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This essay will consider show the historically significant role of the royal prerogative and

its influence in modern society, particularly in such important matters as declaring war,

entering into treaties and conducting diplomacy. Furthermore, it will concentrate on the

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legal accountability of the prerogative powers in the Courts by analyzing decided cases

and will highlight the lack of Parliamentary control over the exercise of the prerogative by

the Government and consider the Governments steps towards abolishing some of the

prerogative powers.

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The history of the royal prerogative goes back to the time of the Stuarts, when the

doctrine of the Royal Prerogative was maintained by the King, lawyers and statesmen,

who had supported the royal authority that the Crown possessed under the name of the

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prerogative, as being a significant reserve of indefinite rights and powers 1. Until 1628,

the monarchy had most of the power over state institutions and the power to approve or

suspend statutes, and also the power to defend the realm from enemies and an

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undefined residue of power to be used for the public good 2. The King was not under a

duty to follow the advice of his Council; he could appoint the Council and dismissed it

when he wished. The circumstances under which Parliament used to meet much

depended on the Kings need to raise taxes, as it became unlawful to do this without

consulting Parliament.

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However, at the beginning of the 17th century, there were many disputes over the

undefined residue of prerogative power, as shown by the Case of Prohibitions 3 in 1608

based on a dispute concerning land. Furthermore, in 1611 when James I tried to use a

proclamation in order to limit the building of new homes in London and to ensure that

wheat was preserved for human consumption, it was stopped by the Kings Council and

1 AV Dicey,Introduction to the study of the Law of Constitution (Liberty Classics, Indianapolis 1982) 20.

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the Case of Proclamations4 was heard in the Court, where Coke CJ stated: ...the King

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hath no prerogative but that which the law of the land allows him 5.

This case and others such as the Ship Money Case 6 show an increasingly tense

relationship between King and Parliament, which continued until 1688 when the balance

2Royal Prerogative, HC Deb 21 April 1993 vol 223 cc484-92

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of power between them shifted significantly in favour of Parliament and the Bill of Rights

Act 1689 was enacted. Parliamentary sovereignty was then established.

It is not an easy task to define the Royal Prerogative, as it represents powers held by the

Crown over many centuries. Moreover, it is impossible to define the exact limits of such

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powers. Some powers, such as to press men into the Navy, are forgotten and out of use.

However, many are still important and in use, particularly in foreign affairs, such as the

power to make declarations of war and peace, enter into treaties, engage in diplomatic

relations, dispose armed forces overseas and issue passports7. Among the most

important prerogative powers exercised in domestic affairs are the powers to summon

accessed 22 December 2008.

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and dissolve Parliament, appoint ministers, give royal assent to Bills, defend the realm,

and grant royal mercy. These powers may be used by the Government as convenient

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instruments to avoid parliamentary scrutiny8. As Dicey pointed out: It leaves in the hands

of the Premier and his colleagues, large powers which can be exercised, and constantly

are exercised, free from Parliamentary control9. This raises the problems of accountability

discussed below.

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The power to enter into treaties is one of the main prerogative powers and recognises the

sovereignty of the state. It is considered to be an act that the executive can do without

consulting anybody - including the two Houses of Parliament. As Dicey stated : ...the right

of making treaties is one of the powers now left by law in the hands of the Crown, and

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exercised in fact by the executive government...10. However, in order to apply a treaty into

national law so that it has a legal effect in the country, Parliament must pass an

appropriate Act and, therefore, has a final say. For example, the European Communities

Act 1972 adjusted the laws of the United Kingdom into agreement with European law and,

in particular, gave effect in the U.K. to the Treaty of Rome which, at the time, governed

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the operation of the Common Market, the predecessor of the European Union. However,

in 1994, the case R v Secretary of State for Foreign and Commonwealth Affairs ex parte

Rees-Mogg 11considered the Maastricht Treaty which was presented for ratification in

Parliament. There was considerable opposition in Parliament, so significant that the

3 Prohibitions del Roy (1608) XII Co Rep 63.

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Government had doubt whether Parliaments approval would be achieved12. Therefore,

the then Prime Minister, John Major, announced the possibility of using the Royal

Prerogative to ratify the treaty without Parliaments approval. Mr Rees-Mogg challenged

this use of the prerogative. The court did not want to be involved and refused judicial

review, stating that the matter clearly fell within the Royal Prerogative. As Lord Woolf and

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Jeffrey Jowell observed, there are some decisions that the court is ill-equipped to review,

and then it is best to leave it to be decided in the political arena 13.

