Prerogative powers


Origins of PP

'A distinguishing feature of the British Constitution is the extent to which the government continues to exercise a number of powers which were not granted to it by written constitution, nor by Parliament, but are rather ancient, prerogatives of the crown. These powers derive from arrangements which preceded the 1689 declaration of rights and have been accumulated by the government without Parliament or the people having a say.' Green Paper 2007 'Governance of Britain'. Have been called a democratic deficeit. 

The historical evolution of prerogative powers is characteristic of the evolution of the British constitution. Historically PP were the powers enjoyed by the Crown. They became the reason for strong tensions between the Crown and Parliament especially during the 17th C prior to the Glorious Revolution. These were fought in Case of prohibitions 1607, Case of proclamations 1611 and Case of Ship Money 1637. 

The GR did put an end to it to some extent in 1688- Bill of Rights. Parliament gained power over the King.

Suspending power- that the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parliament is illegal.

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Late dispensing power- that the pretended power of dispensing with laws or the execution of laws by regal authority as it has been assumed and exercised of late is illegal. Might find this reasonable now but at the time it was a completley different context and constitutional framework- PS did not exist and neither did representive democracy. 

PP in a modern world- 1) a residual category? 1689 BoR basically recognised that pp have their roots in common law but that P could still modify or abolish them. 

Monarch prerogative- not decisions made by Queen herself. Royal Assent- every legislation needs this to be passed. Appointments of PM, minsters, Privy Councillors, Archbishops and Bishops. A narrow section.

The executive pp's- exercised by British government and not based in legislation. Important and large activities. Conduct of foreign affairs eg making treaties and diplomatic representation. R v Sec of State for Foreign Affairs exp Molyneaux 1986 and R v Foreign Sec ex p Abbasi 2002. 

Now the Constitutional Reform Act 2010 organises the scrutiny of international treaties by Parliament prior to ratification! 

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Executive PP's

Control and organisation of armed forces- R v Ministry of Defence exp Smith 1996.

Declaration of war and deployment of armed forces- Gulf War, Kosovo and Iraq. 

Keeping of the peace within the UK- R v Sec of State for Home Dept exp Northumbria Police Authority 1988.

Conferment of peerages and honours. 

Pardon, mercy and reduction of sentences- R v Sec of State for Home Dept exp Bentley 1994. (shows how court can find it difficult to step in)

Might be a residual category but encompasses vast areas of UK constitutional law.

Concept of Crown v State- PP's are linked to the concept of the Crown. Dicey 'the prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the crown.' The existence of a concept of Crown from which prerogative powers derive has been heavily criticised as having prohibited development of modern concept of state. 

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Concept of crown

Munro in Studies in constitutional law- 'the concept of state, which is part of the intellectual furniture in many other countries, is relatively unfamiliar in legal and political discourse in Britain, in part because the concept of the Crown has served as a functional equivilant.' In turn this has led to important problems when it came to modernise public law thinking. It is possible to find this uneasiness about this in judicial pronouncments- Burmah Oil Co 1965- Lord Reid- 'there is difficulty in relating the prerogative to modern conditions. In fact no war which has put this country in real peril has been waged in modern times without statutory powers of an emercency power.' These things have been done with legislation not prerogative. (See War Damages Act 1965)

M v Home Office 1994- Lord Donaldson- 'His conclusion was that today the Crown is a legal fiction and that it would be better to refer to the government in the context of executive and administrative acts. The government is far from fictitious but it lacks legal personality.'

Chandler v DPP 1964- Lord Reid- 'Next comes the question of what is meant by the safety or interests of the State. State is not an easy word. It does not mean the government or the executive. L'etat cest moi was a shrewd remark but can hardly have been intended as a defintion even in the France of the time.' 

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However prerogative powers are extremely important and unlikley to disappear entirely. They provide the system with the possibility to adapt to difficult times or to deal with events which could not be addressed in a legislative manner. Most constitutional orders allow this kind of executive powers. 

From crown to state, a necessary evolution? Lecturer thinks close to change, but that discretionary power will always exist in government. 

Prerogative powers and the rise of legal accountability- 

PP's often cover diffucult topics for the judiciary to review. Regarded by many as discretionary powers of the executive because of their sensitivve nature. Are these powers reviewable at all? and what is the extent of this review? 

There has been much evolution of the judiciary in the last two decades. This means that the concept of legal accountability has grown in importance. Evolution of judicial control over prerogative powers shows the growing importance of legal accountability in the constitution. Stems from recognition that the control of Parliament needs to be supplemented if proper control over the executive is to be achieved. 

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1) the existence of prerogative powers- intervention of courts in this case decides whether the executive has these powers, that it is not an arbitrary power grab. Zamora 1916-  Lord Parker- 'the idea that the King in Council, or indeed any branch of the executive, has power to prescribe or alter the law to be administered by courts of  law in this country is out of harmony with the principles in our Constitution.' 

