The royal prerogative in the u.

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Describe The Significance Of The Royal Prerogative In The U.K, Legal Framework And
Describe Its Relationship With Acts Of Parliament And Conventions.
This essay will aim to address what a Royal Prerogative is and the significance of this power within the U.K Legal
framework. In addition, this essay will also look at how other areas of the law such as Acts of Parliament and
conventions have influenced and challenged the power and significance of the Royal Prerogatives until the present
day. There have also been numerous challenges to the Royal Prerogative through cases brought before the courts.
These cases have had mixed success in challenging the Royal Prerogative. This essay will also reflect on the future
of the Royal Prerogative within the United Kingdom legal framework and whether all remaining Royal Prerogatives
will be incorporated into a statutory format as the United Kingdom moves ever towards the possibility of a written
constitution.
The Royal Prerogative has been defined by some sources as The special rights, powers, and immunities to which
the Crown alone is entitled under the common law.' The scope of these powers and who the Crown is has changed
over time as the United Kingdom legal framework has changed from an absolute monarchy to a constitutional
monarchy. In modern times, the powers and rights allocated within the Royal Prerogative not only apply the Crown
or Monarch but in modern day politics, extend to ministers as well. This is due to the fact that many modern day
prerogatives are made by representatives of the Crown, rather than by the Queen directly, as the Queen has limited
power, prerogatives are usually exercised by members of the executive under the Queen's authority. However, the
Queen does have some control over the appointment of ministers as the Queen has unlimited power to appoint
whom she pleases to be her ministers.' The representatives of the Crown are usually Ministers who form part of the
executive. They are directly responsible to parliament when exercising the powers of the Royal Prerogative.
Royal Prerogatives can be categorised into quite a number of different areas such as the Judicial i.e. it is under the
prerogative that the Crown grants special leave to appeal from colonial courts to the Judicial Committee of the Privy
Council.' There are numerous other areas where the Prerogative powers are used and scope of these ranges from
the signing of treaties, which is usually done by a Minister on behalf of the Queen, to the opening of Parliament that
is one of the few Royal Prerogatives the Queen still exercises herself. There is no clear definition as to the extent to
which these powers exist and whether or not some of these prerogatives are still viable today, some have fallen out
of use altogether, probably forever-such as the power to press men into the Navy.' It is also a matter of concern that
the majority of Royal Prerogatives are no longer in the hands of the Monarch and are used by the executive arm of
government.
One of the earliest reported cases that openly challenged the Royal Prerogatives is the Case of Impositions (1606).
In this case, the defendant refused to pay a duty on imported goods imposed by the King by Royal Prerogative. It
was held that the King could do this as he was not raising taxes but was doing this to regulate trade. This was
followed by Parliament legislating against levying taxes without their consent in the Petition of Rights 1628. This was
one of the first struggles between the Monarchy and Parliament for supremacy of law under the format of the Royal
Prerogative. However, academics have criticised the Petition of Rights 1628, as It did not in terms deal with what we
now call indirect taxes, where only a little time before the judges had pronounced in Bate's Case that the king did
have rights to impose taxes on imports. So it left the matter unclear.'
The scope of the Royal Prerogative and its powers has been subject to an ongoing battle between the Monarch and
Parliament for many years up to the present day. The first instance where the power of the Monarch was curtailed by
legislature can be traced back as far as the Prohibitions Del Roy. In this case, it was held that the King could sit in
the Kings Bench but would not be allowed to pass judgement on any matters that which concerned the

