Prerogative powers

Originally the prerogative would have been exercised by the reigning Monarch. However, over time a distinction was drawn between the Monarch acting in his or her individual capacity and the powers possessed by the Monarch as an embodiment of the State. As the governance of the realm became more complex, power was devolved from the Monarch and exercised by his or her advisers. In modern times Government Ministers exercise the bulk of the prerogative powers, either in their own right or through the advice they provide to the Queen which she is constitutionally bound to follow.

A V Dicey defines the Royal prerogative as ‘The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. William Blackstone however describes the prerogative more tightly, as those powers that ‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’. Blackstone’s notion of the prerogative being those powers of an exclusive nature was favoured by Lord Parmoor in the De Keyser’s Royal Hotel case of 1920, but Lord Reid in the Burmah Oil case of 1965 expressed some difficulty with this idea. Case law exists to support both views, and a clear distinction has not been necessary in any relevant cases. The question may never need to be settled by the courts as there are few cases that deal directly with the prerogative itself.

The scope of the Royal prerogative power is notoriously difficult to determine. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists. The difficulty is that there are many prerogative powers for which there is no recent judicial authority and sometimes no judicial authority at all. In such circumstances, the Government, Parliament and the wider public are left relying on statements of previous Government practice and legal textbooks, the most comprehensive of which is now nearly 200 years old.

This uncertainty has been criticised. Professor Rodney Brazier has written, ‘….the demand for a statement of what may be done by virtue of the Royal prerogative is of practical importance. Yet it has been said judicially that such a statement cannot be arrived at, because only through a process of piecemeal judicial decisions over the centuries have particular powers been seen to exist, or not to exist, as the case may be.’

TEXT 5. DWINDLING POWER OF THE CROWN.*

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