Royal Prerogative

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Discuss the importance of the royal prerogative as a source of ministerial powers today and critically examine the changing role of the courts in assessing the existence, extent and manner of exercise of these powers.

The United Kingdom has an unwritten constitution therefore there is no single document which sets out the power relationships within the state. The powers of the Monarch and the Crown must either be derived from Act of Parliament or must be recognized as a matter of common law such as the royal prerogative or prerogative powers.

“The Royal Prerogative is a body of customary authority, privilege, and immunity, recognized in ,” and is an important source of power within the UK constitution. Prerogative powers were originally exercised by the monarch acting alone, and did not require  consent however they are now always exercised on the advice of the  or the , who is then accountable for the decision to Parliament.

There are two schools of thought on this point. The first ‘narrow’ or ‘restrictive’ interpretation was made by Blackstone who referred to the powers as "that special pre-eminence which the King hath over and above all other people...” powers such as declaring war, granting peerages were exclusive to the king, and went beyond the powers of a private individual and so were correctly labelled as prerogative powers.

The second much wider definition comes from Dicey. Dicey interpreted the powers to everything that government can lawfully do, that does not derive from statute, but which could still be enforced in the courts. The courts have favoured the wider approach and have generally adopted the Diceyan view. 

Like the other European monarchies, Britain’s monocracy is a constitutional monarchy, which means that the Queen is head of the state and the state powers are exercised in her name. Although the majority of power in the UK now resides with Parliament and the government, the Queen remains the head of state. So in effect it can be said that “the “Queen may reign, but it is the Prime Minister and other ministers who rule.”

The Royal Prerogative historically was one of the central features of the 's governance. It originated at a time when the monarch’s personal power was far greater than it is today, when the Crown was not tied down by the restrictions of a constitutional monarchy. Those restrictions were originally attached in 1688 by the Bill of Rights. The Bill of Rights Act, 1689 set out strict limits on the use of Royal prerogatives by the Monarch and declared illegal certain specific uses and abuses of the prerogative. The enactment of the Bill of Rights meant that “Prerogative powers could undeniably be controlled or even abolished”  

The King and Queen gave the Bill of Rights Royal Assent on December 16, 1689 passing it in to English law. Prior to the enactment of the Bill of Rights the English monarchs claimed their powers came from God “the king must not be under man but under god and under the law, because the law makes the king.”   The Bill of Rights Act, 1689 represented the end of the concept of divine right of kings, which was one of the issues over which the  had been fought. It also made kings and queens subject to laws passed by Parliament; this has been called the "Glorious Revolution".

In the 17th Century disputes arose over the undefined residue of prerogative power claimed by the Stuart kings. The conflict was resolved only after the execution of one kings and the expulsion of another in 1649 (Charles 1) and 1688 (James 11) culminating in the Bill of Rights 1689. Several cases were heard by the courts which concerned measures taken under the prerogative.

The decision in the Case of Prohibitions established the supremacy of the courts. King  placed himself in the position of judge for a dispute. When the case went before , the Chief Justice of the , he overturned the decision of the King and held that the King could not sit as a judge and justice could only be done through judges. “As well as placing restraints on the Monarch, this ruling enhanced the powers of the courts.”  

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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 ...

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