The royal prerogative
Dictionary definition of ‘prerogative’: power, privilege or immunity restricted to a sovereign or government.
The royal prerogative is a collection of powers which are wide-ranging in scope and which in terms of strict law belong to the Crown alone. As we shall see, however, in practice the majority of these powers are nowadays exercised by the government of the day or the judiciary in the name of the Crown.
Historically the Sovereign was vested with special powers and privileges . As chief feudal Lord in medieval times, the King could not be sued in his own courts. He enjoyed a wide variety of powers which could be used in protecting the State from external and hostile forces. The King was the fountain of justice and could adjudicate in legal disputes. Through his council he had the power to decide other matters, such as the pardoning of criminals, the granting of peerages and the taking of measures to deal with emergencies. These were known as the Royal prerogative powers.
According to Tony Benn MP, ‘To understand how we’re governed, and hence the power of the Prime Minister, you have to understand the power of the Crown. It’s like the Trinity: God the Father is the Queen – she’s just there and nobody knows very much about her; God the son is the Prime Minister – who exercises all the patronage and has all the real power; and God the Holy Ghost is the Crown – the Royal Prerogative – and the Crown is a State-within-a-State, surrounded by barbed (unkind) wire and covered in secrecy.’ What does mean by this statement?
The influence of the monarch is great and in legal theory, as Bagehot said,
Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commander-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every parish in the United Kingdom a ‘university; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the Government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenseless against foreign nations.”
Two principal authoritative definitions are relied on by the courts today: those of Sir William Blackstone and those of Professor A V Dicey. In his Commentaries on the Laws of England (176569), Blackstone defined the prerogative as: that special pre-eminence which the King hath over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity.
In his Introduction to the Study of the Law of the Constitution, Dicey defines the prerogative more broadly, as being:
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 government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative (Dicey, 1885). Since the 20th century has witnessed the diminishing influence of prerogative powers, Dicey’s description would today appear to be more accurate.
From this we can see that:
(a) the prerogative is inherent in and peculiar to the Crown
(b) prerogatives are common law powers: i.e. they are recognized by the courts
(c) the rights and powers are residual: they cover areas over which Parliament has not enacted statutes and they can be limited by Parliament. firs* because the prerogative is residual, it may be taken away by Parliament. This was done, for example, in the Crown Proceedings Act 1947. In outline, what did this do?
(d) the prerogative legitimizes executive actions without the need for an Act of Parliament.
the prerogative is arbitrary or discretionary in the sense that its exercise cannot be questioned by the courts. This immunity is now considerably less than it used to be.
This definition was given judicial approval in AG v De Keyser’s Royal Hotel 1920. As a result of the struggle for power between the Crown and Parliament in the 17th century, the Bill of Rights 1688 rationalized the use of these prerogative powers. It provided that statutes could expressly abolish or restrict the existence and exercise of the Crown’s prerogative powers Over the years statutes have gradually whittled away these powers. For example, the Crown Proceedings Act 1947 abolished the immunity of the Crown in respect of actions in tort and contract, although it retained the personal immunity of the Sovereign.
The powers of the Crown may be exercised in three ways:
(a) at the personal discretion of the Sovereign;
(b) by the Sovereign on the advice of Ministers;
(c) by Ministers alone, through statutory powers conferred on them, but exercised on behalf of the Crown.
The extent of the prerogative
Barnett agrees with Wade & Bradley but suggests the following list of prerogative powers which are in existence today:
To make an analysis of prerogative powers manageable, they may be separated into two categories: those relating to foreign affairs and those relating to domestic affairs. Under foreign affairs can be subsumed:
the power to make declarations of war and peace, power to enter into Treaties, the recognition of foreign States, diplomatic relations, disposition of the armed forces overseas.
Within the domestic category falls the summoning and dissolution of Parliament, appointment of Ministers, Royal assent to Bills, the granting of -honours, defence of the realm, the keeping of the peace, the power to stop criminal prosecutions -‘nolle prosequi’, the prerogative of mercy, reduction of sentences, pardoning of offenders, regulation of the terms and conditions of the Civil Service, the right to treasure trove, and to royal fish and swans.
It can be seen from this list, which is by no means exhaustive, that the powers are wide and diverse. In terms of government, the following prerogative powers are significant today:
[ 1 ] The appointment of a Prime Minister.
