royal prerogative essay

The Constitution Unit

What is the royal prerogative?

Prerogative powers are powers which have belonged to the monarch since the Middle Ages, but in modern times are exercised largely by government ministers. The most important powers exercised by ministers are the power to make war and deploy the armed forces; to conduct foreign policy and make treaties; to make public and judicial appointments; to issue passports; and to grant pardons and honours.

But the King still exercises some prerogative powers himself, known as his reserve powers or the personal prerogatives. The most important of these are the power to appoint and dismiss ministers, including the Prime Minister; to summon and prorogue parliament, i.e. end the current parliamentary session; and to give royal assent to bills passed by parliament. Royal assent to bills is automatically granted, once a bill has been passed by both houses of parliament. The other powers are exercised on the advice of ministers, advice which— by convention —the King is normally expected to follow. But as the ultimate guardian of the constitution, the King has power to dismiss a Prime Minister who refuses to resign after losing the confidence of the House of Commons; and in future the King may be expected to refuse an untimely request for prorogation, lest it be declared unlawful.

Ministers are accountable for their use of prerogative powers – the same is true for statutory powers (powers conferred on ministers through Acts of Parliament). If there is concern that ministers have used prerogative powers improperly, the exercise of these powers can be regulated by the courts. A recent example of this is the 2019 prorogation ruling in which the Supreme Court decided that Boris Johnson’s advice to the Queen to prorogue parliament for five weeks was unlawful.

The past two decades have seen certain prerogative powers become subject to greater control by parliament. Some have been replaced by statutory powers. The power to appoint and regulate civil servants was placed on a statutory footing by the  Constitutional Reform and Governance Act 2010  (CRAG 2010). The  Fixed-term Parliaments Act 2011  removed the monarch's prerogative power to dissolve parliament and placed dissolution in the hands of parliament, though this was subsequently reversed by the  Dissolution and Calling of Parliament Act 2022 . In other cases, the power remains a prerogative one, but statute gives parliament control over its use: CRAG 2010   codified the convention that new treaties have to be laid before parliament before the government can ratify them. Lastly, some prerogatives, like the war-making power, may be regulated by constitutional convention . Following the decision to intervene in Iraq in 2003—which was approved by a vote in the commons—a convention seemed to emerge that, before troops are deployed overseas, the commons should normally be allowed to vote on the matter; but that was not followed when Theresa May authorised airstrikes in Syria in April 2018.

The reform of the prerogative in the UK was studied in detail in this 2022  book  by Professor Robert Hazell and Timothy Foot, and their main findings were summarised in this  report  and  blog post . Robert Hazell is also the UK expert in a five year  comparative research project  studying the prerogative in Australia, Canada, New Zealand and the UK, led by Professor Philippe Lagassé  of Carleton University, Ottawa.

Related explainers:

• What are constitutional conventions?

Further reading:

• Our British Monarchy FAQs
• The Cabinet Manual (2011)
• The Ministry of Justice’s Review of the Executive Royal Prerogative Powers: Final Report (2009)
• ' Reforming the Prerogative in the UK ' by Robert Hazell (2019)
• ' Brexit and parliament: where did it all go wrong? ' by Meg Russell (2020)
• ' Prorogation, Prerogative, and the Supreme Court ' by Nick Barber (2019)

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Article Contents

1. legal control of the prerogative, 2. islands in the storm, 3. bancoult (no. 2) in the house of lords.

• 4. The Prerogative: Arcana Imperii?
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United Kingdom: The royal prerogative

• Article contents
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Thomas Poole, United Kingdom: The royal prerogative, International Journal of Constitutional Law , Volume 8, Issue 1, January 2010, Pages 146–155, https://doi.org/10.1093/icon/mop038

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Executive powers—royal prerogative—House of Lords upholds government decision not to repatriate the Chagos Islanders —R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs or Bancoult (No. 2)

The attention of the legal world has turned, of late, to the question of executive powers. An important site of such power in the British Constitution—although far more important in the past than today—is the royal prerogative. The royal prerogative refers to those powers left over from when the monarch was directly involved in government, powers that now include making treaties, declaring war, deploying the armed forces, regulating the civil service, and granting pardons. Prerogative powers are exercised, today, by government ministers or else by the monarch personally acting, in almost all conceivable instances, under direction from ministers. 1 The defining characteristic of the prerogative is that its exercise does not require the approval of Parliament. Beyond this bare account, there is little agreement either on the definition of the concept itself 2 —those two giants of English public law scholarship, Blackstone and A. V. Dicey, gave contrasting accounts 3 —or even as to the precise scope of the powers still extant. 4