Diplomatic relations have always been of great significance and have been conducted

generally under the Royal Prerogative. Such diplomatic relations include recognition of

4 (1611)XII Co Rep 74.

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foreign states and their governments and presentation of the country in the world,

annexation and cession of territory and the declaration of war and peace. The power to

declare war and commit British forces to military operations is given to the Prime Minister

under the Royal Prerogative. Although Parliament has no legal power to examine such

decisions, Parliament is nevertheless informed by the government. The Government did

5 H Barnett, Constitutional & Administrative Law (sixth edition, Cavendish, Oxon 2006) 118.

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not seek Parliamentary approval for committing forces to the war in Yugoslavia in 1999

and in Afghanistan in 200114. However, there are political checks and balances which

make it more difficult to act without involving Parliament15. It seems that after Tony Blair

obtained approval from the House of Commons for the use of military forces in Iraq in

6R v Hampden (1637) 3 St Tr 825.

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2003, a precedent had been established16. The former Conservative chancellor Kenneth

Clarke said, though, that the Iraq vote had not been a good precedent because: ...with

troops in the field and the decision effectively already made by the Prime Minister,

7 N Forman, Constitutional change in the United Kingdom (Ebooks Corporation, London 2004) 197.

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Parliament had acted with a gun to its head17. Following this, there was much debate in

and outside Parliament about giving Parliament the possibility of the final say on whether

British troops should be sent to war. It was suggested that the Royal Prerogative is out of

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date and should not be used in a parliamentary democracy 18. It seems unlikely that any

future Prime Minister would dare to send military troops to war without consulting the

Parliament (although the power to do so under the prerogative would still seem to exist).

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At common law, citizens have the right to enter and leave the realm. However, in practice

it is almost impossible to travel without a passport, which is issued in the United Kingdom

under the prerogative. The issuing or withdrawing of passports under prerogative powers

has been criticised after four British men in 2005 had been freed from Guantanamo Bay

8 N Forman (n8) 197.

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and been denied passport facilities19 because they were suspected of being terrorists,

although the evidence of this was not clear. The Government does not have a legal

obligation to provide a passport, which ought to be a fundamental right of any citizen in

Britain. This position might be contrasted with that in the United States of America where

9 AV Dicey (n1) 310.

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the Supreme Court inAptheker v Secretary of State 20has held that freedom of travel is a

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basic constitutional liberty21. However, as it was shown in R v Secretary of State for

Foreign and Commonwealth Affairs ex parte Everett(1989), the granting and withholding

10 A V Dicey (n1) 20 (citation omitted).

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of passports could be subject to judicial review 22, even though the court is still reluctant to

decide on matters of high policy.

The prerogative of mercy historically had been used to stop application of the death

penalty; now it is used to make changes in sentences or to remove a penalty. The Home

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Secretarys decision can be changed by judicial review, as happened in R v Secretary of

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State for the Home Department ex parte Bentley23, where the Home Secretary refused to

grant a pardon. A similar situation happened again recently when a football fan, Michael

Shields, had been convicted and jailed in Bulgaria for attempting to murder a barman

during the party after Liverpools victory in the Champions League. Although he had been

transferred into prison in Britain, the Justice Secretary Jack Straw stated that the

11[1994] 2 WLR 115.

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prerogative did not include the power to grant mercy in such an international case.

However, the Court decided that the Justice Secretary did have the "power and

jurisdiction" to exercise the ancient "royal prerogative" in the case of Shields, although it

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added that it is Mr. Straw, not the court, who should decide whether to exercise that

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power24.

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Although Professor Bogdanor described the constitutional monarchy as a state which is

12 H Barnett, Constitutional & Administrative Law (sixth edition, Cavendish, Oxon 2006) 141.

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headed by a Sovereign who reigns but does not rule25, the monarch still retains

significant residual powers. There are three main prerogative powers which are

personally exercised by the monarch.

13 Parliament Committee, Pasc Publishes government defense of its sweeping prerogative powers-Move could help

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The first is exercised following a general election when the monarch has to choose the

next Prime Minister and invite him or her to form a government. By convention, the

monarch selects the leader of the party which has a majority in the House of Common.

However, there could be a difficult situation if the election finished without giving a

majority to any party.

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The second prerogative power exercised personally by the monarch is the power to

dissolve Parliament. The life of Parliament is not fixed by statute, and it is, at least

theoretically, the monarch who dissolves Parliament and calls a new election. In reality,

the monarch accepts the advice of the Prime Minister and grants dissolution when

bring bigger say for Parliament

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requested. Thus, although the power to dissolve Parliament is exercised in the name of

the Crown, practically it is left in the hands of the Prime Minister, who can use it free from

Parliamentary control or judicial oversight. A recent and interesting example of the

personal application of the Royal Prerogative power happened in Canada, when the

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representative of the Crown, the Governor-General of Canada, agreed to order

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suspension of Parliament26.

