The monarch and the Crown - Royal prerogative powers

Learning Outcomes

This article examines the nature and scope of royal prerogative powers within the UK's constitutional framework. It outlines the distinction between the monarch and the Crown, explains the key categories of prerogative powers, and analyses their relationship with statute law and constitutional conventions. After reading this article, you should understand the mechanisms through which prerogative powers are controlled, including parliamentary accountability and judicial review, and be able to apply these principles to SQE1-style questions concerning the exercise of executive authority.

SQE1 Syllabus

For SQE1, you are required to understand the concept of the royal prerogative as a source of constitutional law and its practical operation within the UK government structure. Your revision should focus on:

• The definition and historical origins of royal prerogative powers.
• The distinction between the monarch and the Crown, and who exercises prerogative powers in practice.
• Key examples of remaining prerogative powers (e.g., foreign affairs, defence, dissolution of Parliament, Royal Assent).
• The relationship between prerogative powers and statute law, including the principle that statute prevails over prerogative (Attorney General v De Keyser’s Royal Hotel).
• The role of constitutional conventions in regulating the exercise of prerogative powers.
• The extent to which the exercise of prerogative powers is subject to judicial review, including the distinction between justiciable and non-justiciable powers (CCSU v Minister for the Civil Service).
• The legal position of the Crown, including immunities and liabilities under the Crown Proceedings Act 1947.

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.

1. True or false? Royal prerogative powers are granted to the government by Acts of Parliament.
2. Which of the following statements best describes the legal relationship between statute law and royal prerogative powers? a) Prerogative powers always take precedence over statute law. b) Statute law and prerogative powers have equal standing. c) Statute law takes precedence over prerogative powers where they conflict. d) Prerogative powers can be used to amend statute law.
3. True or false? The monarch personally exercises most royal prerogative powers according to their own discretion.
4. Which landmark case established that the courts can, in principle, judicially review the exercise of prerogative powers?

Introduction

The UK constitution, being uncodified, draws its rules from various sources. Alongside Acts of Parliament and case law, the royal prerogative represents a significant, albeit residual, source of executive power. These powers originate from the historical authority of the monarch but are now, by convention and law, primarily exercised by government ministers acting in the monarch's name. Understanding the nature, scope, and limitations of these prerogative powers is fundamental to comprehending the balance of power between the executive, legislature, and judiciary in the UK system. This article explores the concept of the Crown, the definition and categories of prerogative powers, and the key mechanisms through which their exercise is controlled.

The Monarch and The Crown

It is important to distinguish between the monarch as an individual (the King or Queen personally) and 'the Crown' as a constitutional concept representing the executive branch of government. While prerogative powers legally vest in the monarch, their exercise is almost entirely governed by constitutional conventions and, increasingly, statute law.

Key Term: The Crown
A term used in UK constitutional law to refer to the executive branch of government, acting formally in the name of the reigning monarch. It encompasses government ministers, departments, civil servants, and the armed forces.

The monarch's personal role is largely ceremonial. Key 'personal prerogatives', such as appointing the Prime Minister or granting Royal Assent to legislation, are exercised according to firmly established constitutional conventions. For example, the monarch appoints as Prime Minister the individual who commands the confidence of the House of Commons and grants Royal Assent to all Bills passed by Parliament.

The government, headed by the Prime Minister and Cabinet, exercises most prerogative powers. These are often termed 'ministerial prerogatives'.

Crown Immunity and Liability

Historically, the Crown enjoyed significant immunity from legal proceedings ("The King can do no wrong"). The Crown Proceedings Act 1947 significantly altered this position.

Key Term: Crown Immunity
The historic legal doctrine that prevented legal action being taken against the Crown (meaning both the monarch personally and the government). Largely abolished by the Crown Proceedings Act 1947, though some specific immunities remain.

