The Royal Prerogative and Constitutional Law

A Search for the Quintessence of Executive Power

Noel Cox

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000171563
• Edition: 1
• Topic: Storia
• Subtopic: Storia sociale

This book examines the royal prerogative in terms of its theory, history and application today.

The work explores the development of the royal prerogative through the evolution of imperial government, and more recent structural changes in the United Kingdom and elsewhere in the Commonwealth. While examining specific prerogative powers, the development of justiciability of the prerogative, and the exercise of the prerogative, it lays bare the heart of constitutionality in the Westminster system of government. There is said to be a black hole of unaccountable authority at the heart of the constitution and it is this which this book examines. The focus is upon the constitutional development of the United Kingdom and the old dominions of Canada, Australia and New Zealand. This approach is comparative and historical, using specific case studies of such events as the dissolution of Parliament and the appointment and dismissal of Prime Ministers.

The book will be of interest to academics and researchers working in the areas of Constitutional Law and Politics.

1The origins of the prerogative

1.1 Introduction

The royal prerogative is one of those elements of the law which has been said, rather unhelpfully, to have its origins lost in the mists of time. While this is a picturesque notion, it does highlight the very real fact that the royal prerogative, as the residue of the ancient powers of the Crown, is inherently antique, and thus its origins, if not its scope and nature, are not always certain. It was not an artificial creation of a code-making King such as Ine of Wessex, or even of a jurist such as the Emperor Justinian. In the more recent past it was not even deemed possible to enquire into the nature of the prerogative,¹ as we may do today. It was, and remains, inherently grounded in the earliest and most basic constitutional principles and practices, unacquainted with such notions as justiciability or democracy, and predating Parliament by many centuries.

The prerogative powers, privileges and immunities of the King were recognised, rather than created, by the common law. Their origin lay in custom, and the inherent attributes or function of kingship. This included the consequences of the King being feudal landlord, as well as being head of the kingdom; but they, at least some of them, predated even feudalism (for instance, in Germanic tradition, the King was leader of the war band, a pre-feudal military leader with concomitant civil responsibilities ancillary to his military role), and therefore encapsulated a variety of conceptual approaches to government. It is scarcely surprising that the surviving prerogatives are described by Dicey as the ‘residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown’.²

As noted in the Introduction, the royal prerogative originated as the personal powers of the monarch. From the thirteenth century in England, as in France, the monarch was powerful, but this power was checked by Bracton's formulation that the King ‘must not be under man but under God and under the law, because law makes the King’;³ his authority was not absolute in nature. The law allowed and recognised certain royal privileges, immunities and powers, loosely grouped as the royal prerogative, but was not the origin of those miscellaneous privileges, immunities and powers. The origins lay, rather, in the role of kingship and the inherent requirements of executive government. This chapter will consider some aspects of the history of the royal prerogative, review some major periods of challenge or reform, such as the seventeenth century, and look at differing conceptions of executive authority.

1Blackstone, Sir William, Commentaries on the Laws of England ed. E. Christian (4th edn., 1770), Book I, Chapter VII, pp. 237–238.

2Carroll, Alex, Constitutional and Administrative Law (4th edn, 2007), p. 246.

3I.e. rex non debet esse sub homine, sed sub Deo et lege, quia lex facit regeni: Bracton, lib. I, c. 8; 12 Co. Rep. 65; Fleta 2 c. 5; Chitty, Joseph, A Treatise on the Law of the Prerogatives of the Crown; And the Relative Duties and Rights of the Subject (1978), p. 5.

1.2 The origins of the prerogative

As Blackstone noted, literally the term ‘prerogative’ (praerogo) means something demanded before or in preference.⁴ Since the time of Bracton it has been customary to describe the prerogative as being created by the common law, though this is probably historically incorrect.⁵ It is perhaps better to observe that it is recognised rather than created, with the common law retrospectively acknowledging – but not establishing – certain royal prerogatives.

