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 their state, are carried out. Individual prerogatives can be abolished by Parliament, although in the United Kingdom special procedure applies.

Though some republican heads of state possess similar powers, they are not coterminous, containing a number of fundamental differences, and may be either more or less extensive (cf. reserve powers).

In England, 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 they 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 Queen Victoria.

Typically in liberal democracies which are constitutional monarchies, such as those of Denmark, Japan or Sweden, the Royal Prerogative serves as a prescribed ceremonial function of the state power.

Definition

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 AV 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.^[2]

The scope of the Royal Prerogative is difficult to determine. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative exists.

Ministerial exercise of the monarch's prerogatives

Today, some prerogatives are directly exercised by ministers without the approval of Parliament, including, in the United Kingdom, the powers to regulate the civil service, issue passports and grant honours.^[3] Some prerogative powers are exercised nominally by the monarch, but on the advice of the Prime Minister, with whom the monarch meets weekly, and on the advice of Cabinet of the United Kingdom. Some^[which?] key areas of the British system of government are still carried out by means of the Royal Prerogative, but its usage has been diminishing as functions are progressively made statutory.

Contrary to widespread belief, the Royal Prerogative is not constitutionally unlimited. While the sovereign has the right to promulgate (i.e., create and proclaim) new law, it is a form of reserve power not constitutionally used. (Her Majesty, as Head of State of the United Kingdom and the other Commonwealth realms, has the right to use the Royal Prerogative over any nation where she is Head of State.)

In the Case of Proclamations (1611) during the reign of King James I/VI, English common law courts judges emphatically asserted that they possessed the right to determine the limits of the Royal Prerogative. Since the Glorious Revolution (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.

The Commonwealth

United Kingdom

Main article: Royal Prerogative in the United Kingdom

Canada

In Canada, for the most part, the Royal Prerogative is the same as that in the United Kingdom, as constrained by constitutional convention,^[4] although its exercise is through the Governor General or the lieutenant governors of the provinces. The Royal Prerogative in Canada is largely set out in Part III of the Constitution Act, 1867, particularly section 9.^[5][6] Other sections, such as 15, sets out the Royal Prerogative in relation to the armed forces.^[6] The Royal Prerogative in Canada even extends 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).^[6] Other Royal Prerogatives, such as the prerogative of mercy, also carry over into the Canadian context.^[7]

The power to issue passports also remains under 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,^[8] issued by the Governor-in-Council under the Royal Prerogative. The Canadian government has used the Royal Prerogative on one occasion to deny passports to a Canadian citizen whom the United States government held, and released, from the American prison in the US Navy base at Guantanamo Bay.^[9] Abdurahman Khadr was denied a passport by the Canadian government. The Federal Court of Canada on judicial review quashed the Minister's refusal of a passport and ordered that the application be re-considered.^[10]

Other Commonwealth realms

In the other Commonwealth realms, the Royal Prerogative varies significantly from the prerogative in the United Kingdom, and is exercised by the Monarch's representative, the Governor-General. The Constitution of a Commonwealth realm may sharply limit the prerogative in ways that do not apply in the United Kingdom and many governmental acts which would be done under the prerogative in the United Kingdom are given effect by the Constitution or Acts of Parliament in a Commonwealth realm.

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). Thus the Royal Prerogative is in theory an unlimited, arbitrary authority.^[11] 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.^[12]

In August 2009 the Government of the Turks and Caicos Islands, a UK Dependency, was revested in the Governor, on the advice of HM Government in the UK, under an Order in Council^[13] 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 Chagos Archipelago islands, 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 Ordinance 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.^[14][15] 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 Islands, a British colony, to make way for a US air base in the 1960s. Nevertheless, the majority could not find legal fault in the Order.

Spain

Main articles: Monarchy of Spain#Royal prerogatives and Royal Prerogative of the Spanish monarchy

Main article: Royal Prerogative in the United Kingdom

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.^[16][17][18] Title VI Judicial Power, Article 117, Articles 122 through 124, outlines the king's role in the country's independent judiciary.^[19] 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.^[16][17]

See also

• Executive privilege
• Letters patent
• Order in Council
• Queen-in-Parliament
• Reserve power
• Royal assent
• Royal charter
• Royal Order
• Statutory Instrument

Additional 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

References

1. ^ In Commonwealth realms, the wording "the Crown" is usually used in this context instead of "King or Queen"
2. ^ House of Commons - Public Administration - Fourth Report
3. ^ UK Parliament - PASC 19
4. ^ "British and Canadian Experience with the Royal Prerogative". Canadian Parliamentary Review (Parliament of Canada) (Summer 2010): 18–24. 2010. http://www2.parl.gc.ca/sites/lop/infoparl/33/2/33n2_10e_Hicks.pdf. Retrieved 2011-04-18. 
5. ^ Canada Department of Justice, Constitution Acts, 1867 to 1982
6. ^ ^{a b c} "War power and the Royal Prerogative". Law Times. 2006-05-01. http://www.lawtimesnews.com/20060501549/Headline-News/War-power-and-the-Royal-Prerogative. Retrieved 2011-04-18. 
7. ^ Cloverdale ARPA. "Latimer's Appeal for the Royal Prerogative of Mercy". ARPA Canada. http://arpacanada.ca/index.php/issuesresearch/pro-life/81-latimers-appeal-for-the-royal-prerogative-of-mercy. Retrieved 2011-04-18. 
8. ^ Canadian Passport Order, SI/81-86.
9. ^ Khadr v. Canada (Attorney General), 2006 FC 727, para. 12.
10. ^ Khadr v. Canada (Attorney General), 2006 FC 727, para. 134.
11. ^ Campbell v. Hall, 1774
12. ^ e.g. The St. Vincent and Grenada Constitution Act 1876 (39 & 40 Vict. c. 47)
13. ^ The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009
14. ^ Britain wins appeal over Chagos islanders' return home
15. ^ Chagos islanders cannot return home
16. ^ ^{a b} Título II. De la Corona, Wikisource
17. ^ ^{a b} The Royal Household of H.M. The King website
18. ^ Part IV Government and Administration
19. ^ Título VI. Del Poder Judicial

External links

• 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