Royal Perogative | |
| Date: | Mon, 15 Jun 2009 10:59:51 |
We have received the following reply from our MP and find the attachment very helpful and explanatory, though not necessarily comforting: Our MP's assistant says: "Bob has asked me to thank you for your email. "Tony Blair did exercise many of the powers formally known as the Royal Prerogative; in much the same way as his predecessors had done for several decades. The use of the prerogative has been evolving since the restoration of the monarchy, and particularly since the Glorious Revolution. "I have attached a paper written by the House of Commons Library that briefly discusses the history of the Royal prerogative, how ministers exercise the Prerogative on Her Majesty's behalf and some proposals for putting Prerogative powers on a statutory footing, and giving them to Parliament instead of the Executive. "On the particular issue of granting Royal Assent to a Bill, the last Monarch to refuse such assent was Queen Anne in 1708 and the last Monarch to give assent in person was Queen Victoria in 1854."I hope you find the paper interesting.""
The Royal Prerogative
Standard Note:
SN/PC/03861
Last updated:
3 November 2008
Author:
Lucinda Maer and Oonagh Gay
Section
Parliament and Constitution Centre
This note gives a brief explanation of what is meant by the royal prerogative. It explains the historical development of prerogative powers and lists the main areas where they are used today. It also sets out recent Government proposals to reform the royal prerogative.
In July 2007 the Government published wide-reaching proposals for constitutional reform. The Governance of Britain Green Paper included a number of proposals to reform the Royal Prerogative. The Government intended both to pass powers from the Government to Parliament and make powers exercised under the prerogative subject to greater scrutiny by Parliament. Specific proposals were made for certain elements of the prerogative, such as the deployment of Armed Forces overseas and placing the civil service on a statutory basis. The Government also set out its intentions to conduct a wider review of prerogative powers.
The Draft Constitutional Renewal Bill, published in March 2008 included clauses to put some of these proposals into effect. The White Paper published with the Draft Bill stated that an internal review of prerogative powers had been conducted and a consultation paper would be published.
Elements of Draft Bill which related to prerogative powers were scrutinised both by a Joint Committee established for this purpose, and the Public Administration Select Committee (PASC). PASC also published a report on prerogative powers during the 2003-04 Parliament.
This note does not look at individual prerogative powers in detail. These are considered in a number of other Standard Notes:
•
SN/IA/04335 Parliamentary Approval for the Deployment of Armed Forces: An introduction to the issues
•
SN/IA/04693 Parliamentary Scrutiny of Treaties
•
SN/PC/00831 Fixed Term Parliaments
•
SN/PC/02863 Civil Service Legislation
This information is provided to Members of Parliament in support of their parliamentary duties
and is not intended to address the specific circumstances of any particular individual. It
should not be relied upon as being up to date; the law or policies may have changed since it
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online or may be provided on request in hard copy. Authors are available to discuss the
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Contents
1 Historical background 3
2 General prerogative powers 3
3 The Crown’s personal prerogative powers 4
4 Ministerial prerogative powers 5
4.1 Public Administration Select Committee Report, Taming the Prerogative, 2004 5
4.2 The Governance of Britain Green Paper 2007 6
4.3 The Draft Constitutional Renewal Bill and Constitutional Renewal White Paper 2008 7
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1
Historical background
Historically, the medieval monarchy was both feudal lord and head of the kingdom. As such, the King had powers accounted for by the need to preserve the realm against external foes and an ‘undefined residue of power which he might use for the public good’. He could exercise the ‘royal prerogative’ and impose his will in respect of decision-making.
Moreover certain royal functions could be exercised only in certain ways. The common law courts were the King’s courts and only through them could the King decide questions of title to land and punish felonies. Yet the King possessed a residual power of administering justice through his Council where the courts of common law were insufficient.
In the 17th century, disputes arose over the undefined residue of prerogative power claimed by the Stuart kings. The conflict was resolved only after the execution of one King and the expulsion of another in 1649 (Charles I) and 1688 (James II), culminating in the Bill of Rights 1689, which declared illegal certain specific uses and abuses of the prerogative.1 The second stage was the growth of responsible government and the establishment of a constitutional monarchy, spurred on by the various electoral reform acts of the 19th century.2
It became established that the bulk of prerogative powers could be exercised only through and on the advice of ministers responsible to Parliament. Although the monarch retained formal power of appointment and removal of ministers and ministries, the development of collective ministerial responsibility made it increasingly difficult for the King or Queen to exercise such power freely against the wishes of the Prime Minister and Cabinet. However, the ability of ministers to rely on prerogative powers continues to give rise to problems of accountability.3
2
General prerogative powers
Because of the diverse subjects covered by royal prerogative and because of the uncertainty of the law in many instances where an ancient power has not been used in modern times, it is difficult to give a comprehensive catalogue of prerogative powers. However, the constitutional lawyers Bradley and Ewing summarise the main areas where the prerogative is used today as follows:
•
Powers relating to the legislature, e.g. - the summoning, proroguing and dissolution of parliament; the granting of royal assent to bills; legislating by Order in Council (e.g. in relation to civil service) or by letters patent; creating schemes for conferring benefits upon citizens where Parliament appropriates the necessary finance.
