Misplaced Pages

Royal prerogative: Difference between revisions

Article snapshot taken from Wikipedia with creative commons attribution-sharealike license. Give it a read and then ask your questions in the chat. We can research this topic together.
Browse history interactively← Previous editContent deleted Content addedVisualWikitext
Revision as of 03:44, 9 September 2004 editSaforrest (talk | contribs)Autopatrolled, Extended confirmed users, Pending changes reviewers17,508 editsmNo edit summary← Previous edit Latest revision as of 16:14, 28 December 2024 edit undoLilyKitty (talk | contribs)Extended confirmed users10,346 edits about promulgation and referendum 
(574 intermediate revisions by more than 100 users not shown)
Line 1: Line 1:
{{Short description|Powers available to government or executive}}
The '''Royal Prerogative''' is a body of customary authority, privilege, and immunity, recognised in ] jurisdictions possessing a monarchy as belonging to the ] alone. It is the means by which some of the ] powers of government are possessed by and vested in a ] with regard to the process of governance of their state are carried out. It is not subject to ]ary scrutiny but an individual prerogative can be abolished by legislative enactment.
{{Use dmy dates|date=August 2017}}
{{Use British English|date=August 2017}}
{{Monarchism}}


The '''royal prerogative''' is a body of customary authority, privilege, and immunity recognized in ] (and sometimes in ] jurisdictions possessing a monarchy) as belonging to the ], and which have become widely vested in the government.{{NoteTag|In ], the wording '']'' is usually used in this context instead of ''king'' or ''queen''.}} It is the means by which some of the ] powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.
Though originally exercised at the will of the monarch, in modern ] the Royal Prerogative is exercised by the monarch on the advice of the ] and ].


== Evolution ==
There are still situations in which the monarch may choose to exercise his or her Royal Prerogative independently from the elected politicians. Such situations are extremely rare, and only occur in emergencies.
In most ], prerogatives can be abolished by Parliament under its legislative authority.{{Citation needed|date=August 2024}} In the ], this draws on the constitutional statutes at the time of the ], when ] and ] were invited to take the throne.{{citation needed |date=October 2024}}


In the ], the remaining powers of the royal prerogative are devolved to the head of the government, which, for more than two centuries, has been the ]; the benefits, equally, such as ] of treaties and ] in all gold and silver ores, vest in (belong to) the government.<ref>'']'' (''] v ]'')</ref>{{citation needed |date=October 2024}}
Not all constitutional monarchs have royal prerogative that can be exercised independently however. For example, the King of ] and the ] of ] have specific government duties that cannot be exercised with any degree of individual discretion, no matter what the circumstance.


In Britain, prerogative powers were originally exercised by the monarch acting without an observed requirement for ]ary consent (after its empowerment in certain matters following ]). Since the accession of the ], these powers have been exercised, with minor exceptions in economically unimportant sectors, on the ] of the ] or the ], who are accountable to Parliament (and exclusively so, except in matters of the Royal Family) since at least the time of ].{{citation needed |date=October 2024}}
Though some ]an heads of state possess similar powers they are not coterminous, containing a number of fundamental differences, not the least of which being that they do not operate in common law systems in which common law courts can impose limits on their exercise.


Typically, in ] that are constitutional monarchies as well as ], such as ], ], and ], the royal prerogative serves in practice as a prescribed ] function of the ].{{citation needed |date=October 2024}}
==The Royal Prerogative in the United Kingdom==
In the ] (up to ]), the ] (1707&ndash;]) and the ] (since ]), the Royal Prerogative historically was one of the central features of the ]'s governance. Some key areas of British system of government are still carried out by means of the Royal Prerogative. However the usage of the Royal Prerogative has been diminishing.


===Ministerial exercise of the monarch's prerogatives===
Contrary to widespread belief, the Royal Prerogative is not unlimited. In the ''Case of Proclamations'' (]) during the reign of King ], ] common law courts judges emphatically asserted that they possessed the right to determine the limits of the Royal Prerogative. Since the ] (]), which brought co-monarchs Queen ] and King ] to power, this judicial interpretation has not been challenged by ].
Today, prerogative powers fall into two main categories:


