Topic 5 - The Crown, Monarch and The Royal Prerogative Powers

11/10/22, 12:51 AM Topic 5 – The Crown, monarch and the royal prerogative powers
Topic 5 – The Crown, monarch and the royal prerogative powers
Site: Undergraduate Laws VLE Printed by: PREM KAUR BAHAL SINGH
Module: Public law 2022-23 Date: Wednesday, 9 November 2022, 4:51 PM
Topic 5 – The Crown, monarch and the royal prerogative

Book:
powers
https://laws.elearning.london.ac.uk/mod/book/tool/print/index.php?id=20864 1/31
Table of contents
Learning outcomes
Topic reading
Introduction
Mini lecture
Quick quiz 1
5.1 Defining the royal prerogative/prerogative powers
5.2 Constitutional/personal prerogative powers of the monarch
Discussion activity
5.3 Continued justification for prerogative powers
5.4 Parliamentary control of prerogative powers
5.5 Judicial control of prerogative powers
Reflective activity 1
Learning activity 1
5.6 Reform of the prerogative
Learning activity 2
Lecture Plus
Quick quiz 2
Examination tips
Sample examination question
Further reading
Learning outcomes
After completing the study of this topic, you should be able to:
Understand what is meant by the term ‘constitutional monarchy’ and the role of the monarch in the modern-day British constitution
Describe the royal prerogative powers and provide examples
Explain and evaluate the political controls on the exercise of the prerogative powers
Explain and evaluate the judicial controls on the exercise of the prerogative powers with reference to relevant case law
Topic reading
Core text
Le Sueur, Sunkin and Murkens, Chapter 10 ‘Prerogative powers’ and Chapter 11 ‘Case study: deployment of British armed forces abroad’.
Essential reading
Supreme Court judgment and a press summary for the Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 (Miller
No.1).
Introduction
The United Kingdom is a constitutional monarchy. This was established in the 17th century following the so-called ‘glorious revolution’ and the
conditions subsequently set out in the Bill of Rights 1689. As indicated above, this means that the constitutional role of the hereditary monarch as
Head of State in the UK today has become one which remains important but is now largely ceremonial. The monarch’s role and powers are tightly
constrained by rules and constitutional conventions. In the words of Bradley and Ewing, ‘the Queen may reign but it is the PM and other ministers
who rule’. This was made clear as long ago as the early 17th century by Lord Coke in the Case of Proclamations (1611) 12 Co Rep 74 which held
that ‘the King hath no prerogative, but that which the law of the land allows him’. This meant that the Crown had no prerogative powers to change
the common law or statute, or to create new offences.
It is important to understand that the Bill of Rights 1689 is not a human rights Act or what we might understand by this title in a more
contemporary sense but rather an Act which established the principles of frequent parliaments, free elections and freedom of speech within
Parliament (referred to as parliamentary privilege) and also includes no right of taxation without Parliament’s agreement. For further detail see the
relevant House of Commons Library Note referred to in this Topic’s Further reading.
The monarch is also Head of State for 14 other Commonwealth realms. This was important in relation to the relatively recent legislation on
succession – see the Succession to the Crown Act 2013 and explanatory notes. It had been 15 until the recent development on 30 November
2021 of Barbados becoming a republic and thus no longer having the Queen as its Head of State.
As Bagehot explained in 1867, the monarch has ‘the right to be consulted, the right to encourage and the right to warn’. However, although the
present-day monarch has a weekly audience with the Prime Minister and receives copies of Cabinet papers and other documents, her practical
influence is very limited. It is also of particular importance that the monarch is above party politics and immune from party political influences.
Finally, please note that although the notion of ‘the Crown’ is complex and multifaceted, in the context of this module when we refer to ‘the Crown’,
in practical terms we tend to mean the monarch (or sovereign).
Note: Remember that as you work through the module content you should find appropriate definitions for new terms/concepts and add these to
your personal glossary – this will both deepen your understanding and assist your revision later.
Mini lecture
07:51
Download Slides
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Quick quiz 1
After having watched the Topic 5 – Mini lecture, take this quiz to test your understanding of the content.
Which of the following statements is true?
 New prerogative powers are created regularly
 If a prerogative power is older than a statutory power it will take priority
 Statute law takes precedence over prerogative powers
5.1 Defining the royal prerogative/prerogative powers
The royal prerogative remains an important source of power within the UK. In Miller v Secretary of State for Exiting the European Union [2017]
UKSC 5 (Miller No. 1) the Supreme Court defined the royal prerogative as encompassing the:
residue of powers which remain vested in the Crown … [which] are exercisable by ministers, provided that the exercise is
consistent with Parliamentary legislation.
This contemporary definition can now be added to the two classic definitions of the prerogative:
...the residue of discretionary or arbitrary authority, which at any time is legally left in the hands of the Crown... Every act which the
executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative. (Dicey, 424)
…that special pre-eminence, which the King hath, over and above all other persons and out of the ordinary course of the common
law, in right of his regal dignity. (Blackstone, W. Commentaries on the Laws of England. 4 volumes (London: Cavendish, 2001; first
published 1765–1767) [ISBN 9781859414828])
In order to draw out the central aspects of the royal prerogative it needs to be recognised that the power is legal in nature and unique to the
Crown. It stems from a time when the monarch’s personal power was much greater than it is today: aside from a few personal prerogative powers
(such as the granting of particular honours), now prerogative power is exercised either by or on the advice of the government of the day.
The House of Commons Library Briefing Paper on the royal prerogative (see Further reading) indicates that there are three fundamental principles
of the prerogative. These are:
1. The supremacy of statute law. Where there is a conflict between the prerogative and statute, statute prevails. Statute law cannot be altered
by use of the prerogative.
2. Use of the prerogative remains subject to the common law duties of fairness and reason. It is therefore possible to challenge use of the
prerogative by judicial review in most cases.
3. While the prerogative can be abolished or abrogated by statute, it can never be broadened. However, Parliament could create powers by
statute that are similar to prerogative powers in their nature.
You will learn more about these as you work through the various readings and case law.
First we will turn to examples of the prerogative powers which are still exercised by the monarch (rather than the government of the day) and the
limitations and controls upon the exercise of these powers.
In recent years, there have been a number of inquiries and reports into various aspects of prerogative powers by parliamentary committees
(including the House of Lords’ Constitution Committee, the House of Commons’ Public Administration Select Committee and Political and
Constitutional Reform Committee). Also, in 2009, a fairly comprehensive (albeit not exhaustive) list of the prerogative powers identified at that
time was included in an annex to a government report – The Governance of Britain, Review of the Prerogative Powers: Final Report.
In 2004, a report (Taming the Prerogative: Strengthening Ministerial Accountability to Parliament) by the House of Commons’ Public
Administration Select Committee identified three categories of prerogative powers, namely: the sovereign’s constitutional prerogatives (which are
also sometimes referred to as the personal prerogative powers of the monarch); the legal prerogatives of the Crown (such as the legal principle
that the Crown can do no wrong, and that the Crown is not bound by statute save where by express words or necessary implication); and
prerogative executive powers (such as the conduct of diplomacy, the governance of overseas territories and the deployment of the armed forces).
5.2 Constitutional/personal prerogative powers of the monarch
The monarch’s constitutional prerogatives or personal prerogative powers include the following:
the granting (or withholding) of Royal Assent to legislation

