The Royal Prerogative

Introduction

Definition Of Prerogative

‘The royal prerogative itself is a notoriously difficult concept to define adequately.’Blackstone described the prerogative as the powers that ‘the king enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects.’ While A.V. Dicey has given the classic definition of the royal prerogative, he defined it as ‘… the remaining portion of the Crown’s original authority and it is therefore … the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself of by his Ministers.’ The term ‘Crown’ is not only referring to the monarch, who exercises the personal prerogatives, it is also referring to the central government which is the Ministers who exercise the executive prerogatives under the name of Crown.

Executive Prerogative

Executive Prerogative power is possessed by the central government, especially by the Prime Minister. There are several important issues performed by the Ministers under the executive prerogative. Firstly, the conduct of foreign affairs, including the appointment of the ambassadors, the recognition of the states and also the relationship between the government of the United Kingdom and the other countries are relying on the prerogative. Secondly, Ministers are responsible for making and ratifying treaties. Treaties are greatly affect the rights of the citizens and the way of the society, e.g. the treaties in relation to the European Union. Thirdly, the government may organize, control and deploy the armed forces under the prerogative. Fourthly, the Ministers, civil servants and senior judges are appointed by the Prime Minister under the prerogative.

Although in the Constitutional Reform and Governance Bill, it provided a statutory basis for the ministerial management of civil services, claiming that ‘the Minister for Civil Service has the power to manage the civil service (excluding the diplomatic service), the prerogative power may still exist in this area without inconsistency. In R. Secretary of State for the Home Department, ex parte Northumbria Police Authority, the Home Secretary supplies the plastic baton rounds and CS gas to the police force without the local police authority’s consent. Court held that since the prerogative exercised here is for the subjects, weapons could be supplied ‘to do all that is reasonably necessary to keep the Queen’s peace’.

Personal Prerogative

Personal prerogative is different from Executive prerogative. It is the prerogative power which only exercise by the monarch herself, not by her Ministers. There are four major personal prerogative powers which exercise by the monarch. They are the dissolution of Parliament, the appointment of the Prime Minister, the granting of the royal assent to the legislations and also the dismissal of government.

Firstly, since the Parliament does not have a regular term fixed by the statute, the monarch may dissolve the Parliament and held a general election by using the prerogative power.

Secondly, for the appointment of the Prime Minister, under normal situation, the monarch is required to appoint the politician leader of the party who win the absolute majority in the House of Commons. The monarch cannot make her own personal assessment in choosing the Prime Minister. However, when there is a hung parliament, the monarch will have to exercise her prerogative power, deciding the government should be formed a coalition government or appoint the leader of the largest minority party who is able to get the majority support in the House of Commons to be the Prime Minister. The monarch will also need to exercise its prerogative power in selecting the new Prime Ministers when the Prime Minister resigns or die during his terms of office.

Thirdly, no Bill can become an Act without the royal assent while the monarch has the complete discretion in giving the royal assent to the legislation.

Fourthly, the monarch can dismiss the minister. This power is used by William IV. He dismissed Melbourne who was the Prime Minister of United Kingdom in 1834, as the monarch opposed to the reform led by him. A more recent controversial case is that the Australian Prime Minister Gough Whitlam is being dismissed in 1975.

Prerogative Power Vs. Democracy

Personal prerogative power of the Crown is seemingly said to be contradict to the democracy by claiming that the Queen can exercise the prerogative powers discretionally according to her wish and ignore the ministerial advices which including the power in appointing the Prime Minister, give royal assent to legislation and also the dissolution of the Parliament.

However, this approach is wrong and misconceived. The prerogatives get along well with democracy in the political reality.

If the Hung Parliament take place, according to Rodney Brazier, the Crown should let the elected politician to decide how the government to be formed in a hung parliament. ‘… the Queen’s undoubted legal power to choose a Prime Minister should be used to enhance the democratic process, rather than to pre-empt it. Only if politicians failed to produce a way forward in a hung Parliament — which might be highly unlikely — would any royal action be necessary.’ The Crown would appoint the person who is suggested by the Parliament after the Members of Parliament had worked out who is the most suitable person to be the Prime Minister. In 1990, Mrs. Thatcher resigns due to some personal reasons, and the Crown appoints the successor not until the Government party had elected a new leader. This shows that the Queen did not use her royal prerogative to intervene the democratically formed Parliament; instead the members of Parliament which elected by the public democratically are responsible in making the decision.

In giving the royal assent to legislation, although Sir Ivor Jennings suggested that the Crown could lawfully exercise a Royal Veto power in legislation, no parliamentary Bill has been rejected by the Crown since Queen Anne refused to grant royal assent to the Scotch Militia Bill in 1707.

For the dissolution of Parliament, the Crown does not make the decision discretionally; the Crown normally grants the dissolution after the Prime Minister has requested him to do so. The dissolution requested by the Prime Minister has not been refused by the Crown since 1834. Unless the advice from the Prime Minister is unconstitutional, it is obligatory for the Crown to act upon the Prime Minister’s advice.

These prerogatives should not be conceived as the monarch’s personal discretionary powers; instead they are performed according to the advice of the Prime Minister. The royal intervention is very limited in the situation when the Prime Minister has behaved property according to the convention. The Crown would not exercise the prerogative power arbitrarily to override the decisions made by the Prime Minister; the democracy can therefore be preserved.

Legal Control On The Extent Of Prerogative Power

In Case of Proclamation, James I declared two proclamations that he sought to limit the amount new buildings in London and prohibit using wheat to make starch. However, Lord Coke determined that ‘the King hath no prerogative, but that which the law of the land allows him’. This means the King do not have the power to change any common law or introduce any new offences; only can exercise the prerogative power granted by the courts. Therefore, the courts have the power to determine whether that prerogative power exist and the extent of the power exercised by the Monarch, the basic principle of the prerogative power is controlled by the courts.

