Chapter 6 Answers to quick test questions

The royal prerogative and constitutional conventions

1. While power lies with the Crown, who is responsible for exercising that power? Is it the Queen or ministers?

The Crown can be a difficult concept to accurately define but it includes the monarch, the Prime Minister, other ministers, and civil servants. Although prerogative powers are exercised personally by the monarch (including the granting of the Royal Assent to legislation and the appointment of Prime Minister), it is usually the case that the royal prerogative is exercised by minsters or civil servants on behalf of the Crown.

2. Writing in 1908, Maitland once observed that identifying the royal prerogative is ‘set about with difficulties, with prerogatives disused, with prerogatives of doubtful existence, with prerogatives which exist by sufferance, merely because no one has thought it worthwhile to abolish them’.1

To what extent does this still apply today?

Maitland’s quote most certainly still applies – many royal prerogative powers are of doubtful use today. As shown in R v Secretary of State for the Home Department, ex p Northumbria Police Authority,2 applying vague and ancient prerogative powers can be difficult and leaves the government with some ill-defined powers. In that instance, the prerogative power to maintain the peace enabled the Crown to maintain a supply of ammunition for use by the police.

Other prerogative powers are, to use Maitland’s phrase, ‘disused’. These include the power to impress men into the Royal Navy and the right of the monarch to claim ownership of swans on certain stretches of the River Thames. These are historical anachronisms which are difficult to justify today and reflect the historical nature of the royal prerogative. While they could be abolished by an Act of Parliament, government’s attention is invariably focused on more pressing matters of public concern.

3. How is the exercise of the royal prerogative subject to control by:

  • a) the courts?

The rule of law requires that government operates within the law. Consequently, Council of the Civil Service Unions v Minister of State for the Civil Service3 made clear that in principle, the exercise of the royal prerogative by the government can be challenged before the courts. However, the courts have made clear that certain prerogative powers – such as the making of treaties, the granting of honours, or the appointment of ministers – are not subject to judicial scrutiny.

It must be remembered that under the Human Rights Act 1998, the exercise of the prerogative must comply with human rights as protected by the European Convention of the Human Rights.

  • b) Parliament?

Prerogative powers are recognised by the common law as belonging to the Crown, which means that ministers can exercise these powers without recourse to Parliament. By contrast, statutory powers must first be granted to the government by Parliament before being exercised. However, ministers are constitutionally obliged to account to Parliament for their actions, and this includes the exercise of the prerogative.

With some prerogative powers, Parliament may by constitutional convention have a role in the exercise of a prerogative power – this has become the case with decisions over deploying the armed forces overseas. Now, the House of Commons is expected to hold a vote approving the government’s proposed course of action.

Ultimately, if either of these forms of scrutiny should be considered insufficient, then Parliament – through an exercise of its sovereignty – is entitled to enact legislation which either abolishes a prerogative power or places statutory controls on how the prerogative is exercised. For example, the prerogative power to dissolve Parliament was abolished and replaced by the Fixed-term Parliament Act 2011. The Constitutional Reform and Governance Act 2010 is an example of placing statutory controls on a prerogative power by introducing the requirement that Parliament must approve most international treaties before they are ratified by the government.

4. To what extent does the Cabinet Manual provide clear rules that regulate the appointment of the Prime Minister?

The appointment of the Prime Minister is a prerogative power exercised by the monarch and regulated by constitutional conventions. The Cabinet Manual is intended to record those constitutional conventions. It makes clear that the Prime Minister is expected to be whoever is best able to command the confidence of a majority of the House.4

If there is a political party with an overall majority of the seats in the House of Commons then the position is straightforward: the Prime Minister will be the MP who is the leader of that Party.5 However, should it be a hung parliament, with no party enjoying a majority of seats, then the Cabinet Manual makes clear that the existing Prime Minister remains in office and will be expected to resign when it becomes unlikely that they will be able to form a government.6

The political parties are expected to resolve the matter between themselves by holding discussions as to who should form the next government. The eventual outcome will depend on politics and the number of seats each party has. This can include a formal coalition (as occurred in 2010), or the largest party forms a minority government, supported by a confidence and supply agreement, with a smaller party who commits to supporting the government on any vote of confidence and the budget (as happened in 2017).

