The Crown and Royal Prerogative

Introduction

The Crown is a central concept in the United Kingdom constitution, representing the state and the repository of executive authority. The royal prerogative comprises the residual powers, privileges, and immunities recognised by the common law as belonging to the monarch personally, but which are in modern practice exercised on behalf of the Crown by government ministers. The prerogative is a body of customary authority, distinct from statutory power, that predates the modern constitutional settlement. Understanding the prerogative is essential to grasping the structure of executive power in the UK, as many significant governmental functions—including the conduct of foreign affairs, the deployment of armed forces, and the appointment of ministers—depend upon it.

The Nature of the Prerogative

The royal prerogative has been defined by A. V. Dicey as “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.” It is a creature of the common law: the courts determine the existence and extent of particular prerogative powers. In Case of Proclamations (1611), Sir Edward Coke established that the King could not change the common law or create new offences by prerogative, and that the prerogative is limited by the law. In BBC v Johns (1965), Lord Diplock described the prerogative as comprising those powers that are “unique to the Crown” and “not shared with the subject.” The modern approach is that no new prerogative powers can be created; the existing body of prerogative powers can only be diminished by statute or by desuetude.

Prerogative Powers of Government

The most significant prerogative powers exercised by government ministers include the conduct of foreign relations, including the making of treaties (though under the Constitutional Reform and Governance Act 2010, most treaties require parliamentary scrutiny before ratification). The government also exercises prerogative power over the deployment and disposition of the armed forces, including the power to declare war and commit troops to conflict. This power is subject to constitutional convention requiring parliamentary approval for combat operations, though this convention is not legally binding and was notably tested in relation to military action in Syria in 2013 and 2018. The appointment and dismissal of ministers, judges (on advice), and senior public officials is a further exercise of prerogative power, as is the granting of honours and pardons (the royal prerogative of mercy).

Personal Prerogatives of the Monarch

The monarch retains certain personal prerogatives, though they are exercised on the advice of ministers in almost all circumstances. These include the right to be consulted, the right to encourage, and the right to warn governments—a trinity of rights described by Walter Bagehot. The monarch formally appoints the Prime Minister (inviting the person likely to command the confidence of the House of Commons), grants Royal Assent to legislation, opens and prorogues Parliament, and appoints ministers. The monarch also acts as Head of the Commonwealth and as Supreme Governor of the Church of England. In extremis, the monarch retains reserve powers, including the power to dismiss a Prime Minister who refuses to resign after losing a confidence vote, and to refuse a dissolution of Parliament—though these powers are deeply controversial and their exercise in modern conditions would precipitate a constitutional crisis.

Crown Proceedings Act 1947

Before the Crown Proceedings Act 1947, the Crown could not be sued in tort or contract in its own courts, reflecting the feudal principle that “the King can do no wrong.” Proceedings against the Crown took the form of a petition of right, which required the Attorney General’s consent. The 1947 Act fundamentally reformed this position, making the Crown subject to the same liability in tort as a private person of full age and capacity. Proceedings are now brought against the appropriate government department or the Attorney General. The Act also abolished Crown immunity from vicarious liability for torts committed by its servants. Important exceptions remain: the Crown is not liable for acts done in the exercise of judicial functions, and certain acts of the armed forces during wartime retain immunity. The Act represents a major step in subjecting the executive to the ordinary law of the land, consistent with the rule of law principle that government should be accountable before the courts.

Judicial Control of the Prerogative

Historically, the courts declined to review the manner in which prerogative powers were exercised, distinguishing between the existence and the exercise of prerogative power. This distinction was eroded in the landmark case Council of Civil Service Unions v Minister for the Civil Service (1985) (the GCHQ case), where the House of Lords held that the exercise of prerogative powers is, in principle, subject to judicial review. Lord Diplock stated that the prerogative is a source of legal authority that can be reviewed like any other executive power, provided the subject matter is justiciable. Some prerogative powers remain non-justiciable, including the making of treaties, the deployment of armed forces, and the grant of honours—matters that courts consider unsuitable for judicial determination. The prerogative of prorogation was confirmed as justiciable in R (Miller) v The Prime Minister (2019), where the Supreme Court held that the advice to prorogue Parliament for five weeks was unlawful because it had the effect of frustrating Parliament’s constitutional role.

The Prerogative and Statute

Where an area of governmental activity is placed on a statutory footing, the prerogative is displaced or abrogated to the extent of the statutory provision. In Attorney General v De Keyser’s Royal Hotel (1920), the House of Lords held that the Crown could not rely on prerogative powers when statutory powers covering the same field were available. This principle ensures that Parliament, as the sovereign lawmaker, can regulate executive power by statute and that the government cannot circumvent statutory limitations by resorting to prerogative authority. The Fixed-term Parliaments Act 2011 (since repealed) removed the prerogative power to dissolve Parliament; the Dissolution and Calling of Parliament Act 2022 restored elements of this power while imposing new statutory constraints. The Constitutional Reform and Governance Act 2010 placed the civil service on a statutory footing and subjected treaties to parliamentary scrutiny, further reducing the scope of the prerogative.

Conclusion

The royal prerogative remains a significant source of executive authority in the UK constitution, although its scope has been steadily diminished by statute and by judicial oversight. The balance between prerogative and statutory power reflects the broader constitutional evolution from absolute monarchy to parliamentary democracy. The continuing existence of substantial prerogative powers—particularly in foreign affairs, defence, and ministerial appointments—sits uneasily with modern principles of democratic accountability. Proposals for further reform, including a Prerogative Act that would codify remaining prerogative powers and place them on a statutory footing, continue to be debated by constitutional reformers. The Crown and its prerogative remain a distinctive feature of the UK’s uncodified constitution, a relic of monarchical government that has been adapted to serve the needs of a modern parliamentary democracy.