MONARCH,CROWN, AND ROYAL PREROGATIVE

Question 1

CONCEPTOF THE ‘CROWN’

Answer 1

the Crown is a
metaphor which personifes the executive, and includes the Monarch, Prime Minister, ministers, government departments, and civil servants who all collectively form the government.
The concept of the Crown has meant that there has been
little need to develop the legal concept of the ‘state’.

Question 2

SCOPE OFTHE ROYAL PREROGATIVE

Answer 2

1、historically, the Monarch was the source of all executive, legislative, and judicial power. These are powers formed by the royal prerogative as recognised by the common law.
2.One consequence of the rise of parliamentary sovereignty (which can abolish the common law) has been the abolition of many prerogative powers, with most of those functions being transferred either to the courts or Parlia-
ment. In this way, the constitution has come to refect the
separation of powers as explained above.
3.In addition, many executive prerogative powers have been replaced by powers granted by Parliament to the government.

Question 3

Principles that Determine Scope of Royal
Prerogative Power

Answer 3

a.No New Prerogative Powers Can Be Created
b.When Statutes Overlap with the Prerogative
c.Crown Cannot Use Prerogative to Thwart Intention of Parliament
d.Prerogative Cannot Be Used to Change Law
e.Statutes Do Not Bind Crown Unless Expressly
Stated or by Necessary Implication

Question 4

No New Prerogative Powers Can Be Created

Answer 4

The Bill of Rights 1689 made clear that Parliament and not
the Crown was sovereign in the constitution. Consequently,
Parliament can exercise its sovereignty to abolish any prerog-ative power by passing an Act of Parliament. This also means that no new prerogative powers can be created, as the
proper course is for the government to seek the necessary
powers from Parliament.

Question 5

When Statutes Overlap with the Prerogative

Answer 5

If Parliament expressly abolishes a prerogative power and
replaces it with a statutory power, then the situation is clear:
It is the statutory power which now applies. However, some-
times Parliament legislates in an area creating new powers
which overlap with existing prerogative powers. The issue
then is whether the prerogative power or the statutory power must be used. In such situations, the statute takes prece-
dence over the prerogative.
EXAMPLE

Question 6

Crown Cannot Use Prerogative to Thwart Intention of Parliament

Answer 6

The fact that statute takes precedence over the prerogative
also means that the Crown cannot thwart the intention of
Parliament. As discussed above, Parliament often passes
legislation but allows the government to decide when to
bring the legislation into force through passing a commence-ment order. The government cannot decide never to bring
the legislation into force, choosing instead to rely on existing prerogative powers, because this would amount to using
royal prerogative to informally repeal an Act.

Question 7

Prerogative Cannot Be Used to Change Law

Answer 7

It has long been recognised that the Crown has no prerog-
ative except that which the law allows. Consequently, the
prerogative cannot be used to change the law or change the sources of UK law.
EXAMPLE
Despite the royal prerogative power to enter in and leave
international treaties, the government was unable to use the royal prerogative to invoke Article 50 of the Treaty on Euro-
pean Union and start the process of the UK’s departure from
the European Union, because this would necessarily involve changing the law as EU law would no longer be a source of UK law.

Question 8

Statutes Do Not Bind Crown Unless Expressly
Stated or by Necessary Implication

Answer 8

There is a principle of statutory interpretation that in order for a statute to apply to the Crown, the statute needs to express
this clearly or it must be obvious by necessary implication.

Question 9

ROYALPREROGATIVE TODAY

Answer 9

‘ministerial’, ‘personal’, and miscella-neous or archaic prerogative powers.

Exam Tip
It is important to remember that the royal prerogative
is a source of government power recognised at com-
mon law by the courts.

Question 10

Ministerial Prerogative Powers

Answer 10

1. Ministerial prerogative powers are exercised by government ministers on behalf of the Crown. The role of the Monarch
   may be minimal, such as merely approving decisions made
   by ministers.
2. The constitutional
   concern is that because the royal prerogative is derived from the common law rather than statute, unless a constitutional
   convention or statute requires otherwise, Parliament gener-
   ally has little role in deciding how the prerogative powers are used. Instead, Parliament is limited to scrutinising how the
   prerogative has been exercised.

Question 11

The ministerial prerogative includes:

Answer 11

*The power to acquire and cede territory
*The negotiation and, subject to the Constitutional Reform
and Governance Act 2010, the ratifcation of international
treaties;
*Conducting diplomacy in general, including recognising
states, the relations of the government with the govern-
ments of other states, the appointment of ambassadors
and High Commissioners (representatives from countries
who are members of the Commonwealth are called High
Commissioners rather than ambassadors);
*The deployment and use of the armed forces overseas
and declarations of war;
*The use of the armed forces within the United Kingdom
to maintain the peace in support of the police;
*The Prime Minister’s power to appoint and remove minis-
ters from their government;
*The grant and revocation of passports; and
*The grant of pardons and the power to stop criminal
prosecutions.

