Royal Prerogative (United Kingdom): Wikis

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The Royal Prerogative is a body of customary authority, privilege, and immunity, recognized in countries such as the United Kingdom as belonging to the Sovereign alone. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of their state, are carried out.

Though some republican heads of state possess similar powers, they are not coterminous, containing a number of fundamental differences, and may be either more or less extensive.. See reserve powers.

While prerogative powers were originally exercised by the monarch acting alone, and do not require parliamentary consent, they are now always exercised on the advice of the Prime Minister or the Cabinet, who is then accountable for the decision to Parliament. There may be situations in which the monarch could choose to exercise the Royal Prerogative without the advice of the Prime Minister and the Cabinet. Such situations are rare, and generally only occur in emergencies or where existing precedent does not adequately apply to the circumstances in question.

Contents

Definition

In the Kingdom of England (up to 1707), the Kingdom of Great Britain (1707–1800) and the United Kingdom (since 1801), the Royal Prerogative historically was one of the central features of the realm's governance.

Constitutional theorist AV Dicey gives the standard definition of what prerogative powers are:

... the remaining portion of the Crown's original authority, and it is therefore ... the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers.[1]

Ministerial exercise of the monarch's prerogatives

Today, some prerogative powers are directly exercised by ministers without the approval of Parliament, including, in the United Kingdom, the powers to regulate the civil service, issue passports and grant honours.[2] Some prerogative powers are exercised nominally by the monarch, but on the advice of the Prime Minister, with whom the monarch meets on a weekly basis, and on the advice of Cabinet of the United Kingdom. Some key areas of the British system of government are still carried out by means of the Royal Prerogative, but its usage has been diminishing as functions are progressively made statutory.

Contrary to widespread belief, the Royal Prerogative is not constitutionally unlimited. While the sovereign has the right to publish new law, it is a form of reserve power not constitutionally used. (Her Majesty, as Head of State of the United Kingdom and the other Commonwealth Realms, has the right to use the Royal Prerogative over any nation where she is Head of State.) In the Case of Proclamations (1611) during the reign of King James I/VI, English common law courts judges emphatically asserted that they possessed the right to determine the limits of the Royal Prerogative. Since the Glorious Revolution (1688), which brought co-monarchs Queen Mary II and King William III to power, this judicial interpretation has not been challenged by the Crown.

No new prerogative powers can be created; BBC v Johns (1965). However, 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 (1989), which saw this 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.

Furthermore, where a discretionary prerogative power is justiciable, its exercise can be challenged by judicial review on the same grounds as that of discretionary powers vested in the executive by statute. This is elucidated by Lord Diplock in Council of Civil Service Unions v Minister of State for Civil Service (1985).

Prerogative powers

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Powers relating to the legislature

Powers relating to the judicial system

  • the powers of the Attorney General in relation to criminal proceedings, including the power to enter a nolle prosequi (thus dropping the case against the defendant)[5]
  • Appointing Queens Counsel [5]

Powers relating to foreign affairs

  • Accreditation and reception of diplomats [6]
  • Declaration of war[3]
  • Making of peace[3]
  • The negotiation of treaties[citation needed]
  • Recognition of foreign states[7]
  • Right to take additional territory[8]

Powers relating to the armed forces and war

  • The Monarch is commander in chief of the armed forces of the Crown [9]
  • Armed forces pay[5]
  • Decisions about control, organisation and deployment of the Armed Forces[citation needed]
  • Maintenance of the Royal Navy[5]
  • the power to press men into the Navy, which the Government accepted had "fallen out of use altogether, probably forever" [10]

Appointments and honours

  • The appointment and dismissal of ministers[3]
  • The appointment of Royal Commissions and Officers for any purposes[citation needed]
  • The creation of peers[3]
  • The award of dignities and honours[3]

The prerogative in times of emergency

  • Declaration of an emergency[citation needed]
  • Requisitioning of ships[3]
  • Powers in the event of a grave national emergency, including the power to enter upon, take and destroy private property[5]

Miscellaneous prerogatives

Other examples of prerogative powers

Among the powers possessed by the monarch in the United Kingdom under the Royal Prerogative are:

  • The expulsion of a foreign national from the United Kingdom[citation needed]
  • The appointment of bishops and archbishops in the Church of England[citation needed]
  • The printing of the authorised Church of England version of the Bible[citation needed]
  • The exercise of jurisdiction over numerous Royal foundations of all kinds[citation needed]

The prerogative also traditionally included duties, not just rights. The foremost of these were the defence of the realm and the keeping of the Queen's peace.[citation needed]

In regard to the monarch's prerogative of the awarding of dignities and honours, in practice most British Orders of Chivalry are conferred on the advice of the Prime Minister. However, the monarch retains the exclusive right of conferring the Order of the Garter, the Order of the Thistle, the Order of Merit, the Royal Victorian Order and the Royal Victorian Chain, along with the grant of arms.

