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.