Exploring Prerogative Powers

Introduction

A.V. Dicey defines prerogative powers as ‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown. Another legal scholar, John Locke explained that prerogative was ‘power to command that operates outside and against the laws, extra et contra legem.’ The two definitions refer to a power that does not emanate from statute or Parliament hence it could be either a reserve or residuary power. A third conception of prerogative is given by William Blackstone who believed that the power was tied to the dignity of the King and it was a special type of authority giving the King an exceptional right. Ordinarily, the Constitution is the source of all laws and powers, however, there is a bundle of special powers that were originally special to the King and allowed him to engage the executive as a guardian of the state. Prerogative emanates from the idea of constitutional exceptionality where exceptional or emergency power is invested in the executive. John Locke agrees that the government needs reserve power that goes beyond or even against prescribed law for the overall good of the people. Therefore, prerogative power deviates from the normal law making process vested in Parliament and the Executive.

The Nature

Royal prerogative that bestows executive powers majorly derives from ancient rights, powers, privileges of the Sovereign, including the political privilege of declaring war or peace, prerogative of mercy, and financial prerogatives like bona vacantia. Clearly, the ability of the executive to utilise these residuary, reserve and discretionary powers have been gradually curtailed. As the constitutional law evolved in the United Kingdom, there were conflicts between the supremacy of the law, Parliament, and the Crown. Parliamentary supremacy dictates that legislative power vests in the people as a whole for they are the only people who can judge common good. In exercise of the above right, the people’s representatives in Parliament should be the exclusive source of statutes that guide or judge conduct of people. In this regard, prerogative power of the executive becomes an affront to Parliamentary supremacy and upsets the doctrine of separation of powers as put forward by Dicey. Philosophers like Thomas Aquinas disagreed with the above position asserting that the King was not restrained by law because he controlled coercion, a view held by many legal scholars. The Royal Prerogative is neither based on common law nor statute, instead they are unwritten original powers inherent in the Crown.

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1. Poole Thomas, The strange death of prerogative in England. (2018)UW Austl. L. Rev. 43: 42.
2. Poole Thomas, United Kingdom: the royal prerogative. (2010) International journal of constitutional law 8.1. 146-155.
3. Forcese Craig, The Executive, the Royal Prerogative, and the Constitution. (2017) The Oxford Handbook of the Canadian Constitution: 151.

The Decline

Today, executive powers are still derived from prerogative powers especially in the areas of diplomatic relations, making of internationals treaties and deployment of armed forces. Originally, there were immunities and privileges of the Crown in his or her personal capacity but this was limited by the Crown Proceedings Act of 1947. As a result, the Crown is no longer immune from civil proceedings except for the sovereign’s personal immunity. The Crown has retained certain political prerogatives relating to the conferral of honours, patronage, and appointments, including those of ministers. In the same breathe, Royal Prerogative still allows limited legislative powers concerning the civil service and overseas territories through letters of patent or orders in council. Interestingly, the Queen’s consent is still required before a bill that relates to a Royal Prerogative is debated in Parliament. Further, bills passed in parliament require Royal assent before they become Acts of Parliament. Accordingly, the Queen has the prerogative to summon and prorogue Parliament subject to Fixed Term Parliament Act 2011. The common thread in all the above mentioned powers is that they have been deeply eroded by statute. Additionally, the Courts have gradually limited the application of prerogative powers by the Executive thus imputing a sense of decline in these discretionary powers.

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4. Cox Noel, The gradual curtailment of the royal prerogative. (2010)Denning LJ 24- 1.

As early as the reign of King James I the courts interpreted English constitutional law in a way that limited Royal Prerogative at the time. Therefore, in Case of Proclamations, the Court reiterated the principle that the Monarch could make laws only though Parliament. In particular, Chief Justice Coke categorically stated thus: ‘the King has no prerogative but that which the law of the land allows him’. It follows that the King did not have the power to prohibit the erection of new buildings by simply invoking royal proclamations that had not been granted to the King by Parliament. Although the justices acknowledged the necessity of proclamations made pursuant to Royal Prerogative, it was important that they be aligned to the Constitution. The judgment in this case was quite significant especially in light of an earlier decision in Case of Impositions which allowed the Crown to impose duty on imported currants so long as it was done to regulate trade rather than raise revenue. The former case is considered to be instrumental in in the development of the concept of judicial review in English common law. In essence, persons who felt affected by the Crown’s prerogative power could move to court to challenge the same on the basis that it was unfair, unconstitutional or un-procedural.

