Leducate Explains: The Royal Prerogative

 

Hint - key terms are defined. Just click on the blue words to see their definitions!

This article aims to explain the complexity of the royal prerogative. This topic is a little tricky, but by the end of this article you should have a better understanding of what the prerogative is, where it comes from, and why it is particularly important with the accession of King Charles III. 

Introduction

In September 2022, the UK saw the death of its longest-serving monarch, Queen Elizabeth II, and the accession of King Charles III. 

Besides affecting our coins and stamps, this change is significant on a constitutional level. As a parliamentary democracy with a constitutional monarchy, the UK is different from presidential systems like the US. We have both: 

  1. A ceremonial head of state, the Monarch, who holds executive power ‘nominally’ (i.e., in name only); and

  2. An active head of government, the Prime Minister, who (along with the Cabinet) exercises executive powers in the Monarch’s name.

Walter Bagehot, an early writer on the UK constitution, described this as a division between ‘the Dignified’ and ‘the Efficient’. If we imagine the UK as a ship, the monarch is the dignified figure on the prow, while the PM is the efficient captain doing the steering. 

Understanding this division of executive power will help us unpick what we mean by ‘the royal prerogative’. 

WHAT is the prerogative?

By definition, the word ‘prerogative’ refers to a right or privilege that is exercised by a specific individual or class of person. Thus, the ‘royal’ prerogative derives from the Monarch and is exercised by someone else (in this case, the Prime Minister and their Cabinet). 

Essentially, the royal prerogative refers to those ‘special’ powers which the executive enjoys.  

Breaking this definition down, three things can be said: 

  1. First, talking about ‘the’ prerogative may be misleading. There are a variety of prerogative powers, of differing importance, which can be exercised by multiple people. 

  2. Second, a different ‘r’ word might be more appropriate: residual. The prerogative is a kind of residue: that is, whatever remains of the Crown’s original power which can still be exercised today – either by the Crown itself, or by its ministers. 

  3. Third, defining prerogative powers is not always easy. It can be difficult to work out the scope of their legitimate use. 

(1) WHO exercises prerogative powers?

Let’s start with point (1): the prerogative as a variety of powers. Understanding the different types of prerogative power will help us separate out who can exercise them.

Originally, all prerogative powers would have been exercised by the reigning Monarch of the day. 

Prerogative powers can be divided into two categories: ministerial, and constitutional (or personal) powers:

  • Ministerial prerogative powers are exercised by ministers, on behalf of the Crown, and include powers such as deploying armed forces, and governing overseas territory.

  • Constitutional (or personal) powers can be exercised by the Monarch personally, and are also known as the Crown’s ‘reserve’ powers. These powers include the right to appoint and dismiss ministers, including the PM, and to summon and prorogue Parliament.

There are other powers which can include: the Crown’s legal prerogatives (such as immunity from prosecution), and archaic prerogative powers (such as the Monarch’s right to ‘wild and unmarked’ swans).

(2) WHERE does the prerogative come from?

Moving to point (2): the prerogative’s residual nature. The royal prerogative represents the ‘leftovers’ of royal authority, particularly following a key historical event: the Glorious Revolution of 1688.

Pre-1688, the royal prerogative was often abused by Stuart monarchs like James I and Charles I, who repeatedly tried to use it to override Parliament and assert royal authority. Fast-forward to the Bill of Rights in 1689, the throne came with an important condition: in future, the Crown must govern subject to Parliament. This captures a, if not the, core feature of the UK’s constitution: parliamentary sovereignty. Sovereignty essentially puts Parliament at the top of the legal tree, meaning Acts of Parliament (or ‘statutes’) are our highest form of law.

As the Bill of Rights established, and as the courts have later confirmed, the prerogative is inferior to statute: 

  • The prerogative cannot be used to change statute.

  • The prerogative can’t be broadened (i.e. the Crown can’t claim new powers).

  • The prerogative can be amended or even abolished by statute.

As a result, the prerogative has steadily shrunk over time – whether eroded by statute, or by the courts. 

(3) HOW does the prerogative work? 

Finally, point (3): the lawfulness of the prerogative can be difficult to determine. This is largely because of where the prerogative sits in our legal hierarchy. 

As we’ve seen, the Bill of Rights established that the prerogative is inferior to statute. However, the prerogative has a slightly more complicated relationship with the common law: 

  • Traditionally, prerogative powers’ existence and extent were a matter of common law. So, judges could rule on whether a certain prerogative power existed, and what its lawful extent was, via (limited) judicial review. However, not every prerogative power was clearly defined. So, a court might decide that the Crown had not invented a new power; it had simply ‘rediscovered’ a forgotten one.