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administration of justice. The Bill of Rights 1688 was the next major step that curtailed the Royal prerogative as the
previous Monarch; James II had aggressively used the Royal Prerogative to amend laws and to levy taxes.
Under the Bill of Rights 1688, it is written That levying Money for or to the Use of the Crowne by pretence of
Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is
Illegall.' This extract from the Bill of Rights 1688 stopped Monarchs from levying taxes as and when it saw fit. This is
one of the main restrictions on the royal and prerogative powers of the Monarchy, which were imposed on Prince
William, and Mary of Orange as it affirmed that the monarch was subject to the law. Legislation has further limited
prerogative powers even to whom the current Monarch can choose as a successor to the Crown as the Act of
Settlement 1700 states that the next in line to the Throne shall joyn in Communion with the Church of England as
by Law established'. Therefore, this means that the successor must be a member of the Church of England.
However, there have been calls from ministers to change this limitation as reported.
On 21 January introduced his Royal Marriages and Succession to the Crown (Prevention of Discrimination) Bill. The
Long Title describes it as a Bill to make provision to remove discrimination in respect of Royal marriages and
succession to the Crown'. This shows that Parliament is contemplating legislating in this area, which will affect the
power of the Royal Prerogative in choosing an heir and will allow succession of those who are not members of the
Church of England.
It is the evermore apparent that after the 19th Century, the formation of stable governments due to the expansion of
the franchise using the Reform Acts of 1832 and the Reform Act of 1867. This meant that the Monarchs power under
the Royal Prerogative to choose whom they wished as the next Prime Minister was also curtailed. Legitimate
elections and the support of the public of one party gaining a majority in the House of Commons legitimised the
leader of that party meaning that it was more likely they would gain the title of Prime Minister. The formation of stable
governments also meant that the Monarch was more likely to use Ministers to invoke Royal Prerogatives and not
challenge Parliament or face consequences such as a further seizure of the Royal Prerogatives into statute.
One of the main fundamental legal principals is the Rule of Law and this is contradictory to the Royal Prerogative as
Dicey states that No man is punishable or can be lawfully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts.' This is one of the any principles
that Dicey states about the Rule of Law that contradict with the doctrine of the Royal Prerogative as it is not ordinary
law because it is not a statute made by parliament. Another principle Dicey puts forward is that everyone is equal
before the law and subject to its laws, yet under the entitlements of the Royal Prerogative it has been taken that the
Queen or Monarch cannot be prosecuted in the courts as, she would effectively be prosecuting herself. Since all
criminal cases, it is the Crown that prosecutes breaches of the law through the workings of the Crown Prosecution
Service. However, it is unclear as to how far this protection of those associated with the Crown from liability extends
as the Queen's daughter, Princess Anne has been prosecuted under the Dangerous Dogs Act 1991.
Conventions are another way the royal prerogative is limited and there is often a blur between a constitutional
convention and royal prerogative. Both of these features of the U.K legal system are unwritten and this has given
rise to many criticisms of these areas. Conventions are hard to define but many academics have offered their
opinions as to what a convention is for example a rule of behaviour accepted as obligatory by those concerned in
the working of a constitution.' There are a few known conventions such as the now redundant Salisbury - Addison
Convention', which stated that when the House of Lords had a majority of hereditary peers they could not reject
legislation that was part of the government's manifesto.
There is wide speculation to how binding conventions are to ministers as they are not enforceable by the courts, yet
the courts may decide to look at conventions in order to decide a point of law. Sometimes when a convention is
broken, law is also broken as shown in the case of A-G v Jonathan Cape. In this case, the convention of keeping
Ministerial expressions during cabinet meeting secret was a convention yet also there is also a legal obligation for
confidentiality as well. This is in contrast with the earlier case of Madzimbamuto v Lardner-Burke where the courts
acknowledged the convention but it was in conflict with parliamentary supremacy so the convention went into

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abeyance.
It is apparent that both conventions and the Royal Prerogative are features within the U.K. legal framework that
select committees have called for codification yet these calls have been rebutted. The defence for keeping the Royal
Prerogatives uncodified is so that it allows greater flexibility in times of emergency and the impact on the application
of the Prerogative is not detrimental as in the case of A-G v De Keyser's Royal Hotel Limited. In this case, it was
held that the Royal Prerogative would go into abeyance as statute had legislated in the area the case was being
decided upon.
However, the principle of the Royal Prerogative going into abeyance was not followed in R. v Secretary of State for
the Home Department Ex p. Northumbria Police Authority as they decided that in matters where the Royal
Prerogative is there for the benefit or protection of the individual that it will not go into abeyance in this circumstance.
It could be argued that constitutional conventions should not be put on a legislative footing, as it is impossible to
predict every set of circumstances that could arise. This could lead to problems particularly with the Monarch's
convention of assenting Bills from Parliament was legislated what would happen if an extremist government came to
power would the Queen be able to prevent legislation being passed.
In conclusion, the Royal Prerogative is an intrinsic and fundamental part of the U.K legal framework. The powers
afforded under the Royal Prerogative although much weaker, than originally were when the Stuart Dynasty were on
the throne, are now appropriate for a modern constitutional monarchy. This erosion of power has come about
through Acts of Parliament to try and redistribute power into the hands of the people.

Bibliography
Books
Oxford Dictionary of Law 7th Edition 2009 Oxford: Oxford University Press
Wheare, K Modern Constitutions, 2nd Edition 1966 USA, Oxford University Press,
Alder, J Constitutional and Administrative Law, 7th Edition 2009 , London: Pearson
Bradley, A.W. and Ewing, K.D. Constitutional and Administrative Law 14th Edition 2007 Harlow, Pearson Longman

Journals
Three hundred years on: are our tax bills right yet? David W. Williams. B.T.R. 1989, 11, 375
Parliamentary report. Frank Cranmer. Ecc. L.J. 2009, 11(2), 209

Statutes
Bill of Rights 1688 c.2 1_Will_and_Mar_Sess_2

Act of Settlement 1700 c. 2 s.3

The Representation of the People Act 1832
Dangerous Dogs Act 1991 (c.65)

Cases
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Case of Impostitions (1606) 2 St Tr 371

Prohibitions Del Roy (1607) EWHC KB J23
Attorney General v De Keyser's Royal Hotel (1920) A.C. 508
Madzimbamuto v Lardner-Burke (1969) AC 645
Attorney General v Jonathan Cape (1976) QB 752
R. v Secretary of State for the Home Department Ex p. Northumbria Police Authority [1989] Q.B. 26

Websites
http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_19.cfm
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