that the courts (Administrative Court and upwards) are the arbiters of the existence and
extent of a claimed prerogative power
1.2 Absolute monarchy to democratic constitutional monarchy?
The UK has developed from an absolutist monarchy to a democratic constitutional monarchy with
limited powers. The prerogative powers are the remnants of the old ‘monarchical’ powers - these
have been gradually eroded since 1688 but some very significant ones remain. Although these are
the executive powers of the monarch, they are exercised on his behalf by the government.
Prerogative Power at the heart of the government
These powers are exercised, for instance, when the government decides to commit troops to war,
when it enters into a treaty, or when an appointment is made to the House of Lords. Prerogative
power was at the heart of the Government’s attempts in 2016 to trigger the Article 50 ‘Brexit’
process without initial parliamentary approval, which led to the case of R (Miller) v SoS for Exiting
the EU, decided in the Supreme Court
1.3 Development of prerogative power
Prerogative powers have historically been exercised without the need to gain the consent of Parliament and with little or no control by the courts. In a modern democracy, however, where accountability of the Executive is vital, the courts’ control of the exercise of prerogative power has become increasingly important.
House of Lords’ decision in GCHQ
The landmark House of Lords’ decision in GCHQ significantly
extended the reviewability of prerogative powers and, since that time, control has been tightened
further.
Reform of some areas of prerogative power has occurred in piecemeal fashion. For instance, the
Constitutional Reform and Governance Act, passed in April 2010, made provision for treaties to
be ratified only after Parliament has had the opportunity to raise opposing resolutions.
This provision is obviously quite limited as it only covers a specific aspect of prerogative power (the
process relating to approval of treaties).
1.4 The position of the Crown in law
The UK is a ‘constitutional monarchy’, ie a nation in which the monarch is the head of state but not the political head of government, and whose powers to govern are limited. In a gradual process from 1688 power to govern the UK has effectively passed from the monarch to the executive, ie the central government, with the Prime Minister at its head. However, the monarch still performs the formal or ceremonial exercise of that power.
King acting on advice
The term ‘royal prerogative’ refers to those powers of the ‘Crown’ that are recognized by the
common law, as distinct from those conferred and exercised under statute. In this context, the
term ‘Crown’ refers to the executive, not simply the monarch.
This is because it is now highly
unlikely that the royal prerogative will be exercised in any other way than by the executive on behalf of the monarch. This reflects a very strong constitutional convention that the executive exercises the monarch’s powers, a position which is sometimes phrased as the King acting ‘on the advice of’ the Prime Minister.
1.4.1 Control by statute and convention
Although the prerogative remains important, the business of government is now largely conducted through statutory powers. In those areas where the prerogative retains significance (such as military action) how the power
is actually used is largely governed by convention.
1.5 Ministerial prerogative powers
The House of Commons Library briefing paper on the Royal Prerogative (August 2017) provides
very useful background reading on this topic.
https://researchbriefings.files.parliament.uk/documents/SN03861/SN03861.pdf
Ministerial prerogative powers are those which can be exercised by government ministers, relating
to:
* The judicial system
* Foreign affairs
* Armed forces, war and times of emergency - ‘defence of the realm’
1.5.1 Judicial system – prerogative of mercy
The Home Secretary (on behalf of the Crown) may pardon those convicted of criminal offences
prosecuted by the Crown. Historically, the principle of a pardon pre-dates the Act of Settlement
1700, which altered the law so that a pardon could not ‘stop an impeachment […] but there is to be
nothing to prevent the king from pardoning after the impeached person has been convicted and
sentenced
The Prerogative Mercy
The prerogative of mercy is an example of a prerogative which the courts have willingly reviewed. In the case of R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All ER 442 it was held:
The court had jurisdiction to review the exercise of the royal prerogative of mercy by the Home Secretary in accord with accepted public law principles since the exercise of the prerogative was an important feature of the criminal justice system and a decision by the Home Secretary which was infected with legal errors ought not to be immune from legal challenge merely because it involved an element of policy or was made under the prerogative.
1.5.2 Foreign affairs – prerogative powers
- Granting and revoking passports is a Ministerial prerogative power.
- As are the recognition of other sovereign states and their representatives,
- the making and ratification of treaties (treaties are seen as a contract between states, which
does not generally require the approval of Parliament: see Attorney General for Canada v
Attorney General for Ontario [1937] AC 326), and - the governance of British Overseas Territories.
