Royal Prerogative powers belong to the Monarch, but most are exercised by Ministers.

Britain is a parliamentary democracy and, as such, much of the authority of the government comes from its position as the dominant party in the legislature. For example, its ability to pass its legislative agenda relies on this fact. Importantly, the powers that they obtain from Parliament are subject to close scrutiny and challenge from Parliament and, through this, government’s are democratically accountable. However, there is another source of government power in the UK as a result of its constitutional development – the royal prerogative powers. So what are these powers and why are they so significant?

What are Royal Prerogative powers?

Royal Prerogative powers are those that officially belong to the Monarch, but, in most cases, are exercised by Government Ministers, especially the Prime Minister. The 19th Century constitutional scholar A.V Dicey said that any powers not explicitly provided for by statute law were, by definition, Royal Prerogative powers.

There are three types of Royal Prerogative powers:

Appointing a Prime Minister is one of the Monarch’s most important powers.

The constitutional powers of the Monarch – The powers that the Monarch is expected to exercise as part of their ongoing constitutional role. For example, the Monarch is expected to appoint as Prime Minister the person who can best “command the confidence of the House of Commons”. Whilst these powers might be considered symbolic and ceremonial, it is not inconceivable that they may at some point, be exercised more politically. Indeed, Queen Elizabeth’s appointment of Alec Douglas-Home rather than Rab Butler to be Prime Minister, was seen by some to be a discretionary decision.

There are only ever 24 Knights and Ladies of the Garter and in 2022 Elizabeth II made Tony Blair one (controversially to some).

The legal prerogatives of the Monarch – This set of powers are less important than the others and most of them are ceremonial or symbolic in nature. For example, the fact that the all swans belong to the Monarch is a legal prerogative. However, there are other discretionary powers that fall into this category. For example, there are certain honours that the Monarch bestows without the advice of Ministers. For example, appointment to the Order of the Garter are entirely the decision of the Monarch.

The prerogative powers of the executive – This set of powers are those that used to be exercised by the Monarch, and technically still do, but are in fact exercised by the Executive, particularly the Prime Ministers. This set of powers is extremely extensive and gives the government a number of huge ranging powers.

How are Royal Prerogative Powers exercised?

Royal Prerogative powers have full legal effect and are made legal by an Order-in-Council. This is a type of legislation that bypasses Parliament and is therefore not subject to it. This is controversial because, unlike with all other forms of law-making, there is no parliamentary scrutiny (although the passing of a Statute Law could overrule an Order-in-Council).

What are the prerogative powers of the Executive?

There are numerous prerogative powers of the executive. Some of the most significant of these are:

Entering or leaving international agreements – It is up to the Government which countries they enter relationships with. Whilst Parliament may comment on these affairs, it is the prerogative of the government how to handle them. Under the Constitutional Reform and Governance Act (2010) formal treaties must be laid before Parliament for 21 days before ratification, but Parliamentary approval is not required by the Government.

Tony Blair held a vote on the invasion of Iraq, even though constitutionally he did not have to do so.

Deploying military forces – The deployment of military forces, even on active duty, is entirely the prerogative of the Prime Minster. Whilst the King is Commander-in-Chief, in reality, the relevant powers are held by the Prime Minister. Between 2003 and 2018 there was an emerging convention that the government should hold parliamentary votes on military action. Indeed, David Cameron respected a Commons decision against Syrian airstrikes in 2013:

However, in 2018 Theresa May launched airstrikes without parliamentary debate or approval, signalling an end to that convention.

(A mistake that students often make is that Tony Blair took Britain into the war in Iraq against parliamentary wishes. In fact, he did hold a vote on the invasion which he won by 412-149 votes).

Appointing diplomats – The appointment of diplomats, including Ambassadors, is undertaken by the Government without the input of Parliament.

Issuing and withdrawing passports – The government decides whether to issue or withdraw passports. Most famously, in 2019, the passport of Shamima Begum was stripped from her, after which she has been left stateless.

Granting pardons and clemencies – The Government can grant pardons and clemencies for criminal offences. It normally relies on bodies like the Criminal Cases Review Commission to make a judgement on this. However, it has discretion to do this otherwise. For example, in 2020 a life prisoner called Steven Gallant helped to subdue a terror attack on London Bridge whilst on day release. Subsequently, he was rewarded with clemency via the reduction of his prison tariff, meaning he could apply for parole earlier.

