Royal prerogative

The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign alone.^[1] It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

In most Constitutional monarchies individual prerogatives can be abolished by Parliament, although in the United Kingdom the royal prerogative is devolved to the head of the government.

Though some republican heads of state also possess similar powers, they are not necessarily exactly the same as in every jurisdiction, and may have a number of fundamental differences both in the method of enforcement and extent of the powers available to the state's Chief Executive.

In Britain, while prerogative powers were originally exercised by the monarch acting alone, without an observed requirement for parliamentary consent (after Magna Carta), since the accession of the House of Hanover these powers have been generally exercised on the advice of the Prime Minister or the Cabinet, who in turn is accountable to Parliament, exclusively so, except in matters of the Royal Family, since at least the time of William IV.

Typically in liberal democracies that are constitutional monarchies as well as nation states, such as those of Denmark, Japan or Sweden, the royal prerogative serves as a prescribed ceremonial function of the state power.

Ministerial exercise of the monarch's prerogatives

Today, some prerogatives are directly exercised by ministers without the approval of parliament, including, in some countries, the powers to regulate the civil service, issue passports and grant honours.^[2] Some prerogative powers are exercised nominally by the monarch, but on the advice of the prime minister, with whom the monarch communicates, and on the advice of the cabinet. Some key areas of government are still carried out by means of the royal prerogative, but its usage has been diminishing, as functions are progressively made statutory.

Commonwealth realms

Australia

In Australia, the royal prerogative is limited by the Constitution. Although in the United Kingdom the monarch's prerogative includes command of the armed forces, in Australia Section 68 of the Constitution vests this power in the Governor-General.^[3] Other sections give other powers (e.g. appointment of ministers,^[4] prorogation of Parliament^[5] etc.) directly to the Governor-General.

The remnants of the royal prerogative, such as the royal prerogative of mercy, are vested in the monarch, but exercisable by the Governor-General.^[6][7]

Canada

In Canada, the royal prerogative is, for the most part, the same as that in the United Kingdom, as constrained by constitutional convention,^[8] although its exercise is usually through the federal governor general or the lieutenant governors of the provinces in their respective privy councils. The royal prerogative in Canada is largely set out in Part III of the Constitution Act, 1867, particularly section 9.^[9][10]

As foreign affairs are a matter of royal prerogative,^[11] the power to declare war and deploy the armed forces belongs to the Crown, though only in its federal Cabinet (the federal government), as outlined in sections 9 and 15 of the Constitution Act, 1867.^[10] Neither legislation nor any other type of parliamentary approval, beyond budgetary matters, is required for such actions, though the Cabinet has on occasion consulted parliament before engaging Canada or extending Canada's involvement in a conflict.^[11] Additionally, the federal and provincial crowns may ratify treaties, though only so far as they fall within the proper area of jurisdiction, according to sections 91 and 92 of the Constitution Act, 1867. Again, the endorsement of parliament is not necessary for these agreements to have force in an international sense, but the legislatures must pass treaties in order for them to have domestic effect. Proposed treaties have also occasionally been presented to parliament for debate before ratification.^[11] Members of Parliament have tabled bills seeking to curtal the use of the royal prerogative in foreign affairs by legislating a greater role for parliament, as have Senate standing committees, from time to time, called for the same.^[11]

The issuance of passports also remains within the royal prerogative in Canada. The terms for the issuing of passports by the Minister of Foreign Affairs on behalf of the Crown are set out in the Canadian Passport Order,^[12] issued by the Governor General-in-Council. The Canadian government has used the royal prerogative on two occasions to deny a passport to a Canadian citizen, Abdurahman Khadr and Fateh Kamel. Lawsuits filed at the Federal Court, Federal Court of Appeal, and ultimately the Supreme Court of Canada did not find in favour of either Khadr, nor Kamel.

The royal prerogative in Canada extends also to the granting of honours, as explained by the Court of Appeal for Ontario in Black v. Chrétien (regarding Conrad Black's entitlement to an appointment to the House of Lords while a Canadian citizen).^[10] Other royal prerogatives, such as the prerogative of mercy, also exist in the Canadian context.^[13]

United Kingdom

In the Kingdom of England (up to 1707), the Kingdom of Great Britain (1707–1800), and the United Kingdom (since 1801), the royal prerogative historically was one of the central features of the realm's governance.

Constitutional theorist A. V. Dicey gives the standard definition of what prerogative powers are:

... the remaining portion of the Crown's original authority, and it is therefore ... the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers.^[14]

The scope of the royal prerogative is difficult to determine due to the uncodified nature of the constitution. It is clear that the existence and extent of the power is a matter of the common law of England, making the courts the final arbiter of whether a particular type of prerogative exists or not. Nevertheless, certain prerogative powers have been widely acknowledged and accepted over time, while others have fallen out of use.

The royal prerogative is not constitutionally unlimited. In the Case of Proclamations (1611) during the reign of King James VI/I, English common law courts judges emphatically asserted that they possessed the right to determine the limits of the royal prerogative. Since the Glorious Revolution in 1688, which brought co-monarchs Queen Mary II and King William III to power, this interpretation of there being a separate and distinct power of the Judiciary has not been challenged by the Crown. It has been accepted that it is emphatically the province of the court(s) to say what the law is, or means. This is a crucial corollary and foundation to the concept of the judicial power; and its distinct and separate nature from the executive power possessed by the Crown itself, or its ministers.