1.5.3 Armed forces and emergencies
The taking of measures necessary in times of emergency and/or for the ‘defence of the realm’, including the control of armed forces, is a prerogative power. In Chandler v Director of Public Prosecutions [1964] AC 777, Lord Reid stated: ‘The disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown […]’
Burmah Oil Company Ltd v Lord Advocate [1965] AC 75,
In Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, installations owned by the oil company
in Burma (then a British colony) had been destroyed during World War Two on the orders of the
commander of the British forces, to prevent them falling into the hands of the Japanese army.
By a 3-2 majority the House of Lords held that compensation was payable to the company, there being no general rule that the prerogative could be exercised without compensation. Lord Reid stated: ‘[T]he prerogative certainly covers doing all those things in an emergency which are necessary for the conduct of war.’
1.6 The Monarch’s prerogatives
In addition to Ministerial prerogatives, some ‘personal’ prerogatives which were traditionally
exercised by the Monarch still exist. These are now exercised by the Monarch ‘on the advice of the
Prime Minister’. (The Monarch could, in theory, refuse to follow the Prime Minister’s advice but has
never done so.)
- The appointment and removal of ministers
- The appointment of the Prime Minister
- The right to assent to legislation
- The creation of peers and the granting of other honours
- The right to dissolve and prorogue Parliament
1.6.1 The Crown’s legal prerogatives (fountain of justice)
The administration of justice was historically the prerogative of the monarch, who was regarded
as the ‘fountain of justice’, in the sense of being its distributor rather than its creator. Today, the
structure of the courts and their jurisdiction are almost entirely statute-based. The remaining legal
prerogatives of any significance
Crown & Statute
Crown and statute: There is a presumption that the Crown is not bound by statute, meaning
that legislation will not apply to the Crown unless express words have been used or it can
inferred (by ‘necessary implication’) that Parliament did intend to bind the Crown. In Province
of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58, the Privy Council
reaffirmed and elaborated upon this principle.
’If […] it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named.’
Immunity from some litigation
The Crown is not directly subject to the contempt jurisdiction
(ie contempt of court); and the sovereign has personal immunity from prosecution or being
sued for a wrongful act.
1.7 Control of prerogative power
In summary, prerogative power can be ‘controlled’ in four ways:
(a) By the application of public law (the judicial review jurisdiction of the courts)
(b) By the over-riding effect of statute (legislation ‘trumps’ the prerogative)
(c) Informally, by political pressure in government and public life (eg the media)
(d) Informally, by changes to convention over time
1.8 Summary
- Prerogative powers are those common law powers which the government can exercise without
authority of Parliament. - Contemporary prerogative powers were historically exercised exclusively by the monarch, and
now are exercised by the executive. - The courts have the power to decide whether a prerogative power exists, what its scope is, and
(following the GCHQ decision) whether it has been lawfully exercised. - Ministerial prerogative powers include those relating to ’defence of the realm’ and to diplomatic
relations and treaty making. - The Monarch’s ‘personal prerogatives’ such as the power to prorogue and dissolve Parliament,
are exercised ‘on the advice of’ the Prime Minister. - Legislation does not bind the Crown unless this is stated or clearly implied.
- The Crown is immune from some types of legal action.
- Prerogative power can be controlled by legislation, the courts, or political pressure.
2 Control of the prerogative - legality
2.1 Control of prerogative powers
As we have seen, prerogative power is a residual form of legal authority which the executive ‘owns’ but which has not been legitimated through the parliamentary process.
The potential for it to be abused is therefore higher than with statutory power, created by Parliament and often hemmed in by certain restrictions and conditions for its use laid down in the legislation.
Primarily through courts that prerogative powers are controlled
Certain political mechanisms can be adopted to modify this effect, for instance through constitutional conventions. But it is primarily through the courts that the use of prerogative powers has been controlled. This tension between this old form of power and the requirements of legality has been in evidence for a long period of history and involved certain long-term trends.
2.1.1 Degree of control
However, the most clear-cut developments have occurred since the 1980s following the seminal
case of ‘GCHQ’. That case and its aftermath will be explored later in this topic, but it is important
firstly to assess the early stages of the courts’ interaction with the executive or ‘Crown’.
Remember that the prerogative is a form of power that has legal enforceability because it is
recognised and ‘accepted’ by the courts through the common law. It is therefore the judges who should determine how and to what degree they are able to ‘control’ its use
2.2 Origins of the tension
It is probably unwise to draw too many comparisons between later disputes between Government
and judiciary and those in the pre-1688 period when a different kind of regime was in place.
