By Joanna George
Research Associate, University of Cambridge
Prerogative powers are executive (government) powers that can be exercised by the Queen or her representatives (including government Ministers). They are distinct as these powers are not given to the Queen or her Ministers by legislation enacted by Parliament. Rather, they are historical powers whose content is determined by common law — rules developed by the courts.
Because the United Kingdom is a constitutional monarchy — whereby the government rules the country whilst the Queen reigns over the country — prerogative powers are usually exercised by Ministers or on the basis of the advice they provide to the Queen, which she is normally bound to follow.
This is because of the Queen’s role as Head of State, according to which she has to ‘remain strictly neutral with respect to political matters’. She does possess the ‘right to be consulted, to encourage and to warn’ the government on appropriate matters — an aspect of her role that requires her to maintain a careful constitutional balance between political impartiality and her institutional duty to guide the government of the day. The Queen also has some personal or reserve prerogative powers, which she may be requested to exercise by her Ministers.
Types of prerogative power
The nature of prerogative powers is historical. New kinds of prerogative power cannot be created. They can, however, be replaced by statutory powers. A recent example of this was removing the Queen’s power to dissolve Parliament in the Fixed-term Parliaments Act 2011 (‘FTPA’). The function of prerogative powers is wide-ranging, yet many of these powers are legally uncertain with many ancient powers unused in modern times.
The following areas are examples (but are not an exhaustive list) of where prerogative powers are used in the 21st century:
- the declaration of war and the making of peace;
- in foreign affairs, such as the issuing and withdrawal of passports;
- the deploying of the armed forces;
- in relation to some aspects of the legislature, including the granting of Royal Assent to Bills;
- appointments and honours, such as the creation of Peers and the appointment of Ministers.
The exercise of some prerogative powers is governed by constitutional convention. For instance, convention requires that the Queen grants Royal Assent to Bills approved by Parliament, while the prerogative power to commit the British Army to military action abroad must normally be first debated in the House of Commons.
Reserve powers, otherwise known as personal prerogatives, are powers the Queen can exercise personally without the need to be advised by Ministers. There are three important powers:
(1) Appointing and dismissing the Prime Minister
When a political party wins an overall majority in a general election the Queen will appoint the party’s leader as Prime Minister. In the event of a hung Parliament (where no single party wins a majority in the House of Commons) the Cabinet Manual states that ‘if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons’. Prime Ministers dismissed by the Queen are few and far between in modern times. The last time this happened was in 1834 when William IV dismissed Lord Melbourne’s Whig government.
(2) The power to summon and dissolve Parliament
Pre-FTPA the Prime Minister could request the Queen to summon and to dissolve (end) a Parliament. The FTPA replaced this with a statutory fixed-term of Parliament, setting out specific circumstances when Parliament would be dissolved and recalled. The Dissolution and Calling of Parliament Bill 2021 is designed to reverse the law, returning the UK to the position prior to the FTPA.
(3) The power to prorogue and recall Parliament
In the normal course of events the Queen formally prorogues Parliament by following the advice of the Prime Minister. This is a constitutional convention. As noted by Mark Elliott, ‘there is an important question about whether the UK constitution is too reliant in this regard’ and this is perhaps an idea for the Queen should she find herself in a similar situation to the 2019 prorogation of Parliament.
Are prerogative powers constitutionally important?
In short, yes: they are very important. While prerogative powers today are few in number, they engage several very significant elements of the UK constitution. In recent years there has been increasing constitutional interest in the use of prerogative powers as a result of Brexit. In the Miller (No.2) judgment in September 2019 the Supreme Court ruled that the advice the Prime Minister gave to the Queen to prorogue Parliament for five weeks was unlawful because it had the effect of impeding Parliament from discharging its constitutional functions and no adequate justification for this had been provided by the Government. This raises a deeper question.
Traditionally, the UK constitution has relied heavily on politicians respecting constitutional convention and the underlying constitutional principles in relation to the exercise of the prerogative (the so-called ‘good-chap’ model of government). But if this model were to break down, it would raise particular questions about the prerogative, given that such powers are generally so broad or open-textured in nature. In particular, a question would arise as to whether such powers should be replaced with statutory powers that could be defined more tightly by Parliament and made subject to greater safeguards.
The famous Victorian and English constitutional scholar, Walter Bagehot, said of royalty and the then Queen, Queen Victoria, that ‘We must not bring the Queen into the combat of politics, or she will cease to be reverenced by all combatants; she will become one combatant among many’. Politicians would be wise to adhere to this advice in 2021 and beyond.