The Royal Prerogative - University of Hull lectures PDF

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The Royal Prerogative Concept that flows from history – derived authority from god, royal prerogative all extensive in since that the monarch decides on the policy of the kingdom, distributes justice, raised money through taxes and other measures and granted public favour in various forms - Leader of armed forces – great power in military sense. Challenge for royal prerogative today is that henry the e 8th prerogative had little control over judicial control little other form of oversight Monarch can decide to extend their own powers in ways they think would fit no clear constitutional remit – some battles with the church over powers – could be considered uncontrolled and unfettered, significant concern today as we live in a democratic society and arguably the royal prerogative is not a democratic set of powers although it is now exercised by a elected executive. Government can create its own power arguably – no longer accurate. Bill of rights 1689 – monarch in that document acknowledged that parliament ruled over taxation and provision of money to the executive – limited royal prerogative as it monarch can no longer decide to do anything that would cost the country money without consent from parliament. - greater controls over prerogative, who decides what money is provided gives them a great deal of power, so parliament gained a lot of power in that sense Bill of rights 1689 – clear indication of movement towards the parliamentary sovereignty that we know today. Monarch began to lose their role, in terms of exercising executive power in many spheres and now become largely a symbolic figure head Royal prerogative is largely powers that are residual, became this way with more power being given to parliament is because: It has been constrained over time with legislation – bill of rights 1689 – first efforts in legislation to constrain certain prerogatives from the powers of the monarch, legislation has chiselled away at most of the remaining elements royal prerogatives. Scope of the prerogatives today is radically reduced to completely since certainly 1689 and completely different to the way hennery the 8th would have understood. Over time it has remained with the crown – over time crown means executive. – not in the hands of king or queen personally but in hands of the government. History tells us: 1 – scope of prerogative power has been reduced enormously, relatively few prerogatives remaining, some are significant 2- who exercises this power has also changed – most exercised by the executive now in name of the crown and not the monarch personally, has retained certain powers largely constrained in various ways by constitutional practises or conventions

Constitutional visions of the prerogatives can find 2 definitions: William Blackstone 1765-1769 – that special pre-eminence which the King hath, over and above all other persons AV Dicey in introduction to the law of the constitution 10 edition p 424 – the residue of discretionary or arbitrary authority, which at any given time is legally left in the hand of the crown.One dangers of prerogative – arbitrary exercised – uncontrolled and discretion from the government decide which powers to use and how to use them – arguably dicey in a better definition for this modern day. Last part suggest someone’s can take these powers away, by parliament by legislating in previous fields which belonged to the prerogatives. Traditional view of the courts to the prerogative is that courts have always been able to control the extent of the prerogatives – if the crown asserts it has a power the courts have always been willing to investigate using their common law powers to determine whether or not the crown truly have the power it asserts. How? Examine historical text and other evidence to decide what precisely is the scope of the powers of the state are in relation to any prerogatives claimed. Judicial review can be argued to have become over time more invasive, so the courts can not only examine the extent of the prerogative but also examine how it is exercised. How they can be limited/reduced – -

Attorney General V De Keysers Royal Hotel 1920 – it requisitioned building for use of building for the military and did not pay any compensation. Gov argued that they were using their emergency war powers and therefore In perog and didn’t require for the government to pay any compensation. Difficulty as parliament had passed the defence act 1842 – gave anybody or citizen which had property requisitioned by the military or for military use the right to receive compensation from the state – question was whether or not the government can rely on the preog power of war and emergency in order to requisition the hotel and not to pay any comp when parli passed legislation in the same field arguing that compo should be paid – Lord Parmoor made a statement – the government had to meet the legislation made my parliament and pay the necessary compensation – legislation in directly same field of preog power the power is then put into ‘abeyance’ and gov cant use it, they have to abide by requirements of statute. – fits well with parliamentary sovereignty.

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2016 R. Craig’s ‘casting aside clanking medieval chains, prerogative, statute and article 50 after the EU referendum’ 79 modern law review 1041 p. 1045-1046 – 2 core principles 1. abeyance principle (see above) 2. Frustration principle – R V secretary of state of the Home Department, ex parte Fire Brigades Union 1995 2 AC 513 – whether or not gov are using an existing prerog power to frustrate the will of parliament and the require of statute. –