However, the use of prerogative powers by the early Stuart kings was a major source of tension in
the country and one of several factors leading to the Civil Wars in the 1640s, notably Charles I’s
imposition of the ‘Ship Money’ taxes.
Key case: Case of Proclamations (1611) 12 Co Rep 74
In this important historical case, the leading jurist of the day, Chief Justice Coke, established the view (later reflected by Dicey) that the royal prerogative represented a finite stock of power. Crown power was legitimated through recognition in the common law. Therefore, a particular form of prerogative power could not be said to exist unless the courts accepted that there was a
precedent for it having been used in the pastv
2.3 Legality of prerogative powers
Entick v Carrington (1765) 19 St Tr 1029
In the case of Entick v Carrington (1765) 19 St Tr 1029 (see the Rule of Law topic), the government
of the day claimed to have the legal authority to enter and search Entick’s premises under a ‘general warrant’. He was suspected of association with the radical political leader, John Wilkes. Entick challenged this as a trespass on his property.
2.3 Legality of prerogative powers
The court consulted ‘its books’ but found no precedent for this action in common law (nor in any statute), reinforcing the point made in 1607 by Coke that the executive cannot act under a purported prerogative power that has not been recognised by the common law. Put simply, this
power didn’t exist.
2.3.1 350 years and a civil war?
In BBC v Johns [1965] Ch 32 Lord Diplock made the celebrated comment that: ‘It is 350 years and
a civil war too late for the Queen’s courts to broaden the prerogative.’
This neatly sums up the point – evident in the earlier cases and in Dicey’s writings – that
prerogative power comprises of a finite stock of executive power that can only be reduced in scope (through statutory incursion) and never expanded.
It also reiterates the point that it is the courts that have responsibility for identifying if a prerogative power exists or not (ie is lawful) and what its scope actually is.
2.4 The scope of prerogative powers
As well as being able to determine whether a purported governmental power was legitimately part
of the royal prerogative, the courts were historically able to adjudicate upon or ‘review’ what the scope of a prerogative power was – in other words what exactly that power entailed and encompassed.
This issue is also part of what can broadly be described as review of the legality of prerogative
powers. There are numerous examples of the courts being called upon to adjudicate on this question.
2.5 Prerogative and statute
There are two forms of governmental power: the prerogative, as recognised by the common law, and statutory power, as laid down in legislation.
What is the relationship between the two and what is the position if a particular executive power or function appears to be governed by both?
Key case: Attorney-General v De Keyser’s Hotel Ltd [1920] AC 508
[Defense of Realm Act]
This concerned a dispute between the government and the hotel owners about whether
compensation should be payable for the requisitioning of the hotel for use by the Army Council
during World War One.
The Attorney-General claimed that the government could effectively choose to use its historic
prerogative power to take emergency action during war for the ‘defence of the realm’, even if
Parliament had legislated on the same ground.
The law lords decisively rejected this contention and stated that the Crown was bound in this
situation by the statutory regime applying under the Defence of the Realm Act and associated
Regulations
De Keyser principle
In doing so, by establishing the ‘De Keyser principle, the court clearly viewed statutory power as a
superior form of power than that of prerogative, thereby reflecting the central importance of the
sovereignty of Parliament in the UK constitution.
2.5.1 Effect on the prerogative
Lord Atkinson explained that the statutory powers had ‘abridged‘ the
older prerogative powers and that the prerogative was to be considered ‘in abeyance‘, ie suspended, if not necessarily permanently extinguished.
[W]hen a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it 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.
2.6 Implied suspension by statute
Laker Airways v Dept of Trade [1977] QB 643,
In the case of Laker Airways v Dept of Trade [1977] QB 643, the government sought to justify a
reversal of aviation policy through use of its prerogative power to negotiate international treaties,
in this case the Bermuda Agreement which regulated transatlantic flights. As part of its policy to promote B.A. (then the nationalised airline), the Department of Trade cancelled Freddie Laker’s ‘Skytrain’ approval or ‘designation’ under the Bermuda Agreement.
Criticised by Lord Denning in the Court of Appealcriticised by Lord Denning in the Court of Appeal
This was sharply criticised by Lord Denning in the Court of Appeal, who saw the purpose of the action taken under the prerogative to be sharply at odds with the statutory requirements in the Civil Aviation Act 1971 for revoking airline designations.