Secondly, Lord Nolan said that ‘the use of the prerogative has … greatly diminished in recent years’. The prerogative power has changed through legislation. Some prerogative powers have now being replaced by the statutory powers. For examples, the Treasure Act 1996 stated the prerogative right of treasure trove has been abolished and replaced by statutory rules which the treasure was belongs to the landowner. The Security Service Act 1989 was enacted to regulate the activities of MI5 and later on, the Intelligence Services Act 1994 was introduced in order to make preparation for MI6.

When the statutory power and prerogative power co-exist, the Crown is not able to exercise the prerogative power. In A-G v De Keyser’s Royal Hotel Ltd, the Crown used the Defense of the Realm Acts and Regulations to take the hotel during the First World War and the hotel was later claimed for the compensation. The Crown argued that no compensation should be paid since there was a prerogative power given to the Crown to acquire any land of the subject during wartime. The House of Lords held that as the hotel was acquired under statutory power, therefore the Crown was not excluded to pay the compensation by revert back to the prerogative power. When the statutory power and prerogative power coexisted, statutory power would be used instead of prerogative.

In R v Secretary of State for the Home Department ex parte Fire Brigades Union, The Criminal Justice Act 1988 was introduced to replace the one introduced in 1964 by prerogative power in compensating the victims of the criminal injury. However, before the Criminal Justice Act 1998 come into force, the government had introduced another tariff scheme which would put the government in a more favorable position. The majority of the House of Lords held that the Home Secretary had used the prerogative unlawfully in replacing the old scheme by the new tariff scheme, it would undermine statutory scheme, as this action would remove the option in bringing the statutory scheme into effect. Therefore, if there is a statutory scheme, it cannot be replaced by the prerogative.

Legal Control On The Exercise Of Prerogative Power

Traditionally, the courts do not have power in regulating the way of how the prerogative power is exercised, even though the existence and the extent of the prerogative power are in the hand of the courts as mentioned by Lord Coke. However, there is a gradual recognition that judicial review might be able to apply on the exercise of the prerogative power. In the CCSU case, the House of Lords held that if the exercise of the prerogative powers has bring consequences of private rights on individuals, the courts could review the exercise of the power to determine whether there is illegality, irrationality or procedure impropriety which are mentioned as the three grounds of judicial review by Lord Diplock. However, not all the prerogative powers are subjected to judicial review, the reviewability is depends on its subject matter, not the source of power. Lord Roskill had mentioned that ‘prerogative powers such as those relating to the making of treaties, the defence of he realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review.’ The nature and the subject matter of these prerogative powers are not able to be amended in judicial process. It is not suitable for the courts determined the decisions which related to the foreign affairs and national security.

In R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett, the prerogative power of issuing passport is held to be reviewable by the courts. Taylor LJ classified this case as ‘a matter of administrative decision, affecting the rights of individuals’ and stated that it is not the matters of high policy which mentioned by Lord Roskill in above, therefore, it should be judicially reviewable.

After the Human Rights Act 1998 was imposed, the courts are more wiling to and given greater power in applying judicial review on the exercise of prerogative power.

The Human Rights Act 1998 (HRA) treats ‘primary’ legislation and ‘subordinate’ legislation differently. The Orders in Council are defined as ‘primary legislation’ while the other prerogative powers are defined as ‘subordinate legislation’. Under section 3(1) of the HRA, the primary legislation is required to be compatible with the European Convention on Human Rights; otherwise, a ‘declaration of incompatibility’ can be made by the courts under section 4 of HRA. Although such declaration would not invalidate the legislation, it would induce the government to make a ‘remedial order’ to remove the incompatibility from the statue. The primary legislation cannot be held as ‘unlawful’.

Political Control Of The Prerogative

Parliament can override and superseded the prerogative powers by statue. If the Crown is given the power by statue to does something which is previously defined as prerogative power, now that prerogative must be exercised within the statutory scheme. The use of the power can be controlled.

Secondly, Parliament would control the exercise of the prerogative power by its control of supply. In The Ram doctrine, it stated that ‘a minister of the Crown may exercise any powers that the Crown may exercise, except in so far as the minister is precluded from doing so, either expressly or by necessary implication’.

Minister’s ability of exercising the prerogative powers is depends on whether he gets the Parliament’s fund to perform the powers, without sufficient funding, the executive is difficult to carry out its activities.

However, the scrutiny of the Parliament over the prerogative powers is with several limitations.

Ministers are accountable to the Parliament for the exercise of the executive prerogative powers on behalf of the government. Ministers may be questioned in the Parliament by the Public Administration Select Committee. However, this is only take place after the exercise of the prerogative powers. Prior approval of the Parliament is not required, United Kingdom allows Ministers to exercise certain powers without the parliamentary support.

Major policies and decisions adopted by the government by prerogative powers including the making of treaties and deployment of troops, no formal approval by either the House of Parliament is required. These powers can be exercised without any parliamentary scrutiny or discussion.

In the Iraq case in 2003, the government sent troops to the Iraq war even it failed to get the support from the authority. Therefore, Lord Hurd claimed that ‘… in that case it was essential that your House should have a debate and vote’.

Conclusion

There are 2 categories of prerogative powers which have mentioned above: namely, executive prerogatives and personal prerogatives. The role of prerogatives always claimed to be an affront to democracy. However, it is not the case since the Crown only carry out the prerogatives under the advice of the Prime Minister. The exercises of the prerogatives are also subjected to the legal and political control respectively. Although there are some limitations of the political control of the prerogative powers, the effective legal control by the courts which grant the judicial review on the prerogative powers has ensured the prerogative powers would not carry out discretionally and repudiate the democracy in UK.