5.3 The royal prerogative and conventions
The role of the monarch changed as parliament was strengthened. The effect of the royal prerogative and the role of conventions form an integral part of the UK constitution.
Activity 11 Remembering the prerogative
a.Numerous attempts have been made to submit a valuable and thorough definition of the royal prerogative. Read the quotes given to you here, which each highlight different aspects and views on the royal prerogative, before you attempt part b of this exercise:
Blackstone (Commentaries 1765–69):
‘By the word prerogative we usually understand that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of common law, in right of his regal dignity ... it can only be applied to those rights and capacities which the King enjoys alone, in contradiction to others, and not to those which he enjoys in common with any of his subjects.’
Dicey (1885, p. 424):
‘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.’
Chittey, J. (1820, p. 2):
‘The rights of sovereignty, or supreme power, are of a legislative and executive nature and must, under any form of government, be vested exclusively in a body or bodies, distinct from the people at large.’
Barnett, H. (2010, p. 108):
‘Under the constitution of the United Kingdom, all actions of government are undertaken in the name of the Crown. Any account of the prerogative is an account of power, and the prerogative, historically and contemporarily, concerns the power of the Crown. The prerogative today represents one of the most intriguing aspects of the unwritten constitution.’
Loveland (2015, pp. 93–94):
‘Most of these powers can be exercised in two ways, either directly or indirectly. Direct exercise of the prerogative need not take any documentary form. Foreign policy for example is usually carried on in this way. The prerogative is exercised indirectly through a device known as the Order in Council, which is in some respects analogous to a statute, in that it often grants Ministers the legal authority to exercise a range of discretionary powers.
Irrespective of the way they are used, the continued existence of prerogative powers raises two substantial constitutional issues – one legal, the other political. The legal issue is essentially the question of the relationship between the government and the judiciary; which prerogative powers will the courts subject to judicial review, and in what circumstances and according to which criteria will the courts intervene to regulate government activity? The political issue centres on the relationship between the government and the house of Parliament. It is desirable that important political decisions such as going to war, signing treaties, or granting pardons should be taken without explicit pripr approval of a majority of MP’s?’
- b.This part of the activity wants to give you the chance to collect your thoughts and find a way of remembering the essence of the prerogative. Use the box provided and develop your own definition of the royal prerogative, using no more than 200 words.
You will see how challenging it can be to describe a complex principle in your own words. It might feel as if you cannot grapple fully with the complexity of the topic. However, an exercise like this can help you to reflect on your understanding. Once you are able to rephrase a complex aspect of the law and explain it with your own words, you will have understood what you have read.
Loveland (2015) presents an in-depth discussion of the royal prerogative. One example of a looser definition is presented by Parliament:
Originally prerogative powers would have been exercised by the reigning monarch. However, over time a distinction has emerged between the monarch acting on his or her own capacity, and the powers possessed by the Monarch as head of state. In modern times, Government Ministers exercise the majority of the prerogative powers either in their own right or through the advice they provide to the Queen which she is bound constitutionally to follow. There have been calls to reform prerogative powers, chiefly because they are exercised without any parliamentary authority.
This definition only gives a very brief and simple account of the royal prerogative, but it does outline the core concept.
Another uncodified element of the UK’s constitutional framework that is not easy to grasp is the concept of constitutional conventions. You have already dealt with an example of a convention when you looked at the Canadian constitution.
Dicey (1835) offers one way of distinguishing between laws and conventions:
The one set of rules are in the strictest sense ‘laws,’ since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims known as the Common Law) are enforced by the Courts; these rules constitute ‘constitutional law’ in the proper sense of that term, and may for the sake of distinction be called collectively ‘the law of the constitution’.
The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials, are not in reality laws at all since they are not enforced by the Courts. This portion of constitutional law may, for the sake of distinction, be termed the ‘convention of the constitution,’ or constitutional morality.
The core element of Dicey’s assessment is the fact that conventions cannot be enforced by the courts. These aspects of constitutional morality, as he puts it, form an important part of the UK constitution and yet there are no means of accountability. This is a unique element of the UK constitution also in comparison to the constitutions we looked at so far in this course. Loveland (2015) is making the attempt of a brief assessment of the functions of conventions.
A simple, if incomplete, way to characterise conventions’ constitutional function is that they fill in the gaps within the legal structure of the governmental system. This notion operates at different levels of generality. Very narrowly, conventions provide a moral framework within which government Ministers or the Monarch should exercise non-justiciable legal powers. Slightly more broadly, they function as one means of regulating the relationship between Ministers within central government. More widely, conventions also regulate the relationship between the different branches of government – especially between the Monarch and the Cabinet, between central government and the Commons and Lords and between central government and local government.
The key to understanding the functioning of conventions is to focus on the aspect of morality. This comes up in both Dicey’s definition (1835) and Loveland’s explanation (2015). It also explains why conventions are not enforced by the courts.
Loveland’s summary of the Canadian situation, which you read earlier, is showing you the practical implications of constitutional conventions. Although they are always referred to as political instruments without legally binding effect, they substantially formed the Canadian constitutional process. The different parties involved in the process at hand where the Canadian government, the UK’s parliament in Westminster (the House of Commons particularly) and the Supreme Court of Canada. Each of those had a different view on the conventions that had been developed over 50 years and that had proven useful in their application. The Court’s view on the conventions at hand is not a surprise but sits well with what Dicey and Loveland himself have already told us. However, it is fascinating to see how the political and moral pressure still led to the result intended even though those conventions were denied their binding effect.
Conventions are a powerful tool, linking the players of constitutional law together and also keeping a very powerful sovereign parliament in check. The next section is going to explore how and why this is an important aspect of the UK constitution.