*Those directly exercised by ministers without the approval of parliament, including, in some countries such as the UK, the powers to regulate the civil service, issue passports, and grant honours.<ref>{{cite web | url= http://www.parliament.uk/business/committees/committees-archive/public-administration-select-committee/pasc-19/| title= UK Parliament – PASC 19| publisher= Queen's Printer for Parliament}}</ref>{{citation needed |date=October 2024}}
Among the powers theoretically possessed by the monarch in the United Kingdom under the Royal Prerogative are:
*Those exercised nominally by the monarch, "on the advice of" (that is, by constitutional convention, however so requested by) the ] and on the advice of the ].{{citation needed |date=October 2024}}
* The appointment and dismissal of ministers;
* The dissolution of parliament and the calling of elections;
* Clemency and ];
* The awarding of dignities and honours;
* The declaration of war;
* The declaration of an emergency;
* The granting of ];
* The collection of tolls;
* The issuance and revocation of ];
* The expulsion of a foreign national from the United Kingdom;
* The creation of new ''common law'' courts;
* The creation of new ];
* The appointment of ]s and archbishops in the ];
* The printing of the authorised Church of England version of '']'';
* The publication of all statutes, legislative instruments and ].


Some key areas of government are carried out by the royal prerogative, but its usage is falling as functions are progressively made statutory.{{citation needed |date=October 2024}}
The prerogative also traditionally included duties, not just rights. The foremost of these were the defence of the realm and the keeping of the ].


==Commonwealth realms==
The monarch is also immune from prosecution in the courts, though the scope of the immunity that once attached to the Crown has reduced. The logic for this is that the Queen is present in all courts and acts as the prosecuting authority in most criminal cases, either directly of via the ]: she cannot therefore sue or prosecute herself or judge her own case. In particular, several ] have allowed agents of the Crown (i.e. government employees) to be sued in the courts. The Queen's daughter, the ] actually has a criminal record (for not keeping her dog under control).
===United Kingdom===
{{Main|Royal prerogative in the United Kingdom}}


In the ] (up to 1707), the ] (1707–1800), and the ] (since 1801), the royal prerogative was, has been, and is one of the central features of the ]'s governance.
Although many powers are included in the royal prerogative, some powers are notable for their absence. In particular, the British monarch does not have the power to deprive an individual of their life, liberty or property as these rights are said to derive from the ]. As a consequence, the monarch does not have the power to tax without the consent of ] and this has significantly limited the power of the monarchy. The unsuccessful efforts of ] to raise money to finance the royal administration through royal prerogative sources not subject to parliamentary approval (such the collection of ]) was one of the major causes of the ].


Constitutional theorist ] defines the scope of prerogative powers as:
Most powers execised by the British government in international and foreign affairs come from the Royal Prerogative. These include
* The accreditation of diplomats;
* The granting of ];
* The negotiation of treaties.


{{Quote|... the remaining portion of the Crown's 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 power be in fact exercised by the King himself or by his Ministers.<ref>{{Cite web|url=https://publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/42204.htm|title=House of Commons – Public Administration – Fourth Report<!-- Bot generated title -->}}</ref>}}
Many uses of the prerogative in foreign affairs are called ].


The scope of the royal prerogative is difficult to determine due to the ] nature of the ]. It is clear that the existence and extent of the power is a matter of the ], making the courts the final arbiter of whether a particular type of prerogative exists or not. Nevertheless, certain prerogative powers have been widely acknowledged and accepted over time, while others have fallen out of use.
Among the odder royal prerogatives are:
* The power to order a subject not to leave the realm;
* Royal ownership of ]s.


The royal prerogative is not constitutionally unlimited. In the ] (1611) during the reign of King ], English common law courts judges emphatically asserted that they possessed the right to determine the limits of the royal prerogative. Since the ] in 1688, which brought co-monarchs ] and ] to power, this interpretation of there being a separate and distinct power of the judiciary has not been challenged by ]. It has been accepted that it is emphatically the province of the court(s) to say what the law is, or means. This is a crucial corollary and foundation to the concept of the judicial power; and its distinct and separate nature from the executive power possessed by the Crown itself, or its ministers. In most cases, the Monarch exercises the prerogative powers only on the advice of the ] of the day, either directly or through the ].
In practice, ] requires these powers are all exercised by the Prime Minister and cabinet, who instruct the monarch as to when to use them.


====British dependencies====
Prior to British involvement in the ], Prime Minister ], in a major break with precedent, sought parliamentary approval for British participation in the war. However Parliament's decision was in constitutional terms ''advisory'' as the actual decision would be taken by the exercise of the Royal Prerogative. Blair indicated that should parliament not approve, he would not formally advise Queen ] to exercise the Royal Prerogative and declare war. Given that Blair had an overwhelming ] majority in the ] and had the support of the opposition ], there was little likelihood that parliament would vote down the motion recommending participation in the war. It remains to be seen whether a future government with a small majority or in a minority in the House of Commons will seek parliamentary approval prior to the exercise of the Royal Prerogative.
Generally, ] retains all the power of the state in an overseas territory (or 'dependent territory' from 1983 to 2002 or 'Crown colony' before that), even if in practice it is not directly exercised. Thus the royal prerogative is in theory an unlimited, arbitrary authority.<ref>], 1774</ref> In ] however, each inhabited territory has a constitution by which the territory is governed locally.