One might confidently call the royal prerogative a constitutional anachronism—which at one level it surely is—were it not for the fact that it works in much the same way as much of the rest of the U.K.’s ramshackle Constitution. In fact, in its historicity, in its monarchical form, in the disjunction between its past and present use, and in the thinness of the (formal) legal norms that apply to it, the prerogative might even be said to represent the very essence of the British Constitution. For that reason, it is practically impossible in this corner of British public law to avoid, in a phrase that has become a favorite among judges in cases involving the prerogative, “the clanking of mediaeval chains of the ghosts of the past.” 5

However, even historically the prerogative is controversial, and in a way that, say, the principle of Parliamentary sovereignty is not. The king's prerogative was at the center of the constitutional crises of the seventeenth century, 6 a revolutionary period in British politics that ended with the king's being invited by Parliament to maintain his position but to give up much of his power. The fundamentals of the present-day Constitution derive from that settlement; Locke's notion of the prerogative as a legitimate but exceptional power, subject ultimately to control by Parliament, drove its monarchical and republican opponents from the field. 7 Nonetheless, the idea of the prerogative as the black sheep of the constitutional fold—that is, both an uncomfortable fit with primary constitutional values (the supremacy of Parliament and the rule of law) 8 and an inherently untrustworthy source of power—has been hardwired into British constitutional thinking since at least that period. This sense of distrust has deepened over the centuries as the idea of the British polity as a parliamentary democracy has solidified. And for good reason: the prerogative is far removed from the modern archetype of legitimate lawmaking, which in the British polity is the act of Parliament, with all its attendant procedural and formal rigors.

The U.K.’s highest court, the House of Lords, has recently been asked to decide a case on the limits of prerogative power: R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs or Bancoult (No. 2) . 9 The case concerned decisions taken in the aftermath of the expulsion of a population of islanders from the Chagos Archipelago in the Indian Ocean in the late 1960s and early 1970s in order to make way for a U.S. military base. The whole series of decisions was achieved through the exercise of prerogative power, for centuries an important tool of colonial governance. 10 This meant not only that the courts were required to return, once more, to the constitutional past in order to shape the current constitutional landscape. They also had to encounter the grubby reality of (post)imperial power politics—and its modern equivalent, the politics of security. It is an important case, and one of interest beyond its otherwise parochial setting. But, curiously, while the case involved what would count for many as a basic human right—the right not to be displaced from one's homeland—it was also, in practical terms, about nothing, since all parties accepted that there was no prospect of being relocated to the islands in question. Before turning to look at the case itself, we need to look, first, at the way in which the courts have handled the prerogative in the past.

Early seventeenth-century cases established that while the courts could determine the existence and extent of a prerogative power they could not question or review the manner in which a prerogative power had been exercised. 11 The courts also established the principle that if statutory powers exist that cover the same ground as a prerogative power, the government is, in general, not free to choose between them but must act under the statute. 12 The reasons for the courts’ reticence on questions pertaining to the prerogative relate to the prerogative's connection with the idea of “the Crown,” a nebulous but structurally central concept within U.K. public law that tends to act, in the words of the constitutional historian F. W. Maitland, as “a convenient cover for ignorance,” which “saves us from asking difficult questions.” 13 Courts have, in the past, tended to act with special reserve when it came to reviewing legal acts done in the name of the Crown—even when those acts were clearly done by (or on behalf of) the executive. 14

This limited approach to reviewing the prerogative persisted until the mid-1980s when, in the seminal GCHQ case, the House of Lords held that an instruction made under an order in council (the main form of prerogative legislation) could be subject, in principle, to judicial review. 15 The case concerned the unilateral decision by Margaret Thatcher—who as prime minister was also the minister for the civil service—to deny trade union membership at Government Communications Headquarters (GCHQ), a military and signals intelligence center. The “law relating to judicial review has now reached a stage,” one of the judges in that case said, that “if the subject matter in respect of which prerogative power is exercised is justiciable” then the exercise of power will be subject to ordinary public law principles. 16

Though important for its “modernising” effects, the GCHQ case was also complicated in two significant respects. 17 First, the Law Lords did not rule, specifically, on the question of whether the prerogative itself—as distinct from secondary powers derived from exercises of the prerogative—was subject to judicial review under normal principles. Second, in deciding that the claimants’ legitimate expectation to be consulted, prior to a decision of this sort being taken, was overridden by the requirements of national security, the court set a pattern that has been followed in most (if not all) 18 subsequent cases on the prerogative. 19 Indeed, the court in GCHQ went out of its way to identify areas of prerogative lawmaking activity that were, in all likelihood, not justiciable. Lord Roskill produced a list of “excluded categories”—areas of activity immune to judicial review—that included prerogative powers “relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers.” 20 The prerogative might now, in principle, be classified as a normal substatutory source of law for the purposes of judicial review; however, in practice, the courts tend still to approach the prerogative with a caution bordering on outright deference.