•
Powers relating to the judicial system, e.g. - various functions carried out through the Attorney General and the Lord Advocate; pardoning of convicted offenders or remitting or reducing sentences; granting special leave for appeal to the Judicial Committee of the Privy Council.
•
Powers relating to foreign affairs, e.g. – the making of treaties, the declaration of war and the making of peace; restraining aliens from entering the UK and the issue of passports. 1 House of Commons Factsheet G4, The Glorious Revolution
2 See Library Research Paper 04/82 The collective responsibility of ministers – an outline of the issues
3 AW Bradley and KD Ewing, Constitutional and Administrative Law, 13th Ed, 2003, p105 & p246-247
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•
Powers relating to the armed forces e.g. – the Sovereign is commander in chief of the armed forces of the Crown and the control, organisation and disposition of the armed forces are within the prerogative.
•
Appointments and honours, e.g. – appointment of ministers, judges and many other holders of public office; creation of peers and conferring of honours and decorations.
•
Immunities and privileges, e.g. – the personal immunity of the Sovereign from being sued.
•
The prerogative in times of emergency, e.g. – requisitioning of ships (where compensation would be payable).
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Miscellaneous prerogatives - various other historic powers relating to such things as royal charters, mining precious metals, coinage, franchises for markets, treasure trove, printing, guardianship of infants.4
3
The Crown’s personal prerogative powers
There are three main prerogative powers recognised under the common law which still reside in the jurisdiction of the Crown.
Firstly, the appointment of a Prime Minister; the sovereign must appoint that person who is in the best position to receive the support of the majority in the House of Commons. However, this does not involve the sovereign in making a personal assessment of leading politicians since no major party could fight a general election without a recognised leader.
However, if after an election no one party has an absolute majority in the House (as in 1923, 1929 and February 1974) then the Queen will send for the leader of the party with the largest number of seats (as in 1929 and 1974) or with the next largest number of seats (as in January 1924). Alternatively, the sovereign would have to initiate discussions with and between the parties to discover, for example, whether a government could be formed by a politician who was not a party leader or whether a coalition government could be formed.
Secondly, the dissolution of Parliament, in the absence of a regular term for the life of Parliament fixed by statute, the Sovereign may by the prerogative dissolve Parliament and cause a general election to be held. The sovereign normally accepts the advice of the Prime Minister and grants dissolution when it is requested; a refusal would probably be treated by the Prime Minister as tantamount to a dismissal. These areas of the prerogative are the subject of continuing academic debate.5
Thirdly, the giving of royal assent to legislation, in 1708 Queen Anne was the last sovereign to refuse royal assent to a bill passed by Parliament. Additionally, no monarchs since the sixteenth century have signed Bills themselves and Queen Victoria was the last to give the Royal Assent in person in 1854.6 4 AW Bradley and KD Ewing, Constitutional and Administrative Law, 14th Ed, 2006, p258-26--3
5 For recent discussions see Robert Blackburn “Monarchy and the Personal Prerogatives” Public Law, Autumn 2004; Rodney Brazier “Monarchy and the Personal Prerogatives- A personal response to Professor Blackburn”, Public Law, Spring 2005.
6 AW Bradley and KD Ewing, Constitutional and Administrative Law, 13th Ed, 2006, p238-244
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4
Ministerial prerogative powers
4.1
Public Administration Select Committee Report, Taming the Prerogative, 2004
The Public Administration Select Committee published an inquiry into the royal prerogative in March 2004. The Report, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, recognised that such powers are necessary for effective administration, especially in times of national emergency, however, it considered whether they should be subject to more systematic parliamentary oversight. 7 The report concluded that the case for reform was unanswerable.
The report concluded that comprehensive legislation should be drawn up which would require government within six months to list the prerogative powers exercised by Ministers. The list would then be considered by a parliamentary committee and appropriate legislation would be framed to put in place statutory safeguards where necessary. A paper and draft Bill appended to the Report, prepared by Professor Rodney Brazier, the specialist adviser to the inquiry, contained these provisions as well as proposals for early legislative action in the case of three specific areas covered by prerogative powers: decisions on armed conflict, treaties and passports. The Report recommended that the Government should, before the end of the then current session, initiate a public consultation exercise on the prerogative powers of Ministers.