The absoluteness of the royal prerogative in the colonies was however defeated in the case of '']'' in 1774. This case decided that once a colony gained a representative assembly (or once the governor has been instructed to call one), the royal authority is limited to the familiar prerogatives; without the assembly's consent the Crown could not raise taxation nor change the law. Several of the colonies of the British West Indies thus became "settled colonies", and reverted to "crown colony" status only by Act of Parliament in the nineteenth century.<ref>e.g. The ] (] c. 47)</ref>
Former left wing Labour ] ] campaigned for the abolition of the Royal Prerogative in the United Kingdom in the ], arguing that all governmental powers in effect exercised on the advice of the Prime Minister and cabinet should be subject to parliamentary scrutiny and require parliamentary approval. His attempts were unsuccessful, with later governments arguing that such is the breadth of topics covered by the Royal Prerogative that requiring parliamentary approval in each instance where the prerogative is currently used would overwhelm parliamentary time and slow the enactment of legislation.


In August 2009, ], first Premier of the ], a ], resigned under charges of corruption and abuse of power. In order to restore the rule of law, the UK government took direct control of the government of the territory, under an ]<ref>The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009</ref> of 18 March 2009, which suspended and amended parts of the Islands' constitution, and vacated all the offices of ] and the House of Assembly. This action was not an exercise of the royal prerogative, as it was made under "the West Indies Act 1962 and of all other powers enabling Her to do so", but did vest wide discretionary legislative and executive powers in ]'s governor, who as in all British Overseas Territories, acts on the instructions of the UK government, not the monarch. A new ] was promulgated in October 2012 and the government was returned to full local administration after the ].<ref>{{cite web |last1=Bounds |first1=John H. |last2=Ferguson |first2=James A. |title=Turks and Caicos Islands |url=https://www.britannica.com/place/Turks-and-Caicos-Islands |website=Encyclopedia Britannica |access-date=15 November 2022}}</ref><ref name="Clegg">{{Cite journal|last=Clegg |first=Peter |year=2013 |title=The United Kingdom and its Caribbean overseas territories: Present relations and future prospects |journal=Caribbean Journal of International Relations & Diplomacy |volume=1 |issue=2 |pages=53–64 |url=http://eprints.uwe.ac.uk/20439/1/Clegg%5B1%5D.pdf |archive-url=https://web.archive.org/web/20170131221456/http://eprints.uwe.ac.uk/20439/1/Clegg%5B1%5D.pdf |archive-date=31 January 2017 |url-status=live }}</ref>{{rp|p=56}}
In ], the Royal Prerogative is very similar in nature to the prerogative in England, but is exercised by the Monarch's representative, the ].


In the case of the ], in 2000, the ] ruled that a local ordinance made by the Commissioner of the ] exiling the islanders was unlawful, a decision which was accepted by the British ] ]. That Order was legislation passed under authority given by the royal prerogative, not an exercise of the prerogative itself, and was overturned as being beyond the powers given. After this decision, the British government issued an ], a primary exercise of the royal prerogative, to achieve the same objective. This Order was also ruled unlawful by the ], a ruling upheld in the ]. However, on Wednesday, 22 October 2008, the government ] in the ] against the previous rulings. The House decided by a three-to-two majority that the Order in Council was a lawful exercise of authority.<ref>{{Cite web|url=http://afp.google.com/article/ALeqM5hdjVkpT6_bzQxOkAQiXHQRIerOtw|title=Britain wins appeal over Chagos islanders' return home|access-date=24 October 2008|archive-date=29 May 2013|archive-url=https://web.archive.org/web/20130529024235/http://afp.google.com/article/ALeqM5hdjVkpT6_bzQxOkAQiXHQRIerOtw|url-status=dead}}</ref><ref>{{Cite web|url=http://ukpress.google.com/article/ALeqM5jAGxtNEsx6bLfJqWoxpoftSmC98A|archiveurl=https://web.archive.org/web/20081026013052/http://ukpress.google.com/article/ALeqM5jAGxtNEsx6bLfJqWoxpoftSmC98A|url-status=dead|title=Chagos islanders cannot return home|archivedate=26 October 2008}}</ref> In their speeches, the Law Lords admitted the government of the day was morally wrong to force out some 2,000 residents of the Chagos Archipelago, a British Crown colony, to make way for a US air base in the 1960s. Nevertheless, the majority could not find legal fault in the Order.
==See Also==