  • Following an important 1984 case involving GCHQ, courts also have some say over the prerogative’s exercise. As long as the issue is ‘justiciable’ (i.e., can be resolved by a court), full judicial review is now available. 

So, even if prerogative powers give government ministers discretion over major areas of state activity, the government’s use of the prerogative can be checked by Parliament (via statute), and in some instances by the courts (via judicial review).   

WHY is the prerogative relevant? 

This system of checks and balances raises another important constitutional principle: the separation of powers. This describes the allocation of power between three main branches: the legislature (Parliament), the executive (government) and the judiciary (the courts). The idea is that by splitting power we stop it being over-concentrated in any one branch. You can read Leducate’s article about the separation of powers here.

2 Case Studies: Miller I and Miller II

Note: these cases are complicated! The main thing to remember is their significance: they demonstrate the conflict in relationship between those who share power in the UK.

The government’s use (or abuse) of the prerogative to undermine Parliament – and courts’ ability to step in and prevent such use – was at the forefront of two recent cases: Miller I [2017] UKSC 5 and Miller II [2019] UKSC 41. In both cases the Supreme Court ruled that the use of the prerogative by the government was unlawful.

Miller I focused on the prerogative power to withdraw from international treaties: here, by triggering Article 50 to withdraw from the EU. In an 8-3 split, the majority held that:

1. The prerogative cannot be used to change statute (which is superior). 

2. Invoking Article 50, and so kickstarting Brexit, would inevitably change those parts of UK statute law which derive from EU membership.

3. Thus, statutory authorisation was needed: only Parliament could authorise such changes. 

Miller II focused on the prerogative power to prorogue Parliament: here, for 5 weeks before a crucial Brexit deadline. A unanimous Supreme Court found that:

1. This was a question of the prerogative power’s existence/extent – NOT its exercise – so the case was justiciable. 

2. Two constitutional principles could be taken as limits on the power’s lawful scope: (a) Parliamentary sovereignty and (b) Parliamentary accountability (i.e. its constitutional role as overseer of the executive)

3. The proposed 5-week prorogation would frustrate both Parliament’s ability to legislate (limit 1), and its ability to hold the government to account (limit 2)

4. The government could not reasonably justify frustrating Parliament’s constitutional functions like this.

5. Thus, the PM’s advice to prorogue was not lawful under the circumstances. 

Here, we see how two key constitutional principles – the separation of powers and parliamentary sovereignty – seem to be working together: the courts check the government, in order to protect Parliament. 

However, not everyone agreed. Some corners of the British tabloid press thought the courts were overstepping their constitutional role, accusing the judges (following the High Court ruling in Miller I) of being ‘enemies of the people’. 

Of course, this ignores the fact that the courts, by defending the sovereignty of Parliament, were defending the people’s democratically elected representatives. Nevertheless, it highlights the tensions which can arise within the UK’s constitutional landscape. 


Conclusion:

With the accession of Charles III, the subject of the Monarch’s constitutional role is more relevant than ever. 

This has encouraged some to call for reform of the prerogative, and even the abolition of its more outdated elements. 

There has also been speculation about our new king’s political neutrality. The last monarch to refuse Royal Assent to a Bill was Queen Anne in 1708. But let’s imagine that Parliament approves a Bill promoting fossil fuels in 2023. Could King Charles III – known for his pro-environmental stance as Prince of Wales – go against convention, and refuse to give his Assent? 

As always in our ever-changing constitution, we’ll have to wait and see…

Written by Naomi Kilcoyne

 

Glossary box

Common law: judge-made law, also known as case law. Where Statutory law is enacted by Parliament and is found in legislation, common law is created by judges using precedent (the opinion of judges on previous cases). 

Constitutional: deriving from the word ‘constitution’. A constitution describes a collection of principles that a state or other organisation is known to be governed by. Therefore, something is ‘constitutional’ if it refers to those principles that make up the body of how a state is run.

Many jurisdictions, such as the United States, have a ‘codified’ constitution: this means that the constitution and its principles are written down (in a code). The UK does not have a codified constitution - its governing principles are found in other places, such as convention.  

Parliamentary Democracy: describes a system of government where elected representatives make up the legislature. 

Separation of powers: a principle whereby the allocation of power in a state is divided (in the UK it is divided into the legislature, executive and judiciary) in order to prevent anyone from having ultimate power.  

 
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