The 1947 Act allows the Crown (ie, government departments) to be sued in tort and contract, largely placing the government in the same position as a private citizen regarding civil liability. However, the Act preserves certain immunities:

• The monarch personally remains immune from prosecution and civil suit.
• Proceedings cannot be brought in tort against the monarch personally.
• Historically, injunctions could not be granted against the Crown, but M v Home Office [1994] established they can be issued against government ministers acting in their official capacity.
• Statutes do not bind the Crown unless they expressly state so or do so by necessary implication (Lord Advocate v Dumbarton DC [1990]).

The Royal Prerogative

The royal prerogative consists of the residue of discretionary powers legally left in the hands of the Crown, originating from common law rather than statute. These powers represent the remnants of the authority once wielded personally by the monarch.

Key Term: Royal Prerogative
The body of customary authority, privilege, and immunity recognised in common law as belonging to the Crown alone. These residual powers are now mostly exercised by government ministers.

No new prerogative powers can be created (BBC v Johns [1965]); existing powers can only be identified by the courts or abolished/regulated by statute.

Key Prerogative Powers

Prerogative powers cover several key areas of government activity:

1. Foreign Affairs:
   • Making treaties (though ratification is subject to statute - CRAG 2010).
   • Conducting diplomacy and recognising foreign states.
   • Issuing passports.
2. Defence:
   • Deploying armed forces overseas (increasingly subject to convention requiring parliamentary debate).
   • Declaring war and making peace.
   • Maintaining the Queen's Peace within the UK.
3. Domestic Affairs:
   • Appointing the Prime Minister and other ministers.
   • Summoning, proroguing, and (historically) dissolving Parliament (dissolution now governed by the Dissolution and Calling of Parliament Act 2022 which revived the prerogative power).
   • Granting Royal Assent to legislation.
   • Granting pardons (prerogative of mercy).
   • Granting honours.

Relationship Between Prerogative and Statute

A core principle of parliamentary sovereignty is that statute law enacted by Parliament is the highest form of law in the UK. This has significant implications for the royal prerogative.

1. Statute Prevails: Where statute and prerogative powers cover the same area and conflict, statute law prevails. The prerogative power cannot be used to override the statute (Attorney General v De Keyser’s Royal Hotel [1920] AC 508).
2. Prerogative in Abeyance: If Parliament legislates on a matter previously governed by the prerogative, the prerogative power is placed in 'abeyance' (suspended) for as long as the statute remains in force. It is not necessarily abolished and may revive if the statute is repealed (R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513).
3. Prerogative Cannot Alter Law: Prerogative powers cannot be used to change domestic law or remove rights granted by statute (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

Control of Prerogative Powers

While historically less accountable, the exercise of prerogative powers is now subject to significant controls through Parliament, conventions, and the courts.

Parliamentary Control and Accountability

• Legislation: Parliament can abolish or regulate any prerogative power by statute (e.g., the fixed-term Parliament provisions, now repealed, or the statutory footing for treaty ratification).
• Financial Control: The government requires parliamentary approval (via statute) to raise taxes and authorise expenditure. This indirectly controls prerogative use, as many actions require funding.
• Scrutiny: Ministers are accountable to Parliament for the exercise of prerogative powers through mechanisms like parliamentary questions, debates, and select committee inquiries. However, governments have sometimes been reluctant to answer questions on certain prerogative matters (e.g., national security).
• Convention on Military Action: A convention appears to have developed requiring the government to seek parliamentary approval before committing armed forces to combat, except in emergencies.

Constitutional Conventions

Conventions play an important role, particularly regarding personal prerogatives. The convention that the monarch acts on ministerial advice ensures that powers legally vested in the monarch are exercised by the democratically accountable government.

Key Term: Constitutional Convention
An unwritten rule of constitutional behaviour considered politically or morally binding on those operating the constitution, but not enforceable by the courts.

Conventions like the monarch always granting Royal Assent or appointing the leader who commands the Commons' confidence as Prime Minister are fundamental to the UK's constitutional monarchy.

