The Power to … Assent to Legislation

Statutory law in Britain can only be made by the ‘Crown-in-Parliament’, meaning the House of Commons, the House of Lords and the Monarch must all assent to a proposed bill before it can become law. By convention, the Monarch always assents to all bills passed by the Houses of Parliament. But commentators wonder: if the Monarch were to be given legislation which violated some fundamental tenet of the British constitution could she … assent? This has never been tested. In the crisis over the Home Rule bill in 1912-1914, King George V did threaten to use his veto to encourage a settlement, but this is now almost a century-old precedent. The last recorded example of a Monarch refusing assent was in 1707.

In the 20th century Monarchs very rarely had to make a public exercise of their personal ‘reserve’ powers. The most obvious recent example of this was in 1957 and again in 1963, when Queen Elizabeth II was required to exercise her royal prerogative and choose a leader for the Conservative party at the time. This was because the Conservatives had no formal means of electing a new party leader. But the effect was that Queen Elizabeth was in fact choosing a Prime Minister for Britain.

b) Answer the following questions:

§ Which personal powers are exercised more/less often?

§ Are all personal powers likely to survive the current constitutional reforms?

§ Which personal powers are going to be abolished first?

TEXT 4 The Royal Prerogative

The Royal Prerogative is a collection of special powers, rights and immunities vested in the Crown which are not conferred by Parliament. The constitutional problem is therefore lack of democratic control over officials claiming to act under the prerogative. The royal prerogative originated in the special rights and powers available to the monarch under the common law. Medieval legal theory did not regard the Crown as the source of law or as above the law, but did confer special rights on the monarch. Some of these were based upon the position of the monarch as chief landowner within the feudal system. Others derived from the responsibility of the monarch to keep the peace and defend the realm. This may have corresponded to the distinction drawn in seventeenth-century cases between the 'ordinary' and the 'absolute' prerogatives, the latter being discretionary powers vested in the king and arguably beyond the reach of the courts.

Influenced by Locke's True End of Civil Government (1764 edition) and Blackstone's Commentaries, Lord Denning in Laker Airways Ltd v. Department of Trade (1977) considered that the Crown had a general discretionary power to act for the public good in certain spheres of governmental activity for which the law had otherwise made no provision. This suggests that the state may benefit from a single, overarching power to interfere in private rights where it perceives an important public benefit may result, especially in times of emergency. This interpretation is, however inconsistent with Entick v. Carrington (1765) where the court emphatically rejected the claim of 'executive necessity' that officers of the state had a general power to enter and search private property in the absence of express statutory or common law powers, Lord Denning's views were not supported by the other members of the Court of Appeal. They are also fundamentally inconsistent with ideas of limited government. The better view is that although the Crown has certain discretionary powers in relation to emergencies, such as the requisitioning of ships, the prerogative comprises a finite number of powers rather than one general power to act for the public good.

Many prerogative powers are of central importance in the British modern constitution. Certain inherent powers are essential to any government. These include the making of treaties, the waging of war, and indeed most matters concerned with foreign affairs, defence, national security and public order. Control over the civil service and armed forces are also based on prerogative powers, although, particularly in respect of the army, intermingled with statute. Some matters, for example emergency powers and immigration control, were once prerogative but are now governed mainly by statute. The security services also operate within a broad statutory framework. There is an uncertain and potentially threatening area of prerogative power concerned with 'keeping the peace' and defending the realm. It has been used to justify arming the police and may justify entry by the security services to private property.

The ancient writ of ne exeat regno prevents persons from leaving the country. Although ne exeat regno is sometimes regarded as obsolete there is no doctrine of obsolescence in English law.

The administration of justice is part of the prerogative although it was established by 1607 that the monarch can act only through professional judges (Prohibitions Del Roy (1607)). The prerogative power to pardon offenders resides with the Home Secretary, and the Attorney General has a prerogative power to institute legal proceedings in the public interest. There is also a prerogative power to stop criminal proceedings by issuing a nolle prosequi.

Other important prerogatives include:

• the monarch's powers in relation to the appointment of ministers and the summoning and dissolving of Parliament; as we have seen, the circumstances in which these powers are exercisable are not clear. They are essentially a long-step to preserve democracy; the various Crown immunities which we have already discussed;

powers relating to the Church of England;

the care of children;
the administration of trusts;
the award of peerages and other titles, medals, etc., the Crown being the'fount of honour';

• the granting of Royal Charters to bodies such as universities, learned societies, charities or professional associations which gives the body the status of a legal person and signifies state approval of its activities;

• the conduct of foreign affairs, the appointing and receiving of ambassadors, the issue of passports, etc.

The exercise of prerogative powers can be subject to parliamentary scrutiny. However, in practice, this is limited. This is partly because prerogative powers such as deploying the armed forces do not need formal parliamentary approval so that opportunity for debate is limited. Some prerogative powers, for example dissolving Parliament and granting honours and titles, fall into categories that have traditionally been exempt from parliamentary scrutiny on the ground that they involve the personal discretion of the monarch, even though the monarch must usually act on the advice of the prime minister. Other prerogative powers relate to foreign relationships, national security matters and the prerogative of mercy on which ministers sometimes refuse to be questioned but which Parliament, if it wished, could insist on investigating.

Notes to the Text:

Royal prerogative the special rights, powers and immunities to which the Crown alone is entitled under the common law. Most prerogative acts are now performed by the government on behalf of the Crown. Some, however, are performed by the sovereign in person on the advice of the government or as required by constitutional convention. A few prerogative acts are performed in accordance with the sovereign’s personal wishes.

nolle prosequi - (lat.) “not wish to prosecute”; the legal notice that a lawsuit has been abandoned.

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