the appointment of the Prime Minister and appointment of other ministers
the prorogation and summoning of Parliament.
In relation to how these powers are exercised in practice, the importance of constitutional conventions (which were discussed in Topic 2) in the UK
constitution becomes clear. The exercise of each of these (legal) prerogative powers is firmly governed (or controlled) by constitutional
convention.
5.2.1 Royal Assent to legislation

Royal Assent signals the final stage in draft legislation (a Bill) becoming law (an Act). Although the monarch has a legal power to grant (or
withhold) Royal Assent to legislation, constitutional convention dictates that Royal Assent will always be granted if the legislation has passed
Parliament. The last sovereign to refuse Royal Assent to a Bill passed by Parliament was Queen Anne in 1708. This also serves as an example of
a very firmly embedded constitutional convention with over 300 years of unbroken observance.
5.2.2 Appointment of Prime Minister

Although the monarch has a legal power to appoint the Prime Minister it is, again, constitutional convention which governs how this power is
exercised. The sovereign will appoint as Prime Minister the person who is best able to ‘command a majority’ in the House of Commons. This is
normally taken to mean the leader of the political party with the largest number of seats.
In the unusual situation of a ‘hung Parliament’ – where no party has a majority of seats – the decision as to who should be Prime Minister rests
upon conventions and political discussions in which the monarch would not be expected to become involved.
5.2.3 Prorogation and summoning of Parliament

