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Workshop 8.1 - The prerogative: overview - Coggle Diagram
Workshop 8.1 - The prerogative: overview
What is the royal prerogative?
The prerogative: The prerogative is the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown... Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative
Absolute monarchy to democratic constitutional monarchy?
The UK has developed from an absolutist monarchy to a democratic constitutional monarchy with limited powers.
The prerogative powers are remnants of the old monarchical powers only the very significant ones remain today and they are exercised on behalf of the monarch by the government.
These powers include committing troops to war, entering treaties, or making appointments to the HoL.
Development of prerogative power
Prerogative powers have historically been exercised without the need to gain consent of Parliament and with little or no control by the courts.
Now, the courts' control of the exercise of prerogative power has become increasingly important. The HoL decision in GCHQ extended the reviewability of prerogative powers and since then control has been tightened further.
Reform of some areas of prerogative powers have happened.
The Constitutional Reform and Governance Act made provision for treaties to be ratified only after Parliament has had the opportunity to raise opposing resolutions.
Prerogative power can also be modified through constitutional conventions.
The position of the Crown in law
In the UK the monarch is the head of state but not the political head of government.
Power to govern the UK has effectively passed from the monarch to the executive (central government) but the monarch still performs the formal or ceremonial exercise of that power.
The term 'royal prerogative' refers to the powers of the Crown that are recognised by common law. In this context, the term Crown refers to the executive as it is highly unlikely that the royal prerogative will be exercised in any other way than by the executive on behalf of the monarch.
Although prerogative powers are important, the business of government is now largely conducted through statutory powers.
How the power is used is governed by convention.
Ministerial prerogative powers
Ministerial prerogative powers are those which can be exercised by government ministers, relating to: the judicial system, foreign affairs, and the armed forces,war and times of emergency (defence of the realm).
Judicial system - prerogative of mercy
The Home Secretary (on behalf of the Crown) may pardon those convicted of criminal offences prosecuted by the Crown.
The prerogative of mercy is an example of a prerogative which courts have willingly reviewed.
In R v SoS for the Home Department, ex parte Bentley [1993] 4 All ER 442, it was held that the court had jurisdiction to review the exercise of the royal prerogative of mercy since the exercise of the prerogative was an important feature of the criminal justice system.
Foreign affairs - prerogative powers
Granting and revoking passports is a ministerial prerogative power, so are recognising other sovereign states and their representatives, making treaties, and the governance of British Overseas Territories.
Armed forces and emergencies
The taking of measures necessary in times of emergency and/or for the defence of the realm including the control of armed forces, is a prerogative power.
This was shown in Burmah Oil Company Ltd v Lord Advocate
The Monarch's prerogatives
Some personal prerogatives which were traditionally exercised by the monarch still exist but are now exercised by the monarch on the advice of the PM.
These powers includes: the appointment and removal of ministers, the appointment of the PM, the right to assent to legislation, the creation of peers and the granting of other honours, and the right to dissolve and prorogue parliament.
The Crown's legal prerogatives
Today the structure of the courts and their jurisdiction is almost entirely statute based.
These are the remaining legal prerogatives of any significance:
Crown and statute: The Crown is not bound by statute meaning that legislation will not apply to the Crown unless express words have been used or it can.
Immunity from some litigation: The Crown is not directly subject to the contempt jurisdiction and the sovereign has personal immunity from prosecution or being sued for a wrongful act.
Control of prerogative power
Prerogative power can be 'controlled' in 4 ways.
a) By the application of public law (JR).
c) informally, by political pressure in government and public life.
b) By the over-riding effect of statute (legislation trumps the perogative).
d) Informally, by changes to convention over time.