The Government’s response to this report, published in July 2004, was as follows:
The Government acknowledges the useful work that the Committee has undertaken on this subject. The Government accepts and welcomes scrutiny of any of its actions, including those taken under the prerogative. However, it is not persuaded that the Committee's proposal to replace prerogative powers with a statutory framework would improve the present position.
Ministers are already accountable to Parliament for action taken under prerogative powers, as for anything else. The use of prerogative powers is subject to scrutiny by Departmental Select Committees. Additionally the Prime Minister is subject to twice yearly questioning by the Liaison Committee. It is for Ministers to account for and to justify their actions to Parliament and for Parliament to hold Ministers to account. Such accountability is in itself a form of control exercised by Parliament over the executive.
It is long established law that Parliament can override and replace the prerogative by statute, where the individual circumstances make that appropriate. There have been a number of examples in recent years where such a change has been made, for example in the Regulation of Investigatory Powers Act. Parliamentary scrutiny and accountability can also be increased without statutory provision. The rules on scrutiny of EU proposals and the recent developments in parliamentary debate on armed conflict are examples of this.
The Government therefore agrees that it is often possible to make out a case for either the transfer of prerogative powers to a statutory basis, or for an increase in the level of non-statutory parliamentary scrutiny. It continues to believe, however, that these changes are best made on a case-by-case basis, as circumstances change. It does not therefore agree with the recommendation for a wide-ranging consultation exercise. 7 Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, HC 422 2003-04 5
This could only result in a snapshot at a fixed moment of what is inevitably a fluid and evolving situation.8
4.2
The Governance of Britain Green Paper 2007
The Governance of Britain Green Paper was published in July 2007, a matter of days after Gordon Brown became Prime Minister.9 The Green Paper set out plans for wide-reaching constitutional reforms. The prerogative powers held by ministers was the first area addressed in the Green Paper. It stated that:
The flow of power from the people to government should be balanced by the ability of Parliament to hold government to account. However, then the executive relies on the powers of the royal prerogative … it is difficult for Parliament to scrutinise and challenge government’s actions. If voters do not believe that government wields power appropriately or that it is properly accountable then public confidence in the accountability of decision-making risks being lost.10
The Green Paper went on to say:
The Government believes that in general the prerogative powers should be put onto a statutory basis and brought under stronger parliamentary scrutiny and control. [Footnote: No changes are proposed to either the legal prerogatives of the Crown on the Monarch’s constitutional or personal prerogatives, although in some areas the Government proposes to change the mechanism by which Ministers arrive at their recommendations on the Monarch’s exercise of those powers.] This will ensure that government is more clearly subject to the mandate of the people’s representatives. Proposals in relation to certain specific powers are set out below and these can be addressed now. The Government also intends to undertake a wider review of the remaining prerogative powers and will consider whether in the longer term, all these powers should be codified or put on a statutory basis.11
The Government then outlined plans to reform the following aspects of the Royal prerogative:
•
Deploying the Armed Forces abroad;12
•
Ratifying treaties;13
•
Dissolving Parliament;14 and
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Placing the Civil Service on a statutory footing.15
The Government also announced that they would undertake a wider review of prerogative powers of ministers: 8 http://www.dca.gov.uk/pubs/reports/prerogative.htm#part6
9 For more information see House of Commons Library Research Paper 07/72, The Governance of Britain Green Paper
10 Ministry of Justice, The Governance of Britain Green Paper, Cm 7170, July 2007, para 15
11 Ibid, para 24
12 Ibid, paras 25-30; for more details see SN/IA/4335 Parliamentary Approval for the Deployment of Armed Forces: An introduction to the issues
13 Ministry of Justice, The Governance of Britain Green Paper, Cm 7170, July 2007, paras 31-33; for more details see SN/IA/04693 Parliamentary Scrutiny of Treaties
14 Ministry of Justice, The Governance of Britain Green Paper, Cm 7170, July 2007, paras 34-36; for more details see SN/PC/00831 Fixed Term Parliaments
15 Ministry of Justice, The Governance of Britain Green Paper, Cm 7170, July 2007, paras 40-48; for more details see SN/PC/02863 Civil Service Legislation
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The powers currently exercised under the royal prerogative must continue to be held by someone, with appropriate constraints on their use. The Government will consider whether all the executive prerogative powers should, in the long term, be codified or brought under statutory control. The Government will consult on whether:
•
individual prerogatives, in addition to those discussed above, should be brought onto a statutory basis. Prerogatives to be examined will include the power to grant pardons and remission to prisoners and the power to issues, refuse to issue, revoke or withdraw passports. Both these prerogatives can have a profound effect on the lives of individuals and Parliament, as the representatives of the people, should be confident that it endorses the circumstances in which they are exercised;
•
certain prerogative powers may now be considered archaic and might be transferred elsewhere or even abolished; and
•
there may be a case for abolishing certain prerogative powers which are now effectively redundant (either because they have been replaced by legislation, such as the guardianship of infants, or because they are not longer applicable, such as the Crown’s right to impress men into the Royal Navy).
