The Royal Prerogative in the UK

The Significance Of The Royal Prerogative In The

U.K, Legal Framework And Describe Its Relationship
With Acts Of Parliament And Conventions.

This essay will aim to address what a Royal Prerogative is and the significance of this power
within the U.K Legal framework. In addition, this essay will also look at how other areas of the
law such as Acts of Parliament and conventions have influenced and challenged the power and
significance of the Royal Prerogatives until the present day. There have also been numerous
challenges to the Royal Prerogative through cases brought before the courts. These cases have
had mixed success in challenging the Royal Prerogative. This essay will also reflect on the future
of the Royal Prerogative within the United Kingdom legal framework and whether all remaining
Royal Prerogatives will be incorporated into a statutory format as the United Kingdom moves
ever towards the possibility of a written constitution.

The Royal Prerogative has been defined by some sources as ‘The special rights, powers, and
immunities to which the Crown alone is entitled under the common law.’ The scope of these
powers and who the Crown is has changed over time as the United Kingdom legal framework
has changed from an absolute monarchy to a constitutional monarchy. In modern times, the
powers and rights allocated within the Royal Prerogative not only apply the Crown or Monarch
but in modern day politics, extend to ministers as well. This is due to the fact that many modern
day prerogatives are made by representatives of the Crown, rather than by the Queen directly, as
the Queen has limited power, prerogatives are usually exercised by members of the executive
under the Queen’s authority. However, the Queen does have some control over the appointment
of ministers as ‘the Queen has unlimited power to appoint whom she pleases to be her ministers.’
The representatives of the Crown are usually Ministers who form part of the executive. They are
directly responsible to parliament when exercising the powers of the Royal Prerogative.

Royal Prerogatives can be categorised into quite a number of different areas such as the Judicial
i.e. ‘it is under the prerogative that the Crown grants special leave to appeal from colonial courts
to the Judicial Committee of the Privy Council.’ There are numerous other areas where the
Prerogative powers are used and scope of these ranges from the signing of treaties, which is
usually done by a Minister on behalf of the Queen, to the opening of Parliament that is one of the
few Royal Prerogatives the Queen still exercises herself. There is no clear definition as to the
extent to which these powers exist and whether or not some of these prerogatives are still viable
today, ‘some have fallen out of use altogether, probably forever-such as the power to press men
into the Navy.’ It is also a matter of concern that the majority of Royal Prerogatives are no
longer in the hands of the Monarch and are used by the executive arm of government.

One of the earliest reported cases that openly challenged the Royal Prerogatives is the Case of
Impositions (1606). In this case, the defendant refused to pay a duty on imported goods imposed
by the King by Royal Prerogative. It was held that the King could do this as he was not raising
taxes but was doing this to regulate trade. This was followed by Parliament legislating against
levying taxes without their consent in the Petition of Rights 1628. This was one of the first
struggles between the Monarchy and Parliament for supremacy of law under the format of the
Royal Prerogative. However, academics have criticised the Petition of Rights 1628, as ‘It did not
in terms deal with what we now call indirect taxes, where only a little time before the judges had
pronounced in Bate’s Case that the king did have rights to impose taxes on imports. So it left the
matter unclear.’

The scope of the Royal Prerogative and its powers has been subject to an ongoing battle between
the Monarch and Parliament for many years up to the present day. The first instance where the
power of the Monarch was curtailed by legislature can be traced back as far as the Prohibitions
Del Roy. In this case, it was held that the King could sit in the Kings Bench but would not be
allowed to pass judgement on any matters that which concerned the administration of justice.
The Bill of Rights 1688 was the next major step that curtailed the Royal prerogative as the
previous Monarch; James II had aggressively used the Royal Prerogative to amend laws and to
levy taxes.

Under the Bill of Rights 1688, it is written ‘That levying Money for or to the Use of the Crowne
by pretence of Prerogative without Grant of Parlyament for longer time or in other manner then
the same is or shall be granted is Illegall.’ This extract from the Bill of Rights 1688 stopped
Monarchs from levying taxes as and when it saw fit. This is one of the main restrictions on the
royal and prerogative powers of the Monarchy, which were imposed on Prince William, and
Mary of Orange as it affirmed that the monarch was subject to the law. Legislation has further
limited prerogative powers even to whom the current Monarch can choose as a successor to the
Crown as the Act of Settlement 1700 states that the next in line to the Throne ‘shall joyn in
Communion with the Church of England as by Law established’. Therefore, this means that the
successor must be a member of the Church of England. However, there have been calls from
ministers to change this limitation as reported.

‘On 21 January introduced his Royal Marriages and Succession to the Crown (Prevention of
Discrimination) Bill. The Long Title describes it as ‘a Bill to make provision to remove
discrimination in respect of Royal marriages and succession to the Crown’. This shows that
Parliament is contemplating legislating in this area, which will affect the power of the Royal
Prerogative in choosing an heir and will allow succession of those who are not members of the
Church of England.