* ]
===Canada===
* ]
In Canada, the royal prerogative is, for the most part, the same as that in the United Kingdom, as constrained by constitutional convention,<ref>{{cite journal| last=Hicks| first=Bruce M.| year=2010| title=British and Canadian Experience with the royal prerogative| journal=Canadian Parliamentary Review| volume=Summer 2010| pages=18–24| publisher=Commonwealth Parliamentary Association| url=http://revparl.ca/33/2/33n2_10e_Hicks.pdf| access-date=18 April 2011}}</ref> although its exercise is usually through the federal ] in the ], or the ] ]s in the ]. The royal prerogative in Canada is largely set out in Part III of the ], particularly section 9.<ref>{{Cite web|url=https://laws-lois.justice.gc.ca/eng/Const/page-2.html|title=Consolidated federal laws of canada, The Constitution Acts, 1867 to 1982|first=Legislative Services|last=Branch|date=7 August 2020|website=laws-lois.justice.gc.ca}}</ref><ref name="Law Times">{{cite news| title=War power and the royal prerogative| publisher=Law Times| date=2006-05-01| url=http://www.lawtimesnews.com/20060501549/Headline-News/War-power-and-the-Royal-Prerogative| access-date=2011-04-18| archive-date=1 April 2013| archive-url=https://web.archive.org/web/20130401120733/http://lawtimesnews.com/20060501549/Headline-News/War-power-and-the-Royal-Prerogative| url-status=dead}}</ref>
* ]

* ]
As foreign affairs are a matter of royal prerogative,<ref name=Barnett>{{cite web| url=http://www.parl.gc.ca/Content/LOP/ResearchPublications/prb0860-e.htm#TheRoyal| last1=Barnett| first1=Laura| last2=Spano| first2=Sebastian| editor-last=Library of Parliament| title=Parliamentary Involvement in Foreign Policy| date=10 November 2008| publisher=Queen's Printer for Canada| access-date=23 October 2012}}</ref> the power to declare war and deploy the ] belongs to the Crown, though only in its ] (the ]), as outlined in sections 9 and 15 of the Constitution Act, 1867.<ref name="Law Times"/> Neither legislation nor any other type of parliamentary approval, beyond budgetary matters, is required for such actions, though the Cabinet has on occasion consulted parliament before engaging Canada or extending Canada's involvement in a conflict.<ref name=Barnett /> Additionally, the federal Crown may ratify treaties. Again, the endorsement of Parliament is not necessary for these agreements to have force in an international sense, but the federal Parliament and the provincial legislatures must pass statutes in order for them to have domestic effect, under the division of powers set out in sections 91 and 92 of the ''Constitution Act, 1867''. Proposed treaties have also occasionally been presented to parliament for debate before ratification.<ref name=Barnett /> Members of Parliament have tabled bills seeking to curtail the use of the royal prerogative in foreign affairs by legislating a greater role for parliament, as have ] standing committees, from time to time, called for the same.<ref name=Barnett />
* ]

] also remains within the royal prerogative in Canada. The terms for the issuing of passports by the Minister of Foreign Affairs on behalf of the Crown are set out in the Canadian Passport Order,<ref>''Canadian Passport Order'', SI/81-86.</ref> issued by the Governor General-in-Council. The Canadian government has used the royal prerogative on two occasions to deny a passport to a Canadian citizen, ] and ]. Lawsuits filed at the ], ], and ultimately the ] did not find in favour of either Khadr, nor Kamel.

The royal prerogative in Canada extends also to the granting of honours, as explained by the ] in '']'' (regarding ]'s entitlement to an appointment to the ] while a Canadian citizen).<ref name="Law Times"/> Other royal prerogatives, such as the prerogative of mercy, also exist in the Canadian context, although largely supplanted for criminal matters by statutory provisions.<ref>{{cite web| author=Cloverdale ARPA| url=http://arpacanada.ca/index.php/issuesresearch/pro-life/81-latimers-appeal-for-the-royal-prerogative-of-mercy| title=Latimer's Appeal for the royal prerogative of Mercy| publisher=ARPA Canada| access-date=2011-04-18| archive-date=7 October 2011| archive-url=https://web.archive.org/web/20111007234534/http://arpacanada.ca/index.php/issuesresearch/pro-life/81-latimers-appeal-for-the-royal-prerogative-of-mercy| url-status=dead}}</ref>

===Other Commonwealth realms===
In the other ], the royal prerogative can be or is specifically mandated to be exercised by the monarch's representative, the governor-general. In the case of Australia, the royal prerogative, although resides in the monarch, it is exercisable by the ] for military affairs and is defined by the ].<ref>{{cite web|url=http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s68.html |title=Commonwealth of Australia Constitution Act – Sect 68 Command of naval and military forces| publisher=Commonwealth Consolidated Acts | access-date=26 August 2018}}</ref>

