The royal prerogative is a body of customary authority, privilege, and immunity recognised in

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

(and sometimes in civil law jurisdictions possessing a monarchy) as belonging to the

sovereign ''Sovereign'' is a title that can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin">-4; we might wonder whether there's a point at which it's appropriate to ...

, 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 under its legislative authority. In the

Commonwealth realms A Commonwealth realm is a sovereign state in the Commonwealth of Nations that has the same constitutional monarch and head of state as the other realms. The current monarch is King Charles III. Except for the United Kingdom, in each of the ...

, this draws on the constitutional statutes at the time of the

Glorious Revolution The Glorious Revolution, also known as the Revolution of 1688, was the deposition of James II and VII, James II and VII in November 1688. He was replaced by his daughter Mary II, Mary II and her Dutch husband, William III of Orange ...

, when William III and

Mary II Mary II (30 April 1662 – 28 December 1694) was List of English monarchs, Queen of England, List of Scottish monarchs, Scotland, and Monarchy of Ireland, Ireland with her husband, King William III and II, from 1689 until her death in 1694. Sh ...

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 Northwestern Europe, off the coast of European mainland, the 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 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. A prime minister is not the head of state, but r ...

; the benefits, equally, such as

ratification Ratification is a principal's legal confirmation of an act of its agent. In international law, ratification is the process by which a state declares its consent to be bound to a treaty. In the case of bilateral treaties, ratification is usuall ...

of treaties and mineral rights 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

parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

ary consent (after its empowerment in certain matters following

Magna Carta (Medieval Latin for "Great Charter"), sometimes spelled Magna Charta, is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury, Cardin ...

). Since the accession of the

House of Hanover The House of Hanover ( ) is a European royal house with roots tracing back to the 17th century. Its members, known as Hanoverians, ruled Hanover, Great Britain, Ireland, and the British Empire at various times during the 17th to 20th centurie ...

, these powers have been exercised, with minor exceptions in economically unimportant sectors, on the advice of the

prime minister A prime minister 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. A prime minister is not the head of state, but r ...

or the Cabinet, who are accountable to Parliament (and exclusively so, except in matters of the Royal Family) since at least the time of William IV. Typically, in liberal democracies that are constitutional monarchies as well as

nation states A nation state, or nation-state, is a political entity in which the State (polity), state (a centralized political organization ruling over a population within a territory) and the nation (a community based on a common identity) are (broadly ...

, such as

Denmark Denmark is a Nordic countries, Nordic country in Northern Europe. It is the metropole and most populous constituent of the Kingdom of Denmark,, . also known as the Danish Realm, a constitutionally unitary state that includes the Autonomous a ...

Norway Norway, officially the Kingdom of Norway, is a Nordic countries, Nordic country located on the Scandinavian Peninsula in Northern Europe. The remote Arctic island of Jan Mayen and the archipelago of Svalbard also form part of the Kingdom of ...

, and

Sweden Sweden, formally the Kingdom of Sweden, is a Nordic countries, Nordic country located on the Scandinavian Peninsula in Northern Europe. It borders Norway to the west and north, and Finland to the east. At , Sweden is the largest Nordic count ...

, 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 . Religious and civil (secular) ceremoni ...

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

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 the late 9th century, when it was unified from various Heptarchy, Anglo-Saxon kingdoms, until 1 May 1707, when it united with Kingdom of Scotland, Scotland to f ...

(up to 1707), the

Kingdom of Great Britain Great Britain, also known as the Kingdom of Great Britain, was a sovereign state in Western Europe from 1707 to the end of 1800. The state was created by the 1706 Treaty of Union and ratified by the Acts of Union 1707, which united the Kingd ...

(1707–1800), and the

(since 1801), the royal prerogative was and is one of the central features of the

realm A realm is a community or territory over which a sovereign rules. The term is commonly used to describe a monarchical or dynastic state. A realm may also be a subdivision within an empire, if it has its own monarch, e.g. the German Empire. Etymo ...

's governance. Constitutional theorist

A. V. Dicey Albert Venn Dicey, (4 February 1835 – 7 April 1922) was a British Whig jurist and constitutional theorist. He is most widely known as the author of '' Introduction to the Study of the Law of the Constitution'' (1885). The principles it expou ...

defines the scope of prerogative powers as: 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, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...

. It is clear that the existence and extent of the power is a matter of the common law of England, 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'' King James I (1603–1625) which defined some limitations on the royal prerogative at that time. Principally, it established that the monarch could make laws only through Parliament. The judgment began to set out t ...

(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

in 1688, which brought co-monarchs King William III 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 a political concept used in Commonwealth realms. Depending on the context used, it generally refers to the entirety of the State (polity), state (or in federal realms, the relevant level of government in that state), the executive ...