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Thirdly, there is the power to give royal assent to legislation, which is now a theoretical

power and Queen Victoria was the last monarch to sign the royal assent in person in

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185427.

Clearly, most of the prerogative powers are exercised by the executive and are outside

direct democratic control. Accountability of the executive is fundamental to any

democracy. When power is founded on the Royal Prerogative, but not on statute,

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democratic accountability suffers28. In practice, use of the prerogative is controlled in two

main ways. First, there is the political and statutory control by Parliament. Secondly,

there is judicial control by the courts, which is often exercised through judicial review

proceedings. However, the extent to which prerogative powers can be controlled by the

14 C Turpin and A Tomkins,British Government and the Constitution (6th edn, Cambridge, 2007) 465.

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courts remains doubtful and is an area of conflict29. This question of the accountability of

prerogative powers will be considered in more detail.

Parliament can exercise control of prerogative powers through statutes. The basic rule

since 1688 has been that Parliament is sovereign and can abolish or amend any

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prerogative power. This happened quite recently in a minor way in the Treasure Trove Act

1996, which abolished the prerogative power over treasure trove. However, there are still

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many prerogative powers that Parliament could abolish but does not wish to do so30.

When Parliament has legislated for a matter previously falling within prerogative power,

the statute will prevail. An example of this is shown in Attorney General v de Keysers

15 J Samiloff (n14).

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Royal Hotel Ltd 31 where the Government argued that their requisitioning of the hotel

during the war was taken under a prerogative power to defend the realm, without any duty

to pay compensation. However, it was held that the Defence of the Realm Act 1914

prevailed and the owner of the hotel was entitled to compensation under that Act. In

16 A King, The British Constitution (Oxford, Norfolk 2007) 342.

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Laker Airways v Department of Trade 32, the Government tried to use the prerogative to

block the flying licence granted under statute, but it was held that the Government cannot

use its prerogative power to defeat a statutory power.

17 BBC news, MPs support war-powers proposals

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Furthermore, Ministers are accountable to Parliament for the exercise of prerogative

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powers, as they are for the exercise of any other powers33. Parliament, in theory, can

control the Governments exercise of prerogative powers by using its scrutiny process,

such as question time, debates and Select Committees and ordering public enquiries34.

However, in practice many matters like appointment of ministers, national security,

dissolution of Parliament and diplomatic relations are immune from such scrutiny.

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Importantly, Parliament also controls the exercise of prerogative powers by controlling the

supply of finance to the Government. Although the Government may have the legal power

to take certain actions under the prerogative (or, of course, under various statutes), it can

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only do so to the extent that Parliament has provided the necessary funds for such

actions.


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Lastly, judicial intervention needs to be considered. Until relatively recently, courts would

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not interfere with the exercise of prerogative powers35. Even in 1978, in Gouriet v AG 36,

the majority of the judges refused to review the decision of the Attorney-General not to

prevent the strike of a union in support of the anti-apartheid movement in South Africa.

However, since the GCHQ case37, where the right of workers to belong to a trade union

was terminated under the prerogative, the courts have established the principle of the

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possibility of judicial review over prerogative powers. In that case, the court heard and

considered the challenge to the exercise of the prerogative power, although it held that

there are some matters, such as appointment of ministers, dissolution of Parliament and

in this case national security, which cannot be subjected to review by the court.

Therefore, the courts have limited or no power where use of the prerogative involves

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matters of high policy, which are best to be left to be decided in the political arena38.

Lord Roskill stated:

Prerogative powers such as those relating to...the defence of the realm...as well as others

are not, I think, susceptible to judicial review because their nature and subject matter are

18 Chapter 8 Constitutional Renewal?

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such as not to be amenable to the judicial process. The courts are not the place wherein

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to determine whether... the armed forces disposed in a particular manner39.

Although the trade union failed in the GCHQ case, the case was the turning point for

judicial review, since the court agreed to review use of the prerogative, especially when

this relates to issues of individual rights. Later, for example, in R v Ministry of Defence ex

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parte Smith 40, the court expressed willingness to review the question whether

homosexuals were allowed to serve in the army, which is a matter falling under the

prerogative.

