Learning Outcomes
After reading this article, you will be able to explain the nature of prerogative powers, identify how legislation can limit or override them, and describe the role of constitutional conventions in regulating their use. You will also understand how the courts supervise prerogative powers and the practical implications for executive action, essential for SQE1 assessment.
SQE1 Syllabus
For SQE1, you are required to understand the relationship between prerogative powers, legislation, and constitutional conventions. In your revision, focus on:
- the definition and scope of prerogative powers in the UK constitution
- how statutes can override, limit, or revive prerogative powers
- the role and legal status of constitutional conventions in controlling prerogative powers
- the effect of judicial review on the exercise of prerogative powers
- practical examples of the interaction between prerogative powers, legislation, and conventions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What happens if a statute and a prerogative power cover the same subject matter?
- Can constitutional conventions be enforced by the courts?
- Give an example of a prerogative power that has been revived or removed by statute.
- In what circumstances can the courts review the exercise of prerogative powers?
Introduction
Prerogative powers are a core feature of the UK's constitution, representing the remaining discretionary powers of the Crown now exercised by government ministers. Their use is shaped by both legislation and constitutional conventions. Understanding how these elements interact is essential for advising clients and for SQE1 assessment.
The Nature and Scope of Prerogative Powers
Prerogative powers are the historic powers once exercised by the monarch, now largely exercised by ministers on the monarch's behalf. They exist in areas not regulated by statute and include powers such as conducting foreign affairs, declaring war, and appointing ministers.
Key Term: prerogative powers Prerogative powers are the residual discretionary powers of the Crown, exercised by ministers, which exist independently of statute.
The Relationship Between Prerogative Powers and Legislation
Statute Overrides Prerogative
When both statute and prerogative powers cover the same area, the statute takes precedence. Ministers cannot rely on prerogative powers to avoid statutory requirements or to act inconsistently with legislation.
Key Term: statutory override Where statute and prerogative overlap, the statute prevails and the prerogative is set aside or put "in abeyance" for as long as the statute is in force.
Removal and Revival of Prerogative Powers
Parliament can abolish, limit, or revive prerogative powers by passing or repealing statutes. For example, the Fixed-term Parliaments Act 2011 removed the prerogative to dissolve Parliament, but the Dissolution and Calling of Parliament Act 2022 restored it.
Coexistence of Statute and Prerogative
If a statute does not fully cover a subject, the prerogative may continue to operate in areas not addressed by the statute, provided there is no inconsistency.
Judicial Supervision
The courts determine whether a prerogative power exists and whether it has been displaced by statute. If a minister acts outside the scope of the prerogative or contrary to statute, the courts can declare the action unlawful.
Key Term: judicial review of prerogative The process by which courts supervise the existence and exercise of prerogative powers, ensuring they are used lawfully and within constitutional limits.
Constitutional Conventions and Prerogative Powers
Constitutional conventions are unwritten rules that guide how prerogative powers are exercised. They are not legally enforceable but are followed by political actors to ensure responsible government.
Key Term: constitutional convention An established, non-legal rule that governs constitutional practice, especially where legal rules are silent or ambiguous.
Key Term: ministerial advice convention The convention that the monarch exercises prerogative powers only on the advice of ministers.
Conventions can develop or change over time. For example, it is now expected that Parliament is consulted before major military action, even though there is no legal requirement.
The Courts and Prerogative Powers
The courts play a central role in supervising prerogative powers. They decide whether a prerogative power exists, whether it has been limited or replaced by statute, and whether its exercise is subject to judicial review.
Some prerogative powers, such as treaty-making or national security, are considered "non-justiciable" and the courts will not review how they are exercised. However, most prerogative powers are now subject to judicial review for legality, rationality, and procedural fairness.
Worked Example 1.1
A government minister wishes to requisition property for a public project. There is both a statute and a prerogative power covering requisition. The statute requires compensation to be paid, but the minister seeks to use the prerogative to avoid paying compensation.
Answer: The minister cannot use the prerogative to avoid the statutory requirement. The statute overrides the prerogative, so compensation must be paid.
Worked Example 1.2
Parliament passes an Act removing the prerogative power to dissolve Parliament. Several years later, Parliament repeats that Act. What is the status of the prerogative power?
Answer: The prerogative power is revived and becomes exercisable again, as Parliament has removed the statutory restriction.
Worked Example 1.3
The Prime Minister advises the monarch to appoint a new minister. The monarch personally disagrees but follows the advice. Why?
Answer: By constitutional convention, the monarch acts only on ministerial advice. The convention is not legally enforceable but is fundamental to the operation of government.
The Role and Limits of Constitutional Conventions
Conventions provide flexibility and allow the constitution to develop. However, they can be uncertain and are not legally enforceable. If a convention is breached, the courts will not intervene, but political consequences may follow.
Exam Warning
The courts will not enforce constitutional conventions. If a minister breaches a convention, the remedy is political, not legal.
Statutory Regulation of Prerogative Powers: Practical Examples
- Treaty-making: Formerly a prerogative power, now subject to statutory requirements for parliamentary scrutiny under the Constitutional Reform and Governance Act 2010.
- Dissolution of Parliament: Removed by the Fixed-term Parliaments Act 2011, restored by the Dissolution and Calling of Parliament Act 2022.
- Military action: Still a prerogative power, but by convention Parliament is consulted before major deployments.
Judicial Review of Prerogative Powers
Most prerogative powers are now subject to judicial review, except in areas such as national security or foreign affairs. The courts will review whether the power exists, whether it has been displaced by statute, and whether its exercise is lawful.
Key Point Checklist
This article has covered the following key knowledge points:
- Prerogative powers are the remaining discretionary powers of the Crown, exercised by ministers.
- Where statute and prerogative overlap, statute prevails and the prerogative is set aside.
- Parliament can abolish, limit, or revive prerogative powers by passing or repealing statutes.
- Constitutional conventions regulate the exercise of prerogative powers but are not legally enforceable.
- The courts supervise the existence and use of prerogative powers and will review their exercise for legality.
- Most prerogative powers are now subject to judicial review, except in certain "high policy" areas.
- Breach of a constitutional convention has political, not legal, consequences.
Key Terms and Concepts
- prerogative powers
- statutory override
- judicial review of prerogative
- constitutional convention
- ministerial advice convention
