A summary of lecture notes on UOL's Royal Prerogative in the UK. Very helpful to understand and grasp basic concepts and use as a starting point for a detailed exam preparation and revision.
PREROGATIVE POWERS
The term prerogative refers to powers which are unique to the sovereign. Technically this is
correct, as the powers belong to the Monarch, however by convention they are in practice
exercised by the prime minister and in some cases by cabinet members.
Blackstone presented a narrow or restrictive interpretation, according to him “prerogative
mean that special pre-eminence which the King hath over and above all other persons and
out of the ordinary course of common law” but A.V Dicey has given the classic (wider)
definition of the royal prerogative, he defined it as ‘the remaining portion of the crowns
original authority and it is therefore... the name for the residue of discretionary power left at
any moment in the hands of the Crown whether such powers be in fact exercised by the
king himself or of by his Ministers.’
So broadly prerogatives 3 main features are Prerogatives are non-statutory and are derived
from common-law; The residual powers legally left in hands of the Crown; Under
constitutional conventions, the vast majority of the prerogatives are exercised by PM,
cabinet or individual ministers.
Prerogatives raise two substantive issues: the legal issue and the political issue. The legal
issue tells the relationship between the government and judiciary and explains which
prerogative shall when be subject to judicial review provided the matter is non-justiciable.
That if a prerogative exists or not. The political issue is regarding the relation between
government and Parliament or the act of the Parliament (Statute), which raises the issue
that should important decisions such as granting pardons, declaring wars be taken without
the prior approval of the parliament?
The judicial issue has arisen ever since 1611 when the case of Proclamations was decided
by Chief Edward Coke CJ. Coke CJ declared; “The King cannot change any part of
common law, statute or customs of realm. The King hath no prerogative other than that
which law of land allows him.” Thus, this case defined limitations on Royal Prerogatives.
Another case in which Courts were willingness to determine extent of prerogatives is seen
in (Burmah Oil v Lord Advocate) 1965. In WW II, the plaintiff’s oil instalment was destroyed
by British army on their retreat from Japan. After the war, the plaintiff claimed compensation
which the Crown defended with the argument that it was their prerogative to destroy
property in time of war. House of Lords did not accept this argument and declared that no
such prerogative existed if the damage had been done after the war (Mohammad V Ministry
of Defence 2017) and the courts also refused to allow the executive to make new
prerogatives (BBC v Johns).
The traditional attitude of the courts was that if the authority had acted within scope and
limits of prerogative and not reviews or question whether powers had been properly
exercised but change in attitude of courts was seen in Laker Air-
ways v Department of Trade in which Lord Denning stated that prerogative is a
discretionary power exercised for public good therefore prerogatives need to be examined
just as any other discretionary power of executive.
Until (Council for Civil Service Unions v Minister for the Civil Service) (GCHQ case) the
courts would review content and scope of prerogative (1984). In GCHQ case, the issue was
the removal of the rights of workers at the Government Communications Headquarters
(GCHQ) to belong to a trade union. These rights were removed by an order in council under
a prerogative power because of the particular sensitivities arising from GCHQ’s role in
electronic intelligence gathering.
Glidewell J in High Court granted the application for judicial review and stated that an
exercise by a Minister of a power conferred by Order of council, (prerogative) should be
subject to the same scrutiny and control by the courts as would be appropriate for the
exercise of the same power if it had been granted by statute.
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