In the case of Darnel, also known as the case of Five Knights it was accepted that the king had the power to imprison five knights who had refused to contribute towards a forced loan. A similar situation arose in R v Hampden or the case of Ship Money were it was held the king was entitled to impose a charge for providing ships without the common consent of parliament.
Godden v Hales followed the case of ship money as by this time James II was keen to take advantage of the courts flexibility to rule by prerogative power rather then parliamentary consent. The case of Hales involved D, an army officer who did not take the oaths required by the Test Act, but claimed when prosecuted that he had a dispensation from the King. It was held the power of dispensation was well established at common law, and that D was not required to take the oaths. The king did have the power under the prerogative to dispense, and as was the case in Ship Money, the king was the sole judge of necessity.
The Bill of Rights banned Prerogative courts such as the Ecclesiastical Commission and reversed the decision of Godden v Hales in Article 1. Taxation without Parliamentary consent was declared illegal. A standing army raised without Parliament’s consent was banned; the prosecution of anyone petitioning the Crown was also banned. The Bill of Rights also stated that calls for a Parliament should be frequent and that there should be Parliamentary debates free from outside interference. The 1694 Triennial Act meant that there had to be a general every three years. This was modified by the 1716 Septennial Act.
It became established that the bulk of prerogative powers could be exercised only through and on the advice of ministers responsible to parliament. Although the monarch retained formal power of appointment and removal of ministers, the development of collective ministerial responsibility made it increasingly difficult for the King or queen to exercise such power freely against the wishes of the prime minister and cabinet.
Some key areas of the British system of government are still carried out by means of the Royal Prerogative, but its usage has significantly been diminishing as functions are progressively made statutory. The prerogatives that remain are relics. But they are by no means unimportant relics. The exact limits of the prerogative power are not capable of precise definition, however “in response to a demand made by the HC Public Administration Select Committee on 20th October 2003, the government published for the first time a non-exhaustive list of prerogative powers.” It is possible to divide such powers into those relating to foreign affairs and those relating to domestic affairs. The conduct of foreign affairs is carried out mainly by reliance on the prerogative, as are the control, organisation and disposition of the armed forces, the making of treaties and the declaration of war. Although, in the area of domestic affairs legislation has increasingly been introduced, thereby limiting the extent of the prerogative, some significant aspects of the prerogative survive. It is by virtue of the prerogative that the Parliament is summoned, prorogued and dissolved, and under the prerogative that the royal assent is given to Bills. The issue and withdrawal of UK passports, appointments of the prime minister and other ministers, of judges, privy councillors, archbishops and bishops and conferment’s of peerages and honours, all take place under prerogative powers.
Prerogative powers are either exercised by the Monarch alone or exercised by ministers in her name. Prerogative powers that are exercised by the Queens responsibility alone are called ‘personal prerogatives’ and the other being ‘prerogative powers of ministers.’
The Queen has the power to appoint a prime minister and she must appoint the person who is in the best position to receive the support of the majority in the House of Commons. However this does not involve the monarch in making a personal assessment of leading politician since no major party could fight a general election without a regonised leader. The monarch also has other powers of appointment such as appointment of ministers, peers, senior etc in reality these are chosen by the Prime Minister; only the Order of the Garter and the Order of Merit are at the personal disposal of the Queen. Therefore, a vast amount of power with regards to senior appointments rests with the Prime Minister.
The Queen also has the power under the prerogative to dissolve parliament in the absence of a regular term for the life of Parliament fixed by statute, the Queen can call for a general election to be held. The Monarch normally accepts the advice of the Prime Minister and grants dissolution when requested as a refusal would probably be treated by the prime minister as equivalent to a dismissal.
The Queen also approves all . The date of a general election is set by the Prime Minister and in the State Opening of Parliament the Queen simply reads out the proposed bills for the next 5 years of a government and has no part in deciding them. In 1708 Queen Anne was the last Monarch to refuse royal assent and even that was on the advice of her government. Nevertheless, the monarch retains the right to refuse Royal assent. If the Monarch refuses assent on the advice of her ministers her actions “would be relatively free from controversy.” However if her refusal is in conflict with her government then this would in any event cause controversy.
