Sunday, 26 June 2011

What is the Royal Prerogative?

What is the royal prerogative?  This was Blackstone's classic definition:

By the word 'prerogative' we usually understand 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 royal dignity.... [I]t must be in its nature singular and eccentrical; [and] it can only be applied to those rights and capacities which the King enjoys alone, in contradistinction to others; and not to those which he enjoys in common with any of his subjects....
And this is what Dicey had to say:
The prerogative is the name for the remaining portion of the Crown’s original authority, and is therefore... the name for the residue of discretionary power left at any moment in the hands of the Crown.... Every act which the executive government can lawfully do without authority of an Act of Parliament is done in virtue of this prerogative.
The final sentence of this definition is the key one.  The royal prerogative comprises those rights of the Crown which originate in the archaic common-law privileges of the monarch rather than from a legal grant of authority by Parliament.

The royal prerogative exists within the law (Case of Proclamations (1611) 12 Co Rep 74) and is subject to judicial review (CCSU v Minister for the Civil Service [1985] AC 374), though acts involving matters of "high policy" can expect less judicial scrutiny than mere administrative uses of the prerogative (R v Secretary of State for Foreign Affairs ex p Everett [1989] 1 QB 811).  The scope of the prerogative has been narrowed over the years, and it cannot now be extended (BBC v Johns [1965] Ch 32).  Specific aspects of the prerogative can be suppressed by Act of Parliament (Attorney General v De Keyser’s Royal Hotel [1920] AC 508).  Today, the prerogative is almost invariably exercised by or on the advice of ministers or others rather than by the Queen personally.

The prerogative includes powers to make primary legislation (Human Rights Act 1998, s.21(1); Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61).  However, this power is in some sense inferior to the legislative authority of Parliament (Lord Hoffmann, ibid.; also Lord Mance, ibid., citing Lord Mansfield in Campbell v Hall (1774) 1 Cowp 204).

The breadth of the royal prerogative and the extent of the powers that it puts in the hands of ministers (as opposed to Parliament) have led to repeated calls for it to be reformed or abolished.  In Ireland, it is arguable that the prerogative was extinguished by the 1937 constitution (though this is debated).  On the other hand, it is not necessarily incompatible with modern principles of democracy for a government to be invested with significant discretionary and quasi-legislative powers, as shown by Article 37 of the Constitution of France.

The great constitutional writer Walter Bagehot wrote memorably on how much the prerogative allowed the Queen to do without the consent of Parliament:
Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commanding-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer; she could make every parish in the United Kingdom a “university;” she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations.
Nobody really knows precisely what does and doesn't fall within the scope of the prerogative.  On 1 February 1996, Viscount Cranborne stated in a parliamentary written answer:
The Government share the view of [E.C.S] Wade and [A.W.] Bradley, in their work on constitutional law, that it is not possible to give a comprehensive catalogue of prerogative powers.
That view continues to prevail today.  The last authoritative study of the prerogative was Joseph Chitty's Treatise on the Law of the Prerogatives of the Crown, which was published back in 1820.

In the list below, I have tried to identify the various rights and powers conferred by the prerogative.  I have largely drawn on four fairly recent authoritative or semi-authoritative sources:

- Memorandum from the Treasury Solicitor's Department, 2003 - abbreviated TS
- House of Commons Public Administration Committee, Public Administration - Fourth Report, 2004 - PA
- Ministry of Justice, The Governance of Britain - Review of the Executive Royal Prerogative Powers: Final Report, 2009 - GB
- House of Commons Library, The Royal Prerogative, 2009 - CL

I have also cited a few cases where appropriate.

Some attempt has been made in recent years to sort the prerogative powers into discrete categories (e.g. personal, ministerial and legal prerogatives), but these categories overlap and are of limited utility, so I have used only subject headings here.  The individual powers laid out do not purport to be comprehensive, and some of them appear to overlap.

Constitutional and political powers

- The right to summon, prorogue and dissolve Parliament. - PA, TS, GB, CL

- The right to assent to legislation. - PA, TS, GB, CL

- The right to appoint and dismiss the Prime Minister and other ministers. - PA, TS, GB, CL

- The right to appoint Privy Counsellors. - GB

- The right to govern the British Overseas Territories, the Channel Islands and the Isle of Man. - PA, GB

- The right to advise, encourage and warn ministers in private. - PA; derives ultimately from Walter Bagehot, The English Constitution

- The right, in a grave constitutional crisis, to act contrary to or without ministerial advice. - PA

Governmental and administrative powers

- Powers over the organisation of the civil service (including the power to require security vetting of contractors working alongside civil servants on sensitive projects). - PA, TS, GB; CCSU v Minister for the Civil Service [1985] AC 374

- Other powers concerning the machinery of government, including the power to set up a department or a non-departmental public body. - GB

- Powers concerning the Office of the Civil Service Commissioners, the Security Vetting Appeals Panel, the Office of the Commissioner for Public Appointments, the Advisory Committee on Business, the Civil Service Appeal Board and the House of Lords Appointments Commission, including the power to establish those bodies, to appoint members of those bodies and to determine the powers of those bodies. - GB

- The power to appoint holders of non-statutory public offices. - GB

- The power to create corporations by charter. - TS, GB, CL

- The power to hold public inquiries (where not covered by legislation). - GB

- The power to create schemes for conferring benefits upon citizens where Parliament appropriates the necessary finance. - CL

