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The royal prerogative is a body of customary authority, privilege and immunity, recognized in
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.


Evolution

In most constitutional monarchies, prerogatives can be abolished by Parliament as the courts apply the constitutional near-absolute of the supremacy of Parliament. In the
Commonwealth realms A Commonwealth realm is a sovereign state in the Commonwealth of Nations whose monarch and head of state is shared among the other realms. Each realm functions as an independent state, equal with the other realms and nations of the Commonweal ...
this draws on the constitutional statutes at the time of the Glorious Revolution when William III and Mary II were invited to take the throne. In the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
the remaining powers of the royal prerogative are devolved to the head of the government which for more than two centuries has been the
Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
; the benefits, equally, such as
mineral rights Mineral rights are property rights to exploit an area for the minerals it harbors. Mineral rights can be separate from property ownership (see Split estate). Mineral rights can refer to sedentary minerals that do not move below the Earth's surfac ...
in all gold and silver ores, vest in (belong to) the government. In Britain, prerogative powers were originally exercised by the monarch acting, without an observed requirement for parliamentary consent (after its empowerment in certain matters following Magna Carta). Since the accession of the
House of Hanover The House of Hanover (german: Haus Hannover), whose members are known as Hanoverians, is a European royal house of German origin that ruled Hanover, Great Britain, and Ireland at various times during the 17th to 20th centuries. The house or ...
these powers have been, with minor exceptions in economically unimportant sectors, exercised on the
advice Advice (noun) or advise (verb) may refer to: * Advice (opinion), an opinion or recommendation offered as a guide to action, conduct * Advice (constitutional law) a frequently binding instruction issued to a constitutional office-holder * Advice (p ...
of the
prime minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
or the Cabinet, who are accountable to Parliament, exclusively so, except in matters of the Royal Family, since at least the time of
William IV William IV (William Henry; 21 August 1765 – 20 June 1837) was King of the United Kingdom of Great Britain and Ireland and King of Hanover from 26 June 1830 until his death in 1837. The third son of George III, William succeeded h ...
. Typically in liberal democracies that are constitutional monarchies as well as
nation states A nation state is a political unit where the state and nation are congruent. It is a more precise concept than "country", since a country does not need to have a predominant ethnic group. A nation, in the sense of a common ethnicity, may i ...
, such as those of
Denmark ) , song = ( en, "King Christian stood by the lofty mast") , song_type = National and royal anthem , image_map = EU-Denmark.svg , map_caption = , subdivision_type = Sovereign state , subdivision_name = Kingdom of Denmark , establish ...
,
Norway Norway, officially the Kingdom of Norway, is a Nordic country in Northern Europe, the mainland territory of which comprises the western and northernmost portion of the Scandinavian Peninsula. The remote Arctic island of Jan Mayen and the ...
, or Sweden, the royal prerogative serves in practice as a prescribed
ceremonial A ceremony (, ) is a unified ritualistic event with a purpose, usually consisting of a number of artistic components, performed on a special occasion. The word may be of Etruscan origin, via the Latin '' caerimonia''. Church and civil (secular ...
function of the ''state power''.


Ministerial exercise of the monarch's prerogatives

Today, prerogative powers fall into two main categories: *Those directly exercised by ministers without the approval of parliament, including, in some countries such as the UK, the powers to regulate the civil service, issue passports and grant honours. *Those exercised nominally by the monarch, "on the advice of" (that is, by constitutional convention, however so requested by) the
prime minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
and on the advice of the cabinet. Some key areas of government are carried out by the royal prerogative but its usage is falling as functions are progressively made statutory.