The process of consultation and review will take account of areas in which prerogative powers are now exercised by the devolved administrations. For instance, in Scotland the prerogative of mercy is exercised by the Scottish Executive as it has responsibility for criminal law and prisons.16
4.3
The Draft Constitutional Renewal Bill and Constitutional Renewal White Paper 2008
The Government set out more detailed proposals in a White Paper and draft Bill in March 2008, The Governance of Britain – Constitutional Renewal.17 The draft Bill addressed some areas of the prerogative, including placing the civil service on a statutory basis. It also gave some more information about the more general review of the prerogative powers proposed in the Green Paper the preceding year. The Government explained:
… The Government is conducting an internal scoping exercise of the executive prerogative powers – those which remain in use and those which have been superseded in whole or in part by statute, such as the power to grant pardons and remission to prisoners. The Government will consider the outcome of this work and will, in the coming months, launch a consultation on the next steps. …18
The Draft Bill and White Paper were scrutinised by a Joint Committee established for this purpose under the chairmanship of Michael Jabez Foster MP. The Public Administration Select Committee also published a report on the White Paper.19
The Joint Committee commented on the Government’s wider review of prerogative powers as follows:
The prerogative power to manage the civil service will be transferred to statute in the Draft Bill and we welcome this reform. We note, however, that the Green paper set out a number of prerogative powers that have not been addressed in the Draft Bill or White Paper, including the power to issue, refuse and revoke passports. The Government 16 Ministry of Justice, The Governance of Britain Green Paper, Cm 7170, July 2007, paras 50-51
17 Ministry of Justice, The Governance of Britain – Constitutional Renewal, Cm 7342, March 2008
18 Ibid, paras 245-246
19 Public Administration Select Committee, Constitutional Renewal: Draft Bill and White Paper, HC 499 2007-08
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has now conducted a review across all Government departments to identify prerogative powers and intends to consider the results of this review before consulting in the Autumn. We commend the Government for undertaking the cross-departmental review of prerogative powers. Like the Public Administration Select Committee, we trust that the results of the review will be published as soon as possible. This is an important element of constitutional reform. Ideally, reform of the prerogative should be approached in a coherent manner, not in a piecemeal fashion.20
The Joint Committee also considered whether placing prerogative powers on the statute books would mean that decisions made under such powers would become justiciable, and whether this would be a positive or negative development. The Joint Committee explained that they had received evidence on both sides of the debate:
In its recent report, PASC concluded that “[a] perhaps unintended effect of placing prerogative power on the statute book without giving Parliament a role in how it is exercised is that it will become subject to scrutiny and decision, not by Parliament or the people, but by the courts”. Professor Vernon Bogdanor, Professor of Politics and Government, Brasenose College, University of Oxford, was concerned about the “great danger that we are asking judges to resolve problems which have already been resolved at a political level”. (Q 5) Sebastian Payne, from Kent Law School, University of Kent, told us “his concern about a statute is the impact of drawing the courts into adjudicating on these issues”. (Q 146)
Other witnesses were unconcerned about the possible role of the courts. Professor Weir told us that “the point about putting this on a statutory basis is that you do make it justiciable and you do therefore have some kind of control over process which we do not have at the moment.” (Q5) Professor Tomkins told us that “section one of the National Health Service Act is a good example: there shall be a duty on the Secretary of State to … provide for a National Health Service…That in itself is not a justiciable duty”. (Q23) Graham Allen told us “I think the more we can frame things in statute, the more we can codify things in a written constitution, the clearer the framework for debate will be … So I say that is the strength of codification and statutory power rather than, necessarily, that you can run to the nearest judge to referee for you.” (Q691) The Lord Chancellor told us that PASC were “wrong” about the unintended effect of putting the prerogative in statute. (Q 743)
The difference of opinion between witnesses underlines an uncertainty about the potential involvement of the courts in statutory provisions. As part of its current review of prerogative powers, the Government must seek to bring some clarity to this debate and should recognise that any move towards statutory solutions would inevitably risk greater involvement of the courts.21 20 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill, HL Paper 166-I HC Paper 551-I 2007-08, para 254
21 Ibid, paras 355-357
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