Until the enactment of the Fixed-term Parliaments Act in 2011 (which introduced five-year fixed parliamentary terms) the monarch could, in theory,
dissolve Parliament through the prerogative. In practice though, the monarch acted on the advice of the Prime Minister and would grant a
dissolution upon their request. The dissolution of Parliament has now been placed on a statutory basis.
The prorogation and summoning of Parliament remains a prerogative power of the Crown. These formal powers, however, will also be exercised
upon the advice of the Prime Minister – this was confirmed by the Deputy Private Secretary to HM The Queen in a letter to the Chair of the
Political and Constitutional Reform Committee, which specifically stated that the Queen would ‘always act on the advice of the Government of the
day’ as to setting the first meeting of a Parliament.
In their election manifestos for the 2019 General Election, both the main political parties expressed an intention to repeal the Fixed-term
Parliaments Act:
‘We will get rid of the Fixed-term Parliaments Act – it has led to paralysis at a time the country needed decisive action’ – Conservative Party
Manifesto 2019;
‘A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments’ –
Labour Party Manifesto, 2019.
In December 2020, the Government published a Draft Fixed-term Parliaments Act 2011 (Repeal) Bill that provides for repeal of the 2011 statute.
The draft Bill contained provisions to fix the maximum length of a Parliament at five years and expressly to revive the prerogative power to
dissolve Parliament.
The Government also published, alongside the draft Bill, a ‘draft statement of the non-legislative constitutional principles that apply to dissolution’.
For some early academic commentary, see: Alison L Young: 'The Draft Fixed-term Parliaments Act 2011 (Repeal) Bill: Turning Back the Clock?'
Dissolution and Calling of Parliament Bill 2021–22

On 12 May 2021 the Dissolution and Calling of Parliament Bill was introduced in the House of Commons. The Bill has three particularly notable
aspects:
1. Clause 1 repeals the Fixed-term Parliaments Act 2011.

2. Clause 2 revives the prerogative powers to dissolve Parliament and to call a new Parliament ‘as if the Fixed-term Parliaments Act 2011 had
never been enacted’.
3. Clause 3 – ‘Non-justiciability of revived prerogative powers’ contains a broad ouster clause which the explanatory notes to the Bill describe
as confirming that ‘the exercise (or purported exercise) of powers relating to the dissolution of Parliament, and the calling of a new
Parliament, is non-justiciable and cannot be reviewed by a court or tribunal’.
At the time of writing, this Bill is at Committee Stage in the House of Lords.
The Crown also still has some powers to legislate under the prerogative by Order in Council.
Study task 1
Use the UK Parliament Website Glossary to find a definition of ‘Orders in Council’. How do these differ from ‘Orders of Council’?
Show feedback
As explained on the Parliament website, Orders in Council are made by the Queen acting on the advice of the Privy Council and are approved
in person by the monarch. Orders of Council, however, are made by the Privy Council itself, acting through its Councillors and differ from
Orders in Council as they do not require personal approval by the monarch.
Study task 2
Please read the following section of the UK Parliament website to understand what is meant by ‘prorogation’. (You will need to understand this
before reading R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41.)
Show feedback
It is important to understand that prorogation marks the end of a ‘session’ of Parliament (which runs from the State Opening of Parliament) as
opposed to the end of a ‘Parliament’ (which can last up to five years and runs from one general election to the next). The Queen formally
prorogues Parliament on the advice of the Prime Minister.
Discussion activity
Read the overview and extract from R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008]
UKHL 61 (see pp.325 and 326 of Le Sueur, Sunkin and Murkens) and reflect on how this other type of primary legislation differs from an Act of
Parliament.
Post your answers in the Topic 5 – Discussion activity.
Topic 5 – Discussion activity
5.3 Continued justification for prerogative powers
Most states possess some type of ‘reserve power’ which may be exercised by the executive and in many senses that is the role of the remaining
prerogative powers in the UK constitution.
In Miller it was explained as follows:
There are important areas of government activity which, today as in the past, are essential to the effective operation of the state
and which are not covered, or at least not completely covered, by statute. Some of them, such as the conduct of diplomacy and
war, are by their very nature at least normally best reserved to ministers just as much as in modern times as in the past.
5.4 Parliamentary control of prerogative powers
5.4.1 Statute law versus prerogative power