5. To what extent did the majority judgment in R (Miller) v Secretary of State for Exiting the European Union depart from established principles when deciding that the government did not have the power under the royal prerogative to invoke Article 50 TEU?

One of the many interesting aspects of the Miller case is that arguably, both the majority and minority judgments stuck to established legal principles regarding the royal prerogative. The issue was whether the government could use the royal prerogative to ‘trigger’ Article 50 and begin the process of Britain exiting the European Union, or whether an Act of Parliament was required.

The majority considered that when enacting the European Communities Act 1972, Parliament had made EU law ‘an independent and overriding source of domestic law’.7 Cases such as De Keyser make clear that the prerogative cannot be used to change the law.8 Consequently, the prerogative could not be used to change the law, which leaving the EU will necessarily entail as it involves removing EU law as a source of domestic law, and rights arising under EU law will be lost.9

The point at which the majority judgment appeared to depart from established principles was when they articulated that it was a ‘long standing and fundamental principle’ that ‘a major change to UK constitutional arrangements … must be effected in the only way that the UK constitution recognises…by Parliamentary legislation’.10 The Supreme Court did not cite any authority to support this proposition and appears to limit the prerogative in a new way.

As discussed in the Counterpoint box in section 6.4.3 of the chapter, this runs counter to the traditional thinking of the prerogative as expressed by the minority judgment, which followed the traditional approach of viewing the prerogative as the ‘residue’ of powers that still remain with the Crown, and which can only be removed by statute either expressly or by necessary implication. In the view of the minority, the European Communities Act 1972 (or any legislation passed after 1972) did not exclude using the royal prerogative to invoke Article 50, meaning it could be triggered under the royal prerogative to conduct international relations.

6. This is unfinished constitutional business. The prerogative has allowed powers to move from Monarch to Ministers without Parliament having a say on how they exercised. This should no longer be the acceptable to Parliament or the people. It is now time for this unfinished business to be completed’.11

Do you agree with this statement?

This statement is making the point that the royal prerogative can only be explained by historical development. Fundamentally, the royal prerogative consists of those powers recognised by the common law as belonging to the Crown, and the exercise of these powers has shifted from the monarch to ministers. The argument is that in a democracy, these powers should derive from Parliament and not from the Crown. Parliament is democratically elected and should have a greater role in approving the use of these powers in the first place, rather than only being able to scrutinise decisions after they have been made. However, as discussed in relation to deploying the Armed Forces overseas (see the answer to Question 3 above and section 6.4.1 of the chapter), Parliament can, as a matter of constitutional convention, be involved when deciding how or whether to exercise a prerogative power.

The problem with such developments is that they are piecemeal or, as the statement suggests, ‘unfinished business’, as many prerogative powers lack such parliamentary oversight. The argument is that it is time for a comprehensive review of the prerogative which either abolishes prerogative powers or requires as a matter of law that Parliament is involved before they are exercised. As discussed in the answer to Question 3, examples of this are the Fixed-term Parliaments Act 2011 and the Constitutional Reform and Governance Act 2010. However, the likelihood of such broad reform is slim, as the focus of both Parliament and the government for the foreseeable future will inevitably be on Brexit.

1 FW Maitland, Constitutional History of Britain (CUP 1908) 421.

2 [1989] QB 26.

3 [1985] AC 374.

4 Cabinet Office, The Cabinet Manual (1st edn, Cabinet Office 2011) paras 2.7-2.8.

5 ibid, para 2.11.

6 ibid, para 2.12.

7 [2017] UKSC 5 [65].

8 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508.

9 Although this is subject to the terms of Britain’s exit from the EU and any legislation implementing any exit agreement). Please see the online update regarding Brexit for more information.

10 [2017] UKSC 5 [81]-[82].

11 House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 422, 2003-04) para 61.