. 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. 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 (polity), state. In the case of its broad associative definition, government normally consists of legislature, executive (government), execu ...

of the day, either directly or through the Privy Council.

British dependencies

Generally,

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 The British Overseas Territories (BOTs) or alternatively referred to as the United Kingdom Overseas Territories (UKOTs) are the fourteen dependent territory, territories with a constitutional and historical link with the United Kingdom that, ...

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, first Premier of the

Turks and Caicos Islands The Turks and Caicos Islands (abbreviated TCI; and ) are a British Overseas Territory consisting of the larger Caicos Islands and smaller Turks Islands, two groups of tropical islands in the Lucayan Archipelago of the Atlantic Ocean and no ...

, a

British Overseas Territory The British Overseas Territories (BOTs) or alternatively referred to as the United Kingdom Overseas Territories (UKOTs) are the fourteen dependent territory, territories with a constitutional and historical link with the United Kingdom that, ...

, 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 ('' ...

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

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 The Chagos Archipelago (, ) or Chagos Islands (formerly , and later the Oil Islands) is a group of seven atolls comprising more than 60 islands in the Indian Ocean about south of the Maldives archipelago. This chain of islands is the southernmo ...

, in 2000, the High Court of Justice of England and Wales ruled that a local ordinance made by the Commissioner of the

British Indian Ocean Territory The British Indian Ocean Territory (BIOT) is an British Overseas Territories, Overseas Territory of the United Kingdom situated in the Indian Ocean, halfway between Tanzania and Indonesia. The territory comprises the seven atolls of the Chago ...

exiling the islanders was unlawful, a decision which was accepted by the British Foreign Secretary Robin Cook. 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

, 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 An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

. However, on Wednesday, 22 October 2008, the government won its appeal in the

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

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, or the provincial

lieutenant governor A lieutenant governor, lieutenant-governor, or vice governor is a high officer of state, whose precise role and rank vary by jurisdiction. Often a lieutenant governor is the deputy, or lieutenant, to or ranked under a governor — a "second-in-comm ...

s 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'' ( 30 & 31 Vict. c. 3) (),''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, 1867'' (BNA Act), ...

, particularly section 9. As foreign affairs are a matter of royal prerogative, the power to declare war and deploy the

armed forces A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. Militaries are typically authorized and maintained by a sovereign state, with their members identifiable by a ...

belongs to the Crown, though only in its federal Cabinet (the

federal government A federation (also called a federal state) is an entity characterized by a political union, union of partially federated state, self-governing provinces, states, or other regions under a #Federal governments, federal government (federalism) ...

), 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 A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

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. Lawsuits filed at the Federal Court, Federal Court of Appeal, and ultimately the

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

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 The Court of Appeal for Ontario (frequently mistakenly referred to as the Ontario Court of Appeal) (ONCA is the abbreviation for its neutral citation) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Ha ...

in '' Black v. Chrétien'' (regarding

Conrad Black Conrad Moffat Black, Baron Black of Crossharbour (born 25 August 1944), is a Canadian-British writer and former politician, Publishing, newspaper publisher, Investor, financier, and Fraudster, convicted fraudster. Black's father was businessma ...

's entitlement to an appointment to the

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

, 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, although resides in the monarch, it is exercisable by the governor-general of Australia for military affairs and is defined by the

Constitution of Australia The Constitution of Australia (also known as the Commonwealth Constitution) is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a Federation of Australia, ...

. The

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, such as was seen in the United Kingdom, where a previous act of parliament dictated the conditions in which an early election could be called, which was a purely Royal Prerogative prior to its passage.

Spain

The

Spanish Constitution of 1978 The Spanish Constitution () is the supreme law of the Kingdom of Spain. It was enacted after its approval in 1978 in a constitutional referendum; it represents the culmination of the Spanish transition to democracy. The current version was a ...

, 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 inte ...

. However, by constitutional convention established by

Juan Carlos I Juan Carlos I (; Juan Carlos Alfonso Víctor María de Borbón y Borbón-Dos Sicilias, born 5 January 1938) is a member of the Spanish royal family who reigned as King of Spain from 22 November 1975 until Abdication of Juan Carlos I, his abdic ...

, the king exercises his prerogatives having solicited government advice while maintaining a politically

non-partisan Nonpartisanship, also known as nonpartisanism, is a lack of affiliation with a political party and a lack of political bias. While an ''Oxford English Dictionary'' definition of ''partisan'' includes adherents of a party, cause, person, etc., ...

and independent monarchy. Receiving government advice does not necessarily bind the monarch into executing the advice, except where prescribed by the constitution.

Notes

References

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