Bypassing Parliament

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The royal prerogative is profoundly undemocratic, as the powers enable decisions to be taken without the backing of, or consultations with, Parliament. The powers are a body of customary authority, privilege and immunity that, while being the sole prerogative of the monarch, are still today the source of many executive powers of the British government.

According to the nineteenth century constitutional theorist, A. V. Dicey, “The prerogative appears to be historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown. The prerogative is the name of the remaining portion of the Crown’s original authority … Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative.”

Since the 19th century, by convention, the advice of the prime minister or the cabinet – who are then considered to be accountable to Parliament for the decision post facto – has been required in order for the prerogative to be exercised. Thus, on the whole, it is the executive that exercises these prerogative powers – powers which could be used by government ministers to rule virtually by decree, free of parliamentary scrutiny, in many areas still not covered by statute. Fortunately, the European Convention on Human Rights, the Human Rights Act and various domestic and European laws have, to some extent, helped to rein in their use.

Until recently, not only were they shrouded in mystery because requests to reveal them were refused by the government; but their scope is difficult to determine as they are not enshrined in statute, such that the existence and extent of the power is a matter for common law courts as the final arbiter (applications for judicial review increased dramatically from 1980 onwards). The present government considers that legislation to replace, codify and define some of them with certainty, could itself give rise to new risks such as weakening the state’s ability to respond to unforeseen circumstances and/or would be a highly complex and lengthy undertaking. They are, nevertheless, as it turns out, extensive:

Constitutional/personal prerogatives

  • Appointment and removal of ministers
  • Appointment of the prime minister
  • Power to dismiss government
  • Power to summon, prorogue and dissolve Parliament
  • Assent to legislation
  • The appointment of privy counsellors
  • Granting of honours, decorations, arms and regulating matters of precedence.
  • Honours – Order of the Garter, Order of the Thistle, Royal Victorian Order and the Order of Merit.

N.b: The honours system depends on crown prerogative and MPs have no say in the matter. Seats in the Lords are filled on the say-so of Downing Street under crown prerogative. When in 2000, Michael Ashcroft, the Conservative party’s principal donor, was made a peer (along with several big contributors to Labour Party funds) the former Conservative leader in the Lords, Lord Cranborne, described the peerage as “an affront to the dignity and standing” of Parliament. Lord Nolan, chairman of the committee on standards in public life, said his committee might wish to investigate charges that honours were linked with party funding. That link is now almost blatant (see: “Britain’s Hoary, Elephantine Second Chamber”), but nothing is being done to break it.

  • A power to appoint judges in a residual category of posts which are not statutory and other holders of public office where that office is non-statutory
  • A power to legislate under the prerogative by Order in Council or by letters patent in a few residual areas, such as Orders in Council for British Overseas Territories
  • Grant of special leave to appeal from certain non-UK courts to the Privy Council
  • May require the personal services of subjects in case of imminent danger
  • Grant of civic honours and civic dignities
  • Grant of approval for certain uses of royal names and titles

Powers relating to armed forces, war and times of emergency

  • Right to make war or peace or institute hostilities.

N.b: Any vote in Parliament on whether Britain should participate in a war is only advisory and not binding on the executive. Entry by Britain and its dominions into World War I in August, 1914, was decided by King George V in privy council that was attended only by one minister and two court officials. Cabinet and Parliament were not involved. In September, 1939, the declaration of war that took Britain into World War II, was reported by Neville Chamberlain to Parliament as a fait accompli. In respect of the Korean war of 1950 and the Gulf war of 1991, MPs were only allowed a vote after troops had been deployed and hostilities had begun. Similarly, both Margaret Thatcher and Tony Blair, in respect of the conflicts in the Falklands, Sierra Leone and former Yugoslavia, considered they did not need the approval of Parliament. The House of Lords Constitution Committee report of July 2006, entitled ‘Waging War: Parliament’s Role and Responsibility’, called for a Parliamentary convention obliging governments always to seek Parliament’s approval when committing the armed forces to action in future conflicts.

  • Deployment and use of armed forces overseas
  • Maintenance of the Royal Navy
  • Use of the armed forces within the UK to maintain the peace in support of the police or otherwise in support of civilian authorities (eg to maintain essential services during a strike)
  • The government and command of the armed forces is vested in the monarch
  • Control, organisation and disposition of armed forces
  • Requisition of British ships in times of urgent national necessity
  • Commissioning of officers in all three armed forces
  • Armed forces pay
  • Certain armed forces pensions which are now closed to new members
  • War pensions for death or disablement due to service before 6 April 2005 (section 12 of the Social Security (Miscellaneous Provisions) Act 1977 provides that the prerogative may be exercised by Order in Council
  • Crown’s right to claim Prize (enemy ships or goods captured at sea)
  • Regulation of trade with the enemy
  • Crown’s right of ‘angary’, in time of war, to appropriate the property of a neutral which is within the realm, where necessity requires
  • Powers in the event of a grave national emergency, including those to enter upon, take and destroy private property

Government and the Civil Service

  • Powers concerning the machinery of Government including the power to set up a department or a non-departmental public body
  • Powers concerning the civil service, including the power to appoint and regulate most civil servants
  • Power to prohibit civil servants and certain other crown servants from issuing election addresses or announcing themselves, or being announced as, a Parliamentary candidate or a Prospective Parliamentary candidate
  • Power to set nationality rules for ‘non-aliens’ – British, Irish and Commonwealth citizens – concerning eligibility for employment in the civil service
  • Power to require security vetting of contractors working alongside civil servants on sensitive projects
  • Powers concerning the Office of the Civil Service Commissioners, the Security Vetting Appeals Panel, the Office of the Commissioner for Public Appointments, the Advisory Committee on Business, the Civil Service Appeal Board and the House of Lords Appointments Commission, including the power to establish those bodies, to appoint members of those bodies and the powers of those bodies

