Everything about The Royal Prerogative totally explained
The
Royal Prerogative is a body of customary authority, privilege, and immunity, recognised in
common law and, sometimes, in
civil law jurisdictions possessing a monarchy as belonging to the
King or Queen alone. It is the means by which some of the
executive powers of government, possessed by and vested in a
monarch with regard to the process of governance of their state, are carried out. Individual prerogatives can be abolished by Parliament, although in the UK a special procedure applies.
Though some
republican heads of state possess similar powers, they're not coterminous, containing a number of fundamental differences. See
reserve powers.
While prerogative powers were originally exercised by the monarch acting alone, and don't require
parliamentary consent, they're now always exercised on the advice of the
Prime Minister or the
Cabinet, who is then accountable for the decision to Parliament. There may be situations in which the monarch could choose to exercise the Royal Prerogative without the advice of the Prime Minister and the Cabinet. Such situations are extremely rare, and could only occur in emergencies. In most
liberal-democratic constitutional monarchies, such actions would precipitate a
constitutional crisis.
Not all constitutional monarchs have royal prerogative that can be exercised independently however. For example, the
King of Sweden and the
Emperor of Japan have specific government duties that can't be exercised with any degree of individual discretion, no matter what the circumstance.
Definition
In the
Kingdom of England (up to
1707), the
Kingdom of Great Britain (1707–
1800) and the
United Kingdom (since
1801), the Royal Prerogative historically was one of the central features of the
realm's governance.
Constitutional theorist
AV Dicey gives the standard definition of what prerogative powers are:
Ministerial exercise of the monarch's prerogatives
Today, most prerogative powers are directly exercised by ministers with the approval of Parliament, including, in the United Kingdom, the powers to regulate the civil service, issue passports and grant honours. Some prerogative powers are exercised nominally by the monarch, but on the advice of
Prime Minister and
Cabinet of the United Kingdom, who advise the monarch as to when to use them. Some key areas of the British system of government are still carried out by means of the Royal Prerogative, but its usage has been diminishing as functions are progressively made statutory.
Contrary to widespread belief, the Royal Prerogative isn't constitutionally unlimited. While the sovereign has the right to publish new law, it's a form of reserve power not constitutionally used. (Her Majesty, as Head of State of the United Kingdom and the other Commonwealth Realms, has the right to use the Royal Prerogative over any nation where she's Head of State.) In the
Case of Proclamations (
1611) during the reign of King
James I/VI,
English common law courts judges emphatically asserted that they possessed the right to determine the limits of the Royal Prerogative. Since the
Glorious Revolution (
1688), which brought co-monarchs Queen
Mary II and King
William III to power, this judicial interpretation hasn't been challenged by
the Crown.
No new prerogative powers can be created;
BBC v Johns (1965). However, existing prerogatives such as the power of "Declaring War and Making Peace" can be modified to cover new situations, as seen in
ex p Northumbria Police Authority (1989), which saw this prerogative evolved to include the ability to "keep the peace" and hence allow the Home Secretary to equip his forces with plastic baton rounds and
CS gas.
Furthermore, where a discretionary prerogative power is justiciable, its exercise can be challenged by
judicial review on the same grounds as that of discretionary powers vested in the executive by statute. This is elucidated by
Lord Diplock in
Council of Civil Service Unions v Minister of State for Civil Service (1985)
Examples
Among the powers possessed by the monarch in the United Kingdom under the Royal Prerogative are:
The prerogative also traditionally included duties, not just rights. The foremost of these were the defence of the realm and the keeping of the
Queen's peace.
In regard to the monarch's prerogative of the awarding of dignities and honours, in practice most
British Orders of Chivalry are conferred on the advice of the Prime Minister. However, the monarch retains the exclusive right of conferring the
Order of the Garter, the
Order of the Thistle, the
Order of Merit, the
Royal Victorian Order and the
Royal Victorian Chain, along with the grant of
arms.
The monarch is also immune from prosecution in the courts, though the scope of the immunity that once attached to the Crown has reduced. (The ostensible logic for this is that the Queen is present in all courts and acts as the prosecuting authority in most criminal cases, either directly or indirectly: she can't therefore sue or prosecute herself or judge her own case. However, this logic can be said to be flawed because there appears no problem in judging her own cases as prosecutor, or as claimant in civil litigation. The explanation most commonly offered in texts on
Crown immunity is that "the Queen can do no wrong", and therefore can't be held liable for breaches of contract or in tort). In particular, several
Acts of Parliament have allowed agents of the Crown (for example, government employees) to be sued in the courts. The Queen's daughter, the
Princess Royal, actually has a criminal record (for not keeping her dog under control).