Parliament can abolish the prerogative and introduce statutory powers instead. In the UK, Acts of Parliament are the highest form of law, thus
where a conflict arises between a statute and a prerogative power, the statute prevails.
This is often described as the ‘De Keyser principle’ owing to the decision in Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508. In this
case Parliament had not expressly abolished the prerogative power, but had merely created a statutory scheme dealing with the same subject. A
general rule emerged that, in these circumstances, the Crown may not rely upon the prerogative.
Study task 3
Try to find out what happened in 2010 in relation to the executive power to ratify treaties. Which statute affected the prerogative power?
Show feedback
The relevant statute is the Constitutional Reform and Governance Act 2010.
The explanatory notes to this legislation explain that:
Part 2 of this Act puts Parliamentary scrutiny of treaty ratification on a statutory footing and gives legal effect to a resolution of
the House of Commons or Lords that a treaty should not be ratified. This means that should the House of Commons take the
view that the Government should not proceed to ratify a treaty, it can resolve against ratification and thus make it unlawful for
the Government to ratify the treaty. The House of Lords will not be able to prevent the Government from ratifying a treaty, but if
they resolve against ratification the Government will have to produce a further explanatory statement explaining its belief that
the agreement should be ratified.
You can read more about this in the House of Commons Library Briefing Paper, ‘The Royal Prerogative’ (No. 03861, 17 August 2017).
5.4.2 Parliamentary scrutiny of prerogative powers

The exercise of prerogative power by government can be scrutinised by Parliament through its normal scrutiny mechanisms, such as questions,
debates and committees (discussed later in relation to political accountability). However, there are, by convention, certain matters that are
immune from parliamentary questions.
The first edition of The Cabinet manual summarises previous parliamentary involvement in relation to military action and states that:
In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the
House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except
when there was an emergency and such action would not be appropriate.
(para.5.38)
The inclusion of this stemmed from a Select Committee recommendation which called for The Cabinet manual to be amended to include the
convention that Parliament should have the opportunity to debate decisions to commit troops to armed conflict, and that the debate should take
place before the troops are committed, except in emergency situations.
Also in January 2013, the Foreign Secretary, the Rt Hon William Hague MP, stated:
My view remains, as I set out in my statement to the House on 21 March 2011: wherever possible, Parliament should have the
opportunity to debate, in advance, the commitment of UK forces to military action overseas, unless there is an emergency where
such action would not be appropriate. Since my statement, we have declared and formalised this understanding within the Cabinet
Manual.
5.5 Judicial control of prerogative powers
The courts have had the power to determine the existence and extent of prerogative powers for a long time, but it was not until the seminal
‘GCHQ’ case ( Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) that prerogative powers were deemed to be subject
to judicial review.
This case also established that, although as a matter of principle actions under the prerogative were subject to judicial review, there were some
questions of prerogative power which were non-justiciable. In this instance the decision by the minister for the Civil Service (usually the the Prime
Minister) preventing staff at Government Communications’ Headquarters (GCHQ) from being trade union members on the grounds of national
security was considered to be non-justiciable.
The general rule is that the courts will not recognise the existence of new prerogative powers. Authority for this can be derived from the classic
rule of law case of Entick v Carrington (1765) 19 St Tr 1029 and the frequently cited words of Lord Diplock in BBC v Johns [1965] Ch 32 that ‘[I]t is
350 years and a civil war too late for the Queen’s courts to broaden the prerogative’.
Sometimes, however, it is difficult to distinguish between the creation of a new prerogative and applying an old prerogative to new circumstances
(which could, in some circumstances, constitute a reinterpretation of a power). For examples see R v Home Secretary, ex parte Northumbria
Police Authority [1989] QB 26.
In the more recent case of R (Bancoult) v Foreign Secretary (No. 2) [2008] UKHL 61 the House of Lords held that the making of an Order in
Council could also be reviewed (rather than merely the manner in which the power it conferred was exercised).
5.5.1 Ouster clauses