The ] of a Commonwealth realm may also sharply limit the prerogative. In some cases, governmental acts which would normally require royal prerogative may be enacted through other means in the constitution, or through a legislative act in a Commonwealth realm, such as was seen in the United Kingdom, where a previous act of parliament dictated the conditions in which an early election could be called, which was a purely Royal Prerogative prior to its passage.<ref>{{Cite web |last=Kelly |first=Richard |date=2014 |title=Prerogative Powers and the Fixed-term Parliaments Act |url=https://commonslibrary.parliament.uk/prerogative-powers-and-the-fixed-term-parliaments-act/ |access-date=6 June 2024}}</ref>

==Spain==
{{See also|Monarchy of Spain}}

The ], Title II ''The Crown'', Article 62, delineates the powers of the king, while Title IV ''Government and Administration'', Article 99, defines the king's role in government.<ref name="Wiki Source Spa Constitution 78">{{Cite web|url=https://es.wikisource.org/Constituci%C3%B3n_espa%C3%B1ola_de_1978:_04|title=Constitución española de 1978: 04 - Wikisource|website=es.wikisource.org}}</ref><ref name="Official website of the Royal Household">{{Cite web|url=https://www.casareal.es/ES/Paginas/home.aspx|title=Inicio - Castellano - Casa Real|website=www.casareal.es}}</ref><ref name="King and Prime Minister">{{Cite web|url=https://es.wikisource.org/Constituci%C3%B3n_espa%C3%B1ola_de_1978:_06|title=Constitución española de 1978: 06 - Wikisource|website=es.wikisource.org}}</ref> Title VI ''Judicial Power'', Article 117, Articles 122 through 124, outlines the king's role in the country's ].<ref name="King and Judicary">{{Cite web|url=https://es.wikisource.org/Constituci%C3%B3n_espa%C3%B1ola_de_1978:_08|title=Constitución española de 1978: 08 - Wikisource|website=es.wikisource.org}}</ref> However, by ] established by ], the king exercises his prerogatives having solicited government advice while maintaining a politically ] and independent monarchy. Receiving government advice does not necessarily bind the monarch into executing the advice, except where prescribed by the constitution.

{{Quote|It is incumbent upon the King:
: a. to sanction and ] the laws;
: b. to summon and dissolve the ] and to call elections under the terms provided in the Constitution;
: c. to call a ] in the circumstances provided for in the Constitution;
: d. to propose a candidate for ] and, as the case may be, appoint him or remove him from office, as provided in the Constitution;
: e. to appoint and dismiss members of the ] on the proposal of its President;
: f. to issue the decrees agreed upon by the ], to confer civil and military employments and award honours and distinctions in conformity with the law;
: g. to keep himself informed regarding affairs of State and, for this purpose, to preside over the meetings of the Council of Ministers whenever he deems opportune, at the request of the President of the Government;
: h. to exercise supreme command of the ];
: i. to exercise the right to grant pardons in accordance with the law, which may not authorize general pardons;
: j. to exercise the High Patronage of the Royal Academies.<ref name="Wiki Source Spa Constitution 78" /><ref name="Official website of the Royal Household" />}}

== See also ==
* ]
* ]
* '']''
* ]
* ] * ]
* ]
* ]
* ]
* ]
* ]
* ]
* ]


==Additional Reading== == Notes ==
{{NoteFoot}}

== References ==
{{Reflist}}

== Further reading ==
* ], ''The King and the Imperial Crown'' (1936)
* Joseph Chitty, ''The Prerogatives of the Crown'' (monograph from 1820)
* ] and ], ''Constitutional and Administrative Law''
* ], ''The English Constitution'' * ], ''The English Constitution''
* Blick, Andrew. 2014. "Emergency powers and the withering of the Royal Prerogative." International Journal of Human Rights 18, no. 2: 195–210.
* Joseph Chitty, ''The Prerogatives of the Crown'' (monograph from ])

* Stanley de Smith and Rodney Brazier, ''Constitutional and Administrative Law''
== External links ==
* A.B. Keith, ''The King and the Imperial Crown'' (])
{{Wiktionary|prerogative}}
*
*
*
*

{{Clear}}
{{Law}}
{{Constitution of Canada|conventions}}
{{Authority control}}


] ]
]
]

Latest revision as of 16:14, 28 December 2024

Powers available to government or executive

Part of the Politics series
Monarchy
Heraldic royal crown
Central concepts
Types
Philosophy

Philosophers

Works

Politicians
History
Polity
Administration
Related ideologies
National variants
Related topics
icon Politics portal

The royal prerogative is a body of customary authority, privilege, and immunity recognized in common law (and sometimes in civil law jurisdictions possessing a monarchy) as belonging to the sovereign, and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

Evolution

In most constitutional monarchies, prerogatives can be abolished by Parliament under its legislative authority. In the Commonwealth realms, this draws on the constitutional statutes at the time of the Glorious Revolution, when William III and Mary II were invited to take the throne.