Rather later, during the Tudor period, there was a significant development in the legal doctrine which related to the prerogative.⁶ To the King had been attributed a politic or political capacity; and to the King in his political capacity, the attributes of impeccability and immortality had been assigned. The new position of the King as both the real ruler and representative of the nation led to new distinctions between the powers which made up his prerogative.⁷ Some of his prerogatives had been called ‘inseparable’ because it was impossible to conceive of a King who did not possess them.⁸ Others had been called ‘absolute’ because he had an uncontrolled discretion as to the manner of their exercise.⁹ But the relation of the King to the other parts of the constitution had not yet been established,¹⁰ and thus the location of the sovereign power remained uncertain.¹¹ Most importantly, a reformulation of the prerogative did not affect its origins.

In the early seventeenth century Sir Thomas Fleming identified the divine origin of the royal prerogative; in his view the King was answerable only to God, not the courts.¹² But this was soon to be challenged (or rather, challenged again), not least by the common law courts. Their origins lay much earlier than the courts, or even of any surviving common law, in the nature of kingship itself. This, in turn, was founded on notions of authority and legitimacy.

4Blackstone, Sir William, Commentaries on the Laws of England ed. E. Christian (14th edn., 1803), Vol. I, p. 239.

5I.e. rex non debet esse sub homine, sed sub Deo et lege, quia lex facit regeni: Bracton, lib. I, c. 8; 12 Co. Rep. 65; Fleta 2 c. 5; Chitty, Joseph, A Treatise on the Law of the Prerogatives of the Crown; And the Relative Duties and Rights of the Subject (1978), p. 5.

6Holdsworth, Sir William, A History of English Law (1924), Vol. IV, pp. 202–214.

7Ibid, Vol. VI, p. 20.

8Ibid, Vol. IV, pp. 204–206.

9Ibid, pp. 206–207.

10 Ibid, pp. 104, 178–180, 348.

11 Ibid, pp. 208, 214–215.

12 Bates’ Case (1606) 2 St. Tr. 371, 389 (‘the Case of Impositions’).

Authority in a state is derived not simply from brute force, but from adherence based on other forms of legitimacy. Ross might put it simply thus: a government, however great its military or bureaucratic stranglehold on a country, cannot survive long if it doesn't have the support or at least the acquiescence of a sizable proportion of the population – though it may lengthen this hold on power through judicious manipulation of education and communications.¹³ Mere brute force is always insufficient to establish and maintain long-term authority. The sources of alternative forms of authority to this brute force include the inherited authority of continuous – or near-continuous – governance, founded in historic forms of government. The pre-eminent example is the Crown. This authority, in turn, provides the basis for governing powers, such as the prerogative.

1.3 Competing conceptions of the origins of authority

Kingship is important as a source of constitutional or political legitimacy, which supplements that conferred through more directly, and overt, democratic processes. This is the legitimacy derived from continuity, and acquiescence. It is partly based on traditional, inherited authority. Obedience looks more like a matter of lingering habit, expediency, or necessity, but no longer a matter of reason and principle, and of deepest sentiment and conviction.¹⁴ But today a claim that any public institution's authority is in any sense innate will probably fail to convince the majority. Traditional legitimacy derived from inherited legal forms is not, in an egalitarian and democratic age, likely to be sufficient.¹⁵ The Crown, and any other possessor (or claimant) of legitimacy, has to accommodate itself to a society which has largely ceased to respect tradition, much less to regard it as a source of legitimacy.¹⁶ However, the origins of the prerogative remains, as it inevitably must, in an older model of governance, one based on secular and spiritual conceptions of authority far removed from modern notions of democracy, though not without its own elements of accountability, reciprocity and consultation, especially in its English manifestation.

Throughout the debates and struggles of the Middle Ages, the Reformation and Renaissance, the Enlightenment, and later years, the law alone remained permanent and ever-present, in a way similar to the later conceptualisation (in England) of the Crown. But the mere immanence of law does not offer guidance as to the function of that law, nor necessarily of its origins. Oresme argued that legislative power was vested in the people as a whole, since they alone could judge the common good.¹⁷ This view was broadly compatible with the English constitutional position in the later Middle Ages, when Parliament was regarded as the indispensable forum for the production of statute law.¹⁸ Fortescue reached a similar conclusion, albeit one arrived at by a very different road. This was a result of his experience in the English law courts, where he concluded that:

13 Ross, Alf, On Law and Justice (Stevens, London, 1958).

14 Schaar, J., “Legitimacy in the Modern State” in William Connolly (ed.), Legitimacy and the State (1984), pp. 104–106.

15 Barker, R., Political Legitimacy an...