The Chagos Archipelago comprises a group of seven atolls and some sixty islands in the center of the Indian Ocean, halfway between Tanzania and Java. The first inhabitants of the islands were lepers brought from the Île de France (Mauritius) in the second half of the eighteenth century. They were soon followed by workers from Africa and southern India brought in to man coconut plantations established by the French. The islands (with Mauritius) were ceded to Britain after Napoleon's defeat in 1814. In 1965, the archipelago was first separated from Mauritius and then constituted as a separate overseas territory known as the British Indian Ocean Territory (BIOT). This was done in order to facilitate the establishment of a major U.S. military base on the archipelago's chief island, Diego Garcia. This transformation was effected by the British Indian Ocean Territory Order 1965 (that is, by royal prerogative). The entire population (known as the Chagossians or Ilois) were removed to Mauritius. This was achieved by the Immigration Ordinance 1971, made by the BIOT commissioner, under powers created by the BIOT Order, which authorized him (in the standard colonial formula) to “make laws for the peace, order and good government of the territory.” A treaty was then concluded between the U.S. and the U.K., by means of which the island of Diego Garcia was leased to the American military.

A number of cases dealing with matters relating to the expulsion of the Chagossians have made their way through the British courts prior to the recent decision in Bancoult (No. 2) . In 2000, the High Court found in Bancoult (No. 1) that the relevant part of the 1971 Immigration Ordinance was unlawful on the ground that a power to legislate for the “peace, order and good government” of the territory, while broad, did not include a power to exile a people from their homelands. 21 As Lord Justice Laws put it, the people of the islands “are to be governed: not removed.” 22 (The Court of Appeal later held that this unlawful conduct did not give rise to liability in damages, affirming a settlement package agreed by the U.K. and Chagossian representatives in 1982.) 23 The government responded to the first judgment by issuing a statement to the press that it would not challenge the decision and, henceforth, would permit inhabitants to return to the outer islands of the archipelago, but not to Diego Garcia. (This was accomplished by passing a new Immigration Ordinance in 2000). A feasibility study, which had already been set up to investigate the possibility of resettlement, reported in 2002 and concluded that, while resettlement might be feasible in the short term with considerable financial input from the U.K. government, global warming made the archipelago uninhabitable in the longer term.

The government decided in light of this report that it would not support resettlement. The U.S. government had also made known its concern that repopulating the Chagos Islands might compromise what it regarded as the unique security of Diego Garcia. The BIOT Order was revoked and a new Constitution Order passed in June 2004. Another order in council (the Immigration Order) was passed at the same time. These provisions reinstated full immigration control—but this time, in order to “legislate around” the decision in Bancoult (No. 1) , through the use of primary rather than secondary prerogative legislation. 24 The claimants in Bancoult (No. 2) challenged the legality of the new arrangements, specifically section 9 of the Constitution Order that provided ( a ) that no person had the right to abode in BIOT and ( b ) that no person was entitled to enter BIOT without authorization. The challenge was successful both in the High Court and the Court of Appeal, the latter holding that the orders amounted to an abuse of power because, for reasons unconnected with their interests, the Orders negated the islanders’ right to return to their homeland. 25 The government appealed to the House of Lords.

The House of Lords had to determine two questions. The first concerned the general question of the reviewability of prerogative legislation . Recall that the GCHQ case had decided that executive measures made pursuant to prerogative powers were subject to ordinary principles of review. It had left open the question of whether this was also true of the prerogative itself. The judges agreed that while prerogative orders in council are a type of primary legislation, it does not follow that they share all the characteristics of acts of Parliament (which are not susceptible to ordinary principles of judicial review). 26 The unique authority enjoyed by an act of Parliament derives, they said, from its representative character. An exercise of the prerogative lacks this quality—although legislative in character, it is still an exercise of power by the executive acting alone. That being so, the court saw “no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.” 27

The second question concerned the legality of this particular exercise of prerogative lawmaking power. This question divided the Court (three to two), a majority finding that the 2004 orders were not unlawful. The majority held that the phrase “peace, order and good government” must be understood as relating to the governance of the entire Crown realm and not just to those residing (or once residing) in BIOT. The words have always been treated “as apt to confer plenary law-making authority.” 28 They also decided that the exercise of these powers was essentially a concern for government and Parliament and not properly a matter for the courts. This position was expressed in various ways. Lord Hoffmann said that the matter fell within a “macro-political field” and was thus “particularly within the competence of the executive.” 29 Lord Rodger said that the matter at hand was a “political, not judicial” question. 30 Lord Carswell spoke of a “rule of abstinence”—however “distasteful” the Court might consider the provisions at issue in the case, it should avoid interfering since the challenge related to “what is essentially a political judgment.” 31 Lords Carswell and Rodger also thought that the Colonial Laws Validity Act 1865 precluded judicial review, on the ground that Parliament in 1865 would simply not have contemplated the possibility of an order in council legislating for a colony as open to challenge in an English court on principles of judicial review. 32 The majority also denied that the Chagossians had a legitimate expectation arising from the press statement after Bancoult (No. 1) that entitled them to resettlement.

treats BIOT and the prerogative power to make constitutional or other laws relating to BIOT as if they related to nothing more than the bare land, and as if the people inhabiting BIOT were an insignificant inconvenience (a phrase which reflects the flavour of some of the government's internal memoranda in the 1960s), liable to be dispossessed at will for any reason that might seem good to the executive in the interests of the United Kingdom. 37

4. The Prerogative: Arcana Imperii ?

Lord Mance is right, of course. Few would deny the aptness of Lord Rodger's characterization of the U.K.’s treatment of the Chagossians in the early 1970s as “disgraceful.” One might note, in this respect, the studied refusal by the Foreign Office—in the internal memos referred to by Lord Mance in the passage just quoted—to acknowledge the existence of an indigenous population on the Chagos Archipelago. There is a telling parallel here with the fiction of terra nullius by which the rights and interests of indigenous groups have been ignored and thus denied in the colonial past. 38 Lord Hoffmann referred to a “legal façade,” designed, at least in part, to avoid possible legal obligations arising under the UN Charter to the people of a non–self-governing territory. 39 This aspect of the case was part of a broader “us v. them” (or “We the People v. Them the Other”) dimension that was largely submerged in the discussion—although it was alluded to by the minority judges.

As well as sharing in their condemnation of the U.K. government's “original sin” of exiling the Chagossians, the Law Lords recognized that the finding of a right to abode in this instance would not in practice be exercisable. There was disagreement, however, about what this situation entailed. In the course of a typically rumbustious judgment, Lord Hoffmann criticized the Chagossians for bringing the case. The action was, he said, an attempt to carry on a political campaign by another means—“a step in a campaign to achieve funded resettlement.” The “purely symbolic” nature of the litigation thus fuelled his conviction that the case was a matter of politics rather than law. The minority, by contrast, thought that the unexercisability of the right meant that there was all the more reason to uphold it, since a ruling in the islanders’ favor would have few direct consequences or financial implications. “It cannot be doubted that the right was of intangible value, and the smaller its practical value the less reason to take it away.” 40

The House of Lords’ decision has been met with consternation by most commentators. 41 One can readily understand why. The Chagossians were very badly treated in being displaced from their homes; and the government's U-turn after Bancoult (No. 1) can only have added insult to injury. But, for all that, the case was not legally straightforward. One complicating factor is that what was specifically at issue in the case was not the original act of displacement—the focus of Bancoult (No. 1) — but the policy shift of 2004. Now, one might regard the two decisions as simply two points on a continuum of high-handed acts spanning four decades. Alternatively, one might approach the two decisions separately—albeit on the understanding that the earlier act (the original sin) necessarily colors the later. This was how the majority of the House of Lords approached the case, and it is not immediately obvious that they were wrong to do so. Seen in these terms, the 2004 decision becomes somewhat harder—although not impossible—to fault, since a government must in principle be entitled to change its mind, even (perhaps especially) on decisions of this magnitude. (This point speaks most directly to the minority's finding that the islanders had a legitimate expectation of repatriation, an outcome that would have shocked administrative lawyers across the common law world.)