In the United Kingdom, the remaining powers of the royal prerogative are devolved to the head of the government, which, for more than two centuries, has been the Prime Minister; the benefits, equally, such as ratification of treaties and mineral rights in all gold and silver ores, vest in (belong to) the government.

In Britain, prerogative powers were originally exercised by the monarch acting without an observed requirement for parliamentary consent (after its empowerment in certain matters following Magna Carta). Since the accession of the House of Hanover, these powers have been exercised, with minor exceptions in economically unimportant sectors, on the advice of the prime minister or the Cabinet, who are accountable to Parliament (and exclusively so, except in matters of the Royal Family) since at least the time of William IV.

Typically, in liberal democracies that are constitutional monarchies as well as nation states, such as Denmark, Norway, and Sweden, the royal prerogative serves in practice as a prescribed ceremonial function of the state power.

Ministerial exercise of the monarch's prerogatives

Today, prerogative powers fall into two main categories:

  • Those directly exercised by ministers without the approval of parliament, including, in some countries such as the UK, the powers to regulate the civil service, issue passports, and grant honours.
  • Those exercised nominally by the monarch, "on the advice of" (that is, by constitutional convention, however so requested by) the prime minister and on the advice of the cabinet.

Some key areas of government are carried out by the royal prerogative, but its usage is falling as functions are progressively made statutory.

Commonwealth realms

United Kingdom

Main article: Royal prerogative in the United Kingdom

In the Kingdom of England (up to 1707), the Kingdom of Great Britain (1707–1800), and the United Kingdom (since 1801), the royal prerogative was, has been, and is one of the central features of the realm's governance.

Constitutional theorist A. V. Dicey defines the scope of prerogative powers as:

... the remaining portion of the Crown's 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 power be in fact exercised by the King himself or by his Ministers.

The scope of the royal prerogative is difficult to determine due to the uncodified nature of the constitution. It is clear that the existence and extent of the power is a matter of the common law of England, making the courts the final arbiter of whether a particular type of prerogative exists or not. Nevertheless, certain prerogative powers have been widely acknowledged and accepted over time, while others have fallen out of use.

The royal prerogative is not constitutionally unlimited. In the Case of Proclamations (1611) during the reign of King James VI/I, English common law courts judges emphatically asserted that they possessed the right to determine the limits of the royal prerogative. Since the Glorious Revolution in 1688, which brought co-monarchs King William III and Queen Mary II to power, this interpretation of there being a separate and distinct power of the judiciary has not been challenged by the Crown. It has been accepted that it is emphatically the province of the court(s) to say what the law is, or means. This is a crucial corollary and foundation to the concept of the judicial power; and its distinct and separate nature from the executive power possessed by the Crown itself, or its ministers. In most cases, the Monarch exercises the prerogative powers only on the advice of the Government of the day, either directly or through the Privy Council.

British dependencies

Generally, the Crown retains all the power of the state in an overseas territory (or 'dependent territory' from 1983 to 2002 or 'Crown colony' before that), even if in practice it is not directly exercised. Thus the royal prerogative is in theory an unlimited, arbitrary authority. In British overseas territories however, each inhabited territory has a constitution by which the territory is governed locally.

The absoluteness of the royal prerogative in the colonies was however defeated in the case of Campbell v. Hall in 1774. This case decided that once a colony gained a representative assembly (or once the governor has been instructed to call one), the royal authority is limited to the familiar prerogatives; without the assembly's consent the Crown could not raise taxation nor change the law. Several of the colonies of the British West Indies thus became "settled colonies", and reverted to "crown colony" status only by Act of Parliament in the nineteenth century.

In August 2009, Michael Misick, first Premier of the Turks and Caicos Islands, a British Overseas Territory, resigned under charges of corruption and abuse of power. In order to restore the rule of law, the UK government took direct control of the government of the territory, under an Order in Council of 18 March 2009, which suspended and amended parts of the Islands' constitution, and vacated all the offices of ministers and the House of Assembly. This action was not an exercise of the royal prerogative, as it was made under "the West Indies Act 1962 and of all other powers enabling Her to do so", but did vest wide discretionary legislative and executive powers in Her Majesty's governor, who as in all British Overseas Territories, acts on the instructions of the UK government, not the monarch. A new constitution was promulgated in October 2012 and the government was returned to full local administration after the November 2012 elections.