Although many powers are included in the royal prerogative, some powers are notable for their absence, although they could theoretically be included under the Royal Prerogative. In particular, the British monarch doesn't have the power to deprive an individual of his or her life, liberty or property as these rights are said to derive from the
Fundamental Laws of England. As a consequence, the monarch doesn't have the power to tax without the consent of
Parliament and this has significantly limited the power of the monarchy. The unsuccessful efforts of
Charles I of England to raise money to finance the royal administration through royal prerogative sources not subject to parliamentary approval (such as the collection of
ship money) was one of the major causes of the
English Civil War.
Many uses of the prerogative in foreign affairs are called
Acts of State. Most powers exercised by the British government in international and foreign affairs come from the Royal Prerogative. These include:
The accreditation of diplomats;
The granting of Sovereign Immunity;
The negotiation of treaties.
Among the more esoteric royal prerogatives are:
The power to order a subject not to leave the realm;
Crown ownership of wild unmarked white swans swimming in open and common waters
Crown ownership of royal fish, meaning sturgeons, dolphins, porpoises and whales.
Criticism
Before British involvement in the 2003 invasion of Iraq, Prime Minister Tony Blair, in a major break with precedent, sought parliamentary approval for British participation in the war. However, Parliament's decision was in constitutional terms advisory, as the actual decision would be taken by the exercise of the Royal Prerogative. Blair indicated that should Parliament not approve, he wouldn't formally advise Queen Elizabeth II to exercise the Royal Prerogative. Given that Blair had an overwhelming Labour majority in the British House of Commons and had the support of the opposition Conservative Party, there was little likelihood that Parliament would vote down the motion recommending participation in the war. It remains to be seen whether a future government with a small majority or in a minority in the House of Commons will seek parliamentary approval before the exercise of the Royal Prerogative. Clare Short has proposed a Private Member's Bill that would remove the declaration of war from the royal prerogative. (External Link
)
Former left wing Labour MP Tony Benn campaigned for the abolition of the Royal Prerogative in the United Kingdom in the 1990s, arguing that all governmental powers in effect exercised on the advice of the Prime Minister and cabinet should be subject to parliamentary scrutiny and require parliamentary approval. His attempts were unsuccessful, with later governments arguing that such is the breadth of topics covered by the Royal Prerogative that requiring parliamentary approval in each instance where the prerogative is currently used would overwhelm parliamentary time and slow the enactment of legislation.
The Royal Prerogative in the Commonwealth Realms
In the other Commonwealth Realms, the Royal Prerogative varies significantly from the prerogative in the United Kingdom, and is exercised by the Monarch's representative, the Governor-General. The Constitution of a Commonwealth Realm may sharply limit the prerogative in ways that don't apply in the United Kingdom and many governmental acts which would be done under the prerogative in the United Kingdom are given effect by the Constitution or Acts of Parliament in a Commonwealth realm.
Recent uses of Royal Prerogative
In the United Kingdom and Canada, the power to issue passports remains under the Royal Prerogative. The governments of these countries have used the Royal Prerogative to deny passports to citizens whom the US government had held, and released, from the American prison in the US Naval base at Guantanamo Bay. Martin Mubanga, who has joint citizenship with the United Kingdom and Zambia, is one of the British citizens denied a passport. Abdurahman Khadr was denied a passport by the Canadian government.
In the UK, biometric passports, are being legislated without altering the Royal Prerogative. It is expected that biometric passports will introduce a database similar to the National Identity Register, including unique NIR numbers for every British citizen.
In the case of Chagos Archipelago islands, in 2000, the English High Court ruled that a local Ordinance made by the Commissioner of the British Indian Ocean Territory exiling the islanders was unlawful, a decision which was accepted by the British Foreign Secretary Robin Cook. Subsequent to this decision, the British Government attempted to achieve the same objective through use of the royal prerogative, but this strategy was also found to be unlawful by the High Court. On May 23, 2007, the Court of Appeal of England and Wales affirmed the lower court's decision.
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