It will be interesting to watch the progress of the Dissolution and Calling of Parliament Bill 2021–22 that contains a wide ‘ouster clause’, namely:
(3) Non-justiciability of revived prerogative powers A court or tribunal may not question—
a. the exercise or purported exercise of the powers referred to in section 2,

b. any decision or purported decision relating to those powers, or
c. the limits or extent of those powers.
An ‘ouster clause’ is an attempt in legislation to exclude the jurisdiction of the court, i.e. words in a statute intended to ‘oust’ the jurisdiction of the
courts. In other words, to prevent the powers of a public authority as provided for in an Act of Parliament being subject to judicial review.
For a short commentary on ouster clauses see 'Distinguishing Anisminic? Ouster clauses, parliamentary sovereignty and the Privacy International
case', Public law for everyone blog.
Prerogative powers: Case study – Parliament’s role in conflict decisions
Read the following materials on Parliament’s role in the use by government of the prerogative power to engage in armed conflict (i.e. to wage war)
and write down your answers to the questions which follow. This activity has been designed to encourage you to read and think critically about
more complex issues. There are a range of legitimate views but whichever one is adopted in your answer, it is crucial that this is supported (by
authority) and explained.
Chapters 1 and 3 of the House of Lords Constitution Committee ‘Constitutional arrangements for the use of armed force’ (Second Report of
Session 2013–14, HL Paper 46).
Institute for Government blog post ‘Parliament, the royal prerogative and decisions to go to war’ (6 September 2013).
More recent developments are helpfully summarised in the next few items:
Institute for Government blog post on the House of Commons vote on Syria.
‘Syria crisis: Cameron loses Commons vote on Syria action’ (August 2013), BBC news.
Syria air strikes approved in Commons (December 2015), BBC news.
2018 events:
‘Theresa May wins second vote on Syria action as Jeremy Corbyn demands new war powers law’, The Independent.
‘Syria air strikes: Theresa May says action “moral and legal”’, BBC news.
Answer the following questions:
1. Do you agree with the House of Lords Constitution Committee’s conclusions?

2. Do you consider it appropriate that Parliament’s role (in scrutinising the use of this prerogative power) is governed by constitutional
convention? Explain your answer.
3. Do the following statements change or reinforce your answer to the earlier questions?
Write your answer in the Topic 5 – Reflective activity 1.
Topic 5 – Reflective activity 1
Learning activity 1
In relation to this activity, you might find the following helpful:
House of Commons Library Briefing Paper ‘The royal prerogative’ (No. 03861, 17 August 2017).
Place the following prerogative powers into categories.
a. Appointment of a Prime Minister.
b. The right to sturgeon.

c. Deployment of the armed forces.
Prerogative executive powers Sovereign’s constitutional prerogatives Legal prerogatives of the Crown
 Check
5.6 Reform of the prerogative
Although in recent decades the prerogative powers have been placed under increasing scrutiny – both judicial and parliamentary – there is still
discussion as to whether further reforms are necessary or, indeed, desirable.
A brief but interesting discussion on this can be found in the following book chapter.
Young, A. ‘Are prerogative powers necessary in the twenty-first century?’ in Galligan, D.J. (ed.) Constitution in crisis: the new Putney
debates. (London: I.B. Tauris, 2017) [ISBN 9781788310727].
Learning activity 2
Match the correct case to the prenciple.
1. Prerogative powers are subject to judicial review.
2. No new prerogative powers will be recognised by the courts.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 BBC v Johns [1965] Ch 32
 Check
Lecture Plus
17:17
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Feedback on the discussion questions
Note: This video lecture was part of the Lecture plus activity and was recorded in November 2020.
Read this topic and, drawing upon this and other authority and examples you have encountered during your reading, try to draw up a list of
arguments, first, in favour of and, then, opposed to reform. In particular, think about what would potentially change if all prerogative powers
were replaced by statute.
Write your answer in the Topic 5 – Reflective activity 2.
Topic 5 – Reflective activity 2
Quick quiz 2
You’ve learned about the Royal Prerogative Powers in this topic. Check your understanding by choosing ‘true’ or ‘false’ for each of these
questions.
The Queen is primus inter pares
 True  False
Examination tips
The topic of prerogative powers links with and relates to many other topics on the Public law syllabus. Reading about and around this topic will
provide you with a solid understanding of the importance of constitutional conventions in aspects of the UK constitution and some good examples
to draw upon, both in terms of very firmly embedded conventions, in relation to, for example, the granting of Royal Assent and other more recently
established and arguably less clearly defined conventions, such as the role of the House of Commons in debating (or possibly approving) military
action.
In terms of specific questions on the prerogative, these often focus on the adequacy of control and scrutiny and the corresponding need (or not)
for further reform. A few examples of these kinds of examination questions are included below.
Example examination questions