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 ostensible 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. However, this logic can be said to be flawed because there appears no problem in judging her own cases as prosecutor, or as claimant in civil litigation. The explanation most commonly offered in texts on Crown immunity is that "the Queen can do no wrong", and therefore cannot be held liable for breaches of contract or in tort).[citation needed] In particular, several Acts of Parliament have allowed agents of the Crown (i.e., government employees) to be sued in the courts.[citation needed] The Queen's daughter, the Princess Royal, actually has a criminal record (for not keeping her dog under control).

Although many powers are included in the royal prerogative, some powers are notable for their absence, although they could theoretically be included under the Royal Prerogative. In particular, the British monarch does not have the power to deprive an individual of his or her life, liberty or property as these rights are said to derive from the Fundamental Laws of England. As a consequence, the monarch does not have the power to tax without the consent of Parliament and this has significantly limited the power of the monarchy. The unsuccessful efforts of Charles I of England to raise money to finance the royal administration through royal prerogative sources not subject to parliamentary approval (such as the collection of ship money) were among the major causes of the English Civil War.

Many uses of the prerogative in foreign affairs are called Acts of State. Most powers exercised by the British government in international and foreign affairs come from the Royal Prerogative. These include:


Among the more esoteric royal prerogatives are:

Limitations

The Royal Prerogative is not unlimited; this was established in the Case of Proclamations [1610] EWHC KB J22 which confirmed that no new prerogative can be created and that Parliament can abolish individual prerogatives.

Criticism

Before British involvement in the 2003 invasion of Iraq, Prime Minister Tony Blair, in a major break with precedent, sought parliamentary approval for British participation in the war. However, Parliament's decision was in constitutional terms advisory, as the actual decision would be taken by the exercise of the Royal Prerogative. Blair indicated that should Parliament not approve, he would not formally advise Queen Elizabeth II to exercise the Royal Prerogative. Given that Blair had an overwhelming Labour majority in the British House of Commons and had the support of the opposition Conservative Party, there was little likelihood that Parliament would vote down the motion recommending participation in the war. It remains to be seen whether a future government with a small majority or in a minority in the House of Commons will seek parliamentary approval before the exercise of the Royal Prerogative. Clare Short has proposed a Private Member's Bill that would remove the declaration of war from the royal prerogative.[14]

Former left wing Labour MP Tony Benn campaigned for the abolition of the Royal Prerogative in the United Kingdom in the 1990s, arguing that all governmental powers in effect exercised on the advice of the Prime Minister and cabinet should be subject to parliamentary scrutiny and require parliamentary approval. His attempts were unsuccessful, with later governments arguing that such is the breadth of topics covered by the Royal Prerogative that requiring parliamentary approval in each instance where the prerogative is currently used would overwhelm parliamentary time and slow the enactment of legislation.

Controversial contemporary uses of the Royal Prerogative

In the United Kingdom the power to issue passports remains under the Royal Prerogative. The Government has used the Royal Prerogative to deny passports to citizens whom the US government had held, and released, from the American prison in the US Naval base at Guantanamo Bay. Martin Mubanga, who has joint citizenship with the United Kingdom and Zambia, is one of the British citizens denied a passport.[15]

The Royal Prerogative was used on 10 June 2004 to negate the judgement of the High Court in favour of the Chagos Islanders that ruled their exclusion from the Chagos Archipelago was unlawful.

See also

References

  1. ^ House of Commons - Public Administration - Fourth Report
  2. ^ UK Parliament - PASC 19
  3. ^ a b c d e f g h i j k l m n http://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdf House of Commons - Briefing - The Royal Prerogative - SN/PC/03861
  4. ^ http://www.parliament.uk/about/how/laws/stages/royal.cfm
  5. ^ a b c d e f g h A review of the ancient royal prerogative powers available to UK government ministers, Ministry of Justice, 15 October 2009
  6. ^ http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_19.cfm
  7. ^ http://www.guardian.co.uk/politics/2003/oct/21/uk.freedomofinformation
  8. ^ Constitutional and Administrative Law, 13th Edition, A W Bradley and K D Ewing, page 249 "The prerogative includes the power to gain additional territory; thus by royal warrant in 1955, the Crown took possession of the Island of Rockall"
  9. ^ http://www.royal.gov.uk/MonarchUK/ArmedForces/QueenandtheArmedForces.aspx
  10. ^ http://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdf
  11. ^ Case of Swans (1592) 7 Co Rep 15b at 16a
  12. ^ Celebrating the Queen's 80th Birthday > 80 facts about The Queen > 71 to 80
  13. ^ Statute "Prerogativa Regis" 1322 c. 13 (temp. incert.) at the UK Statute Law Database
  14. ^ http://www.guardian.co.uk/comment/story/0,3604,1554314,00.html
  15. ^ http://news.bbc.co.uk/1/hi/uk/4267761.stm

Additional reading


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