In practice, the exercise of this power is strictly controlled. In what ways?
 The dissolution of Parliament.
How much freedom does the Queen have in this area?
 The Royal Assent.
To what extent is the Queen able to refuse the Royal Assent? What would be the consequences of such a refusal?
 The dismissal of ministers.
 Appointments and honours.
The monarch is the ‘fountain of honour’ and makes appointments such as the Order of Merit, Orders of the Garter and Thistle.
 The Queen is the head of the Armed Forces.
The movement and disposition of the armed forces is entirely under the control of the Crown.
Chandler v DPP 1964 (see below)
 Judicial prerogatives.
These are exercised by ministers on behalf of the Crown e.g. nolle prosequi -exercised by the Attorney General; the prerogative of mercy – exercised by the Home Secretary.
 Prerogative of emergency and defence, (see below)  Acts of State.
This describes the exercise of the prerogative in external affairs e.g. recognition of a country as an independent sovereign state (Mighell v Sultan of Johore 1894 1 QB 149).
Before we proceed any further it would be useful to be aware of the sorts of issues governed by prerogative powers. We will now look at some of the main powers by dividing them under the following headings: personal prerogatives of the sovereign; political or ministerial prerogatives; judicial prerogatives; prerogatives relevant to the defence of the realm; and finally, prerogatives in the area of foreign affairs.
PERSONAL PREROGATIVES OF THE SOVEREIGN:
Some prerogatives remain personal to the Sovereign. For example there is the constitutional maxim that ‘the Sovereign never dies’, signifying that the succession to the Crown is automatic: the officeholder may die, but the office remains unchanged. Second, the Sovereign is inviolate: it is treason to assault or attempt to assassinate the Sovereign. This crime is punishable by death. Third, the Sovereign can do no wrong. This is based on the fact that all justice is dispensed in the name of the Crown and therefore the Sovereign cannot be tried in his or her own courts: In addition, there are certain honours which are within the Sovereign’s personal gift. Prior to 1947 and the enactment of the Crown Proceedings Act, individuals could rarely sue the Crown.
Historically, the Crown also claimed inter alia the power to:
• raise taxes
• dispense justice
• establish courts of law
• proclaim law and dispense with laws
• raise and maintain an army
• control trade and the ports
• and the right to treasure trove. Treasure trove: any valuable found hidden and of unknown ownership
Over the centuries – and most particularly through the Bill of Rights 1689 – these rights were abolished (see Barnett, pp. 160-168).
in addition to the personal prerogatives of the Sovereign, there exist a number of ‘political prerogatives’, exercisable in theory by the Sovereign but in practice (by convention) through government Ministers. As we saw in Chapter 2, two of the most important prerogatives that the Sovereign may exercise are the appointment of Ministers (including the Prime Minister) and the summoning and dissolution of Parliament. These are exercised by convention, as are prerogative powers relating to the dismissal of Ministers and the Royal Assent.
The dissolution of parliament
As we have already seen this prerogative lies with the Crown but, by convention, is exercised at the request of the Prime Minister – a practice that has been adhered to for over 100 years. If a government is defeated on a vote of confidence, and refuses to leave office, the Sovereign retains the prerogative power to dismiss that government. This has not happened since 1783 and the Queen would need first to call a meeting of the Privy Council.
The appointment of the prime minister and dismissal of ministers
By convention the leader of the majority party should be invited to form a government. However, if there is no outright victor, there may be a hung Parliament. In such circumstances the Queen could exercise her personal choice. Yet problems may arise if none of the parties has a majority and an agreement cannot be reached between them on the formation of a coalition government. For example, in 1931 Prime Minister MacDonald, following a disagreement within his own Cabinet, resigned. He was immediately invited by the King to form a national government. This action was criticised because MacDonald had lost the support of his own party and it was claimed that the King was appointing an individual who did not have the support of the Commons as Prime Minister.
The Crown may no longer use prerogative powers to establish new courts, (Re Lord Bishop of Natal (1864) 3 Moo PC), since this is now governed by statute. However, the Crown can stop a prosecution through the Attorney-General, who can enter the seldom used nolle prosequi, while some prosecutions may only be initiated by the Attorney-General (e.g. certain offences under the Official Secrets Acts 1911 and 1989). The appointment of judges by the Crown (on the advice of the Lord Chancellor) is by virtue of the Royal prerogative while the source of the Home Secretary’s power to grant pardons is the prerogative of mercy.