Justice system and law and order

  • Powers to appoint Queen’s Counsel
  • The power to make provisional and full order extradition requests to countries not covered by Part 1 of the Extradition Act 2003
  • The prerogative of Mercy, allowing changes in sentences – other options are being explored for dealing with the exercise of the royal prerogative in relation to applications for free pardons.
  • Power to keep the peace

Powers relating to foreign affairs

  • Power to send ambassadors abroad and receive and accredit ambassadors from foreign states
  • It has been proposed that vetting major public appointments should be carried out by a select committee, but not implemented.
  • Recognition of states
  • Governance of British Overseas Territories
  • Power to make and ratify treaties.

N.b: Using the royal prerogative, ministers can commit to treaties without publishing their text or debating them in parliament, e.g. committing to nuclear weapons, establishing American bases and joining the European Community.

  • Power to conduct diplomacy
  • Power to acquire and cede territory
  • Power to issue, refuse or withdraw passport facilities
  • Responsibility for the Channel Islands and Isle of Man
  • Granting diplomatic protection to British citizens abroad

Miscellaneous

  • Power to establish corporations by Royal Charter and to amend existing Charters (for example that of the British Broadcasting Corporation, last amended in July 2006)
  • The right of the Crown to ownership of treasure trove (replaced for finds made on or after 24 September 1997 by a statutory scheme for treasure under the Treasure Act 1996)
  • Power to hold public inquiries (where not covered by the Inquiries Act)
  • Controller of Her Majesty’s Stationery Office as Queen’s Printer:
  • the power to appoint the Controller
  • the power to hold and exercise all rights and privileges in connection with prerogative copyright
  • Sole right of printing or licensing the printing of the Authorised Version of the Bible, the Book of Common Prayer, state papers and Acts of Parliament
  • Power to issue certificates of eligibility in respect of prospective inter-country adopters (in non-Hague Convention cases)
  • Powers connected with prepaid postage stamps
  • Powers concerning the visitorial function of the Crown

Archaic prerogative powers

  • It is unclear whether some of these prerogative powers continue to exist.
  • Guardianship of infants and those suffering certain mental disorders
  • Right to bona vacantia
  • Right to sturgeon, (wild and unmarked) swans and whales as casual revenue
  • Right to wreck as casual revenue
  • Right to construct and supervise harbours
  • By prerogative right the Crown is prima facie the owner of all land covered by the narrow seas adjoining the coast, or by arms of the sea or public navigable rivers, and also of the foreshore, or land between high and low water mark
  • Right to waifs & strays
  • Right to impress men into the Royal Navy
  • Right to mint coinage
  • Right to mine precious metals (Royal Mines); also to dig for saltpetre
  • Grant of franchises, e.g. for markets, ferries and fisheries; pontage & murage.
  • Restraining a person from leaving the realm when the interests of state demand it by means of the writ ne exeat regno
  • The power of the Crown in time of war to intern, expel or otherwise control an enemy alien

Legal Prerogatives of the Crown

Otherwise known as Crown “privileges or immunities”.

  • Crown is not bound by statute save by express words or necessary implication
  • Crown immunities in litigation, including that the Crown is not directly subject to the contempt jurisdiction and the sovereign has personal immunity from prosecution or being sued for a wrongful act

N.b: While Crown immunity status for NHS hospitals has ended, the health and safety executive, however, cannot issue statutory improvement or prohibition notices in royal palaces or other crown institutions.

When the Thatcher government withdrew the right to union recognition at GCHQ, it was challenged as an infringement of employees’ rights. Lord Roskill, in the House of Lords, upheld the right to a judicial review: “I am unable to see … that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of power statutory. In either case the act in question is the act of the executive. To talk of that act as the act of the sovereign savours of the archaism of past centuries.”

It remains routine practice for ministers to grant public immunity certificates. These enable ministers to withhold even crucial information from the courts on the grounds that disclosure would be against the public interest or would interfere with the proper functioning of the public service. However, prior to 1996, public immunity certificates were even used to withhold certain classes of document, even though it could not be shown that disclosure would be harmful in a specific case, e.g. the Matrix Churchill case. Now it must be shown that disclosure would cause “real damage or harm”.

  • Tax not payable on income received by the sovereign
  • Crown is a preferred creditor in a debtor’s insolvency
  • Time does not run against the Crown (ie no prescriptive rights run)
  • Priority of property rights of the Crown in certain circumstances

Contrary to democratic principles, the royal prerogatives offer unacceptable opportunity for executive government to be arbitrary, secretive and unaccountable. When Tony Blair was Prime Minister, there was concern that he was attempting to dismantle democracy by assuming presidential-style powers using the royal prerogatives without explicit consent from parliament, as well as by excluding the Cabinet from debates, discussions and decisions on government policy. Although prerogative power has been eroded, it still remains a formidable weapon in the hands of the executive, such that it is Downing Street that is likely to scupper any reform.

For more information see: “Crown Powers, Subjects and Citizens (Citizenship & the Law)” by Christopher Vincenzi.

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