Powers relating to public order

- The power to keep the peace within the realm. - TS, GB; R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26

- The power to deploy the armed forces within the United Kingdom to maintain the peace in support of the police or other civil authorities. - PA, GB

- Powers in the event of a grave national emergency, including those to enter upon, take and destroy private property. - TS, GB (this appears to have been taken from De Smith and Brazier's Constitutional and Administrative Law)

- The power to restrain a person from leaving the realm when the interests of state demand it by means of the writ ne exeat regno. - GB

- The power to require the personal services of subjects in case of imminent danger. - GB

- The power to restrain aliens from entering the UK. - CL

- The power, in time of war, to intern, expel or otherwise control an enemy alien. - GB

Powers relating to foreign affairs

- The power to make and ratify treaties. - PA, TS, GB, CL

- The power to conduct diplomacy, including the recognition of states, the relations (if any) between the United Kingdom and particular governments, and the appointment and reception of ambassadors and high commissioners. - PA, TS, GB

- The power to grant diplomatic protection to British citizens abroad. - GB

- The power to acquire and cede territory. - GB

Military powers

- The power to govern and command the armed forces (including the provision of pay and certain pensions). - GB, CL; China Navigation v Attorney General [1932] 2 KB 197

- The power to deploy and use the armed forces in the UK and overseas, including involvement in armed conflict and the declaration of war.  - PA, TS, GB, CL; China Navigation v Attorney General [1932] 2 KB 197

- The power to maintain the Royal Navy (the Army and the RAF are maintained under statute). - PA, GB

- The power to commission officers in the armed forces. - TS, GB

- The power, in stress of war, to take or destroy property which it deems necessary - Attorney General v De Keyser’s Royal Hotel [1920] AC 508; Burmah Oil v Lord Advocate [1965] AC 75

- The power to take whatever steps are necessary for the protection of the state and in order to wage war successfully against the enemy. - Burmah Oil v Lord Advocate [1965] AC 75

- The right to impress men into the Royal Navy. - PA, TS, GB

Legal and judicial powers

- Crown immunities in litigation, including that the Crown is not directly subject to the contempt jurisdiction and the Sovereign has personal immunity from prosecution and suit. - PA, TS, GB, CL

- The prerogative of mercy/the power to grant pardons. - PA, TS, GB, CL

- Functions in relation to criminal proceedings, including the power to enter a nolle prosequi. - PA, GB

- Functions in relation to civil proceedings, including the ability to institute legal proceedings to protect a public right at the relation of a person who would otherwise lack standing. - GB

- The principle that the Crown is not bound by statute save by express words or necessary implication. - PA, GB

- The principle that time does not run against the Crown (i.e. no prescriptive rights run). - GB

- The power to appoint Queen's Counsel. - TS, GB

- The power to make provisional and full order extradition requests to countries not covered by Part I of the Extradition Act 2003. - GB

- The power to grant leave to appeal from certain foreign courts to the Privy Council. - GB, CL

- Certain functions in relation to charities. - GB

Powers of patronage

- The power to grant honours, decorations and arms, and to regulate matters of precedence. - GB, PA, TS, CL

- The power to appoint judges (where not otherwise provided by legislation). - PA, CL

- The power to make other appointments, e.g. in the Church of England. - PA

- The power to grant civic honours and civic dignities. - GB

Economic and commercial powers

- The right to mint coinage. - GB, CL

- The right to mine precious metals (Royal Mines); also to dig for saltpetre. - GB, CL

- The right to grant franchises, e.g. for markets, ferries and fisheries. - GB, CL

- The rights of pontage and murage. - GB

- The right to construct and supervise harbours. - GB

- The power to regulate trade with the enemy. - GB

Rights to claim property

- The right to immunity from tax on income received by the Sovereign. - GB

- The right to bona vacantia. - GB

- The ownership prima facie of all land covered by the narrow seas adjoining the coast, or by arms of the sea or public navigable rivers, and also of the foreshore, or land between high and low water marks. - GB

- Priority of property rights of the Crown in certain circumstances. - GB

- The right to ownership of treasure trove (for finds made before 24 September 1997). - GB, CL

- The requisition of British ships in times of urgent national necessity. - GB, CL

- The right to claim prize (enemy ships or goods captured at sea). - GB

- The right of angary, in time of war, to appropriate the property of a neutral which is within the realm, where necessity requires. - GB

- The right to sturgeon, (wild and unmarked) swans and whales as casual revenue. - PA, GB

- The right to wreck as casual revenue. - GB

- The right to waifs and strays. - GB

Other rights

- The power to grant and revoke passports.  - PA, TS, GB, CL

- The right to grant approval for certain uses of royal names and titles. - GB

- The power of guardianship over infants and those suffering certain mental disorders. - GB, CL

- Rights associated with Her Majesty’s Stationery Office as the Queen’s Printer, including the power to appoint the Controller, the power to hold and exercise all rights and privileges in connection with prerogative copyright, and the sole right of printing or licensing the printing of the Authorised Version of the Bible, the Book of Common Prayer, state papers and Acts of Parliament. - GB, CL

- Powers connected with prepaid postage stamps. - GB

- Powers concerning the visitorial function of the Crown. - GB

- The power to issue certificates of eligibility in respect of prospective inter-country adopters (in non-Hague Convention cases). - GB