Pardons may be granted to convicted criminals by the Home Secretary under the prerogative of mercy. Until 19b5-this included the power to commute the death penalty to life imprisonment. Whilst Lord Roski’ll included this as one of his six exceptions in the GCHQ case, this prerogative has more recently been reviewed by the courts.
In R v Secretary of State for the Home Department, ex parte Bentley  QB 349, Iris Bentley sought judicial review of the Home Secretary’s decision not to recommend a posthumous pardon for her brother Derek Bentley. The Divisional Court held that the Royal prerogative of mercy was a flexible power capable of being exercised in many different ways. Thus the court would ‘invite’ the Home Secretary to re-examine the matter and consider whether it would be just to exercise the prerogative of mercy and give recognition to the commonly held belief that Bentley should have been reprieved. In November 1997, it was announced that the case of ex parte Bentley would be referred to the Court of Appeal following a recommendation of the Criminal Cases Review Commission which had been set up to investigate alleged miscarriages of justice, and in July 1998 Derek Bentley’s conviction for murder was finally overturned by the Court of Appeal.
However, a different approach was adopted by the Privy Council in Reckley v Minister of Public Safety and Immigration (No. 2)  AC 527. Reckley had been sentenced to death but challenged this on the ground that he had a right to make representations to a Bahamian Advisory Committee on the Prerogative of Mercy, which advised on whether the final execution warrant should be issued. He sought to rely on R v Secretary of State for the Home Department, ex parte Doody [1994} 1 AC 531, where it had been held that a Minister had a duty to provide a prisoner with reasons for the term of his life sentence, but the Privy Council distinguished Doody from Reckley’s case on the ground that only the latter concerned mercy. Thus, it was held that the prerogative of mercy was not reviewable and Reckley was subsequently executed.
DEFENCE OF THE REALM
The Sovereign is Commander-in-Chief of the armed forces. (The Navy is the only force maintained without direct statutory authority. though its recruitment and discipline are now governed by statute since it did not come within the prohibition of a standing army in peacetime as required by the Bill of Rights 1688.) Officers in the armed forces hold their commission from the Sovereign and, since the control of troops comes within the prerogative, it cannot be legally challenged (Chandler v DPP  AC 763). Whilst declarations of war and peace are at the will of the Sovereign, the disposition of troops requires the agreement of the Commons, because only Parliament can supply the necessary finance.
Obviously, in times of emergency, there is a need for decisions to be taken quickly without having to go through lengthy Parliamentary procedures. Thus, while it is impossible to define the extent of the prerogative in times of emergency, it would appear that:
-the Crown is responsible for the defence of the realm and is the only judge of how that defence should be effected (R v Hampden (1637) 3 St Tr 826 (the Ship Money case)).
-The land of any individual may be entered to erect fortifications for the nation’s defence (Case of the King’s Prerogative in Saltpetre (1607) 12 Co Rep 12) subject to the safeguard that they must be removed when the danger is past.
-British ships in territorial waters may be requisitioned in times of national crisis (as occurred during the Falklands conflict with the Requisitioning of Ships Order 1982).
-The Crown, when necessary in time of war, may appropriate property within the realm, which belongs to a neutral person (Commercial and Estates Co. of Egypt v Board of Trade  1 KB 71).
Compensation may be payable at common law following the requisition or destruction of property through the exercise of prerogative powers. In Burmah Oil Co. Ltd v Lord Advocate  AC 75, the House of Lords considered this issue. Following the Japanese invasion of Burma in 1942, a number of oil installations in that territory were destroyed by British soldiers, in order to prevent them later being of use to the enemy. Burmah Oil claimed compensation and argued that the State was responsible for these actions, as the demolitions had been ordered under a prerogative power. The House of Lords held that a subject could receive compensation where a prerogative power has been used in order to deprive them of property in a time of war. However, following this decision of the House of Lords to award compensation, Parliament overturned it by passing the War Damage Act 1965. This legislation prevented compensation from being paid, retrospectively, for damage to, or destruction of, property by lawful acts of the Crown ‘during or in contemplation of the outbreak of a war in which the Sovereign is or was engaged’.