parliament passed legislation for fire brigades’ pensions and executive wasn’t keen on the impact of some of the legislative requirements therefore gov thought to use prerogative powers to make an alternate pension scheme – was this possible? HL decided was not permissible for the executive to use the preog powers to frustrate what would otherwise be the will of parliament – only to use the legislation/statute to create new scheme or seek to get parliament to pass new legislation in relation to a pension scheme but not prerog powers to frustrate the statute parliament has put forward What are prerogative powers? 1. General prerogative Powers 2. Personal prerogative powers of the monarch 3. Powers in times of emergency if these still exist Some still in use, archaic, some subcategories of power and some are debatable. 1. Powers that belong to the crown (The executive) some prerogatives overlap, prerogative powers relating to legislature we mean powers such as requesting the dissolution or proroguing or parliament, issues to relating to the royal assent for legislation etc. Some of these powers are officially exercised by the monarch at the same time the crown (executive) can request these powers to be exercised by the monarch so a degree off overlap with executive and monarch personally. Prerogatives of mercy, remission and reduction of prison sentences and other punishments they were in history the power of the monarch personally, they not rest with the crown (executive). The prerogative of mercy is not really exercised now other than posthumously and in relation to historical offences. Prerogative of mercy is no longer available for exercise due to no death penalty. These powers often delegated to other state bodies. In terms of foreign affairs this is perhaps the largest area for the prerogative powers. Generally the monarch that exercises these for foreign affairs and activity’s, now the crown, things like negotiation and conclusion of international treaties, the issuing and revocation of passports, the possibility that the state to refuse entry to certain individuals may be a prerogative that might still enable them to do that although we have quite detailed immigration legislation from parliament. The provision of diplomatic assistance and the choice of where the UK is to have diplomatic missions. Foreign affairs power is a broad prerogative power and one that is very significant. Prerogative power of armed forces also significant, used for the organisation of armed forces and for the structure etc all down to prerogative power. Much the same the crown holds a prerogative power to order the arm forces to act in certain ways or

to intervein in certain wars or disputes. This is always subject to a degree of fairly substantial oversight by parliament because they need to be provided with resources and money and only parliament can authorise the provision of such financial resources. Prerogative powers of Appointment and honours general prerog powers, giving a life peerage, giving a knighthood, monarch will probably be involved in such honours but the executive that makes the nominations. Emergency war powers to do with requisitioning property/ships, to destroy property etc, is a question of - any scope for the use of those powers given parliament have legislated quite heavily in that area. 2. Monarchs personal prerogatives:

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Appointments of the Prime Minister – clear constitutional convention but the monarch will always appoint the person who commands majority in parliament. Because of electoral system in general it is pretty clear who commands majority in parliament. Rare circumstances like in 2010 when the decision is not so clear cut but even then, it is not for the monarch to choose because constitutional convention would say the parties need to agree amongst themselves who is mostly likely to command a majority and then the queen should be approached to appoint a prime minister. Prorogation and summoning of parliament – ordering parliament to be dissolved and generally for elections to be held, summoning means asking parliament to return after prorogation. Almost always been done on request of the government and in general we would see parliament itself has restricted this prerogative by the passing the Fix Term Parliaments Act. Royal assent to legislation – Legislation does not become law until the monarch has assented to it and signed however in reality the constitutional practise is that the monarch would never refuse to assent to a piece of legislation that had been through the parliamentary process. Last time did this was in early 1700 since monarchs have always accepted the sovereignty of parliament and even when they may not personally agree with it. All 3 heavily constrained.

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3. Prerogative powers in times of emergency The challenge is that the precise scope is unclear because over time parliament has passed a range of pieces of legislation that has eaten away at this power – royal Hotel case, even as early as 1842 in the defence act parliament passed a piece of legislation that seemed to impact of the prerogative power in times on emergency. Civil Contingencies Act 2004 was passed which creates very broad powers for the executive to act in times of emergency. Many others that have an impact on this power, including the bill that’s presently before parliament in relation to measures to

restrict activities during the coronavirus crisis, that piece of legislation could be said to press upon any remaining prerogative power enjoyed by the government. Reflect back to the abeyance principle in Craig’s article although the books talk about the prerogative power in times of emergency in practise legislation has pressed that principle so hard that may no longer exist, in reality the government would always seek the power to acts in times of emergency from the various legislative sources that exist. Limits on the Prerogative powers 1. Legislation – whether by the abeyance principle or the frustration principle will limit the exercise of the powers in various ways. - Constitutional Reform and Governance Act 2010, put civil servants on a statutory footing, limit the ability of the government’s prerogative in foreign affairs – requiring international treaties that are going to be approved to the government to be laid before parliament for parliamentary assent before the government can use the prerogative power to confirm and sign the treaty – limits executive discretion. - Fixed term parliaments act 2011 – limits the governments days ability to ask for a dissolution of parliament. - Civil contingencies act 2004 – removed whole scope of power in times of action and emergency, broad nature prerogative largely been removed. 2. Constitutional conventions (which remove or heavily limit discretion in using the powers) - Monarchs to appoint minister is limited by constitutional convention which really requires the appointment of the minister who can commands majority in parliament, so leader of the largest part or the one who is put together what looks to be the most likely coalition to command a majority. - The practises have been for hundreds of years that the monarch is to give consent to all legislation passed by parliament, therefore this takes the fall of the constitution convention. - Been a general view, perhaps even before the second world war, that in general before exercising the prerogative power to declare war the government are to seek consent from parliament somehow. - General view that prior to the 2003 Iraq war the government was required too seek the assent of parliament before commencing military action and it did so. Significant about 2003 Government seem to seem to acknowledge that this set a precedent, so all future military action would require parliamentary approval and since then in relation to the wars in Afghanistan and Syria we have this situation where the government has gone to parliament as put forward in motion and has required parliamentary approval before committing UK forces to military action. Demonstrates that constitutional conventions are not static. This means they can be developed over time by government practice and then this government practise might then have the ability to constrain the use of what was previously a freely used prerogative power.