Judicial Review

Historically, the exercise of prerogative powers was considered immune from judicial review. However, the landmark case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) established that the exercise of prerogative powers is, in principle, reviewable by the courts, just like statutory powers.

Key Term: Judicial Review
The process by which courts examine the lawfulness of decisions or actions taken by public bodies, including those acting under prerogative powers.

The key question is not the source of the power (prerogative vs. statute) but its nature.

Justiciability

Despite the GCHQ ruling, courts will still decline to review the exercise of certain prerogative powers deemed 'non-justiciable' – meaning they raise issues of 'high policy' unsuitable for judicial resolution.

Key Term: Non-justiciable
A legal matter considered inappropriate for determination by a court, often because it involves high-level political or policy judgments rather than questions of law.

Examples of typically non-justiciable areas include:

• Making treaties
• Defence of the realm
• Deployment of armed forces
• Granting honours
• Dissolution of Parliament

However, the boundaries are not fixed. Courts can determine the existence and scope of a prerogative power (R (Miller) v The Prime Minister [2019] UKSC 41 – the prorogation case). They are less likely to review the manner of exercise within non-justiciable areas. Where prerogative powers affect individual rights and are not high policy (e.g., issuing a passport, granting a pardon), they are more likely to be considered justiciable and subject to review on grounds like illegality, irrationality, or procedural impropriety.

Worked Example 1.1

The UK Government enters into an international environmental treaty using the royal prerogative. The treaty requires significant changes to UK domestic law regarding emissions standards for factories. Does the government need to take any further action for the treaty obligations to be enforceable against factory owners in the UK?

Answer: Yes. Entering into the treaty is a valid exercise of the prerogative power. However, international treaties do not automatically change UK domestic law (R (Miller) v Secretary of State for Exiting the European Union). For the new emissions standards required by the treaty to be legally binding on factory owners within the UK, Parliament must pass an Act of Parliament incorporating those obligations into domestic law. The government cannot use the prerogative to alter domestic law.

Worked Example 1.2

Following a general election resulting in a hung Parliament (no single party has an overall majority), the leaders of the two largest parties are negotiating to form a coalition government. The incumbent Prime Minister, whose party lost seats but remains the largest single party, advises the King to appoint him to continue as Prime Minister.

Must the King follow this advice?

Answer: Not necessarily. While the convention is that the monarch acts on the Prime Minister's advice, another fundamental convention requires the Prime Minister to command the confidence of the House of Commons. In a hung Parliament, it is initially unclear who can command that confidence. The monarch would typically allow the political parties time to negotiate. If it becomes clear that the incumbent Prime Minister cannot command confidence, but another individual (e.g., the leader of the second largest party, supported by others) can, the monarch would be expected by convention to appoint that person, potentially acting against the incumbent's advice. The monarch's role is to appoint someone who can command the Commons' confidence.

Key Point Checklist

This article has covered the following key knowledge points:

• The 'Crown' represents the executive government, distinct from the monarch personally.
• Royal prerogative powers are residual common law powers of the Crown, mostly exercised by ministers.
• Key prerogative powers relate to foreign affairs, defence, justice, and the functioning of government.
• No new prerogative powers can be created; existing powers can be abolished or regulated by statute.
• Statute law prevails over conflicting prerogative powers (De Keyser's Royal Hotel).
• Using prerogative powers to frustrate parliamentary intent is unlawful (Fire Brigades Union).
• Constitutional conventions regulate the exercise of many prerogative powers, especially personal prerogatives.
• The exercise of prerogative powers is subject to judicial review, unless the subject matter is non-justiciable (e.g., high policy areas like treaty-making or defence) (GCHQ case).
• Courts can rule on the existence and scope of prerogative powers (Miller cases).
• Crown immunity is largely abolished by the Crown Proceedings Act 1947, but the monarch retains personal immunity.

Key Terms and Concepts

• The Crown
• Crown Immunity
• Royal Prerogative
• Constitutional Convention
• Judicial Review
• Non-justiciable