Advise, appoint, refuse, prorogue, dismiss, warn, encourage, dissolve

There are a small number of powers which are ‘personal’ to the Monarch: these are powers which, because of their nature or because of circumstances, cannot be exercised by anyone other than the Monarch alone. However, most scholars argue that even though these powers are personal to the Monarch, she has very little room for discretion, and these ‘personal’ powers are exercised at the request and in accordance with the wishes of the incumbent Prime Minister.

These ‘reserve powers’, or ‘personal prerogatives’, are:

· The right to …, … and …

· The power to … and … the Prime Minister

· The power to … and … Parliament (in certain circumstances)

· The power to … assent to legislation

 

The Right to … , … and …

There is a weekly meeting between Monarch and Prime Minister, in which the Prime Minister will discuss his or her plans. The Monarch in turn has the right to ‘… , … and …’. The extent of the Monarch’s influence over Prime Ministers is unknown, but a number of former Prime Ministers have pointed to the present Queen’s influence, as she has been Monarch for over 60 years, and can draw on a deep well of political experience.

The Power to … and … the Prime Minister

By convention, the Monarch is expected to … the leader of the party which gains a majority of the seats in the House of Commons: this leader will become ‘the Queen’s chief adviser’—the Prime Minister. This is considered a personal prerogative because there is no advisor to advise the Queen, but there is no real ‘choice’ here: the Queen simply … the leader of the successful political party.

This has been emphasised by the Cabinet Office in the ‘Cabinet Manual’, (Chapter 6 on ‘Elections and Government Formation’) which makes it clear that the monarch no longer has discretion over who is to be … as Prime Minister, but merely validates the decision already made by the political parties.

The first-past-the-post electoral system usually produces clear winners in a general election, so that the Monarch’s decision is entirely uncontroversial. However, it is possible that no party will gain an overall majority in the Commons: this is known as a ‘hung parliament’. In this situation, the role of the Monarch may become more important. Generally speaking, it is up to the political parties themselves to work out a solution, but if the parties cannot decide between themselves, there may be pressure for the Monarch to act to resolve the situation. The key point is that such a situation throws the Monarchy into the public spotlight: any decision the Monarch makes will be seen as political.

One example of this was the 1974 election, which produced the following results:

· Labour: 301 seats

· Conservatives: 296 seats

· Liberals: 14 seats

· United Ulster Unionists: 11 seats

This was made more complicated by the fact that the Conservatives won more votes, but Labour more seats. The incumbent Prime Minister, the Tory Party leader Edward Heath, was unable to form a coalition government, and so resigned. Harold Wilson’s Labour Party then became a minority government, ultimately calling another election at the end of the same year. At all times the Queen was kept informed, but remained silent.

It is worth noting that there have been only 4 hung parliaments in the last hundred years: in 1923, 1927, 1974 and 2010.

The Power to … or to … Parliament

The power to … Parliament is said to be the key power of the Prime Minister: this gives the Prime Minister and the ruling political party an advantage over the other parties, who must make do with the date the Prime Minister sets. However, this assumes that the Prime Minister has the ‘confidence of the House’. A dilemma may arise for the Monarch where the Prime Minister has publicly lost the confidence of the House—in such a case, the prerogative is ‘personal’ to the Monarch: it is no longer clear that the Monarch ought to listen or follow such a Prime Minister’s advice.

In the 2007 Governance of Britain Green Paper, it was suggested that a Prime Minister seeking a dissolution ought to seek the approval of the House of Commons first, but nothing yet has happened to take this further.

The power to … Parliament is likely to be altered by the Fixed-Term Parliaments Bill, should it pass into law. In this case all general elections will be subject to fixed dates, whilst the dissolution of Parliament before then would only occur when there was a vote of no confidence or a vote for immediate dissolution by 2/3 of MPs.

The Power to … Assent to Legislation

Statutory law in Britain can only be made by the ‘Crown-in-Parliament’, meaning the House of Commons, the House of Lords and the Monarch must all assent to a proposed bill before it can become law. By convention, the Monarch always assents to all bills passed by the Houses of Parliament. But commentators wonder: if the Monarch were to be given legislation which violated some fundamental tenet of the British constitution could she … assent? This has never been tested. In the crisis over the Home Rule bill in 1912-1914, King George V did threaten to use his veto to encourage a settlement, but this is now almost a century-old precedent. The last recorded example of a Monarch refusing assent was in 1707.