In the case of the Chagos Archipelago, in 2000, the High Court of Justice of England and Wales ruled that a local ordinance made by the Commissioner of the British Indian Ocean Territory exiling the islanders was unlawful, a decision which was accepted by the British Foreign Secretary Robin Cook. That Order was legislation passed under authority given by the royal prerogative, not an exercise of the prerogative itself, and was overturned as being beyond the powers given. After this decision, the British government issued an Order in Council, a primary exercise of the royal prerogative, to achieve the same objective. This Order was also ruled unlawful by the High Court, a ruling upheld in the Court of Appeal. However, on Wednesday, 22 October 2008, the government won its appeal in the House of Lords against the previous rulings. The House decided by a three-to-two majority that the Order in Council was a lawful exercise of authority. In their speeches, the Law Lords admitted the government of the day was morally wrong to force out some 2,000 residents of the Chagos Archipelago, a British Crown colony, to make way for a US air base in the 1960s. Nevertheless, the majority could not find legal fault in the Order.

Canada

In Canada, the royal prerogative is, for the most part, the same as that in the United Kingdom, as constrained by constitutional convention, although its exercise is usually through the federal governor general in the Privy Council of Canada, or the provincial lieutenant governors in the provincial executive councils. The royal prerogative in Canada is largely set out in Part III of the Constitution Act, 1867, particularly section 9.

As foreign affairs are a matter of royal prerogative, the power to declare war and deploy the armed forces belongs to the Crown, though only in its federal Cabinet (the federal government), as outlined in sections 9 and 15 of the Constitution Act, 1867. Neither legislation nor any other type of parliamentary approval, beyond budgetary matters, is required for such actions, though the Cabinet has on occasion consulted parliament before engaging Canada or extending Canada's involvement in a conflict. Additionally, the federal Crown may ratify treaties. Again, the endorsement of Parliament is not necessary for these agreements to have force in an international sense, but the federal Parliament and the provincial legislatures must pass statutes in order for them to have domestic effect, under the division of powers set out in sections 91 and 92 of the Constitution Act, 1867. Proposed treaties have also occasionally been presented to parliament for debate before ratification. Members of Parliament have tabled bills seeking to curtail the use of the royal prerogative in foreign affairs by legislating a greater role for parliament, as have Senate standing committees, from time to time, called for the same.

The issuance of passports also remains within the royal prerogative in Canada. The terms for the issuing of passports by the Minister of Foreign Affairs on behalf of the Crown are set out in the Canadian Passport Order, issued by the Governor General-in-Council. The Canadian government has used the royal prerogative on two occasions to deny a passport to a Canadian citizen, Abdurahman Khadr and Fateh Kamel. Lawsuits filed at the Federal Court, Federal Court of Appeal, and ultimately the Supreme Court of Canada did not find in favour of either Khadr, nor Kamel.

The royal prerogative in Canada extends also to the granting of honours, as explained by the Court of Appeal for Ontario in Black v. Chrétien (regarding Conrad Black's entitlement to an appointment to the House of Lords while a Canadian citizen). Other royal prerogatives, such as the prerogative of mercy, also exist in the Canadian context, although largely supplanted for criminal matters by statutory provisions.

Other Commonwealth realms

In the other Commonwealth realms, the royal prerogative can be or is specifically mandated to be exercised by the monarch's representative, the governor-general. In the case of Australia, the royal prerogative, although resides in the monarch, it is exercisable by the governor-general of Australia for military affairs and is defined by the Constitution of Australia.

The constitution of a Commonwealth realm may also sharply limit the prerogative. In some cases, governmental acts which would normally require royal prerogative may be enacted through other means in the constitution, or through a legislative act in a Commonwealth realm, such as was seen in the United Kingdom, where a previous act of parliament dictated the conditions in which an early election could be called, which was a purely Royal Prerogative prior to its passage.

Spain

See also: Monarchy of Spain

The Spanish Constitution of 1978, Title II The Crown, Article 62, delineates the powers of the king, while Title IV Government and Administration, Article 99, defines the king's role in government. Title VI Judicial Power, Article 117, Articles 122 through 124, outlines the king's role in the country's independent judiciary. However, by constitutional convention established by Juan Carlos I, the king exercises his prerogatives having solicited government advice while maintaining a politically non-partisan and independent monarchy. Receiving government advice does not necessarily bind the monarch into executing the advice, except where prescribed by the constitution.