The interpretation of “peace, order and good government,” a stock phrase from the era of imperial governance, is also more complicated than some critics of the decision allow. It is almost inconceivable to imagine that, in the colonial context in which the phrase was designed to operate, it would not have been understood (at least when push came to shove) to refer to the common good of the United Kingdom and all its dependencies as a whole. 42 This original meaning of the term need not be dispositive of the case. However, it does reveal that a central difference between the majority and minority lay in their attitude toward history—or, rather, the various arcs of historical meaning at play in the case involving the common law, imperial lawmaking, and the prerogative. Indeed, the argument over history is, perhaps, the most intriguing feature of the case. The majority tend to take history at face value, as it were. Whether or not we like how our predecessors conducted their affairs, the duty of the judge is to apply the law as it stands, a duty that includes respecting the legal arrangements designed to structure systems that no longer make much (normative) sense. The minority judgments are infused with a different spirit, one marked by a clear distaste for the imperial framework (and associated normative presuppositions) under which the original decision to displace the Chagossians took place. Where we now see the historical practice in question as unedifying, these judges suggest, or where old principles no longer fit contemporary constitutional and moral standards, why should we follow them? Surely the judicial task is to rework things like neoimperial texts and outdated legal attitudes to the prerogative in order to cure obvious injustices and to vindicate a modern conception of the rule of law. 43

The politics of security, a recurring trope within contemporary public law, provides another complicating dimension to the case, which has a distinct post–September 11 accent to it. The government defended its new policy, in part, through the deployment of arguments relating to national security and counterterrorism considerations. In a statement to Parliament on the policy shift, the responsible minister said that “developments in the international security climate” that had occurred since Bancoult (No. 1) were central to the government's reassessment of the situation. 44 The judgments also reveal that the government's change of mind on repatriation owed at least something to U.S. security concerns. Remote though it is, Diego Garcia is not peripheral within the post-9/11 security world. Persistent rumors circulate, for instance, about its use for “extraordinary rendition” flights. These rumors were mentioned by only one judge in the case—Lord Hoffmann referred to allegations that “Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured” 45 —but these rumors would have been known to the Court as a whole. These allegations are denied by U.S. authorities. However, they are far from implausible; and, where secrecy reigns, we are naturally inclined to suspect the occurrence of unsavory things.

Bancoult (No. 2) sits at the confluence, then, of two histories of shady state secrets or half secrets, one relating to the shabby dealings of the recent postimperial past, the other to contemporary events involving the war on terrorism (or whatever we are now to call it). The presence here of the royal prerogative is curiously apt, associated as it is with constitutional exceptionalism, 46 the mysteries of state, and the cloaking of executive power. The prerogative has ranked for centuries, in Blackstone's words, “among the arcane imperii [state secrets]; and like the mysteries of the bona dea [the good goddess—the fertility goddess attended to by the Vestal Virgins] was not suffered to be pried into by any but such as were initiated in its service.” 47 Bancoult is, therefore, an almost blatant example of a case hinging on what has become law's defining threshold or “limit concept.” 48 And, as in more mainstream terrorism cases in recent years, the House of Lords performed what is fast becoming a familiar two-step. Step one, the refusal to allow the operation of a legal black hole. Here, the assertion of ordinary legal principles over prerogative lawmaking. Step two, the accommodation of government security and diplomatic 49 interests, leading to equivocation and uncertainty in the application of those ordinary principles. 50 This second step occurred in this case even though there was skepticism (among the majority as well as the minority) about the credibility of the security claims proffered by the government; even though there was at issue, arguably, a “deep” right with an unusually long history within the common law; and even though all agreed that this was a case on which little of practical significance rested—in the context we are discussing, in other words, this was a relatively easy case.

We might dismiss Bancoult (No. 2) as a mere curiosity. A case in which a court working within an atypical constitution addressed atypical questions relating to anachronistic exercises of legal authority in a remote location. Or we might see the case—as most British commentators seem to—as a simple mistake. The case was an easy one and the House of Lords got it wrong. Alternatively, we can see it as a quirky instance within a more general trend. On this reading, the Law Lords’ failure to impose real legal constraint on the exercise of executive power is particularly troubling. Once again, the courts seem unwilling or unable to get to grips with arguments relating to what would once have been called an act of state. 51 This emerging pattern provokes reflection into the promise of the rule of law. 52 Does it mean that in the absence of clear information—a feature of most security cases—the rule of law in the “modern,” value-laden sense is an unattainable ideal? We may cheer a judge like Lord Bingham in Bancoult prepared to take potshots at arguments from intelligence sources. We mourn the capitulation of the Court as a whole. But, perhaps, there is a silent recognition beneath all this surface Sturm und Drang that, whether or not we call it by that name, we are not prepared to abandon the substance of prerogative power—a “singular and eccentrical” power shrouding the arcane mysteries of state that is only semipervious to norms of legality.