Commonwealth realms


United Kingdom

In the
Kingdom of England The Kingdom of England (, ) was a sovereign state on the island of Great Britain from 12 July 927, when it emerged from various History of Anglo-Saxon England, Anglo-Saxon kingdoms, until 1 May 1707, when it united with Kingdom of Scotland, ...
(up to 1707), the
Kingdom of Great Britain The Kingdom of Great Britain (officially Great Britain) was a Sovereign state, sovereign country in Western Europe from 1 May 1707 to the end of 31 December 1800. The state was created by the 1706 Treaty of Union and ratified by the Acts of ...
(1707–1800), and the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
(since 1801), the royal prerogative was one of the central features of the realm's governance. Constitutional theorist A. V. Dicey gives the standard definition of what prerogative powers as follows: The scope of the royal prerogative is difficult to determine due to the uncodified nature of the
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
. It is clear that the existence and extent of the power is a matter of the
common law of England English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, bee ...
, making the courts the final arbiter of whether a particular type of prerogative exists or not. Nevertheless, certain prerogative powers have been widely acknowledged and accepted over time, while others have fallen out of use. The royal prerogative is not constitutionally unlimited. In the
Case of Proclamations The ''Case of Proclamations'' English constitutional law case during the reign of King James I">UK constitutional law">English constitutional law case during the reign of King James I (1603–1625) which defined some limitations on the Royal Pr ...
(1611) during the reign of King James VI/I, English common law courts judges emphatically asserted that they possessed the right to determine the limits of the royal prerogative. Since the Glorious Revolution in 1688, which brought co-monarchs
King William III William III (William Henry; ; 4 November 16508 March 1702), also widely known as William of Orange, was the sovereign Prince of Orange from birth, Stadtholder of Holland, Zeeland, Utrecht, Guelders, and Overijssel in the Dutch Republic from the ...
and Queen Mary II to power, this interpretation of there being a separate and distinct power of the Judiciary has not been challenged by
the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
. It has been accepted that it is emphatically the province of the court(s) to say what the law is, or means. This is a crucial corollary and foundation to the concept of the judicial power; and its distinct and separate nature from the executive power possessed by the Crown itself, or its ministers. It is important to remember that in most cases, the Monarch exercises the prerogative powers only on the advice of the
Government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is ...
of the day, either directly or through the Privy Council.


British dependencies

Generally,
the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
retains all the power of the state in an overseas territory (or 'dependent territory' from 1983 to 2002 or 'Crown colony' before that), even if in practice it is not directly exercised. Thus the royal prerogative is in theory an unlimited, arbitrary authority. In British overseas territories however, each inhabited territory has a constitution by which the territory is governed locally. The absoluteness of the royal prerogative in the colonies was however defeated in the case of '' Campbell v. Hall'' in 1774. This case decided that once a colony gained a representative assembly (or once the governor has been instructed to call one), the royal authority is limited to the familiar prerogatives; without the assembly's consent the Crown could not raise taxation nor change the law. Several of the colonies of the British West Indies thus became "settled colonies", and reverted to "crown colony" status only by Act of Parliament in the nineteenth century. In August 2009,
Michael Misick Michael Eugene Misick (; born 2 February 1966) is a Turks and Caicos Islander politician who was the 7th Chief Minister of the Turks and Caicos Islands from 15 August 2003 to 9 August 2006 and was the 1st Premier of the Turks and Caicos Islands ...
, first Premier of the Turks and Caicos Islands, a British Overseas Territory, resigned under charges of corruption and abuse of power. In order to restore the rule of law, the UK government took direct control of the government of the territory, under an
Order in Council An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (''Kin ...
of 18 March 2009, which suspended and amended parts of the Islands' constitution, and vacated all the offices of ministers and the House of Assembly. This action was not an exercise of the royal prerogative, as it was made under "the West Indies Act 1962 and of all other powers enabling Her to do so", but did vest wide discretionary legislative and executive powers in Her Majesty's governor, who as in all British Overseas Territories, acts on the instructions of the UK government, not the monarch. A new
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
was promulgated in October 2012 and the government was returned to full local administration after the November 2012 elections. In the case of the Chagos Archipelago, in 2000, the
High Court of Justice of England and Wales The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal and the Crown Court, are the Senior Courts of England and Wales. Its name is abbreviated as EWHC (England ...
ruled that a local ordinance made by the Commissioner of the British Indian Ocean Territory exiling the islanders was unlawful, a decision which was accepted by the British Foreign Secretary
Robin Cook Robert Finlayson "Robin" Cook (28 February 19466 August 2005) was a British Labour politician who served as a Member of Parliament (MP) from 1974 until his death in 2005 and served in the Cabinet as Foreign Secretary from 1997 until 2001 wh ...
. That Order was legislation passed under authority given by the royal prerogative, not an exercise of the prerogative itself, and was overturned as being beyond the powers given. After this decision, the British government issued an
Order in Council An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (''Kin ...
, a primary exercise of the royal prerogative, to achieve the same objective. This Order was also ruled unlawful by the High Court, a ruling upheld in the Court of Appeal. However, on Wednesday, 22 October 2008, the government won its appeal in the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
against the previous rulings. The House decided by a three-to-two majority that the Order in Council was a lawful exercise of authority. In their speeches, the Law Lords admitted the government of the day was morally wrong to force out some 2,000 residents of the Chagos Archipelago, a British Crown colony, to make way for a US air base in the 1960s. Nevertheless, the majority could not find legal fault in the Order.