Burmah Oil v Lord Advocate 1965-  Lord Reid 'we must now take it that these demolitions were carried out by an exercise of the royal prerogative and the question for decision is whether such an exercise of the royal prerogative gives any legal right to compenstaion to the persons who have suffered loss thereby.'

BBC v Johns 1965- Diplock 'but it is 350 years and a civil war too late for the Queens court to broaden the prerogative. The limits within which the executive government may impose obligations or restraints upon the citizens of the UK without any statutory authority are now well settled and incapable of extension. 

2) conflicts between prerogative and statutory powers- the judiciary must resolve the relationship between possible prerogative powers and Act of Parliament. There it is important to remember that as a result of the Bill of Rights, statutes take precedent and can replace prerogative powers.

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However in some cases, prerogative and statutory powers are so intermingled that conflicts are not easily resolved by referenceto parliamentary sovereignty. A-G v De Keysers Royal Hotel 1920- Parliament may curtail the exercise of a prerogative power. Lord Dunedin- 'in so much as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that and by that Act to the prerogative being curtailed.' 

'It follows from what I have said above that there is no room for asserting an unrestricted prerogative right as existing alongside with the statutory powers authorising the Crown to acquire on certain terms. The conclusion is that the Crown could not take the petitioners premises by the powers of the prerogative alone.'

Laker Airways Ltd v Department of Trade 1977, and R v Secretary of State for Home Dept exp Fire Brigades Union 1995- Lord Browne Wilkinson- 'it is for Parliament, not the executive, to repeal legislation. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.' White Paper- 'the act will be accordingly repealed when a suitable legislative opportunity occurs.'

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R v Sec of State for Home Dep ex p Northumbria Police Authority 1988. 

3) the control of the exercise of prerogative powers- Denning almost guessed this- Laker Airways v Dep of Trade 1977- 'seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined  by the courts just as any discretionary powers which is vested in the executive.' Before 1985 they had no limit on their exercising of powers. At the time Denning was the only one who thought this. 

CCSU v Minister for Civil Service 1985 (GCHQ)- Diplock 'my lords, I see no reason why simply because a decision making power is derived from a common law and not statutory source should be for that reason only be immune from judicial review.' Roskill- didnt think powers like treaty making or defence should be examined, 'the courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.' 

R (Bancoult) v Sec of State for Foreign and Commonwealth Office 2009- 'the principle of the sovereignty of Parliament as it has been developed by the courts over the past 350 years is founded upon the unique authority Parliament derives from its representitive character. An exercise of the prerogative lacks this quality, although it may be legislative in character it is still an exercise of power by the executive alone.'

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Is the category of non justiciable prerogative powers an ever shrinking category? R v Sec of State for Foreign Affairs exp Everett 1989- passport prerogative that could be reviewed.

R v Sec of State for the Home Dep ex p Bentley 1994-  prerogative power of mercy. Court strongly advised the Home Sec to review his decision.

R v Ministry of Defence ex p Smith 1986.

But need to see ex p Molyneaux 1986-  refused to review validity of Anglo Irish agreement. The court is vary when it comes to international relations. 

R v Foreign Sec exp Abbasi 2002, R (Gentle) v PM and others 2008 and R (Bancoult) v Foreign Sec 2009. 

But is the intensity of review of prerogative powers sufficient? see Lord Justice Laws and the idea of spatial deference in International Transport Roth (legality of road hauliers penalty regime imposing fixed financial penalties on those repsonsible for bringing in clandestine immigrants).

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Legal accountability participates in output legitimacy. However, one may wonder whether the results of this review provide the required output legitimacy. There are two problems: contraversial decisions (Bancoult) and the courts reviewd the decision by failed to find an illegality (GCHQ and Bentley). 

Is there a tendancy of deference to the executive when it comes to the review of prerogative powers? Legal accountability is poorly insured. Murray Hunt argues that too little attention has been given to the question of deference. He is particulary opposed to spatial approaches: margin of appreciation or discretionary area of judgement. However he believes that deference is necessary in some cases but not submissive deference. Courts need to take into account: relative expertise of the primary decision maker (Substantive and institutional considerations), degree of democratic accountability of the primary decision maker, questions the necessity and use of concept of deference.

TRS Allan- 'I shall argue, however that there are no general criteria of deference to be discovered or expounded because no coherent doctrine of deference is feasible.' 'While it may be primarily for the minister to determine the interests of national security, as regards the measures generally appropriate to protect the national interest, it is for the court to ensure that all affected indiviudals are fairly treated.' 

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Lord Hoffman regards the issue to be one of separation of powers R (on application of Prolife Alliance) v BBC 2004- 'My Lords, although the word 'deference' is now very popular in describing the relationship between the judicial and other branches of government, I do not think that its overtones of servilit, or perhaps gracious concession, are appropriate to describe what is happening.' Says that as based on SoP it is a matter of law to decide on how much power each branch has so it is not deference. 'But it does not mean that their allocation of decision making power to the other branches of government is a matter of coutesy or deference.' 'Likewise, when a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law.' 