There are also so-called ‘personal prerogatives’ that are exercised by the monarch herself. These include powers to appoint the prime minister, to dissolve Parliament, and to give royal assent to legislation. All these powers are strongly hedged by constitutional conventions. After initially announcing plans for a sweeping reform of the prerogative (The Governance of Britain Green Paper, July 2007), the government has decided to undertake only a small amount of tidying up work in the Constitutional Reform and Governance Bill (currently before the House of Commons). See Ministry of Justice, Review of the Executive Royal Prerogative: Final Report (15 October 2009).

See Sebastian Payne, The Royal Prerogative , in T he N ature of the C rown : A L egal and P olitical A nalysis (Maurice Sunkin & Sebastian Payne, eds., Oxford Univ. Press 1999). “There is no single accepted definition of the royal prerogative. The various definitions appear to conflict with each other.” Id. at 78.

A lbert V enn D icey , I ntroduction to the S tudy of the L aw of the C onstitution 424 (10th ed. 1959) (1885) (“The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.”) W illiam B lackstone , C ommentaries on the L aws of E ngland , Bk. I, Ch. 7 (1765) (“It follows that it must be in its nature singular and eccentrical; that it can only be applied to those rights and capacities which the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects.”).

See, e.g. , Basil S. Markesinis, The Royal Prerogative Revisited , 32 C ambridge L.J. 287 (1973).

United Australia Ltd v. Barclays Bank Ltd ., (1941) A.C. 1, 29 (L. Atkin); Council of Civil Service Unions v. Minister for the Civil Service, (1985) A.C. 374, 417 (L. Roskill); R (Bancoult) v. Sec’y of State for Foreign & Commonwealth Affairs, (2001) 2 W.L.R. 1219, [158] (L. Hooper).

G lenn B urgess , T he P olitics of the A ncient C onstitution (Penn. State Press 1993).

On Locke on the prerogative, see the discussion in Thomas Poole, Constitutional Exceptionalism and the Common Law , 7 I nt’l J. C onst . L. (I•CON) 247 (2009).

See, classically, D icey , supra note 2.

(2008) UKHL 61.

See, e.g. , Campbell v, Hall, (1774) 1 Cowp. 204.

Prohibitions del Roy (1607) 12 C o . R ep . 63; Case of Proclamations (1611) 12 C o . R ep . 74, 76 (“The King hath no prerogative, but that which the law of the land allows him.”).

Attorney-General v. De Keyser's Royal Hotel Ltd., (1920) A.C. 508. See also the dictum of Lord Diplock in BBC v. Johns, (1965) Ch. 32, 79, that it was “350 years and a civil war too late for the Queen's courts to broaden the prerogative.” See also R v. Sec’y of State for the Home Department, ex p Fire Brigades Union, (1995) 2 A.C. 513 (the government could not rely on the prerogative for introducing a compensation scheme for crime victims where a statutory scheme was already established). Cf. R v. Sec’y of State for the Home Department, ex p Northumbria Police Authority, (1989) Q.B. 26 (where the Court of Appeal “discovered” a prerogative of protection of the realm and the subjects within it).

F rederic W illiam M aitland , T he C onstitutional H istory of E ngland 418 (H.A.L. Fisher ed., Cambridge Univ. Press 1980).

Martin Loughlin, The State, the Crown and the Law , in T he N ature of the C rown 33, supra note 1.

Council of Civil Service Unions v. Minister for the Civil Service, (1985) A.C. 374.

Id. at 387 (L. Scarman).

See Clive Walker, Review of the Prerogative: The Remaining Issues, 1987 P ub . L. 62.

See, e.g. , R v. Sec’y of State for the Home Department, ex p Bentley, (1994) Q.B. 349 (review of prerogative of mercy).

See, e.g. , R v. Sec’y of State for Foreign & Commonwealth Affairs, ex p Rees-Mogg (1994) Q.B. 552; R (Abbasi) v. Sec’y of State for Foreign & Commonwealth Affairs, (2002) EWCA Civ. 1598.

Council of Civil Service Unions v. Minister for the Civil Service, (1985) A.C. 374, 418.

R (Bancoult) v Sec’y of State for Foreign & Commonwealth Affairs, (2001) Q.B. 1067. For analysis, see Stephanie Palmer, They Made a Dessert and Called it Peace: Banishment and the Royal Prerogative , 2001 C ambridge L.J. 234.