Canada

In Canada, the royal prerogative is, for the most part, the same as that in the United Kingdom, as constrained by constitutional convention, although its exercise is usually through the federal governor general in the
Privy Council of Canada The 's Privy Council for Canada (french: Conseil privé du Roi pour le Canada),) during the reign of a queen. sometimes called Majesty's Privy Council for Canada or simply the Privy Council (PC), is the full group of personal consultants to the ...
, or the provincial lieutenant governors in the provincial executive councils. The royal prerogative in Canada is largely set out in Part III of the
Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
, particularly section 9. As foreign affairs are a matter of royal prerogative, the power to declare war and deploy the armed forces belongs to the Crown, though only in its federal Cabinet (the federal government), as outlined in sections 9 and 15 of the Constitution Act, 1867. Neither legislation nor any other type of parliamentary approval, beyond budgetary matters, is required for such actions, though the Cabinet has on occasion consulted parliament before engaging Canada or extending Canada's involvement in a conflict. Additionally, the federal Crown may ratify treaties. Again, the endorsement of Parliament is not necessary for these agreements to have force in an international sense, but the federal Parliament and the provincial legislatures must pass statutes in order for them to have domestic effect, under the division of powers set out in sections 91 and 92 of the ''Constitution Act, 1867''. Proposed treaties have also occasionally been presented to parliament for debate before ratification. Members of Parliament have tabled bills seeking to curtail the use of the royal prerogative in foreign affairs by legislating a greater role for parliament, as have Senate standing committees, from time to time, called for the same. The issuance of passports also remains within the royal prerogative in Canada. The terms for the issuing of passports by the Minister of Foreign Affairs on behalf of the Crown are set out in the Canadian Passport Order, issued by the Governor General-in-Council. The Canadian government has used the royal prerogative on two occasions to deny a passport to a Canadian citizen, Abdurahman Khadr and
Fateh Kamel Fateh Kamel is an Algerian who was arrested in 1999 on charges of supporting a terrorist plot against attacks against French targets in Paris, and was sentenced to eight years' imprisonment. He was released early for good behaviour, and returned ...
. Lawsuits filed at the Federal Court,
Federal Court of Appeal The Federal Court of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters. History Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "addit ...
, and ultimately the Supreme Court of Canada did not find in favour of either Khadr, nor Kamel. The royal prerogative in Canada extends also to the granting of honours, as explained by the Court of Appeal for Ontario in '' Black v. Chrétien'' (regarding Conrad Black's entitlement to an appointment to the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
while a Canadian citizen). Other royal prerogatives, such as the prerogative of mercy, also exist in the Canadian context, although largely supplanted for criminal matters by statutory provisions.