British dependencies

Generally, the Crown retains all the power of the state in a Crown colony (even if in practice it is not directly exercised), which was later renamed ‘dependent territory’ in 1983 and has been known as ‘overseas territory’ since 2002. Thus the royal prerogative is in theory an unlimited, arbitrary authority.^[15] In British overseas territories however, each inhabited territory has a constitution by which the territory is governed locally.

The absoluteness of the royal prerogative in the colonies was however defeated in the case of Campbell v. Hall in 1774. This case decided that once a colony gained a representative assembly (or once the governor has been instructed to call one), the royal authority is limited to the familiar prerogatives; without the assembly's consent the Crown could not raise taxation nor change the law. Several of the colonies of the British West Indies thus became "settled colonies", and reverted to "crown colony" status only by Act of Parliament in the nineteenth century.^[16]

In August 2009 the government of the Turks and Caicos Islands, a UK dependency, was revested in the governor, on the advice of the Government of the United Kingdom, under an Order in Council^[17] of 18 March 2009, which suspended and amended parts of the Islands' constitution, and vacated all the offices of ministers and the House of Assembly. This was not itself an exercise of the royal prerogative, as it was made under "the West Indies Act 1962 and of all other powers enabling Her to do so". However, in effect the order extended the royal prerogative in the Islands, vesting wide discretionary legislative and executive powers in Her Majesty's governor. The governor remains subject to the amended constitution, and in practice to the instructions of the Queen's Foreign Office in the UK.

In the case of the Chagos Archipelago, in 2000, the High Court of Justice of England and Wales ruled that a local ordinance made by the Commissioner of the British Indian Ocean Territory exiling the islanders was unlawful, a decision which was accepted by the British Foreign Secretary Robin Cook. That Order was legislation passed under authority given by the royal prerogative, not an exercise of the prerogative itself, and was overturned as being beyond the powers given. After this decision, the British government issued an Order in Council, a primary exercise of the royal prerogative, to achieve the same objective. This Order was also ruled unlawful by the High Court, a ruling upheld in the Court of Appeal. However, on Wednesday, 22 October 2008, the government won its appeal in the House of Lords against the previous rulings. The House decided by a three-to-two majority that the Order in Council was a lawful exercise of authority.^[18][19] In their speeches, the Law Lords admitted the government of the day was morally wrong to force out some 2,000 residents of the Chagos Archipelago, a British Crown colony, to make way for a US air base in the 1960s. Nevertheless, the majority could not find legal fault in the Order.

Other Commonwealth realms

In the other Commonwealth realms, the royal prerogative can be or is specifically mandated to be exercised by the monarch's representative, the governor-general. The constitution of a Commonwealth realm may sharply limit the prerogative and many governmental acts which would be done under the prerogative in other countries are given effect by the constitution or Acts of Parliament in the Commonwealth realm.

Spain

The Spanish Constitution of 1978, Title II The Crown, Article 62, delineates the powers of the king, while Title IV Government and Administration, Article 99, defines the king's role in government.^[20][21][22] Title VI Judicial Power, Article 117, Articles 122 through 124, outlines the king's role in the country's independent judiciary.^[23] However, by constitutional convention established by Juan Carlos I, the king exercises his prerogatives having solicited government advice while maintaining a politically non-partisan and independent monarchy. Receiving government advice does not necessarily bind the monarch into executing the advice, except where prescribed by the constitution.

It is incumbent upon the King:

a. to sanction and promulgate the laws;

b. to summon and dissolve the Cortes Generales and to call elections under the terms provided in the Constitution;

c. to call a referendum in the circumstances provided for in the Constitution;

d. to propose a candidate for President of the Government and, as the case may be, appoint him or remove him from office, as provided in the Constitution;

e. to appoint and dismiss members of the Government on the proposal of its President;

f. to issue the decrees agreed upon by the Council of Ministers, to confer civil and military employments and award honours and distinctions in conformity with the law;

g. to keep himself informed regarding affairs of State and, for this purpose, to preside over the meetings of the Council of Ministers whenever he deems opportune, at the request of the President of the Government;

h. to exercise supreme command of the Armed Forces;

i. to exercise the right to grant pardons in accordance with the law, which may not authorize general pardons;

j. to exercise the High Patronage of the Royal Academies.^[20][21]

See also

• Executive privilege
• Droit de régale
• Letters patent
• Queen-in-Parliament
• Reserve power
• Royal assent
• Royal charter
• Royal order
• Royal prerogative in the United Kingdom
• Statutory instrument

References

Further reading

• A. B. Keith, The King and the Imperial Crown (1936)
• Joseph Chitty, The Prerogatives of the Crown (monograph from 1820)
• Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law
• Walter Bagehot, The English Constitution
• Blick, Andrew. 2014. "Emergency powers and the withering of the Royal Prerogative." International Journal Of Human Rights 18, no. 2: 195–210.

External links

Look up prerogative in Wiktionary, the free dictionary.

• Parliament Report on the powers of the Royal Prerogative
• Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (Government Response)
• Lecture by Canadian constitutional scholar Kent Roach on the royal prerogative and Omar Khadr
• Prerogativa Regis. Of the King’s Prerogative (1322)