Royal Prerogative

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Royal prerogative powers are legal powers (not the same as conventions!)

A V Dicey: ‘Every act which the executive Government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative’

  • So when the government acts under the law without statutory basis they are usually exercising their powers under the prerogative

Prerogative powers tend to be some of the most important government powers

They are legal powers, so Government has the ability to alter people’s rights and make rules by using the royal prerogative e.g. the power to agree to treaties and have the ability to make legislation (e.g. ‘Orders in Council’ – primary legislation which does not require parliamentary scrutiny)


Historically the monarch had the royal prerogative powers vested in them i.e. the monarch was the supreme executive power

Prohibition del roy case (1607):

  • James I said he had divine right to sit as a judge and to decide upon the common law as he liked
  • Edward Coke (the judge in this case) said only judges and those with legal training could try cases

The Case of Proclamations [1610]:

  • CJ Coke said the king only had the powers of the prerogative which were already part of common law and could not give himself new powers
  • Coke said: "...the King cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament."
  • And: "The King has no prerogative but that which the law of the land allows him"

In the Early 1600s, Charles I could not reach an agreement with parliament

  • There was a civil war and Charles I was raising taxes without parliament’s consent
  • Charles I was executed and England became a republic for 11 years under Cromwell, before the monarchy was restored
  • Eventually a Bill of Rights was created in 1689 which curbed the monarch’s power
  • Over time the powers of the monarch have been transferred to Government, but ministers are exercising these powers in the name of the Crown

Royal prerogative powers

In 2003, a Public Affairs Select Committee was set up to look expressly at the Prerogative powers → they explained how hard it is to draw up a definitive list of prerogative powers, but, they identified 3 main types of prerogative powers:

  1. The Crown’s Constitutional Prerogative
    • Powers that appear personal to the crown e.g. the power to appoint the Prime Minister and Judges etc.
  2. Legal Prerogatives of the Crown
    • For example, this would include principles such as the Crown is not bound by Statute unless expressly stated and the Crown can do no wrong
  3. Prerogative Executive Powers
    • For example, the power to deploy and use armed forces, make/ratify treaties, and acquire/cede territory

Without these powers the Government would have to rely on statutory legislation; in other words, the Government does not need Parliamentary approval when using prerogative powers

  • BUT, they may need to explain their actions afterwards
  • These powers are controversial because it is hard to determine the limits of the prerogative powers

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Scope of the Royal Prerogative

Rodney Brazier says that the Royal Prerogative is “an elastic concept” which “may be stretched by ministers”

John Major: "It is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers.”

  • In other words, Ministers decide whether to tell parliament if they acted under the Prerogative and they decide how they tell Parliament

The prerogative to go to war

  • There is no right in Parliament to decide on whether the country should go to war → “… do you not think it is constitutionally bizarre that the House of Commons can have endless votes on whether it wants to kill foxes but it has no right at all to have a vote on whether we kill people?” (House of Commons Liaison Committee, 21 Jan 2003)
  • Douglas Carswell MP (2013) states that “no Commons approval is actually technically required for a PM to take us to war” and believes this should be changed as “no Prime Minister should embark on a non-defensive war without the consent of this House.”

Lord Reid in Burmah Oil v Lord Advocate [1965] said “it is extremely difficult to be precise” when deciding how far the Government’s royal prerogative powers go

In Chandler v DPP (1964) the court said they could not review the exercise of the prerogative powers unless those powers had been abused!

In the GCHQ case (1985) the court appeared to move on from the position of Chandler v DPP (1964) where it was said Prerogative powers can only be questioned if abused → the court here said that the prerogative powers are potentially revisable, depending on the subject matter

In R (On the Application of Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2009], the court also seemed to suggest prerogative powers were reviewable by holding that the prerogative Order in Council (primary legislation) in this case was reviewable

Future of the royal prerogative

Gordon Brown & Jack Straw (July 2007): “Government’s power to deploy troops and ratify treaties stems from the royal prerogative. In a modern 21st century parliamentary democracy, the Government considers that basing these powers on the prerogative is out of date.”

  • So, in some respects, some powers under the prerogative may not be fitting in a 21st century democracy

Review of the Royal prerogative (MoJ, Oct 2009):

  • It was said prerogative powers are hard to identify but do provide flexibility for the Government
  • Some prerogative powers have been replaced by Statute
  • If change is to occur then gradual reform is preferable

Examples of reform of the royal prerogative powers:

  • Constitutional Reform & Governance Act 2010
  • Fixed Term Parliaments Act 2011

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