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Although it had already been indicated in BBC v Johns 41 that no more prerogatives can

be established in the future, the case R v Secretary of State for the Home Department ex

parte Northumbria Police Authority42 shows a fine line between updating a prerogative

power and creating a new one, and the fundamental difficulty of identifying and defining

< http://www.publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/16611.htm#note193> accessed 8 December

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prerogative powers43.

A contemporary example of the extension of the principles of judicial review that was

applied to challenge the exercise of the prerogative is R. (Bancoult) v Secretary of State

2008.

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for Foreign and Commonwealth Affairs 44 relating to the Chagos islanders. By Orders in

Council issued under the prerogative, the Crown forbade the exiled Chagossian people

from returning to their islands. Clarke M.R. and Sedley L.J. in the High Court over-ruled

the Orders as being an abuse of prerogative power by the executive. More specifically,

the court held that it was not open to the executive to remove a whole people from its

19 BBC news, Q&A: Royal Prerogative

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homeland. The courts decision was upheld in the Court of Appeal but then over-ruled by

majority decision of the House of Lords. The case highlighted the argument that the

inclusion of prerogative Orders in Council in the definition of primary legislation in the

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Human Rights Act 1998 is incompatible with modern constitutional theory45. The Act

states that courts may not strike down primary legislation on the grounds that it is

incompatible with the Act but may only issue a declaration of incompatibility. This

mechanism is of course intended to preserve the sovereignty of Parliament and is

appropriate when primary legislation means Acts of Parliament. However, it is

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unsatisfactory for the Human Rights Act to extend this protection to prerogative Orders in

Council which are issued without reference to Parliament.

In conclusion, there is much deserved criticism of the prerogative powers and the royal

prerogative does seems illogical and non-democratic in many ways, mainly due to it

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uncontrolled nature. However, it can be argued that any state needs an emergency power

for the executive. Such power might be used in state security matters or international

relations, where due to high policy and secrecy wide scrutiny cannot be exercised. The

main issue is the democratic accountability of the prerogative powers and the control of

the institutions which exercise them. Accountability is fundamental to any democracy.

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When power is founded not on statute, but on the Royal Prerogative, accountability

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suffers46. Control of the prerogative might be easier if all prerogative powers exercised by

the executive and by the monarch, were specified and placed under statute; then such

powers might be recognised as compatible with the democratic state 47. Although it is not

clear whether the prerogative power to commit forces in a war or other conflict situation

will ever be relinquished by the executive, the developing convention to consult

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Parliament in such circumstances may come to form a part of the constitution which

would be a positive step toward constitutional reform.

In the recent Constitutional Renewal White Paper 2008, proposals where made for

placing at least some of the prerogative powers on the statute book, which would make

20Aptheker v Secretary of State 378 US 500 (1964).

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the powers justiciable and better controlled. The statute would require the Prime Minister

to seek Parliaments approval before committing military forces abroad. Exceptions would

be made for emergency and secrecy matters, with a requirement to inform, and then seek

retrospective approval. If those changes are agreed, it would define for the first time a

21 A Barnett (ed),Power and the Throne (Vintage, London 1994)139.

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clear role for Parliament in the most critical of the nations decisions48. However, it seems

unlikely that Parliamentary time will be allocated to the matter in the near future.

Nevertheless, it seems inevitable that the U.K. Governments present ability to exercise

considerable power under the prerogative and without clear and specific democratic

accountability will become increasingly untenable, not least because of external pressure

22 A Barnett (ed),Power and the Throne (n21)139.

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from the Strasbourg court of human rights and perhaps from other human rights

provisions to be developed under EU law. Paradoxically, statutory control of prerogative

powers will result in greater judicial intervention in what may be considered by some to be

political or semi-political matters and thus objectionable to them for that reason.

23 1993 Div Ct.

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However, if much greater parliamentary control is achieved as well, the result should be

of major overall benefit to the good government of the country.

24 Michael Shields wins battle in legal pardon bid (December 2008)

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Total words: 3231

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Bibliography

Text books

A Barnett (ed), Power and the Throne (Vintage, London 1994);

H Barnett, Constitutional & Administrative Law(sixth edition, Cavendish, Oxon 2006);

AW Bradley and KD Ewing, Constitutional and Administrative law(Longman, 13th Ed, 2006);

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M Diamantides, Student Handbook- Constitutional & Administrative law 2008-2009;

AV Dicey, Introduction to the study of the Law of Constitution (Liberty Classics, Indianapolis 1982);

N Forman, Constitutional change in the United Kingdom (Ebooks Corporation, London 2004);

C Turpin and A Tomkins, British Government and the Constitution (6th edn, Cambridge, 2007);

A King, The British Constitution (Oxford, Norfolk 2007);

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Cases

Aptheker v Secretary of State 378 US 500 (1964).