It is the evermore apparent that after the 19th Century, the formation of stable governments due
to the expansion of the franchise using the Reform Acts of 1832 and the Reform Act of 1867.
This meant that the Monarchs power under the Royal Prerogative to choose whom they wished
as the next Prime Minister was also curtailed. Legitimate elections and the support of the public
of one party gaining a majority in the House of Commons legitimised the leader of that party
meaning that it was more likely they would gain the title of Prime Minister. The formation of
stable governments also meant that the Monarch was more likely to use Ministers to invoke
Royal Prerogatives and not challenge Parliament or face consequences such as a further seizure
of the Royal Prerogatives into statute.
One of the main fundamental legal principals is the Rule of Law and this is contradictory to the
Royal Prerogative as Dicey states that ‘No man is punishable or can be lawfully made to suffer
in body or goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts.’ This is one of the any principles that Dicey states about the Rule of
Law that contradict with the doctrine of the Royal Prerogative as it is not ordinary law because it
is not a statute made by parliament. Another principle Dicey puts forward is that everyone is
equal before the law and subject to its laws, yet under the entitlements of the Royal Prerogative it
has been taken that the Queen or Monarch cannot be prosecuted in the courts as, she would
effectively be prosecuting herself. Since all criminal cases, it is the Crown that prosecutes
breaches of the law through the workings of the Crown Prosecution Service. However, it is
unclear as to how far this protection of those associated with the Crown from liability extends as
the Queen’s daughter, Princess Anne has been prosecuted under the Dangerous Dogs Act 1991.

Conventions are another way the royal prerogative is limited and there is often a blur between a
constitutional convention and royal prerogative. Both of these features of the U.K legal system
are unwritten and this has given rise to many criticisms of these areas. Conventions are hard to
define but many academics have offered their opinions as to what a convention is for example ‘a
rule of behaviour accepted as obligatory by those concerned in the working of a constitution.’
There are a few known conventions such as the now redundant ‘Salisbury – Addison
Convention’, which stated that when the House of Lords had a majority of hereditary peers they
could not reject legislation that was part of the government’s manifesto.

There is wide speculation to how binding conventions are to ministers as they are not
enforceable by the courts, yet the courts may decide to look at conventions in order to decide a
point of law. Sometimes when a convention is broken, law is also broken as shown in the case of
A-G v Jonathan Cape. In this case, the convention of keeping Ministerial expressions during
cabinet meeting secret was a convention yet also there is also a legal obligation for
confidentiality as well. This is in contrast with the earlier case of Madzimbamuto v Lardner-
Burke where the courts acknowledged the convention but it was in conflict with parliamentary
supremacy so the convention went into abeyance.

It is apparent that both conventions and the Royal Prerogative are features within the U.K. legal
framework that select committees have called for codification yet these calls have been rebutted.
The defence for keeping the Royal Prerogatives uncodified is so that it allows greater flexibility
in times of emergency and the impact on the application of the Prerogative is not detrimental as
in the case of A-G v De Keyser’s Royal Hotel Limited. In this case, it was held that the Royal
Prerogative would go into abeyance as statute had legislated in the area the case was being
decided upon.

However, the principle of the Royal Prerogative going into abeyance was not followed in R. v
Secretary of State for the Home Department Ex p. Northumbria Police Authority as they decided
that in matters where the Royal Prerogative is there for the benefit or protection of the individual
that it will not go into abeyance in this circumstance.

It could be argued that constitutional conventions should not be put on a legislative footing, as it
is impossible to predict every set of circumstances that could arise. This could lead to problems
particularly with the Monarch’s convention of assenting Bills from Parliament was legislated
what would happen if an extremist government came to power would the Queen be able to
prevent legislation being passed.

In conclusion, the Royal Prerogative is an intrinsic and fundamental part of the U.K legal
framework. The powers afforded under the Royal Prerogative although much weaker, than
originally were when the Stuart Dynasty were on the throne, are now appropriate for a modern
constitutional monarchy. This erosion of power has come about through Acts of Parliament to try
and redistribute power into the hands of the people.

Bibliography

Books

Oxford Dictionary of Law 7th Edition 2009 Oxford: Oxford University Press

Wheare, K Modern Constitutions, 2nd Edition 1966 USA, Oxford University Press,

Alder, J Constitutional and Administrative Law, 7th Edition 2009 , London: Pearson

Bradley, A.W. and Ewing, K.D. Constitutional and Administrative Law 14th Edition 2007
Harlow, Pearson Longman

Journals

Three hundred years on: are our tax bills right yet? David W. Williams. B.T.R. 1989, 11, 375

Parliamentary report. Frank Cranmer. Ecc. L.J. 2009, 11(2), 209

Statutes

Bill of Rights 1688 c.2 1_Will_and_Mar_Sess_2

Act of Settlement 1700 c. 2 s.3

The Representation of the People Act 1832

Dangerous Dogs Act 1991 (c.65)

Cases

Case of Impostitions (1606) 2 St Tr 371

Prohibitions Del Roy (1607) EWHC KB J23

Attorney General v De Keyser’s Royal Hotel (1920) A.C. 508

Madzimbamuto v Lardner-Burke (1969) AC 645

Attorney General v Jonathan Cape (1976) QB 752

R. v Secretary of State for the Home Department Ex p. Northumbria Police Authority [1989]
Q.B. 26

Websites

http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/
pasc_19.cfm