R (Bancoult), (2001) QB 1067, [57].

Chagos Islanders v. Attorney General, (2004) EWCA Civ 997.

For commentary, see Stephen Allen, International Law and the Resettlement of the (Outer) Chagos Islands , 8 H um , R ts . L. R ev . 683 (2008).

R (Bancoult) v. Sec’y of State for Foreign & Commonwealth Affairs (No. 2), (2007) EWCA Civ. 498. For analysis, see Richard Moules, Judicial Review of Prerogative Orders in Council: Recognising the Constitutional Reality of Executive Legislation , 2008 C ambridge L.J. 12.

See, e.g. , British Railways Board v. Pickin, (1974) A.C. 765. An act of Parliament may be “disapplied” if it conflicts with EU law. See R v. Sec’y of State for Transport (No. 2), (1991) 1 A.C. 603. Under the Human Rights Act 1998 s.4, the courts may issue a declaration of incompatibility with respect to provisions of an act of Parliament that are incompatible with the European Convention on Human Rights. Such a declaration has no effect on the operation or continuing effectiveness of the provision(s) in question. See, e.g. , A v. Sec’y of State for the Home Dep’t, (2004) UKHL 56.

R (Bancoult) (No. 2), (2008) UKHL 61, [35] (L. Hoffmann).

Id. at [50].

Id. at [58].

Id. at [109].

Id. at [130].

A position that relied heavily on John Finnis, Common Law Constraints: Whose Common Good Counts?, (University of Oxford Law Faculty Legal Studies Research Paper Series, Working Paper No. 10/2008, March 2008).

See Campbell v Hall, (1774) 1 Cowp. 204

R (Bancoult) (No. 2), (2008) UKHL 61, [70] (L. Bingham).

Section 29 of which provides that “No freeman shall be … exiled … but by lawful judgment of his Peers, or by the Law of the Land.”

R (Bancoult) (No. 2), (2008) UKHL 61, [157] (L. Mance).

R (Bancoult) (No. 2), (2008) UKHL 61, [157].

See, e.g. , H enry R eynolds , T he L aw of the L and (Penguin 1987).

See also Stephen Allen , Looking Beyond the Bancoult Cases: International Law and the Prospect of Resettling the Chagos Islands , 7 H um R ts . L. R ev . 441 (2007).

R (Bancoult) (No. 2), (2008) UKHL 61, [82] (L. Bingham). See also id. at [138] (L. Mance).

See, e.g. , Mark Elliott & Amanda Perreau-Saussine, Pyrrhic Public Law: Bancoult and the Sources, Status and Content of Common Law Limitations on Prerogative Powers 72 M od . L. R ev . 697 (2009).

See Finnis, supra note 31.

For a discussion of this perspective in the context of indigenous rights, see P.G. McHugh, A History of the Modern Jurisprudence of Aboriginal Rights—Some Observations on the Journey So Far , in A S imple C ommon L awyer : E ssays in H onour of M ichael T aggart (D. Dyzenhaus, M. Hunt & G. Huscroft, eds., Hart 2009).

R (Bancoult) (No. 2), (2008) UKHL 61, [27].

Id. at [35].

See also Adam Tomkins, Magna Carta, Crown and Colonies , 2001 P ub . L. 571.

B lackstone , supra note 2.

On the notion of “limit concept,” see G iorgio A gamben , S tate of E xception (Kevin Attell trans., Univ. Chicago Press 2005).

See, e.g. , R (Abbasi) v. Sec’y of State for Foreign & Commonwealth Affairs, (2002) EWCA Civ 1598.

The situation is a little more complicated in this instance. The legal principles relating to the judicial control of the prerogative are in the process of being redefined. But the trajectory of that process is to bring such principles into line with ordinary principles governing the review of other non-statutory exercises of legal authority.

See, e.g. , W illiam H arrison M oore , A ct of S tate in E nglish L aw (John Murray 1906).

See, e.g. , David Dyzenhaus, The Compulsion of Legality , in E mergencies and the L imits of L egality 33 (Victor V. Ramraj, ed., Cambridge Univ. Press 2008).

