Under the monarchial constitution of the United Kingdom (UK), the majority of prerogative powers are now exercised by the government in the name of the Crown. There are two principle definitions of Royal Prerogative (RP); that of Sir William Blackstone and that of Professor A. V. Dicey. According to Dicey, RP is defined as the residue of arbitrary or discretionary authority, which at any given time is legally left in the hands of the Crown.
RP has several defining characteristics – RP is inherent to the Crown, derived from common law, exercised by the government on behalf of the crown, the powers are residual and RP legitimises government actions without the need for an Act of Parliament (AOP). Before the 17th century, the monarch had all three powers, the legislative, executive and judicial powers. The judiciary started gaining independence since the Case of Prohibitions 1607 and was fully independent after the Act of Settlement 1700, which effectively removed the power of the monarch to remove a judge at will.
The independence of the legislature started with the Case of Proclamation 1611 and culminated in the Bill of Rights 1689, which curbed future arbitrary behaviour of the monarch and guaranteed Parliament’s power vis a vis the Crown. With these changes made to the UK constitution and as support grew for a democratic government, RP seemed out of place in the hands of the monarch and was slowly transferred into the hands of the government to be used in the name of the Crown.
It is possible for RP to be codified i.e incorporated into an AOP, as can be seen from the Constitutional Reform and Governance Act 2010 (CRGA). The CRGA codified several RPs, such as the RP to ratify treaties. The codification of RP meant that it would be under Parliamentary control and not the Executive. In the UK today, the UK government makes certain decisions based on the RP if they are not covered under any statutes. However, there have been several cases regarding the use of RP brought to the courts, spearheaded by Darnels case as well as the Case of Ship Money.
The fact that these cases could be judged by the courts showed that the government (on behalf of the monarch) could exercise the prerogative power granted by the courts. Therefore, the courts have the power to determine whether that prerogative power exists and the extent of the power exercised by the government. Codifying the RP ensures that courts would not have the power to determine its existence, as they are unable to determine the validity of an AOP, as directed by Lord Reid in Pickin v British Railways Board.
It would also prevent conflicts with statutes, as well as promote greater certainty and accessibility in the law. However, codifying the RP would make it more rigid, which may affect the reflexes of the government in responding to situations which are time-sensitive. Nevertheless, the current practice of the UK government with regards to such RP would be to consult Parliament first. Thus, it would be desirable to codify the RP. The RP has always been a part of common law in the UK Constitution. In the Case of Proclamation 1611, then King James I declared two royal proclamations without the consent of Parliament.
When the case was brought before the court, Lord Coke held that ‘the King hath no prerogative, but that which the law of the land allows him’, meaning that the King could only exercise the prerogative power granted by the courts. Following the judgment, there were several cases which involved the use of the RP which the courts upheld. In Darnels case, the Defendant was imprisoned due to a warrant issued from the King in which there was no reason for the imprisonment. The court held that the arrest was valid as this was the exercise of the monarch’s prerogative power to arrest.
The Case of Ship Money also exemplified how the court could decide if use of RP was legitimate. Hampden had refused to pay taxes to the King, upon his RP to raise revenue in an emergency situation. The court subsequently upheld the power of the Crown. Lastly, the judgment in Lord Advocate v University of Aberdeen upheld the RP that things lost, abandoned or ownerless belongs to the Crown. However, the courts have also held several decisions which restricted the RP. In BBC v Johns, BBC claimed there was a prerogative to grant immunity to them so as to avoid paying taxes.
This case was famous for the dictum of Lord Diplock who stated that it is “350 years and a civil war too late for the Queen’s courts to broaden the prerogative”. Some feel that the exercise of prerogative powers was outside judicial review. Lord Devlin (in Chandler v DPP) agreed, but in his obiter statement stated that the courts will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse. Despite this, not all prerogative powers are subjected to judicial review, the reviewability is dependent on its subject matter and not the source of power.
In the GCHQ case, Lord Roskill mentioned that “Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy… are not, I think, subjected to judicial review because of their nature and subject matter is such as not to be amendable to the judicial process”. Thus, with RPs, courts would have the ability to judge whether they are implemented legitimately or not, dependent on the scope of the prerogative in question, but in the case regarding AOP, courts would not be able to question its validity, as stated by Lord Reid in Pickin (as above).
This would be desirable as it would smoothen the relations between the Judiciary and Executive, with fewer conflicts between them. There are also situations whereby RP will be in conflict with statutes. As such, the Crown would not be able to exercise the prerogative power due to the doctrine of Parliamentary Sovereignty. In AG v De Keysers Royal Hotel, the Crown used the Royal Hotel during the First World War and the hotel later claimed for compensation under Defence Act 1842.
Although the Crown argued that no compensation should be paid since there was an RP to acquire any land of the subject during wartime, the court held that when the statutory power and prerogative power co-existed, statutory power would override that of prerogative. Similarly, in R v Secretary of State for the Home Department, ex parte Fire Brigades Union, the Criminal Injuries Compensation Scheme set up under Ministerial Prerogative powers was used instead of the Criminal Justice Act 1988, so as to save money by awarding less compensation. The court held that if there is a statutory scheme, it cannot be replaced by the RP.
To prevent these scenarios from happening, Parliament has taken steps in recent years to incorporate some RP into statutes. For example, the Treasure Act 1996 states that the prerogative right of treasure trove has been abolished and replaced by this Act. The Human Rights Act 1998 protects citizens against arbitrary use of prerogatives, and the Fixed-Term Parliament Act 2011 has incorporated the RP of dissolution of Parliament. Hence with these recent developments, RP will be in less conflict with AOPs and more consistent with them, enabling them to be more certain and accessible to the public.
There are naysayers of codifying the RP that argue that such an act would increase the rigidity of the process to achieve the intended result. Indeed, this is true as can be seen in the prerogative to declare war on other countries. For such a result, the government would need the operational flexibility and speed of deployment that the RP provides. By incorporating it into a statute, not only will the efficiency of the government be reduced, excess publicity that the AOP will bring would undermine the success of the operation.
In addition, there will be situations where the government cannot await Parliamentary approval due to time constraints. Be that as it may, in practice, the government in modern times have looked for Parliament’s approval regarding the issue of war. In 2006, then Prime Minister Tony Blair, following his own vote over Iraq in 2003, acknowledged that he could not conceive of a situation in which a government is going to go to war – except in the circumstances where immediate action is required – without a full Parliamentary debate.
The Iraq war vote was a significant precedent that Parliament should give its approval regarding such matters. Following which, Prime Minister David Cameron in 2011 held a Parliamentary debate on whether UK should establish a no-fly zone in Libya after the outbreak of military action. Lastly, in September 2013, a Parliamentary debate was called to discuss the possible military intervention in Syria after chemical weapons were allegedly used on civilians. By calling a vote, the government was ensuring continuing adherence to the practice that Parliament should have a say in such issues.
Hence, even if codifying the RP does increase rigidity, the process of ensuring Parliament’s approval is already established. Some might feel that codifying the RP would be sacrificing UK history as they would be forgoing part of their culture which makes their unwritten constitution unique in today’s world (inclusive of New Zealand and Israel). Nevertheless, the RP is considered by many to be an outdated power and is such an important one that it should not bypass democratic representation.