Question 1: Discuss the legal and political controls over ministers’ exercise of royal prerogative executive powers of state.
Question 2: Discuss calls to reform the prerogative powers of the Crown, and the legal and political mechanisms that already limit their
exercise.
Question 3: ‘The Monarchy is the one part of our constitutional machinery which is working more or less as it was designed to do’ (Lord
Hailsham QC, former Lord Chancellor, 1978). Discuss.
Sample examination question
Question
(Tutor feedback activity 2021)
Are Prerogative Powers subject to adequate scrutiny? Provide examples and authority to support your answer.
Tutor guidance
This question made it explicitly clear that a vital component of a good answer (as is the case with any assessment in law) would be the use
of examples and authority to support the answer. It was therefore crucial to ensure that appropriate and relevant authorities were included
throughout the essay.
A logical approach to answering this question would be to define what is meant by the royal prerogative or prerogative powers. Students should
recognise that the prerogative powers originally stemmed from the Crown and are nowadays largely exercised by Ministers - this could form part
of a succinct scene-setting introduction. It would be sensible to draw upon authoritative definitions of the prerogative, such that of A V Dicey or
Blackstone and, as many answers did, also to refer to the more contemporary description of the prerogative provided by the Supreme Court
in Miller.
A good answer might then provide some examples of prerogative powers in practice – distinguishing between those exercised by Government in
the name of the Crown and the Monarch's remaining prerogative powers (such as granting Royal Assent and the appointment of the Prime
Minister). This also affords an opportunity to explain and analyse the role of constitutional conventions in terms of controlling the exercise of
prerogative powers. In relation to those prerogative powers exercised by Government, a good and relatively contemporary example to bring in
here is that of the Executive power to wage war and the role Parliament plays in debating the deployment of troops. As with all parts of this essay
a good answer would bring in authority here, for example, various Select Committee Reports, the inclusion of this convention in the Cabinet
Manual and examples of how the convention has operated in practice.
Moving on then to the main focus of the essay which is to look at how these powers are scrutinised and controlled - by the courts, through judicial
review, and by parliament. The fact that a statute can (and increasingly does) replace a prerogative power does not make it a form of 'scrutiny'
which was something about which a number of students appeared to be confused. When explaining how prerogative can be replaced with statute
students should cite the De Keyser principle and provide examples of legislative developments, for example, the enactment of the Constitutional
Reform and Governance Act 2010 and the Fixed-term Parliaments Act 2011. The usual scrutiny mechanisms – debates, parliamentary questions,
committees etc. – need to be included and evaluated. This section is where academic commentary could make a useful contribution in terms of
strengthening an essay.
Judicial scrutiny of the prerogative powers, needs to be discussed and analysed thoroughly and this is probably best done through a chronological
discussion of relevant cases tracking the development through case law to provide examples and support the arguments made,
from GCHQ (where the prerogative powers were, in principle, deemed to be subject to judicial review) through Bancoult and on to Miller.
The difference between an answer which does all of this adequately and which does it well is largely a matter of the depth of analysis and
thoroughness of discussion. Better answers will make good reference to contemporary developments, such as Miller and draw upon appropriate
academic commentary in addition to case law etc.
Common errors
There were some common errors in the way in which the question was answered – one of these was where the specific focus was misplaced and
the prerogative was discussed predominately from a historical perspective or the essay included reference to aspects such as Crown immunity
which were not directly relevant to the question. The most common error was really a lack of depth – many essays did appropriate identify what
prerogative powers were and did refer to both parliamentary and judicial scrutiny but did so in manner which was too descriptive and insufficiently
analytical. Another area where many students could improve is in writing style and/or structure – it is best to write in a clear and simple manner
and read through to ensure that there is overall coherence and clarity.
Essay writing skills