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Home — Essay Samples — Law, Crime & Punishment — Common Law — The royal prerogative through the history

The Royal Prerogative Through The History

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Essay: Royal prerogative

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As there is no single accepted definition of the ‘Royal prerogative’ various other ones are offered for conflict with each other. One of the main reasons for this uncertainty is that the prerogative has been changing in the developing years. The definition of the ‘Royal prerogative that is widely used and accepted today is that of A.V Dicey, according to whom the prerogative is merely ‘the residue of discretionary or arbitrary authority, which at any given time Is legally left in the hands of the Crown’. In other words the ‘Royal Prerogative’ powers efficiently consists of the ones that are generally exercised without the consent of Parliament. The ones which may be exercised by the king himself or his ministers, as assigned to do so by the government or the state. These prerogatives include all the special rights, powers that belong to the crown and are accepted as inherent legal elements of the common law. INTRODUCTION This essay examines the Royal prerogative power of the government to declare war and deploy armed forces to conflict abroad without the approval of the parliament. However, things changed in 2003 when before the Iraq war the government agreed to a parliamentary vote. Following in the year 2004, House of Commons’ Public Administration Select Committee published a report on Ministers’ prerogative powers, recommending that in future “any decision to engage in armed conflict should be approved by Parliament, if not before military action then as soon as possible afterwards”. The Committee further proposed that the government should specify the size, objectives, legal basis and likely duration of deployment while seeking parliamentary approval.To which the government responded that they were “not persuaded” that replacing prerogative powers within a statutory framework would improve the present position. After which three private member bills have been taken forth in parliament in order to seek a larger part in the exercise of these royal prerogative powers. The purpose of this is a need for alteration in the royal prerogative powers to ensure a more direct role for Parliament to decide theses life and death issues as its replacement by a new law is next to impossible due to the difficulties of drafting one. In the UK earlier in the 19th century, the executive power was formally vested in the crown as a tradition.However, from the background of the Royal Prerogative we can notice that it has been ‘educed’ from the constitutional settlement enshrined in the Bill of Rights 1688 which resulted in transferring certain rights to ministers which were the sole preserve of the monarch in the past. At the time the government would engage in military adventures with little or no reference to the parliament. However, this is not the case in today. As the most important prerogative powers are available only to the prime minister and other cabinet ministers. A few powers are still available to the monarch at their disposal, but as the Prime Minister himself has said that there are unlikely to to be any circumstances in which a government could go to war without the support of Parliament. As Jack Straw, the recently appointed Leader of the House of Commons,concluded that ‘decisions in respect of Iraq were agreed through clear, substantive, voteable motions that established a precedent for the future, making it very likely that any similar decisions about military action would be taken by a Parliamentary vote’. In relation to the UK courts, ‘they have taken the view that the exercise of the deployment power is neither justifiable nor subject to review in domestic courts’, along with the judicial rulings from 1985 that completely removed the exercise of the prerogative powers from being reviewed by the courts.This in turn means that acts by individual members of the armed forces, of whatever rank, in the execution of a deployment order are themselves lawful. As the domestic courts have consistently held that the exercise of the umbrella power of deployment and its various subsidiaries are beyond their supervision. After which,the Government acknowledged in March 2011 that a convention had developed, when the then Leader of the House of Commons, Rt Hon Sir George Young MP, said:’A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter’. We propose to observe that convention except when there is an emergency and such action would not be appropriate. As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed. This is the view that the House of Lords Constitution Committee recently considered options for formalising Parliament’s role in conflict decisions in its Report on Constitutional arrangements for the use of armed force. Concluding that the existing convention was the best means for the House of Commons to be involved in decisions to use force. Currently, the Royal Prerogative law reflects two constitutional features; that it is rooted in the common law and its exercise is governed by convention. Moreover, its use has been increasingly advanced by the progress of the conventions surrounding it and by the willingness of the courts to supervise the exercise of any prerogative powers. Since today, it has been for the courts to decide whether or not and to what extent a prerogative power has been outdated by statute. It should also be noted, as an example the prerogative powers can waste away the power of impressing into the navy after which the courts can issue the exercise of any prerogative powers to judicial control. In conclusion I would like to note that ,as far as the future of the royal prerogative as a basis for armed intervention overseas is concerned, we can say the restriction on the deployment power will not affect the freedom which military commanders have and will continue to enjoy it. Further on we also fully accept that this controversy might have a harmful effect on the morale of the troops in the field. Thus we have to note the importance of guarding against it as this would be the case no matter what process was followed. We can do no better than repeat Lord Bramall’s view that ” the armed forces need to be reassured ‘ that they had the support of the country ‘ Parliament represents the will of the people and if Parliament supports the action’ the Armed Forces can take heart that constitutionally the country supports it’.

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