Public Law

Royal Prerogative
2017 ZB

Q. Discuss the extent to which prerogative powers are an essential

part of the unwritten constitution.
Royal Prerogative is a vital component of UK’s constitutional system. UK has an
uncodified constitution and Royal Prerogative is one of the legal source of the
constitution. The Bill of Rights 1689 led to many changes with regards to the
governance of UK. The role of monarch was transformed. Due to the gradual
evolution many of the prerogative powers have been assumed by the government
which exercises it on behalf of the Monarch. As famous writers Bradley and Ewing
stated that “the Queen may reign but it is the PM and other ministers who rule.”
To understand its true essence, we must acknowledge that the Royal Prerogative
is legitimate and exclusive to the Crown. It originates from a time when the
personal power of the King was far more significant than it is today. A.V Dicey
described Royal Prerogative as “the residue or reservoir of discretionary or
arbitrary powers legally left in the hands of crown.” Another legal theorist
Blackstone regarding R.P, stated “that special preeminence which the King hath
over and above all other persons.” Furthermore, in 2009 the Ministry of Justice
Final Report regarding R.P said, “the scope of the royal prerogative is notoriously
difficult to determine.” Dicey asserted that all of the rights held by the crown
which are not specified by legislation are prerogative powers. Furthermore, the
most recent description of prerogative was given in R (Miller) v Secretary of State
for Exiting EU as “residue of power which remain vested in crown…. Which are
exercisable by ministers provided it is consistent with Parliamentary legislation.”
In short, the prerogative powers can be utilized by the government of the day on
behalf of the monarch.
In the “House of Commons Library Briefing paper,” some rules regarding royal
prerogative were laid down. It was mentioned that where there is a contradiction
between prerogative and statute, the statute will take precedence. Secondly, it is
possible to question the use of prerogative through judicial review. Lastly, the
Parliament can repeal or abolish any prerogative, but no new prerogative can be
created. This point was also endorsed in the case of BBC V Johns, that no new
prerogative can be made. Furthermore, in the case of Bancoult, Lord Bingham
said, “over the centuries the scope of royal prerogative has been steadily eroded
and today it cannot be enlarged.”
The House of Commons Public Administration Committee published a report in
2004 named “Taming the Prerogative: Strengthening Ministerial Accountability to
Parliament,” which divided the prerogative power into three branches. These are
the sovereign’s constitutional prerogative, legal prerogative, and prerogative
executive powers. The constitutional prerogative refers to the discretionary
power which the Monarch has. It includes royal assent, the appointment of the
PM and the summoning and dissolution of the government. In the last 300 years
royal assent was always granted as Queen Anne in 1708 was the last monarch to
refuse royal assent. As far as the legal prerogative is concerned, it includes the
right to sturgeon, whale, and impress men into the royal navy. Most importantly,
it includes that the sovereign can do no wrong and the sovereign never dies.
Lastly, the prerogative executive power are largely used by the government of the
day on behalf of the crown. It includes the treaty-making powers and the
declaration of war and peace. Also, it includes the control of armed forces. In
addition, the crown has some authority to enact a law under the prerogative via
Order in Council.
In the UK as there is no written constitution, the Parliament is the suprlaw-
makingking body. Moreover, any prerogative may be suspended, limited, or even
abolished by Parliament. Referring to case law, we can look at the case of AG v De
Keyser, in which when an act of Parliament is passed the prerogative cannot be
exercised. They are held in abeyance. Another case is Laker Airways v
Department of Trade which is, in fact an application of Dekeyser principle. It was
the even where accessible the prerogative powers cannot be used to bypass a
legislative provision. The supremacy of statute dates back to 1611 as in the Case
of Proclamation which said “the King hath no prerogative but which the law of
land allows him.”
The judiciary can question the use of Prerogative powers. In the case of GCHQ the
court stated that judicial review can be used to examine the exercise of
prerogative power for justiciable matters. Another pertinent case is AL Rawi in
which the court refused to hear the matter as it was related to the national
security. The only exception to this is the case of Exparte Everett in which the
court heard the matter related to non-justiciable matter and quashed the decision
of Secretary of State.
In general the Prerogative shall take precedence over the statute in event of a
conflict. However in Exparte Northumbria the secretary of state used the
prerogative instead of a statute which is a controversial case. Moreover in
Exparte Fire brigades Union the criminal justice act prevailed instead of royal
prerogative even though the legislation was not yet in force. Order in Council
were primary legislation despite of this they are open to judicial as was stated in R
v Secretary of State for Common Wealth and Foreign Affairs.
The statute are the most effective way to place restrictions on the prerogative.
The earliest include the Magna Carta and Bill of Rights. In recent years the
Constitutional Reform and Governance Act 2010 and Fixed Terms Parliament Act
of 2011 have restricted certain prerogative powers. The 2010 act explicitly
regulated the civil service management and the treaty ratification procedure. In
addition the 2011 act ablolished the PM’s right to call early elections and set the
Parliaments term to five years. The prerogative can be under discussion in
Parliament through question time, debates, and select committees.
As discussed in this essay, the prerogative is still a crucial and contentious
element of the British constitution. But over the years, there have been
substantial reforms that have changed the powers an,d in some ways, limited it as
the power of Parliament has grown. It is vital to comprehend that the UK’s
constitution is a result of social evolution and adaption over time. In the end more
legislative scrutiny of prerogative power is necessary for a modern democracy to
ensure that the people’s desire is carried out.