It is sensible for students to plan and think about what they intend to write before starting on the essay. A simple essay plan will help to ensure the
overall structure is coherent and logical. Students need to ensure than the points made in each section or paragraph link together and that the
writing flows.
It is important to demonstrate understanding of what the particular question set is asking and that the essay responds to the focus of that
question. Think about the relevance of all that is included and be selective about which authorities are cited. Avoid unnecessary repetition which
'wastes' words and time. Try to ensure that the writing style is clear, coherent and cohesive and essentially that it ‘flows’ well. Please take care to
proof-read thoroughly, especially case names.
Good use of authority is an important skill to develop in order to succeed in the study of law. Reading a range of materials, in particular, legal
journal articles helps to deepen understanding and engagement with relevant academic commentary which in turn improves writing style and
contributes to a deeper level of critical analysis. Be careful to avoid any risk of plagiarism – you must make sure all that all source materials are
fully attributed and referenced.
Student answers with tutor feedback

Find below example answers submitted from students along with the tutor feedback and classification awarded.
Note: students were asked to submit an answer up to 1500 words.
First example: answer with feedback

Upper Second example: answer with feedback
Lower Second example: answer with feedback

Third example: answer with feedback
Fail example: answer with feedback
Further reading
House of Commons Library Briefing Paper ‘The royal prerogative’ (No. 03861, 17 August 2017).
House of Commons Library Note ‘The Bill of Rights 1689’ (SB/PC/0293, 5 October 2009).
Public Administration Select Committee ‘Taming the prerogative: strengthening ministerial accountability to Parliament’ (Fourth Report of
Session 2003–04, HC 422).
Blackburn, R. ‘Monarchy and the personal prerogatives’ (2004) Public Law 546.
Brazier, R. ‘“Monarchy and the personal prerogatives”: A personal response to Professor Blackburn’ (2005) Public Law 45.
Endicott, T. ‘Parliament and the prerogative: from the Case of Proclamations to Miller’ (Judicial Power Project, 1 December 2016).

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11/10/22, 12:51 AM Topic 5 – The Crown, monarch and the royal prerogative powers

Topic 5 – The Crown, monarch and the royal prerogative powers

Module: Public law 2022-23 Date: Wednesday, 9 November 2022, 4:51 PM

Topic 5 – The Crown, monarch and the royal prerogative

Which of the following statements is true?

 New prerogative powers are created regularly

 If a prerogative power is older than a statutory power it will take priority

 Statute law takes precedence over prerogative powers

5.1 Defining the royal prerogative/prerogative powers

5.2 Constitutional/personal prerogative powers of the monarch

the granting (or withholding) of Royal Assent to legislation

5.2.1 Royal Assent to legislation

5.2.2 Appointment of Prime Minister

5.2.3 Prorogation and summoning of Parliament

day’ as to setting the first meeting of a Parliament.

Dissolution and Calling of Parliament Bill 2021–22

1. Clause 1 repeals the Fixed-term Parliaments Act 2011.

Post your answers in the Topic 5 – Discussion activity.

Topic 5 – Discussion activity

5.3 Continued justification for prerogative powers

In Miller it was explained as follows:

5.4 Parliamentary control of prerogative powers

5.4.1 Statute law versus prerogative power

The explanatory notes to this legislation explain that:

5.4.2 Parliamentary scrutiny of prerogative powers

5.5 Judicial control of prerogative powers

5.5.1 Ouster clauses

a. the exercise or purported exercise of the powers referred to in section 2,

Prerogative powers: Case study – Parliament’s role in conflict decisions

Answer the following questions:

1. Do you agree with the House of Lords Constitution Committee’s conclusions?

Write your answer in the Topic 5 – Reflective activity 1.

Topic 5 – Reflective activity 1

In relation to this activity, you might find the following helpful:

Place the following prerogative powers into categories.

a. Appointment of a Prime Minister.

b. The right to sturgeon.

5.6 Reform of the prerogative

Match the correct case to the prenciple.

1. Prerogative powers are subject to judicial review.

2. No new prerogative powers will be recognised by the courts.

Write your answer in the Topic 5 – Reflective activity 2.

Topic 5 – Reflective activity 2

The Queen is primus inter pares

Example examination questions

Sample examination question

Essay writing skills

Student answers with tutor feedback

Note: students were asked to submit an answer up to 1500 words.

First example: answer with feedback

Lower Second example: answer with feedback

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