The monarch, via proclamations or Orders in Council, may declare war or treaties, without the input of parliament. This is regarded as the most important of the prerogative powers and in actual fact it is the Prime Minister acting on behalf of the Crown who makes the declaration of war and has the responsibility of the signing of treaties. The 2003 declaration of war against Iraq was done by a Prime Minister and not by the monarch.
The queen also enjoys immunities and privileges. In Lord Advocate v Dumbarton Council, Lord Keith set down that Statutes cannot bind the crown “except by express statement or necessary implication”. Much immunity was removed by the Crown Proceedings Act 1947. However, the Act did preserve immunity of the Monarch from being sued. 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 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 cannot therefore sue or prosecute herself or judge her own case.
The crown cannot claim that a new prerogative power has come into existence BBC v Johns or that an existing prerogative has been extended. New rights of powers may be conferred by statute, but these would then not be prerogative, but statutory powers. It is long established law that Parliament can override and displace the prerogative by statute. Where the Crown is empowered by statute to do something that it could previously do under the prerogative, it can no longer act under the prerogative but must act within the statutory scheme. In the case of Laker Airways v Dept of Trade , it was held by the court that a prerogative power could not be used to defeat a right granted under an Act of Parliament. Despite the fact new prerogative powers can not be created 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, in which the Court of Appeal held that the Home Office could supply CS gas and plastic baton rounds to police forces, even if the local police authority was unwilling, on construction of the Home Secretary’s powers under the Police Act 1964. The 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. The supremacy of parliament allows parliament to abolish or restrict the prerogative. An important instance occurred when the enactment of the Crown Proceedings Act 1947. Before the act was passed the Crown had immunity from being sued in contract and tort. The act took away this immunity, “or to be more precise, restricted to the monarchs in a private capacity for section 40 provides that the sovereign’s own position is unaffected.” Consistent with the doctrine of Parliamentary Sovereignty, Parliament has the right and power to abolish or preserve prerogative powers. Parliament can through its scrutiny procedures call on the government to account for its exercise of the prerogative.
But what happens when a prerogative is neither abolished nor preserved? Or when statute and prerogative overlap or co-exist? Which one will prevail? If they co-exist, might the Crown then act under either power, selecting whichever is more favourable to it as the occasion demands?” The prerogative powers were once supreme but it is now established that where a prerogative power and a statutory power come into conflict, the statutory power prevails. This supports the doctrine of Parliamentary supremacy. This was the argument advanced in the case of A-G v De Keyser’s Royal Hotel Ltd where it was held that to the extent that a prerogative power is inconsistent with statutory powers, the former is abrogated by necessary implication. The De Keyser principle essentially affirms the supremacy of parliament. There was an interesting variation on the principle in R v Secretary of State for Home Dept ex parte Fire Brigade Union (1995), where the House of Lords ruled that the Home Secretary had no power under the prerogative to amend the Criminal Injuries Compensation Scheme (which was set up under the prerogative), where an Act of Parliament provided for its amendment (even though the relevant provisions had not been brought into force).
Ministers exercising prerogative powers remain accountable to Parliament as they are for the exercise of power from any other source.
If a prerogative power is challenged it must be recognised by the courts. The Courts therefore define its limits and have jurisdiction to inquire into the existence and extent of any alleged prerogative. Whether powers derive from the prerogative or from statute, the courts recognise the limits of justifiability.