As in the GCHQ case, this is another area where the courts have been reluctant to assert their jurisdiction. In R v Secretary of State for the Home Department, ex parte Ruddock  1 WLR 1482, members of CND (Campaign for Nuclear Disarmament) alleged that their telephones had been tapped contrary to published guidelines. The Minister refused to comment on the grounds of national security. Taylor J held that, despite the issues relating to national security, he was prepared to exercise his jurisdiction. However, having declared himself competent to decide the issue, he found that the Home Secretary had not acted unreasonably, nor had he broken any guidelines with regard to the warrant which authorised the phone tapping.
The Ruddock decision is perhaps unusual, since the courts tend to show much greater deference where issues involve national security. Remember that in the GCHQ case, the House of Lords had, on the facts, agreed that the Order in Council, which had been issued, was justifiable on the grounds of national security. Also, in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett  QB 811, the Court of Appeal had qualified its judgment by adding that a decision to issue or withdraw a passport may be unreviewable where national security is involved. Thus, the courts are particularly loath to review decisions taken on the ground of national security, particularly in times of war or public emergency (e.g., see R v Secretary of State for the Home Department, ex parte Cheblak  1 WLR 890 discussed in Chapter 12).
THE PREROGATIVE IN FOREIGN AFFAIRS
The making of treaties is a prerogative power of the Crown. Once a treaty has been signed by the United Kingdom, international law regards the UK as being bound by that-treaty. However, the United Kingdom’s courts will not enforce a treaty unless incorporated into British law by legislation (The Parliament Belge (1879) 4 PD 129).
Although the signing of a treaty is a prerogative act, and Parliamentary approval is not always necessary, in some cases Parliamentary confirmation is required. This is necessary for:
- treaties expressly made subject to confirmation by Parliament (e.g., the European Communities Act 1972);
- treaties involving an alteration of English law on taxation; and
- treaties affecting private rights.
It would seem that this is perhaps an area that the courts would prefer to leave to the government and politicians. In Ex parte Molyneaux  1 WLR 331, the Hillsborough Agreement negotiated by the governments of the United Kingdom and the Irish Republic, relating to the future of Northern Ireland, was challenged by four Ulster Unionist MPs. It was claimed that the Agreement would fetter the statutory functions of the Secretary of State for Northern Ireland and threaten the rights of Northern Ireland’s citizens. The application was dismissed because the agreement fell within the field of international relations and was therefore ‘akin to a treaty’. Similarly, in Re International Tin Council Ch 419, the court decided that it had no jurisdiction to deal with treaty obligations arising from the creation of an international organization, the International Tin Council.
The courts have also been unwilling to consider treaties relating to the UK’s membership of the European Union. In Blackburn v Attorney General  1 WLR 1037, Lord Denning MR considered that it was not an appropriate matter for the courts. Lord Denning noted that when Ministers ‘negotiate and sign a treaty … they act on behalf of the country as a whole. They exercise the prerogative of the Crown’. Therefore, such Ministerial actions ‘cannot be challenged or questioned in these courts’. The matter was also debated more recently in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg  2 WLR 115 (see Cases and Materials (14.4.1)). Lord Rees-Mogg claimed that, by ratifying the provisions of the European Union Treaty which established a common European foreign and security policy, the government would be transferring some of its Royal prerogative powers (e.g., those relating to national security and foreign policy) to European institutions. He also protested that this had been effected without any statutory authority.
However, the Queen’s Bench Divisional Court rejected these submissions. Lloyd LJ held that the part of the European Union Treaty establishing a common foreign and security policy (Title V) was an exercise and not an abandonment or transfer of the Crown’s prerogative powers relating to foreign affairs.
Control of the prerogative
The unique characteristic of the prerogative – a residual power which can be exercised without parliamentary authority – gives rise to questions about its control. The two institutions which can prevent the abuse of such powers are the courts and Parliament. We will consider first the early case law demonstrating the problems the prerogative posed for the judges prior to 1689. We will then look at the manner in which Parliament can control the prerogative, and lastly we will consider the relationship between the prerogative and Acts of Parliament as interpreted by judges.