3. Powers declared archaic/Desuetude (disuse) -. Most of these are archaic and fallen into this use because eit doesn’t fit in with modern practises or modern views of justice. - Crowns right to swans and sturgeon – Prerogative power to take wild swans or wild sturgeon in order to exploit these for their revenue so either for food or for the other products that could be drawn from them. - At one time, the view was that the Crown could press men into the navy – The press gang painting by alexander Johnson, idea was that member of the navy would roam the streets looking for suitable and likely individuals and press them to join the navy, now wouldn’t be completable with our modern views of judicial protection or our modern views of liberty so certainly would not happen. Service in the military is voluntary so like any job and you have to join and accept the terms and conditions of the employment before you and move forward into that kind of career. Although might be possible to have a system of formal conscription we couldn’t have ever a situation where we go back to the life of the press gangs because it wouldn’t be compatible with the way that modern society operates. - Waifs and strays – waifs are property that has been abandoned on crowns land and the crown has the right to that property if its left on crown land and similarly strays are stray animals found on crown land. The tradition was that the crown holds a prerogative power to take possession and ownership of these strays. Accountability – to what extent are those who use public power in this case the prerogative power accountable for the use of that power. -

Judicial Review – Has perhaps a role of in determining the extent of power. De Keysers Royal Hotel, Re. 1920 (HL decided the gov no longer had a prerogative power to seize property without paying compensation because parliament have removed that through legislation, so determining the scope of the prerogative power is something the courts willing to do. RV Criminal Injuries Compensation Board, ex parte Lian - Recently the courts have been willing to exercise a degree of control over decisions taken under the prerogative power, so not just looking at the scope or existence but also at the exercise of the prerogative power is lawful. The case the state had use power to create criminal injuries compensation board and this still exists and they give compensation to members of the public who are injured in the commission of crimes where the perpetrator cannot be identified, Lian argued that the Criminal injuries compensation board had acted unfairly in making the decision and the courts held that not only the scope or the extent of the prerogative can be reviewed but also the exercise of that prerogative could be also, and question of whether or not the board had acted fairly in accordance of the requirements of the law. R (Bancoult) V Secretary of state for Foreign and Commonwealth Affairs 2007 EWCA Civ 498 and 2008 UKHL 61 – Concern the island of Diago Garcia, UK oversee territory, The government uses the prerogatives powers to legislate for those particular island, and the powers create legislation called Orders in Council. High security island because is rented to the US Government and they operate an air base on it. In order to achieve that it was necessary for the UK Government to require the chagos

islanders to leave the island and related islands and move away and they did this by the orders in council. The question was raised as to whether the state actually had the power to do that and the court examined the historical powers of the state to manage British oversees territory and decided that the government did and secondly had the government acted in breach of a concept known as legitimate expectation and essentially they was told they have to move away for limited amount of time and will be permitted to return, but they still have never been permitted to return, the question was whether or not this was unlawful, so whether the government have acted unlawfully by not keeping this promise the chagos islanders claimed they had made. C/A founf in favour of the chagos islanders arguing the government have acted unlawfully by not failure to fulfil their right to return to their islands, but the HL overturned this decision and held that in these circumstances because the government had made a promise which was legally binding and therefore had not acted unlawfully. That decision and government action are very controversial but at they were able to have a recourse judicial review and seek the protection from the courts in terms of the legal rights they have. R (Miler) V Secretary of state for exiting the European Union 2017 – milers argument that the government could not use the prerogative powers of foreign treaty making and indeed breaking in order to trigger article 50 of the treaty on the European Union, the article to be trigger to start the uk exit process. R (Miller) V prime minister 2019 [UKSC 41] argued that the prime minister could not use the prerogative power to ask the queen to dissolve parliament in order to prevent parliamentary debate and possible parliament pressure to prevent the uk leaving the EU or to soften Brexit process. Question was whether parliament was acting unlawfully by using this power to ask the queen to dissolve parliament in what bad faith was. Both of the cases miller was successful by SC. 2017 the governments prerogative was limited by parliament action in relation of to passing the European Communities act 1972 and 2nd the prerogative power had been used unlawfully. 2017 miller case- courts argument is in the circumstances the power to trigger the exit from the European Union does not only have an impact on international law and the power to make and unmake treaties but had a significant impact on domestic law because the ECA 72 has pulled in European union law and made it part of out domestic law in the uk, until the exit is complete made EU law supreme over UK domestic law. In these circumstances then the sec of state can’t rely on the royal prerogative to make and unmake treaties because it would interfere with domestic law where the prerogatives does not lie, and in these circumstances the only way that the sectary of state can...