Royal Prerogatives and Rule of Law

The first task of this essay is to say what the royal prerogative is. Then this essay will attempt to examine the scope and exercise of the said royal prerogative. Lastly this essay shall consider what issues regarding the rule of law are touched upon by the vexatious issue of the royal prerogative. The royal prerogative is a series of powers that were in the hands of the monarchy in bygone centuries when the maxim ‘voluntas rex lex suprema est’ (the will of the king is the supreme law) was a widely accepted legal maxim.

Even then the notion that the king’s word was law was open to question. Over time monarchical power was reduced – it was shared with parliament. The Bill of Rights in 1689 greatly reduced the legal power of the sovereign. This essay has deliberately set itself the task of saying what the prerogative is and the word ‘define’ has been purposefully avoided in view of the fact that the royal prerogative is notoriously hard to describe in precise terms. The royal prerogative includes rights such as treasure trove.

Treasure that is found in the United Kingdom mainly belongs to the monarch – some is given to whoever found it. Swans on the Thames are royal property. The Prime Minister appoints and dismisses ministers under royal prerogative powers. Orders issued to the Royal Navy, the Army and the Royal Air Force are are issued under the royal prerogative. The scope of the royal prerogative powers are extensive but are not much defined by law. A number of cases in the 17th century marked the boundary of the royal prerogative. James I, an ardent believer in the divine right of kings, claimed that he had the right to make law. The issued a proclamation that oats in London be used only to feed people and not horses.

Coke LJ ruled that the monarch cannot make law. Coke found that only Parliament could make and unmake law. Royal prerogative was enormous until very recently. It included wide powers of patronage – appointing people to the House of Lords, issuing all sorts of honours, consecrating bishops of the Church of England, ratifying treaties, declaring war and making peace. These royal prerogatives were exercised on behalf of the monarch by the Prime Minister. The Prime Minister issued official advice which the monarch is bound by convention to go along with.

The Labour Government under Gordon Brown divested the Prime Minister of most of these powers by statute. Now Parliament and various commissions chosen by Parliament exercise these royal prerogative powers. However, the Prime Minister does retain some royal prerogative powers. These are used to enable the Premier to carry out his executive functions. It is held by some that too much power is in the hands of the Prime Minister. This is redolent of Lord Acton’s dictum, ”power tends to corrupt and absolute power tends to corrupt absolutely.”

A good man may turn bad. He may be tempted by all the power he has and it may go to his head. It is like Aristotle’s story of the cloak. If one had a cloak that made on invisible and one could commit any crime without any chance of being detected – would you abuse it? Most people would misuse this magical power to commit crime. This is why rulers must have their power limited. Montesquieu identified the separation of powers as being essential in a free society. The United States enshrined this in its constitution. The United States has a series of checks and balances to ensure that no single individual or institution can grow overmighty.

The Prime Minister still has extensive royal prerogative powers for him to use. He controls the armed forces, the intelligence services; he has grace and favour residences such as Downing Street and Chequers. He chooses the date for the parliamentary elections. He can pick a date to suit his party which is why the incumbent party tends to win. The rule of laW IS A CORE PRinciple of English law best enunciated by A V Dicey in the late nineteenth century. He said that no one can be punished but under law; all are equal before the law and lastly: rights are best protected by common law and not by statute.

His second principle (touching equality before the law) was qualified. He noted that certain officials have special powers ex officio and perhaps certain immunities (diplomats and the Crown) but that the general principle remains true – all are equal under law. One could argue that the Prime Minister’s powers are so wide-ranging that this effectively breaches A V Dicey’s principle notwithstanding his qualification. There is also no term limit for the Prime Minister. One Prime Minister served for 21 years (Sir Robert Walpole). This again could be said to make the Prime Minister too strong.

The Prime Ministerial exercise of the royal prerogative raises doubts about the rule of law in a democratic society because one person has too much power. Lord Hailsham in 1978 said that the United Kingdom was, ”an elective dictatorship.” He made this observation because the government had too much power. The situation has somewhat been rectified with many royal prerogative powers being controlled by Parliament and not the Prime Minister now. On the other hand the executive needs extensive powers in order to act quickly and decisively. This allows the executive to deal with urgent situations such as wars or natural disasters. It is like this in most democratic countries. Few people call for the royal prerogative to be trimmed further.

The royal prerogative has been seen to be compatible with the rule of law for centuries so there is no reason to believe that the two have suddenly become inimical to each other. In conclusion, the scope of royal prerogative powers is no more than is necessary. The exercise of these powers by the Prime Minister and by Parliament is appropriate. It would be preferable if the royal prerogative could be defined by statue so that it was no longer such a nebulous concept. The royal prerogative does not debase British democracy. Indeed, the ability to act instantly and forcefully in the face of urgent situations safeguards a democratic society