Attorney General v de Keysers Royal Hotel Ltd[1920] AC 508.

BBC v Johns [1965] Ch 32

Case of Proclamation (1611)XII Co Rep 74.

Chagos Islanders v A-G [2004] EWCA Civ 997, (2004) Times, 21.

25 N Forman (n8) 187.

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Council of Civil Service Unions v Minister of State for Civil Service [1985] AC 374)[1984] 3 All ER 935.

Gouriet v AG [1978] AC 435.

Laker Airways v Department of Trade [1977] Div Ct.

Prohibitions del Roy(1608) XII Co Rep 63.

R v Hampden (1637) 3 St Tr 825.

R v Ministry of Defence ex parte Smith [1995] 4 All ER 427.

26 J Bone, Parliament closed as PM clings to power The Times (London 5 December 2008).

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R v Secretary of State for the Home Department ex parte Bentley1993 Div Ct.

R. (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs(No2)[2007] EWCA Civ 498, [2007]3 W.L.R. 768.R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg[1994] 2 WLR 115.

R v Secretary of State for the Home Department ex parte Northumbria Police Authority[1989] 1 QB 26(CA).

Journals and Articles27 AW Bradley and KD Ewing, Constitutional and Administrative law (Longman, 13th Ed, 2006) 238.

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J Moules, Judicial review of prerogative orders in council: recognising the constitutional reality of executive

legislation (2008) Cambridge Law Journal.

J Bone, Parliament closed as PM clings to power The Times (London 5 December 2008).

J Samiloff, Who should declare war? (2008) The New Law Journal-158NLJ 565.

28 A Barnett (ed),Power and the Throne (n21) 126.

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Websites

BBC news, MPs support war-powers proposals

http://news.bbc.co.uk/1/hi/uk_politics/6658161.stm;

BBC news, Q&A: The Lisbon Treaty

29 A Barnett (ed),Power and the Throne (n21) 122.

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http://news.bbc.co.uk/1/hi/world/europe/6901353.stm;

Lucinda Maer and Olnagh Gay,The Royal Prerogative (2008, House of Commons Library)http://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdf;

Michael Shields wins battle in legal pardon bid (December 2008)

www.liverpoolbanter.co.uk/2008/12/michael-shields-wins-battle-in.html - 51k;

Ministry of Justice, Oral statement on draft Constitutional Renewal Bill and White paper, 25 March 2008http://www.justice.gov.uk/news/announcement250308a.htm;

30 Marinos Diamantides, Student Handbook- Constitutional & Administrative law 2008-2009, 63.

83
http://news.bbc.co.uk/1/hi/uk_politics/6658161.stm


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The United Kingdom Parliament, PASC Publishes Government defense of it sweeping prerogative powers,Session 2002-03, Press Notice No.19www.parliament.uk/parliamentary committees ;

Royal Prerogative, HC Deb 21 April 1993 vol 223 cc484-92

http://hansard.millbanksystems.com/commons/1993/apr/21/royal-prerogative;

31[1920] AC 508.

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http://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdfhttp://news.bbc.co.uk/1/hi/world/europe/6901353.stmhttp://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdfhttp://www.justice.gov.uk/news/announcement250308a.htm


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32 [1977] Div Ct.

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33 The United Kingdom Parliament, PASC Publishes Government defense of it sweeping prerogative powers, Session

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2002-03, Press Notice No.19

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assessed 22 December 2008.

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34 Marinos Diamantides, Student Handbook(n31) 63.

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35 The United Kingdom Parliament, Session 2002-03, Press Notice No 19

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assesed

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22 December2008.

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36[1978] AC 435.

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37Council of Civil Service Unions v Minister of State for Civil Service [1985] AC 374)[1984] 3 All ER 935.

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38 The United Kingdom Parliament, PASC Publishes Government defense of it sweeping prerogative powers, Session

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2002-03, Press Notice No.19

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assessed 22 December 2008.

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39 J Samiloff, Who should declare war? (n14).

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40 [1995] 4 All ER 427.

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41[1965] Ch 32.

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42[1989] 1 QB 26(CA).

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43 H Barnett (n5) 144.

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44 (No2)[2007] EWCA Civ 498, [2007] 3 W.L.R. 768.

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45J Moules, Judicial review of prerogative orders in council: recognising the constitutional reality of executive

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legislation (2008) Cambridge Law Journal.

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