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5. Poole Thomas, The strange death of prerogative in England. (2018)UW Austl. L. Rev. 43: 42
6. [1610] EWHC KB J22
7. (1606) 2 St Tr 371
8. Poole Thomas, Constitutional exceptionalism and the common law. (2009) International journal of constitutional law 7.2: 247-274.

The uncertainty surrounding the extent of royal prerogative power lingered until the enactment of the Bill of Rights of 1689. It made it clear that that the Royal Prerogatives were limited by law and there were no powers of the Crown that could not be taken away or limited by statute. Notably, the Bill of Rights created separation of powers, limited the powers of the Crown, bolstered freedom of speech, and enhanced the democratic election. 400 years later, the Case of Proclamations appeared conspicuously in the High Court’s landmark judicial review decision in R (Miller) v Secretary of State for Exiting the European Union. The question before the Divisional Court of the High Court was whether the Government of the UK can without parliamentary consent invoke Article 50 of the Treaty of the European Union which initiates the process of exiting the European Union (EU). Following a referendum result in favour of exiting the EU, the government sought to begin the process of withdrawal from the Union. The Plaintiffs in this case challenged the decision of the government on the basis that it was acting outside its powers and could not hide behind the Royal Prerogative to bypass Parliamentary consent as that would be an affront to Parliamentary sovereignty. The Court ruled that the government did not have the right to bypass Parliament by relying on Royal Prerogative to serve notice triggering withdrawal from the EU. It was the Court’s considered opinion that since Brexit would likely affect substantive legal rights under UK domestic law, only Parliament could make a decision on the service of the said notice.

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9. (3 November 2016) [2016] EWHC 2768

After the current Prime Minister of the UK, Boris Johnson, took over from Theresa May in 2019 he decided to prorogue parliament with the consent of the Queen. The controversial prorogation of Parliament was challenged by way of judicial review in the High Court of Justice for England and Wales in London and at the High Court of Northern Ireland in Belfast. Although the above cases were rejected for being non-justiciable, there were subsequent appeals that eventual landed at the Supreme Court in the form of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland. The joint landmark cases otherwise known as Miller II and Miller/Cherry questioned the limits of the Royal Prerogative power to prorogue the Parliament of the United Kingdom. A unanimous decision by eleven justices ruled that the matter was justiciable and the advice given by Boris Johnson to the Queen to prorogue Parliament was unlawful. As a result the order in council made pursuant to Royal Prerogative to prorogue Parliament was declared to be unconstitutional, null and of no effect. The decision was reversed and Parliament had in fact not been prorogued. Clearly, there is a common thread in the above court decisions that is aligned to the view that Parliamentary sovereignty trumps prerogative powers except in exceptional circumstances.



Conclusion

In view of the above discussion, it goes without saying that the Royal Prerogative has been on a steady decline since the 1600s. The Courts have severally and repeatedly held that the government cannot make proclamations not supported by statute. It is further clear that Parliamentary consent may not be dispensed with so long as there is a statutory underpinning for the same. In essence, parliamentary sovereignty and the supremacy of statute law dictates that the exercise of prerogative powers may not violate individual rights. Further, prerogative powers may be curtailed by statute as long as long as the statute clearly intends to override such powers. One weakness of Royal Prerogative is that it lacks parliamentary control and democratic legitimacy, hence the general perception that it is arbitrary and prone to abuse. As a consequence, Royal Prerogative appears to be on its death bed and there is no hope for its revival except for the fact that it may stay bedridden for a long time. Having noted the above, it is undeniable that Royal Prerogative still forms parts of the sources of government power despite existing and developing limitations.

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10. ([2019] UKSC 41)

Table of Cases

Case of Impositions (1606) 2 St Tr 371

Case of Proclamations [1610] EWHC KB J22

R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland ([2019] UKSC 41)

Table of Statutes

Bill of Rights 1989

Crown Proceedings Act of 1947

Fixed Term Parliament Act 2011

Journals

Cox N, The gradual curtailment of the royal prerogative. (2010)Denning LJ 24- 1

Forcese C, The Executive, the Royal Prerogative, and the Constitution. (2017) The Oxford Handbook of the Canadian Constitution: 151.

Poole T, Constitutional exceptionalism and the common law. (2009) International journal of constitutional law 7.2: 247-274.

Poole T, The strange death of prerogative in England. (2018)UW Austl. L. Rev. 43: 42.

Poole T, United Kingdom: the royal prerogative. (2010) International journal of constitutional law 8.1. 146-155.