Lord Steyn 'Deference a tangled story'- supports the existence and the use of a concept of deference (or of a discretionary area of judgment) but he makes two points. The courts controls the development/ creation of common law and the courts should have less deference to decisions and actions of Executive and certain tension is appropriate. 'It is natural and healthy that tensions between the branches of government will sometimes arise. Citizens have reason to become worried if such tensions do not arise. For example a cosy and non transparent co-operation between the executive and the judicary does not enhance democratic values.' 

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Clayton 'Judicial deference and democratic dialogue'- 'this deference and its limits have to be fashioned in a principled but flexible manner, sensitive to the particular case and its context. In some contexts the deference is nearly absolute. In others it barely exists at all.' 'The reach of the deference which judges will pay to the democratic decision maker, the giving and withholding of it is the second means by which the courts resolve the tension between Parliamentary sovereignty and fundamental rights in our intermediate constitution.'

Both support the idea of a democratic dialogue. This idea is borrowed from Canadian Constitutional law. Clayton notes that the Canadian Charter resembles the HRA: it is not as absolute as the American bill of rights. The rights can be bound by proportionality and the Canadian parliament can derogate to them. Consequently courts and Parliament enter into a 'democratic dialogue' to establish the meanings of rights. Clayton also explains that there should be less deference to administrative decisions of the Executive than policy choices of Parliament. The search for the most appropriate model of adjudication for the control of prerogative powers.

Reforming the prerogative- part of the recent trend of constitutional modernisation. Issue of codification of prerogative powers. 

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1) continual erosion- an ever shrinking category. Is there a limit to this erosion?

2) the case for a statutory footing- HC expressed a wish for better information of Parliament (Taming the prerogative: strengthening ministerial accountability to Parliament.) Lack of basic information concerning the use of these powers- 'ministers still have very wide scope to act without Parliamentary approval... Parliament does not even have a right to know what these powers are... further uncertainty over the scope of Ministerial power is caused by the Ram doctrine, which asserts that Governments have the power to do anything which is not prohibited by statute or the common law.' Records are not kept of the use of PP's. 

More scrutiny and/or control over the use of prerogative powers- Green paper on 'the governance of Britain'- 'the government belives that in general the prerogative powers should be put onto 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 peoples representitives... the government also intends to undertake a wider review of the remaining prerogative executive powers and will consider whether in the longer term all these powers should be codified or put on a statutory basis.' (deploying armed forces, ratifying treaties, dissolving parliament, recalling the HoC and placing the civil service on a statutory footing.)

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The governance of Britain- War powers and treaties: limiting executive powers- the consultation put forward a number of procedural options to allow Parliament to have a say in the deployment of armed forces abroad and to allow Parliament to be involved prior to the ratification of a treaty.

Clear tension with the principle of ministerial accountability- there is a need for codification because of the lack of clarity, the existence and content of many prerogative powers.- The Governance of Britain- review of the executive royal prerogative powers- final report. They attempted to list many of the prerogative powers.

Also conflicts with the constitutional principle of the Rule of Law (see legal certainty- it requires that the content of a rule be determined and clear)

Finally a statutory footing may enhance judicial control and legal accountability (as the courts may find it easier to review the implementation of the new statutory powers)

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Legislative reform

Limited legislative reforms (continual erosion)- although review of prerogative powers promised in the Governance of Britain green paper was undertaken no legislative proposal for full codification/reform of prerogative powers has emerged. Indeed it is unlikely that such a reform would be undertaken in the near future. 

In April 2010 Royal Assent was given to the new Constitutional Reform and Governance Act 2010. This act creates a statutory basis for: the civil service- setting out Ministers powers to manage most of the civil service and diplomatic service and establishing the Civil Service Commission. and- the Parliamentary scrutiny of treaties prior to their ratification. It is a rather modest reform and mentions nothing on the deployment of armed forces and the dissolution of House of Commons and recall of Parliament. Certainly not a general codification of prerogative powers. Compare with the Private Members Bill introduced to the HoL by Lord Tyler (although it hasnt gone past the first reading). 

In september 2011 Royal Assent was given to the Fixed Term Parliaments Act 2011. The act has settled on 7th May 2015 as the date for the next election and provides that Parliament be elected for a fixed term of five years. Only the failure to form a new government after a motion of no confidence and the adoption of a motion for an early general election by 2/3rds of HoC can trigger a general election before the fixed term. 

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A number of prerogative powers were given a statutory basis but not all. Consequently the questions that have been raised in the course of this lecture will still be around for a while. Report by the Political and Constituitonal Reform Committee of the HoC- 'A new Magna Carta.'- 'a written constitution would address these concerns, codifying the prerogative powers and making them subject to parliamentary or other controls, and replacing grey areas of constitutional conduct by clear legal provisions.' 'Piecemeal codification of disparate parts of the political and constitutional system has been taking place in recent years, but in a formal and disconnected way... this process towards codifying government needs to be joined up and completed in one comprehensive and coherent document forming a written constitution.' 

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