The Royal Prerogative

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What is the royal prerogative?	The royal prerogative were powers that were originally only exercised by the monarch and were established through the Divine Rights of Kings. These powers were defined as 'undefined residue of power which he (the King) might use for the public good'.
How have they changed?	The introduction of the Bill of Rights 1689 declared illegal certain specific uses and abuses of the prerogative. Therefore, some powers were transferred to the executive to ensure that the executive had the ability to lead our unwritten constitution. These powers can be used WITHOUT consent from Parliament.
Dicey definition	Dicey defined the royal prerogative as 'the residue of discretionary power or arbitrary authority, which at any given moment is legally left in the hands of the Crown'.
Treasury Solicitors Committee definition	'Those common law powers and immunities which are peculiar to the Crown and go beyond the powers of the private individual'.
Categories of the royal prerogative	The prerogative powers were categorised by in the 2004 report by the Select Committee on Public Administration.
Queen's constitutional powers	The personal discretionary powers of the sovereign such as the rights to all the Swans in the land.
The legal prerogative powers of the Crown	The powers which the Queen possesses as the embodiment of the Crown. These include summoning and dissolution of Parliament, granting Royal Assent etc
The prerogative executive powers	These are powers now exercised by the executive. This is the most controversial element as it is often questioned as to whether the executive should be able to have such discretionary power.
Domestic affairs	The prerogative powers can be applied to domestic affairs. These include the PMs ability appoint and remove Ministers, the organisation of the Civil Service and the granting of pardons.
Foreign affairs	These include the making of treaties, the conduct of diplomacy and the governance of British territories overseas.
Creating new prerogative powers	A way in which the prerogative powers is controlled is through the fact that no new prerogative powers can be created.
BBC V JOHNS	Established that no new prerogative powers can be created - Lord Diplock stated 'it is 350 years and a civil war too late for that'.
Ex parte Northumbria Police Authority	Prerogative powers that are unheard of may be identified.
Statute and the royal prerogative	The royal prerogative is also controlled and checked by statute. For example, a statute will prevail over a royal prerogative power when a statutory power and prerogative power co-exist OR when a prerogative power has been neither expressly preserved or expressly abolished by statute. This ensures that parliamentary supremacy is upheld.
AG V De Keyser's Royal Hotel	When a statute is passed, it replaces the royal prerogative. Parmoor L stated that 'the sovereignty of Parliament is supreme'.
EX PARTE FIRE BRIGADES UNION	'The executive cannot exercise the prerogative in such a way in which derogates from the due fulfilment of a statutory duty'.
Judicial review and the royal prerogative	Historically, the prerogative powers were not justiciable. This meant that they were exempt from judicial review. However, this was seen as dismissing doctrines such as the rule of law as well as the idea of parliamentary supremacy. However, it could be argued that allowing the judiciary to review prerogative powers is allowing the judges to have too much power.
BATE'S CASE	'The power of the King is both ordinary and absolute. Ordinary power, which exists for the purpose of civil justice, is unalterable save by consent of Parliament. Absolute power, existing for the nation's safety, varies with royal wisdom'.
CHANDLER V DPP	However, the idea of the royal prerogative being subject to judicial review was first suggested in this case - 'the courts will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse'.
GCHQ	This prominent case established that some prerogative powers by the executive may be subject to judicial review. The judges held that the royal prerogative could be subject to review UNLESS they involved issues regarding the governance of the country.
GCHQ - LORD ROSKILL	'I am unable to see that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of the right to challenge to the manner of its exercise which he would possess were the court of the power statutory'.
GCHQ - POWERS EXEMPT FROM JUDICIAL REVIEW	However, Lord Roskill stated that prerogative powers related to the 'making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers' would not be susceptible to judicial review.
EX PARTE BENTLEY	The power of mercy was defined as being justiciable.
EX PARTE EVERETT	The power of issuing passports is justiciable.
EX PARTE SMITH	The courts rejected the government policy to use prerogative powers to exclude armed forces personnel who were homosexual.
EX PARTE REES-MOGG	The prerogative power of the making of treaties is still exempt from judicial review.
EX PARTE ABASSI	Judges cannot interfere with the exercise of discretionary power if they would need to decide a non-justiciable issue in order to apply the grounds for judicial review.
Constitutional conventions and the royal prerogative	Some powers under the royal prerogative are regulated by constitutional conventions - these being non-legal rules which imposes an obligation.
ROYAL ASSENT	The prerogative power of Royal Assent, for example, is governed by the convention that states that this Assent is automatic. The last time Assent was rejected was in 1702 by Queen Anne - the Bill that was rejected was the Scottish Militia Bill.
DEPLOYMENT OF TROOPS OVERSEAS	Questions are also arising as to whether a convention exists that Parliament should have the opportunity to debate the prerogative power as to whether UK troops should be deployed overseas. David Cameron was seen as consulting Parliament before deploying troops to Syria. Ultimately, Parliament's decision would bind the government - upholding parliamentary supremacy.
Reasons why the royal prerogative is GOOD	The public are not qualified to make decisions of high policy, it allows for accountability and transparency, no need for codification, executive should lead and serve and these powers allow him to do so.
Reasons why the royal prerogative is BAD	Intervenes with the rule of law, parliamentary supremacy and the separation of powers and means that some powers are left unchecked and unbalanced as they are not subjected to judicial review.
Need for codification?	In 2007, ideas of codifying the royal prerogative were clear. A green paper entitled 'The Governance of Britain' stated 'in a modern 21st Century democracy, the RP should be on statutory footing and brought under stronger parliamentary scrutiny and control'.
Gordon Brown and codification	In 2009, Gordon Brown wanted to codify the constitution and therefore, place the royal prerogative on statutory footing.
Constitutional Reform and Governance Act 2010	This Act placed the management of the civil service on statutory footing. It also formalised arrangements for Parliamentary ratification of treaties.

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