It is incumbent upon the King:

a. to sanction and promulgate the laws;
b. to summon and dissolve the Cortes Generales and to call elections under the terms provided in the Constitution;
c. to call a referendum in the circumstances provided for in the Constitution;
d. to propose a candidate for President of the Government and, as the case may be, appoint him or remove him from office, as provided in the Constitution;
e. to appoint and dismiss members of the Government on the proposal of its President;
f. to issue the decrees agreed upon by the Council of Ministers, to confer civil and military employments and award honours and distinctions in conformity with the law;
g. to keep himself informed regarding affairs of State and, for this purpose, to preside over the meetings of the Council of Ministers whenever he deems opportune, at the request of the President of the Government;
h. to exercise supreme command of the Armed Forces;
i. to exercise the right to grant pardons in accordance with the law, which may not authorize general pardons;
j. to exercise the High Patronage of the Royal Academies.

See also

Notes

  1. In Commonwealth realms, the wording the Crown is usually used in this context instead of king or queen.

References

  1. Case of Mines (Regina v Earl of Northumberland)
  2. "UK Parliament – PASC 19". Queen's Printer for Parliament.
  3. "House of Commons – Public Administration – Fourth Report".
  4. Campbell v. Hall, 1774
  5. e.g. The St. Vincent and Grenada Constitution Act 1876 (39 & 40 Vict. c. 47)
  6. The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009
  7. Bounds, John H.; Ferguson, James A. "Turks and Caicos Islands". Encyclopedia Britannica. Retrieved 15 November 2022.
  8. Clegg, Peter (2013). "The United Kingdom and its Caribbean overseas territories: Present relations and future prospects" (PDF). Caribbean Journal of International Relations & Diplomacy. 1 (2): 53–64. Archived (PDF) from the original on 31 January 2017.
  9. "Britain wins appeal over Chagos islanders' return home". Archived from the original on 29 May 2013. Retrieved 24 October 2008.
  10. "Chagos islanders cannot return home". Archived from the original on 26 October 2008.
  11. Hicks, Bruce M. (2010). "British and Canadian Experience with the royal prerogative" (PDF). Canadian Parliamentary Review. Summer 2010. Commonwealth Parliamentary Association: 18–24. Retrieved 18 April 2011.
  12. Branch, Legislative Services (7 August 2020). "Consolidated federal laws of canada, The Constitution Acts, 1867 to 1982". laws-lois.justice.gc.ca.
  13. ^ "War power and the royal prerogative". Law Times. 1 May 2006. Archived from the original on 1 April 2013. Retrieved 18 April 2011.
  14. ^ Barnett, Laura; Spano, Sebastian (10 November 2008). Library of Parliament (ed.). "Parliamentary Involvement in Foreign Policy". Queen's Printer for Canada. Retrieved 23 October 2012.
  15. Canadian Passport Order, SI/81-86.
  16. Cloverdale ARPA. "Latimer's Appeal for the royal prerogative of Mercy". ARPA Canada. Archived from the original on 7 October 2011. Retrieved 18 April 2011.
  17. "Commonwealth of Australia Constitution Act – Sect 68 Command of naval and military forces". Commonwealth Consolidated Acts. Retrieved 26 August 2018.
  18. Kelly, Richard (2014). "Prerogative Powers and the Fixed-term Parliaments Act". Retrieved 6 June 2024.
  19. ^ "Constitución española de 1978: 04 - Wikisource". es.wikisource.org.
  20. ^ "Inicio - Castellano - Casa Real". www.casareal.es.
  21. "Constitución española de 1978: 06 - Wikisource". es.wikisource.org.
  22. "Constitución española de 1978: 08 - Wikisource". es.wikisource.org.

Further reading

  • A. B. Keith, The King and the Imperial Crown (1936)
  • Joseph Chitty, The Prerogatives of the Crown (monograph from 1820)
  • Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law
  • Walter Bagehot, The English Constitution
  • Blick, Andrew. 2014. "Emergency powers and the withering of the Royal Prerogative." International Journal of Human Rights 18, no. 2: 195–210.

External links

Law
Core subjects
Disciplines
Sources of law
Law making
Legal systems
Legal theory
Jurisprudence
Legal institutions
History
Constitution of Canada
Pre-Confederation constitutional documents
Confederation
Constitution Act, 1867
Powers under
Section 91
Powers under
Section 92
Amendments and other constitutional documents 1867–1982
Patriation
Constitution Act, 1982
Part I – Canadian Charter of Rights and Freedoms
Part II – Rights of the Aboriginal peoples of Canada
Part III – Equalization and regional disparities
Part V – Procedure for amending Constitution of Canada
Part VII – General
Conventions
Constitutional debate
Interpretation of the Constitution
Provincial constitutions of Canada
Categories: