What is the royal prerogative?

6615944(115x85)The royal prerogative is a matter of some debate at the moment – notably in respect of triggering notification of the UK’s intention to leave the EU under Article 50 of the Treaty on European Union – but what is the royal prerogative?

The prerogative comprises powers that have inhered in the Crown or in the monarch, but have not been displaced by statute.   Prerogative powers were constricted by the Bill of Rights 1689 – a number were outlawed – and with the growth of responsible government it became established that the prerogative powers that remained were to be exercised by ministers in the name of the Crown or exercised by the monarch on the advice of ministers.  Thus, for example, the prerogative power to pardon someone sentenced to hang was exercised by the Home Secretary.  The prerogative power to declare war was exercised by ministers.  The announcement in 1939 that the UK was at war with Germany was made by the Prime Minister, Neville Chamberlain.  The award of honours and the appointment of ministers is made by the monarch on the advice of ministers, in the latter case by her Prime Minister.

Successive governments have recognised the case for limiting such powers.  Part of the Governance of Britain programme of Gordon Brown was to transfer prerogative powers to Parliament: ‘The Government believes that in general the prerogative powers should be put on a statutory basis and brought under stronger parliamentary scrutiny and control.  This will ensure that government is more clearly subject to the mandate of the people’s representatives’.   The Conservative manifesto at the 2010 election included a commitment to make the prerogative ‘subject to greater democratic control so that Parliament is properly involved in all big national decisions’.

The Brown Government sought to provide for Parliament to take decisions on the commitment of UK troops abroad, but was unable to craft a Bill or motion that would allow sufficient latitude for Government to act at times of emergency.  However, it is now taken as a convention that the Government should seek the approval of the House of Commons before committing forces to action.  The Government did achieve passage of the Constitutional Reform and Governance Act 2010 which provided that a treaty, with certain exceptions, is not ratified if within 21 days either House has resolved that the treaty not be ratified and, if Government nonetheless wishes to persist, within a further 21 days the House of Commons has resolved that the treaty not be ratified.  The Act also put the civil service on a statutory footing.

As regular readers will know (even though some commentators have still to grasp the fact) the Fixed-term Parliaments Act 2011 removed the monarch’s power to dissolve Parliament.  This was identified by Lord Hailsham as one of the two powers accentuating what he termed ‘the elective dictatorship’.  That power has now gone.

There remains uncertainty as to what happens if a prerogative power is superseded by statute, but the statute then repealed.  This is important in the context of the Fixed-term Parliaments Act.  It repealed the Septennial Act 1715 and omitted section 7 of the Parliament Act 1911.  They are no more: they do not come back into being if the 2011 Act is repealed.  However, if the 2011 Act is repealed, does the prerogative come back into play?  That is a matter of some dispute, but the general view is that it does.  However, in the case of the 2011 Act, one would need to enact a statute replacing what it had introduced: a simple repeal would leave it in the gift of the monarch as to when to call an election and a Prime Minister may leave it for many years before requesting one.

The prerogative is, then, much restricted relative to what existed only a few years ago, but it remains an important, and at times controversial, feature of the British Constitution.  You cannot understand British politics with the prerogative left out of the discussion.

About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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15 Responses to What is the royal prerogative?

  1. William MacDougall says:

    The more immediate issue is whether the Government may use the Royal Prerogative to invoke article 50. Do you have a view?

  2. I sense that you are averse to metaphorical expression and not a great lover of similes. However, one might argue that there is something of the ceremonial weapons carried by an honor guard which clings to the royal prerogative as long as it exists. War planning mostly ignores such weapons. One hopes they do not form a crucial point of defense. However, they are there and if nothing else is handy someone in dire need is likely to use them in anger. The situation matters a good bit perhaps…

  3. tizres says:

    Thank you, Lord Norton, one of your most compelling posts.

    I’ll admit that, as your final sentence insists, I’ve not understood British politics but was largely blissful in my ignorance. Taking in Lord Hailham’s original lecture as chronicled by The Listener I was waylaid by William Hone’s The Political House that Jack Built , then to the history behind his pamphlet, but I’m still a long way off understanding why the judiciary have used their wisdom to decide whether parliament or government is top dog.

    How meaningful will the verdict be given both sides have stated their intention to appeal it?

    • Perhaps because the Supreme Court is in many ways susceptible to the influence of American custom in ways that the Law Lords were not.

      • “Yes but why?”
        The famous razor is not always right. The subtleties matter online searches that show the role of the Supreme Court in Constitutional Judicial Review seem more relevant to clerks and jurists who stumble across them. Being located in the House of Lords kept the Law Lords in a particular dynamic tension with the rest of the Constitutional system. Their location as a separate entity increases their credibility as arbiters and diminishes their role as players in a system under the Queen and tied in a particular way to the voice of the people.

        In addition there is a natural need to justify the new terminology. There are other reasons as well.

      • tizres says:

        Please forgive my earlier brevity.

        My understanding of our Supreme Court system is that they have little power of decision-making above their pay grade, regardless of the seating plan. Pandering to those who can afford the indulgence is unlikely to endear themselves to, well, anyone. Our press is another matter.

      • Croft says:

        I tend to agree with Frank here. The SCOTUS and the ECJ are both quite political and activist in the behaviour.

      • tizres says:

        Frank, Croft: I’m genuinely puzzled by your comments. At once they that seem to be in agreement and at odds with my point of view. For the sake of clarity, I believe that Parliamentary sovereignty is supreme, and the judiciary should butt out in matters as high as Brexit. Undoubtedly, I’ve missed something.

  4. Croft says:

    “why the judiciary have used their wisdom to decide whether parliament or government is top dog.”

    Why do small children eat every sweet in the jar if left unsupervised!

  5. maude elwes says:

    The opening thread from LN sounds all very good in theory, but, in practice, when it appears so very few people in Parliament, of either Chamber, are in step with constituents or the people they are their to represent, is a strange and weird contortion.

    Royal prerogative would, in such a situation, appear the only path we have in which to ‘whip’ them into place. From being a soul very far on the outside of all this insanity, it strikes me the bunch inside that place forget, we, the public, are their employers. And filling the media, in old Soviet style, with the spin that is completely counter to our reality, does nothing to enhance their positions. In fact, the change in perspective by the ordinary man in the street is bringing about a desire to rid us of all those who are there for their own agenda and preferences, rather than for those they are supposed to represent.

    The only answer has to be full and total scrutiny of any individual and their motives for office, prior to election, being paramount. I listen closely to the freak show put up on political discussion glimpses, who spout utter propaganda in ever widening circles, terrifying. Their lack of basic intelligence or indeed any show of vision, belief or loyalty to the British nation as a whole, should end in some kind of betrayal legislation, similar to traitorism, that the Blair creature, for his own safety, had removed.

    Something has to give. Blind allegiance to banking Globalists, as well as their poodles, has to end. And fast.

  6. tizres says:

    Lord Norton, totally off-topic but there was substantial down-time with anything tagged .gov.uk this week. Whilst noting the commentary from the Civil Service World site [ http://www.civilserviceworld.com/articles/news/govuk-crash-not-down-cyber-attack-says-cabinet-office ] it didn’t cover the whole down-time. Given the breadth of services covered, this is not a satisfactory answer.

    I’ll leave it there.

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