Royal Prerogative

The Royal Prerogative is a body of customary authority, privilege, and immunity, recognised in common law jurisdictions possessing a monarchy as belonging to the Crown alone. It is the means by which some of the executive powers of government are possessed by and vested in a monarch with regard to the process of governance of their state are carried out. It is not subject to parliamentary scrutiny but an individual prerogative can be abolished by legislative enactment.

Though some republican heads of state possess similar powers they are not coterminous, containing a number of fundamental differences. See reserve powers.

Though originally exercised at the will of the monarch, in modern constitutional monarchies most Royal Prerogative powers are exercised directly by the executive and some are nominally exercised by the monarch, acting on the advice of the prime minister and cabinet. There are may be situations in which the monarch may choose to exercise his or her Royal Prerogative independently from the elected politicians. Such situations are extremely rare, and only occur in emergencies. In most liberal-democratic constitutional monarchies, such actions would precipitate a constitutional crisis.

Not all constitutional monarchs have royal prerogative that can be exercised independently however. For example, the King of Sweden and the Emperor of Japan have specific government duties that cannot be exercised with any degree of individual discretion, no matter what the circumstance.

The Royal Prerogative in the United Kingdom

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. Today, most prerogative powers are directly exercised by ministers, such as the powers "regulate the Civil Service, issue passports and grant honours, all without any need for approval from Parliament". Some prerogative powers are exercised nominally by the monarch, but on the advice of Prime Minister and Cabinet of the United Kingdom, who instruct the monarch as to when to use them. Some key areas of British system of government are still carried out by means of the Royal Prerogative, but its usage has been diminishing. In Commonwealth Realms, the Royal Prerogative is very similar in nature to the prerogative in England, but is exercised by the Monarch's representative, the Governor General.

Contrary to widespread belief, the Royal Prerogative is not unlimited. 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 Health Authority (1987), 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.

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

• The appointment and dismissal of ministers;
• The dissolution of parliament and the calling of elections;
• Clemency and pardon;
• The awarding of dignities and honours;
• The declaration of war;
• The declaration of an emergency;
• The granting of Charters of Incorporation;
• The collection of tolls;
• The minting of coinage;
• The issuance and revocation of passports;
• The expulsion of a foreign national from the United Kingdom;
• The creation of new common law courts;
• The creation of new universities;
• The appointment of bishops and archbishops in the Church of England;
• The printing of the authorised Church of England version of The Bible;
• The publication of all statutes, legislative instruments and Orders-in-Council.

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.

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 via the Attorney-General: she cannot therefore sue or prosecute herself or judge her own case. In particular, several Acts of Parliament have allowed agents of the Crown (i.e. government employees) to be sued in the courts. 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. In particular, the British monarch does not have the power to deprive an individual of their 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 the collection of ship money) was one of 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:

• The accreditation of diplomats;
• The granting of Sovereign Immunity;
• The negotiation of treaties.

Among the odder royal prerogatives are:

• The power to order a subject not to leave the realm;
• Royal ownership of swans.

Prior to 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 and declare war. 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 prior to the exercise of the Royal Prerogative.

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.

See Also

• Order-in-Council
• Queen-in-Council
• Queen-in-Parliament
• Statutory Instrument
• Arrete Royale
• Letters patent
• Executive Privilege

Additional Reading

• Walter Bagehot, The English Constitution
• Joseph Chitty, The Prerogatives of the Crown (monograph from 1820)
• Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law
• A.B. Keith, The King and the Imperial Crown (1936)
• Parliament Report on the powers of the Royal Prerogative (http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_19.cfm)
• Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (Government Response) (http://www.dca.gov.uk/pubs/reports/prerogative.htm)