Question 12

Personal Prerogative Powers

Answer 12

The personal prerogatives are personally exercised by the Monarch.While in law these powers appear to be hugely
signifcant, the role of the Monarch is heavily constrained
by constitutional conventions

Question 13

The personal prerogatives
include:

Answer 13

*The appointment of the Prime Ministe
*The power to dismiss the government;
*The power to prorogue Parliament;
*The power to dissolve Parliament; and
*Granting the Royal Assent to legislation.

Question 14

Miscellaneous Prerogative Powers

Answer 14

there are some miscella-
neous, archaic prerogatives, which include the right to mine precious metals, the right to supervise and construct har-
bours, the right to mint coinages, and the right of the Crown
to claim the ownership of any sturgeon, dolphins, whales,
and swans on certain stretches of the River Thames.

Question 15

Legislative and Judicial Prerogatives

Answer 15

Most prerogative powers refect the Monarch’s historic role
in relation to the executive. However, as stated above, the
Monarch historically also had legislative and judicial func-
tions. Most of these functions have since been transferred to Parliament and the courts. However, some still remain part of the royal prerogative.

Question 16

Legislative Prerogative Powers

Answer 16

Legislative functions include passing Orders in Council,
which are a form of legislation enacted by the Privy Council
under the royal prerogative. Similarly, granting the Royal As-
sent to legislation once approved by the House of Lords and House of Commons remains a prerogative power.

Question 17

Judicial Prerogative Powers

Answer 17

Most remaining judicial prerogatives are exercised by minis-
ters (for example, by granting a pardon for someone convicted of a criminal ofence or stopping a prosecution). The notion
of the Monarch being the source of judicial power remains
with the Judicial Committee of the Privy Council, which hears appeals from some Commonwealth jurisdictions. Technically,the Judicial Committee’s decision is advice to the Monarch
as to how to dispose of the appeal. The decision is formally
approved at a Privy Council meeting.

Question 18

REGULATION OF ROYAL PREROGATIVE BY STATUTE

Answer 18

Instead of abolishing a royal prerogative power, an Act of
Parliament can choose to regulate how that prerogative pow-er is exercised by making it subject to legal requirements.

Question 19

Ratifcation of International Treaties

Answer 19

1. The ratifcation of international treaties remains a prerogative power but is subject to control by Parliament under the Con-
   stitutional Reform and Governance Act 2010.
2. The government is required to lay (meaning to publish) be-
   fore Parliament the draft of any international treaty agreed.
   The government can ratify the treaty only if 21 days have
   passed and neither the House of Commons nor House of
   Lords has voted to state that the treaty should not be ratifed
3. If either House of Parliament has voted against ratifying the
   treaty, then the government can explain why they still want to ratify the treaty. The House of Commons then has a further
   21 days to vote stating that the treaty should not be ratifed.
   If no such vote is held, the government can ratify the treaty.
   Note that the House of Lords has no role at this stage.

Question 20

REGULATION OF ROYAL PREROGATIVE BY CONSTITUTIONAL CONVENTION

Answer 20

Many prerogative powers, particularly the personal prerog-
ative powers, are heavily controlled by constitutional con-
ventions.

Question 21

The Cardinal Convention

Answer 21

1. The ‘cardinal’ convention is the convention that the Mon-
   arch always acts on the advice of his ministers, in particular
   the Prime Minister, even if the Monarch disagrees with that
   advice.
2. In return, the Monarch has the right to “be consult-ed, the right to encourage, and the right to warn” the gov-
   ernment.

Question 22

Deployment ofArmed Forces

Answer 22

The deployment of the armed forces overseas is a minis-
terial prerogative power. Traditionally, this meant that the government, not Parliament, decides when to take part in
military action. However, since the Iraq War in 2003, the
government has usually sought the support of the House of Commons before deploying the armed forces.

Question 23

APPOINTMENT OF PRIME MINISTER
Majority in House of Commons

Answer 23

1. the Prime Minister will be the leader of the party with a majority of the seats in the Commons.
2. In between general elections, the Prime Minister may choose to resign. They do this by announcing their intention to resign as Prime Minister and leader of their political party. The political party then holds a leadership contest, run according to their own internal rules, to appoint a new leader. When a new leader has been chosen, the outgoing Prime Minister resigns, and the Monarch appoints the new leader as the new Prime Minister.

Question 24

Hung Parliaments
When the election does not result in an overall majority for
one party, it is described as a ‘Hung Parliament’. In that case:

Answer 24

*The Prime Minister remains in ofce until it is clear that
they have lost the confdence of the House of Commons;
*The Monarch does not get actively involved in making a
choice as to who should become the Prime Minister and
form the next government;
*It is up to the political parties to determine who should
form the next government by negotiating with each other
to see what sort of deal can be agreed and between
which parties; and
*Once it is clear that an agreement has been reached
between the parties, then, if necessary, the existing
Prime Minister will resign, and the Monarch will appoint
the person who will have the confdence of the House of
Commons.