Clements: Q&A Public Law Chapter 4: the Royal Prerogative Question 1

Home , Act of Parliament, Royal prerogative

Clements: Q&A Public Law

Question 1:

“The principal convention of the UK constitution is that the Queen shall exercise her formal legal powers only upon and in accordance with the advice of her ministers, save in a few exceptional situations.”

De Smith and Brazier Constitutional and Administrative Law.

Discuss.

You will have been taught that the Queen retains a good number of her legal, prerogative powers, but that by convention, the Prime Minister of the day and her government use those powers and act in the Queen’s name. Generally, the Queen, only has “the right to be consulted, the right to encourage and the right to warn”. The Queen is entitled to state, in her weekly private meetings with the PM, that she does not like what the PM is proposing to do, but if the PM insists, the Queen will comply. The question is asking you to consider the “few exceptional situations” when the Queen might actually say No. For example, it is thought that the monarch does often express very strong views about their preference and that the PM will sometimes moderate their position.

Constitutional writers claim, that in certain circumstances, the Queen would be entitled to refuse a request for the use of her prerogative powers. A study of constitutional history reveals a number of examples.

The Queen has not refused a request for a dissolution of Parliament since 1708, but could she, if she was convinced that it was in the national interest?

A Prime Minister is the person who can command a majority in the House of Commons and the Queen accepts that, but what if there was no one who could command a majority? Could the Queen become involved in the choice of a PM, as appears to have happened in 1931, when Labour’s Ramsay MacDonald became the leader of a largely Conservative government.

The PM can start a war or conclude a treaty using the royal prerogative. Nowadays, it is expected that the PM would gain the approval of the Commons at least, before

proceeding, as with the recent bombing of Syria, but there is no legal requirement to do so. If the PM disregarded the wishes of the Commons and, by implication the people, should the Queen intervene?

It is thought that the Queen retains the power to dismiss a PM who is acting unconstitutionally, as happened in Australia, with Gough Whitlam in 1975. What would it take for the Queen to do this in the UK? That is what this question is asking.

Question 2:

Assess the current significance of the Monarch in the UK constitution.

There is quite a lot of law that surrounds the role of the monarch in the UK constitution. The Act of Settlement 1700, for instance, determines who may become King or Queen. Under that Act the first born male child succeeds in preference to female children. This was amended in modern times by the Succession to the Crown Act 2013, which ensures that the person that succeeds is the eldest child, irrespective of whether they are male or female. The 2013 Act also reduces discrimination against Roman Catholics, in that the heir to the throne is no longer disqualified if they marry a person of that religion. The King or Queen is still not permitted to be a Roman Catholic however.

The Queen is Head of State of the UK and a number of other countries, and she is she is also head of the Commonwealth. She performs a large number of ceremonial and official functions. Each day she has to work through and approve a large number of government documents.

Legally the Queen retains a large number of powers to actually govern the country, known as the royal prerogative. These are mentioned in question 1 and also in Chapter 4. They could be used again in this essay. In reality the Prime Minister, or other government minister, acts in her name, but the Queen has to be consulted about the use of her powers. Bagehot wrote that the Queen has “the right to be consulted, the right to encourage and the right to warn”. This gives the Queen the opportunity to give helpful advice. She has a lot of experience of governmental and world affairs, as she has now, in Teresa May, her thirteenth Prime Minister. The “warn” part means that the Queen might be able to act as a restraining influence upon a rash PM, so material from the answer to question 1 could again be recycled in this answer.

Question 3:

Does the institution of Monarchy serve any useful purpose today?

It is easy in Constitutional law to ask basically the same question, but in a slightly different way.

Your answer could be very similar to that of question 2, but here, in addition to describing what the monarchy actually does, you are being asked to argue a point of view, is the monarchy useful or not?

Some would argue that the monarchy is too expensive. The Sovereign Grant Act 2011 agree the financing for each king or Queen’s reign, rather than the older system of annual renewal. The Queen receives the Civil List, for salaries and the expense of running the royal household, but with extra allowances for travel and maintenance of the royal palaces. The money is supplied by Parliament and the Crown must provide a proper explanation of how it is spent.

Most would agree that the Queen carries out some valuable and so if you are arguing that the Monarchy is unnecessary, your answer would need to explain who else would carry out these tasks. If it was the PM would that give her too much power? If we decided on a President, how would that person be elected or chosen and what powers would they have?

Question 4:

Consider the extent to which it is possible to judicially review the royal prerogative?

The Queen retains many legal powers, known as the royal prerogative, which are in fact exercised by the government. But, because, the Queen has Crown immunity and cannot be sued (Lord Advocate v Dumbarton DC [1990] 1 All ER 1), it was thought for a long time that the use of a prerogative could not be challenged under the process of judicial review.

The court would confine itself to looking at legal and historical sources to decide whether the prerogative power still existed and whether it gave the government the power to do what was claimed. There are several well known cases where this has occurred: BBC v. Johns [1965] Ch. 32, Attorney-General v. De Keyser’s Royal Hotel [1920] AC 508, Burmah Oil v. Lord Advocate [1965] AC 75 and even the relatively recent R. v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1987] 2 WLR 998.

It is clear that if the prerogative power has been superseded by an Act of Parliament then the Crown should use the Act, which is likely to provide greater protection for the citizen: R. v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513.

The House of Lords finally conceded that judicial review of the royal prerogative was possible in R. v. Secretary of State for the Foreign and Commonwealth Office, ex parte The Council of Civil Service Unions [1985] AC 374, but this was only for minor or delegated uses of the prerogative. The use of the high prerogative of state such as the making of treaties, defence and official appointments could still not be challenged in the courts.

Since that date, there have been a few successful challenges to prerogative power in R. v Secretary of State for Foreign Affairs, ex parte Everett [1989] AC 1014, where a UK citizen was refused a passport and in R v. Home Secretary, ex parte Bentley [1993] 4 All ER 442, where a royal pardon had been refused.

It could be argued that the courts are slowly becoming braver in challenging high- handed government actions. In R (Bancoult) v Foreign Secretary (No 2) [2009] 1 AC 453 the House of Lords overturned an Order in Council and, in the same proceedings, the Supreme Court have suggested that the UK government should think again about allowing the Chagos islanders to return to their homeland: [2016] UKSC 35.

Question 4:

Should the royal prerogative be reformed?

Discuss.

It is often argued that the royal prerogative gives the government of the day too much power. As we can see in answer 4 the courts have only asserted limited powers to control the prerogative.

The government is accountable to Parliament for its use of the prerogative. The government does not usually need Parliament’s permission to act under the prerogative and Parliament is often reduced to criticising after the event. There are many areas of the prerogative, on which governments decline to answer parliamentary questions. These would include any conversations with the Queen, military matters, appointments and the grant of honours, national security, relations with other states, decisions to prosecute and other matters. This has been criticised by the Commons Public Administration Select Committee in their 2004 report, “Taming the Prerogative” 2003-4 HC 422.

There has been progress since then: it would now be unthinkable after the Iraq War, for a Prime Minister to launch military action without parliamentary approval.

Many prerogative powers have now been put under statutory control. Examples include the Treasure Act 1996, the Intelligence Services Act 1994 and the important Constitutional Reform and Governance Act 2010, which brought the Civil Service under statutory control and required Parliament to ratify treaties. Even the Prime Minister’s power to call a General Election has been limited by the Fixed Term Parliament Act 2011.

The only reform that would really bring the royal prerogative under parliamentary control would be its replacement by a written constitution. The Gordon Brown government toyed with such an idea in the Constitutional Reform and Governance Act 2010, but the proposals never got very far.