MONARCH,CROWN, AND ROYAL PREROGATIVE

Question 1

CONCEPTOF THE ‘CROWN’

Answer 1

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.
2. 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 Parliament. 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   3.In addition, many executive prerogative powers have been replaced by powers granted by Parliament to the government.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

1. The Bill of Rights 1689 made clear that Parliament and not the Crown was sovereign in the constitution.
2. Consequently, Parliament can exercise its sovereignty to abolish any prerogative 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

1. 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.
2. However, sometimes 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 precedence over the prerogative.

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 prerogative 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 European 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

ROYAL PREROGATIVE 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 common 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 generally 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 governments 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 ministers 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

1. there are some miscellaneous, archaic prerogatives, which include the right to mine precious metals, the right to supervise and construct harbours, 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

1. Most prerogative powers reflect the Monarch’s historic role in relation to the executive.
2. However, as stated above, the
   Monarch historically also had legislative and judicial functions. 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

1. Most remaining judicial prerogatives are exercised by ministers (for example, by granting a pardon for someone convicted of a criminal offence or stopping a prosecution).
2. 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 Constitutional Reform and Governance Act 2010.
2. The government is required to lay (meaning to publish) before Parliament the draft of any international treaty agreed.
3. 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
4. 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.
5. 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 Monarch 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 consulted, the right to encourage, and the right to warn” the government.

Question 22

Deployment ofArmed Forces

Answer 22

The deployment of the armed forces overseas is a ministerial 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, thegovernment 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 office until it is clear that they have lost the confidence 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.

Question 25

courts increasingly likely to review preprogative

Answer 25

1. it used to be thought that certain decisions made by government under the royal prerogative are not appropriate to be reviewed by the court.
2. however recently the courts have shown a greater willingness to invervene on the basis of determing whether the action being challenged by law within the scope of the prerogative exercised.