Other Commonwealth realms

In the other
Commonwealth realms A Commonwealth realm is a sovereign state in the Commonwealth of Nations whose monarch and head of state is shared among the other realms. Each realm functions as an independent state, equal with the other realms and nations of the Commonweal ...
, the royal prerogative can be or is specifically mandated to be exercised by the monarch's representative, the governor-general. In the case of Australia, the royal prerogative is vested specifically in the governor-general of Australia for military affairs, rather than the monarch, and is defined by the Constitution of Australia. The
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
of a Commonwealth realm may also sharply limit the prerogative. In some cases, governmental acts which would normally require royal prerogative may be enacted through other means in the constitution, or through a legislative act in a Commonwealth realm.


Spain

The
Spanish Constitution of 1978 The Spanish Constitution (Spanish, Asturleonese, and gl, Constitución Española; eu, Espainiako Konstituzioa; ca, Constitució Espanyola; oc, Constitucion espanhòla) is the democratic law that is supreme in the Kingdom of Spain. It was ...
, Title II ''The Crown'', Article 62, delineates the powers of the king, while Title IV ''Government and Administration'', Article 99, defines the king's role in government. Title VI ''Judicial Power'', Article 117, Articles 122 through 124, outlines the king's role in the country's
independent judiciary Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inter ...
. However, by constitutional convention established by Juan Carlos I, the king exercises his prerogatives having solicited government advice while maintaining a politically
non-partisan Nonpartisanism is a lack of affiliation with, and a lack of bias towards, a political party. While an Oxford English Dictionary definition of ''partisan'' includes adherents of a party, cause, person, etc., in most cases, nonpartisan refers s ...
and independent monarchy. Receiving government advice does not necessarily bind the monarch into executing the advice, except where prescribed by the constitution.


See also

* Five Knights case * Droit de régale * Letters patent *
Prorogatio ''Prorogatio'' was a Roman practice in which a Roman magistrate's duties were extended beyond its normal annual term. It developed as a response to Roman expansion's demands for more generals and governors to administer conquered territories. Pr ...
* King-in-Parliament *
Reserve power In a parliamentary or semi-presidential system of government, a reserve power, also known as discretionary power, is a power that may be exercised by the head of state without the approval of another branch or part of the government. Unlike in ...
*
Royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
*
Royal charter A royal charter is a formal grant issued by a monarch under royal prerogative as letters patent. Historically, they have been used to promulgate public laws, the most famous example being the English Magna Carta (great charter) of 1215, but s ...
*
Royal order In Belgium, a Royal Decree (RD) or Royal Order () (Dutch), Arrêté Royal (French), or Königlicher Erlass (German) is a federal governmental decree exercising legislation, or powers the legislature has delegated to the King as secondary legisla ...
*
Royal prerogative in the United Kingdom The royal prerogative is a body of customary authority, privilege, and immunity attached to the British monarch (or "sovereign"), recognised in the United Kingdom. The monarch is regarded internally as the absolute authority, or "sole preroga ...
* Statutory instrument


Notes


References


Further reading

*
A. B. Keith Arthur Berriedale Keith (5 April 1879 – 6 October 1944) was a Scottish constitutional lawyer, scholar of Sanskrit and Indologist. He became Regius Professor of Sanskrit and Comparative Philology and Lecturer on the Constitution of the Brit ...
, ''The King and the Imperial Crown'' (1936) * Joseph Chitty, ''The Prerogatives of the Crown'' (monograph from 1820) * Stanley de Smith and
Rodney Brazier Rodney Brazier MVO, LLD, FRHistS (born 1946) is emeritus professor of constitutional law at the University of Manchester and a barrister and an emeritus bencher of Lincoln's Inn. His expertise on the British constitution has been provided to va ...
, ''Constitutional and Administrative Law'' * Walter Bagehot, ''The English Constitution'' * Blick, Andrew. 2014. "Emergency powers and the withering of the Royal Prerogative." International Journal of Human Rights 18, no. 2: 195–210.


External links


Parliament Report on the powers of the Royal Prerogative
* ttp://legaleaseckut.wordpress.com/2011/07/01/episode-19-feb-2011-executive-actions/ Lecture by Canadian constitutional scholar Kent Roach on the royal prerogative and Omar Khadrbr>Prerogativa Regis. Of the King’s Prerogative (1322)
{{Authority control Sovereignty Constitutional law