In the 20th century Monarchs very rarely had to make a public exercise of their personal ‘reserve’ powers. The most obvious recent example of this was in 1957 and again in 1963, when Queen Elizabeth II was required to exercise her royal prerogative and choose a leader for the Conservative party at the time. This was because the Conservatives had no formal means of electing a new party leader. But the effect was that Queen Elizabeth was in fact choosing a Prime Minister for Britain.

 

b) Answer the following questions:

§ Which personal powers are exercised more/less often?

§ Are all personal powers likely to survive the current constitutional reforms?

§ Which personal powers are going to be abolished first?

 

 

TEXT 4  The Royal Prerogative

The Royal Prerogative is a collection of special powers, rights and immunities vested in the Crown which are not conferred by Parliament. The constitutional problem is therefore lack of democratic control over officials claiming to act under the prerogative. The royal prerogative originated in the special rights and powers available to the monarch under the common law. Medieval legal theory did not regard the Crown as the source of law or as above the law, but did confer special rights on the monarch. Some of these were based upon the position of the monarch as chief landowner within the feudal system. Others derived from the responsibility of the monarch to keep the peace and defend the realm. This may have corresponded to the distinction drawn in seventeenth-century cases between the 'ordinary' and the 'absolute' prerogatives, the latter being discretionary powers vested in the king and arguably beyond the reach of the courts.

Influenced by Locke's True End of Civil Government (1764 edition) and Blackstone's Commentaries, Lord Denning in Laker Airways Ltd v. Department of Trade (1977) considered that the Crown had a general discretionary power to act for the public good in certain spheres of governmental activity for which the law had otherwise made no provision. This suggests that the state may benefit from a single, overarching power to interfere in private rights where it perceives an important public benefit may result, especially in times of emergency. This interpretation is, however inconsistent with Entick v. Carrington (1765) where the court emphatically rejected the claim of 'executive necessity' that officers of the state had a general power to enter and search private property in the absence of express statutory or common law powers, Lord Denning's views were not supported by the other members of the Court of Appeal. They are also fundamentally inconsistent with ideas of limited government. The better view is that although the Crown has certain discretionary powers in relation to emergencies, such as the requisitioning of ships, the prerogative comprises a finite number of powers rather than one general power to act for the public good.

Many prerogative powers are of central importance in the British modern constitution. Certain inherent powers are essential to any government. These include the making of treaties, the waging of war, and indeed most matters concerned with foreign affairs, defence, national security and public order. Control over the civil service and armed forces are also based on prerogative powers, although, particularly in respect of the army, intermingled with statute. Some matters, for example emergency powers and immigration control, were once prerogative but are now governed mainly by statute. The security services also operate within a broad statutory framework. There is an uncertain and potentially threatening area of prerogative power concerned with 'keeping the peace' and defending the realm. It has been used to justify arming the police and may justify entry by the security services to private property.

The ancient writ of ne exeat regno prevents persons from leaving the country. Although ne exeat regno is sometimes regarded as obsolete there is no doctrine of obsolescence in English law.

The administration of justice is part of the prerogative although it was established by 1607 that the monarch can act only through professional judges (Prohibitions Del Roy (1607)). The prerogative power to pardon offenders resides with the Home Secretary, and the Attorney General has a prerogative power to institute legal proceedings in the public interest. There is also a prerogative power to stop criminal proceedings by issuing a nolle prosequi.

Other important prerogatives include:

• the monarch's powers in relation to the appointment of ministers and the summoning and dissolving of Parliament; as we have seen, the circumstances in which these powers are exercisable are not clear. They are essentially a long-step to preserve democracy; the various Crown immunities which we have already discussed;

powers relating to the Church of England;

the care of children;                 
the administration of trusts;                                                           
the award of peerages and other titles, medals, etc., the Crown being the 'fount of honour';                                                                          

• the granting of Royal Charters to bodies such as universities, learned societies, charities or professional associations which gives the body the status of a legal person and signifies state approval of its activities;

• the conduct of foreign affairs, the appointing and receiving of ambassadors, the issue of passports, etc.

