The crown today cannot claim that a new prerogative has come into existence or invent new prerogative powers. This is consistent with the residual nature of the prerogative. However, because the prerogative is not codified or frozen at a particular point of time, it can still to some extent adapt to changed circumstances. In R v Secretary of state for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26 (CA), the courts found scope to identify prerogative powers which had little previous recognition.
By virtue of Bill of Rights Act 1689, prerogative powers can only be exercised through and on the advice of the ministers responsible to Parliament. Over time the British Constitution has gradually transferred these powers of the crown and exercise of the same to members of the government such as the Prime Minister, the Cabinet and individual ministers. Today prerogative is maintained to enable the government to function therefore royal prerogative is an essential tribute to the British Constitution.
- See A-G v Prince Ernest Augustus of Hanover [1957} AC 436, for construction of Princess Sophia Naturalization Act 1705 (replaced by British Nationality Act 1948) which entitled to British nationality all non-Catholic lineal descendants of Princess Sophia
The royal prerogative gives powers to both the monarch (as head of state) and the government (as personified for many purposes by the crown) to perform their constitutional functions.
In Britain, the powers of the monarch and the crown must either be derived from an Act of Parliament or must be recognized as a matter of common law, for there is no written
constitution to confer powers on the executive. In essence the prerogatives refer to powers granted by common law to the sovereign of the state as apposed to those granted by statute.
The functions of the executive have been said to include ‘‘the execution of law and policy, the maintenance of public order, the management of Crown property….the direction of foreign policy, the conduct of military operations, and the provision, regulation, financing, or supervision of such services as education, public health, transport and national insurance’’2 Today to perform all the tasks of government the executive must comprise of wide array of officials and agencies.
‘‘Our law has never developed a notion of ‘the state’: the judges have been opposed to the idea of allowing interests of the state to override common law rights’’3 ‘‘The crown has developed as ‘a convenient symbol for the State’’4
If there was a written constitution for the United Kingdom, the role and functions of the Monarch as head of state would be set down. The role of the monarchy has evolved over many years, and that it has a number of symbolic and ceremonial duties which brings dignity and solemnity to constitutional government. It also has to representative and practical duties to perform which may be necessary for the continuity and stability of the constitutional government.
It is vital to distinguish between prerogatives powers that are exercised by the Monarch, and those that are exercised by ministers in her name. ‘‘The removal of the residue of personal and unaccountable power from a hereditary head of state is thought by some to be important to maintain the political neutrality of the monarchy, which in turn must be the ‘golden rule’ for its continuity. 5
There are ordinary prerogatives where royal functions could only be exercised in defined ways and involved no element of the royal discretion. There are also absolute prerogatives where those powers which the king could exercise in his discretion.
Blackstone described the royal prerogative to be ‘‘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 this royal dignity".6
A modern definition would stress that the prerogative has been maintained not for the benefit of the monarch but to enable the government to function, and that prerogative is a matter of common law and does not derive from statute.
Professor A V Dicey said ‘‘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 prerogatives.’’ 7
- HLE, vol 8(2), para 9.
- Entick v Carrington (1765) 19 St Tr 1030. But of Council of Civil Service Unions v Minister of State for Civil Service [1985] AC 374
-
G Sawers phrase, quoted in Hogg, Liability of the Crown (1st edn), p 10; and see Marshall, Constitutional Theory, ch 2.
- R Blackburn [2004] PL 546; also (in reply) R Brazier [2005] PL 45
- Commentaries on the Laws of England, Blackstone 1765
- A.V. Dicey Introduction to the Law of the Constitution 1885
Under the doctrine of parliamentary supremacy, the legislature (Parliament) can make or unmake any Acts of Parliament/statutes. Parliament cannot bind its successors neither can they be bound by its predecessors and no body/person can question the validity of an Act of Parliament. The doctrine of express and implied repeals arises when there are two statutes that contradict each other.
Parliament has control over royal prerogatives. Statutes can bind the Crown and restrict, abolish or regulate prerogative powers. To the extent that prerogative powers are inconsistent with the statutes, the prerogative powers are abrogated the necessary implication. The political controls exercised by Parliament on the Executive are by way of Parliamentary proceedings itself like Question Time, Debates and Select Committees that allow Parliament to examine the workings and decisions of the Executive. Statutes can make it clear that they do not affect the prerogatives by virtue of Section 11 Crown Proceedings Act 1947. The statute can expressly preserve the prerogative.
It is not altogether clear what happens where a prerogative power has been superseded by statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to the effect. It seems virtually unthinkable that the Government would seek to rely on the prerogative to replace an Act of Parliament, except perhaps in a grave national emergency.
As the prerogative is a residual power it cannot be used to amend the general law. This is of particular interest in relation to international treaties. Although the Executive can commit the United Kingdom to obligations under international law, if a change to domestic law is required, it will only take effect if Parliament passes the necessary legislation.
Parliament also controls the exercise of the prerogative through its control of supply. The Executive has no practical ability to act unless it can fund its activities. Sir Glanville Ram in 1945 set out in a memorandum by the then First Parliamentary Counsel which has now become to be known as the Ram doctrine. This explains that as a matter of law a minister of the crown may exercise any powers that the crown has power to exercise, except to the extent to which the minister is precluded by statute either expressly or by necessary implication. The ability of the minister to spend money to exercise those powers will however depend on whether Parliament votes him the funds to do so.
Ministers exercising prerogative powers remain accountable to parliament as they are for the exercise of power from any other source. The recent proceedings of the foreign affairs select committee demonstrate the scrutiny to which the exercise of the prerogative power can be put. Such accountability in itself is a form of control exercised by parliament over the Executive.