WHAT IS PUBLIC LAW ( PART 5 )

By Law Teacher

5.1.1 The Royal Prerogative – Inroduction

Introduction

Welcome to the fifth topic in this module guide – The Royal Prerogative! An important aspect of the UK constitutional history is the relationship between the monarch and Parliament. Prerogative powers are created in common law and are thus not codified in any form. The powers of the monarch are limited; however, this is not the case in all instances.

At the end of this section, you should be comfortable with the concept of the Royal prerogative and what it is. You will also be able to identify various examples of the Royal prerogative powers. You should be able to refer to and distinguish between personal prerogative powers and political prerogative powers.

This section begins by discussing the history of the Royal prerogative. It then proceeds to identify what the Royal prerogative is and gives detailed examples of prerogative powers. The section then goes on to look at the relationship between Royal prerogative powers and the Executive and also the courts. There is then a discussion of the Royal prerogative powers and the need for reform.

Finally, the section discusses recommendations for a more comprehensive approach to the whole set of royal prerogative powers.

Goals for this section:

• To understand what is the Royal prerogative.
• To appreciate the different kinds of prerogative powers how this applies to the UK Government.

Objectives for this section:

• To be able to define the Royal prerogative.
• To understand the limitations of the Royal prerogative powers.
• To be able to evaluate the relationship between the Royal prerogative powers and the Executive and the Courts.

5.1.2 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 the 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 1600 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 the 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.

Since the existence of the Royal prerogative in the seventeenth century was established when the King was the Chief Executive; when the relationship between the ruler and rules was established upon a form of contractual agreement. There was also an essential religious element to the Kings powers; the implication existed that the King’s leadership would conform to Christian beliefs and obligations.

2. What is the Royal Prerogative?

Personal and political prerogative powers cover those areas that the monarch used to be able exercise 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 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.

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 approach:

Blackstone’s Commentaries on the Laws of England (8th edition, Clarenden 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 this subjects”.

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 time given time legally left in the hands of the Crown… Every Act which the executive government can lawfully done without the authority of an Act of Parliament is done in virtue of this prerogative.”

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 award of honours – including the PM and the senior judiciary.
• Courts and the justice system – prerogative or mercy and the Attorney General’s representative of the Crown in legal proceedings.
• Foreign affairs – including the issue of passports, the signing of treaties, the recognition of diplomats and foreign states.
• Defence – including the deployment of forces abroad, acts as commander in chief of armed forces.
• Emergency powers related to national security.
• Creation of bodies by charter – including universities, and professional bodies.

3. What are the Monarch’s Personal Powers?

These can be distinguished into two types: personal prerogative powers of the monarch and the political prerogative powers. Personal prerogative powers are linked to the monarch’s status of head of state. The prerogative powers of ministers are those that are exercised by ministers in her name. The idea that such powers are personal (Ivor Jennings, Cabinet Government, CUP, 1959) implies an element of personal discretion. The political reality is however, that such powers are not personal discretionary powers, but are constitutional duties to be carried 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 who wins the most seats after a General Election. There are two possibilities where 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.

2. In the case of the resignation or death of the PM.

2. The Dissolution of Parliament

The monarch’s prerogative power to dissolve Parliament was transformed in the Fixed-term Parliaments Act 2011. Prior to the 2011 Act the Queen could in theory dissolve Parliament at any time and call a General Election. Notwithstanding the 2011 Act there are situations in which Parliament can be dissolved without the government carrying out the full five-year term.

4. Prerogative Powers and the Executive

There are a wider range of prerogative powers that were once within the realm of the Crown, but over history have transferred to government Ministers who act on behalf of the Crown in their particular area of responsibility. The powers most considered to be in need of reform are those that relate to foreign relations; to declarations of war, to the deployment of troops abroad, the recognition of other states and their diplomatic staff.

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 provides a statutory basis for the House of Commons and House of Lord to scrutinise treaties prior to ratification.

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 that is a prerogative power of the executive and particularly of the Cabinet.

5. 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.

Key Case: In Attorney-General v De Keyser’s Royal Hotel [1920] AC 508

6. Prerogative Powers and the Courts

Some prerogative powers, such as the dissolution of Parliament are unlikely to give rise to challenge in the courts. Where prerogative powers directly affect the rights of an individual the courts might be required to adjudicate disputes between parties.

Key Case: In Entick v Carrington(1765) 19 State Tr 1029, it was held that the mere plea of state necessity could not be used as a defence to an unlawful act.

AlthoughBBC 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.

Key Case: In R v Home Secretary, ex p Northumbria Police Authority [1989] QB 26

Key Case: In Burma Oil Company v Lord Advocate [1965] AC 75. The War Damage Act 1965 subsequently barred the Burma Oil Companies claim. The Act applied to the acts of the Crown, which destroyed property during the contemplation of war.

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

Key Case: R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598

Key Case: In R (Gentle) v Foreign Secretary [2008] UKHL 20, [2008] 1 AC 1346

7. Prerogative Powers and the Need for Reform

Calls for the reform of prerogative powers have been made since the 1980s and 1990s.

No 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, but since the Coalition government of 2010- 2015 and then the Conservative government of 2015, no further progress has been made.

In 2007, Conservative MP William Hague described an alliance between himself and Labour MP Tony Benn illustrated the growing consensus across the political spectrum that prerogative powers were not appropriate in a modern constitution. The two MP’s made a representation to the Public Administration Committee, who 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.

House of Commons Public Administration Select Committee, Taming the Prerogative, Strengthening Ministerial Accountability in 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 necessary, e.g. the Security Services Act 1989 and the Intelligence Services Act 1994 put under statutory power the three intelligence services. Similar arguments were also put forward for the Civil Service Act and war powers.

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 problems with gradually implementing statutory change, is that it may be ineffective or sufficient. A need for democratic structure was identified, proponents of this view advocated for legislation on the prerogative.

The Options for Legislation

Ministers need prerogative or executive powers, these should not be abolished, there is a need for flexibility in their decision-making processes. Lord Lester proposed the Executive Powers and Services 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 government list the prerogative powers exercised by Ministers within the 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 year’s means that it is important that Parliament support the government in its actions.

5.1.3 The Royal Prerogative Lecture – Example Questions

This section of the Chapter provides an example problem question and outline answer which will help you in your exam revision and give you the opportunity to apply the legal principles you have learnt in this chapter to practical situations. Example answers are provided below, but it is useful to work through each of the questions yourself and then compare them to the model answers contained in the Chapter. If you encounter difficulties, refer back to the information provided earlier in the Chapter on the Royal Prerogative including the key cases sections.

Problem Question: A general election is held in Britain in 2020 in which no political party reaches a majority of the support of the electorate. Theresa May is still the Prime Minister and she refuses to resign from her post, neither the Conservatives or the Labour party (nor none of the other political parties) commands an overall majority. Widespread debate is carried out about the form that the next government should take. The United Kingdom Independence Party (UKIP) who command the third largest number of votes state that they will only join a coalition government if the new governments will legislate upon the UK withdrawing its ratification of all international human rights agreements. The Scottish and Welsh nationalist parties state that they will agree to a coalition government if an independent state of Scotland-Wales is established by 2025. The Conservative party MP’s support Teresa May in her refusal to resign and argue that the Conservative party should lead a government without a majority. 

The advisor to King Charles III seeks your legal advice on the constitutional issues that arise from this hung Parliament situation. You are to discuss the legal and political rules which inform the King’s decision making powers in such a situation, specifically in relation to the issues of the appointment of a new Prime Minister and the formation of the next government.