The exercise of prerogative powers can be subject to parliamentary scrutiny. However, in practice, this is limited. This is partly because prerogative powers such as deploying the armed forces do not need formal parliamentary approval so that opportunity for debate is limited. Some prerogative powers, for example dissolving Parliament and granting honours and titles, fall into categories that have traditionally been exempt from parliamentary scrutiny on the ground that they involve the personal discretion of the monarch, even though the monarch must usually act on the advice of the prime minister. Other prerogative powers relate to foreign relationships, national security matters and the prerogative of mercy on which ministers sometimes refuse to be questioned but which Parliament, if it wished, could insist on investigating.

Notes to the Text:

Royal prerogative the special rights, powers and immunities to which the Crown alone is entitled under the common law. Most prerogative acts are now performed by the government on behalf of the Crown. Some, however, are performed by the sovereign in person on the advice of the government or as required by constitutional convention. A few prerogative acts are performed in accordance with the sovereign’s personal wishes.

nolle prosequi - (lat.) “not wish to prosecute”; the legal notice that a lawsuit has been abandoned.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I. Define the following notions and say who exercises these powers and when:

General power, discretionary powers, inherent powers, prerogative powers, emergency powers

TASK II. Combine the following sentences, use the words: for example, on the ground that, even though and make any necessary changes. Then check against the text.

1. Some prerogative powers fall into categories that have traditionally been exempt from parliamentary scrutiny. 2. Dissolving Parliament and granting honours and titles are examples of such powers. These powers involve personal discretion of the monarch. 3. The monarch must usually act on the advice of the prime minister.

 

TASK III. Insert the missing prepositions. Then check against the text.

1. The Royal Prerogative is a collection of special powers, rights and immunities vested … the Crown which are not conferred … Parliament.

2. Medieval legal theory did not regard the Crown as the source of law or as above the law, but did confer special rights … the monarch.

3. Some of these were based … the position of the monarch as chief landowner within the feudal system.

4. They are also fundamentally inconsistent … ideas of limited government.

5. Control … the civil service and armed forces are also based … prerogative powers, although, particularly … respect of the army, intermingled with statute.

TASK IV. Add suffixes where possible:

	-able	- ence	-er	-ly	-tion
potential	_	_	_	potentially	_
obsolete
particular
exercise
offend
collect

 

TASK V. Read the text and work out the definition of "prerogative powers":

PREROGATIVE POWERS

Originally the prerogative would have been exercised by the reigning Monarch. However, over time a distinction was drawn between the Monarch acting in his or her individual capacity and the powers possessed by the Monarch as an embodiment of the State. As the governance of the realm became more complex, power was devolved from the Monarch and exercised by his or her advisers. In modern times Government Ministers exercise the bulk of the prerogative powers, either in their own right or through the advice they provide to the Queen which she is constitutionally bound to follow.

 A V Dicey defines the Royal prerogative as ‘The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. William Blackstone however describes the prerogative more tightly, as those powers that ‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’. Blackstone’s notion of the prerogative being those powers of an exclusive nature was favoured by Lord Parmoor in the De Keyser’s Royal Hotel case of 1920, but Lord Reid in the Burmah Oil case of 1965 expressed some difficulty with this idea. Case law exists to support both views, and a clear distinction has not been necessary in any relevant cases. The question may never need to be settled by the courts as there are few cases that deal directly with the prerogative itself. 

  The scope of the Royal prerogative power is notoriously difficult to determine. It  is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists. The difficulty is that there are many prerogative powers for which there is no recent judicial authority and sometimes no judicial authority at all. In such circumstances, the Government, Parliament and the wider public are left relying on statements of previous Government practice and legal textbooks, the most comprehensive of which is now nearly 200 years old.

 This uncertainty has been criticised. Professor Rodney Brazier has written, ‘….the demand for a statement of what may be done by virtue of the Royal prerogative is of practical importance. Yet it has been said judicially that  such a statement cannot be arrived at, because only through a process of piecemeal judicial decisions over the centuries have particular powers been seen to exist, or not to exist, as the case may be.’ 

TEXT 5. DWINDLING POWER OF THE CROWN.*

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