Until relatively recently the courts would not inquire into the way in which a prerogative power had been exercised. But, as judicial review has developed, this attitude has changed and the courts have become more willing to review the exercise of any discretionary power whatever its source. Where a discretionary prerogative power is justifiable, its exercise can be challenged by on the same grounds as that of discretionary powers vested in the executive by statute. This is clarified by in the case of Council of Civil Service Unions v Minister of State for Civil Serviceotherwise known as the GCHQ case. This is an important case in English law as it established the grounds on which a claim could be brought and also established that the executive could be judicially reviewed in much the same manner as a statute. The case concerned the attempt by the then Prime Minister Margaret Thatcher to ban workers at the GCHQ Headquarters from belonging to trade unions in the interest of "national security" it was argued that Mrs Thatcher has acted unfairly. The House of Lords were unanimous in holding that prerogative powers are capable of judicial review in its exercise. The principles established in the GCHQ case were that (1) the courts had the jurisdiction to review prerogative acts in the same manner as under an Act of Parliament; and (2) the court would only review prerogative acts which did not involve matters of high policy best determined by the executives. Lord Roskill stated that “The courts are not the place wherein to determine whether a treaty should be concluded or the armed forced disposed in a particular manner or Parliament dissolved on one date rather than another.” It was decided that at this instance the government’s failure to consult was unfair but on were satisfied that the failure to consult was taken for reasons of national security.
The courts are still reluctant to interfere with the exercise of the prerogative where this relates to "high policy". In R v Secretary of State for Foreign and commonwealth Affairs ex p Everett Taylor LJ differentiated between acts involving matters of "high policy" at "the top of the scale of executive functions under the prerogative" such as declaring war and mobilising troops, and matters of administrative decision which would include actions such as the refusal to grant or renew a passport where more judicial scrutiny can be expected.
The lack of parliamentary accountability for the exercise of prerogative power remains a concern. This may explain why the courts following the decision in GCHQ are now prepared to review the exercise of certain prerogative powers.
There have been calls for reform of the prerogative, possible reforms could occur in a variety of different ways. As suggested by Parpworth “one possibility might be for all the prerogative power to be put on a statutory footing.” This would remove uncertainty which surrounds the prerogative despite the publication of the governments list in 2003. This would enable the prerogative powers to be clearly defined and their exercise would accordingly be open to parliamentary, judicial and public scrutiny. This would more or less codify the constitution which would be a significant step.
An alternative possibility would be to convert certain prerogative powers to statutory powers, or to place the exercise of certain powers under the control of Parliament such as the power to dissolve parliament.
This was proposed in a Private Members Bill the Crown Prerogatives (parliamentary) Control Bill 1999. The Bill proposed that, prerogatives such as the dissolution of parliament, inviting a person to form an administration, the declaration of war and the signing and ratification of treaties could not be exercised unless the assent of the HC has first been obtained.
Gradually through legislative change there have been a few reforms of the prerogative. The armed forces personnel were left in an anomalous position by s.10 of the Crown proceedings Act 1947, which denied recourse to the courts for injuries sustained during service, campaigning led to the repeal of the provision by the Crown proceedings (armed Forces) Act 1987. Also in 1986, an outbreak of food poisoning in a Wakefield hospital resulted in 19 deaths, the Crowns immunity from being bound by statute prevented any prosecutions. The government responded to criticisms by agreeing to make NHS hospitals subject to hygiene laws, and later all Crown bodies were made subject to food and safety and environmental protection provisions as regards to inspection and enforcement procedures.
Even if the prerogative powers were replaced by statute or even if they could be identified, there is nothing to suggest that this would lead to fewer abuses of power. For this reason, the prerogative is unlikely to retain its uncertain form, thus leaving to government a residue of largely uncontrolled power.
Bibliography
Neil Parpworth, Constitutional and Administrative Law, 4th edition, Oxford University Press 2006,
Ian Loveland, Constitutional law, administrative law & Human Rights, 4th edition, Oxford Uni Press 2006
Colin r munro, studies in constitutional law, 2nd edition, butterworths 2001
Diplomacy and International Law in Globalized Relations
W. Blackstone, Commentaries on the Law of England, 1765
Bracton on the Laws and Customs of England 9translated and edited by SE Thorne, 1968) 11 p33
[1989] QB 26, [1988] All ER 556
[1985] AC 374 at 418. [1984] 3 All ER 935 at 956, HL.
[1989] QB 811, [1989] 1 ALL ER 655, CA
National Health Service (Amendment) Act 1986 9provisions replaced by the National Health Service and Community Care Act 1990, s 60)
Food Safety Act 1990, s 54: Environmental Protection Act 1990, s 159.