Lord Cruddas was appointed to the House of Lords despite being found to be unfit for a peerage.

Granting honours – A number of honours can be granted by the Prime Minister, including knighthoods and peerages. This can often be controversial, with Prime Ministers rewarding people for political reasons, rather than for public service. For example, Lord Cruddas was appointed to the House of Lords against the advice of the House of Lords Appointments Commission while Lord Lebedev was appointed despite security concerns. Both these appointments by Boris Johnson were extremely controversial.

Appointing Ministers – The appointment of Ministers is a power given to the Prime Minister. They will do this after taking government and also in the form of reshuffles. Unlike the United States, for example, there is no parliamentary oversight of ministerial appointments.

The removal of the experienced Tom Scholar may have been extremely short-sighted.

Appointing Civil Servants – Senior Civil Servants are appointed, deployed and removed at the behest of the Prime Minister. Famously, upon becoming Prime Minister Liz Truss removed a number of senior civil servants with whom she did not feel ideologically compatible. Tom Scholar, for example, was removed as Permanent Secretary to the Treasury despite having held the role since 2016.

Are prerogative powers subject to Parliamentary oversight?

In 2018 Jeremy Corbyn called for a War Powers Act.

One of the most significant issues with the Royal Prerogative is that they are not subject to parliamentary scrutiny. In a liberal democracy, this gives many powers to the government that are outside democratic accountability. In 2018 Theresa May ordered airstrikes against the Syrian regime following their use of chemical weapons against their own citizens. Jeremy Corbyn. who was then Labour leader, argued against this and also called for a ‘War Powers Act’ that would remove the prerogative powers of the Prime Minster to order military action and instead give that decision to Parliament.

However, Parliament, as AV Dicey theorised, is sovereign and can ‘make or unmake’ any law. This means that, should Parliament choose to do so, they can limit prerogative powers. There are some examples of this happening in recent years:

Fixed-Term Parliaments Act – The Fixed-Term Parliaments Act of 2011 removed the Prime Minister’s prerogative power to choose when to hold an election. This was a significant diminution in the Prime Minister’s power and something the Liberal Democrats demanded when entering coalition. However, the Act was repealed by the Dissolution and Calling of Parliaments Act (2022).

Posonby Rule – The Posonby Rule was a convention that stipulated that any international treaty should be laid before Parliament at least 21 days before its ratification. By convention unless opposition parties notified the Government of concerns, there would be no debate and the treaty would come into law after 21 days. However, under the Constitutional Reform and Governance Act (2010) put this requirement into Statute Law. Yet, despite this, the ratification of treaties is still ultimately a prerogative power.

In addition to these changes, conventions can emerge that suggest the government will act in a certain way regarding their prerogative powers. The decisions between 2003-2018 to seek approval of military action is an example of this. During the Brexit debates between 2016-2021, governments promised to put any final deal wit the EU to a ‘meaningful vote’, despite not being constitutionally obliged to do so.

Are prerogative powers subject to judicial oversight?

The Supreme Court has had a significant say on prerogative powers in recent years.

Decisions taken under the Royal Prerogative have been increasingly subject to judicial oversight. Whilst the constitutional power itself cannot be challenged courts can, through a process called judicial review, be asked to make a judgement on whether the Government have acted ultra vires (beyond their power). There are two modern cases that stand out in this regard:

Miller vs Secretary of State for Exiting the European Union

Gina Miller twice took judicial review over the Government’s use of royal prerogative powers.

In order to leave the European Union after the 2016 Referendum the Government would have to trigger the exit process by triggering Article 50 of the Lisbon Treaty. Theresa May planned to do this as foreign relations are a Royal Prerogative power. However, a political activist called Gina Miller launched a judicial review, arguing that Article 50 could only be triggered with parliamentary consent. After being heard in the High Court, the case went to the UK Supreme Court. The Supreme Court ruled that the Prime Minister could not trigger Article 50 unilaterally, and must do so with parliamentary consent. This had the effect of slowing down the Brexit process for the Prime Minister, but did ensure more parliamentary scrutiny of it.

Miller vs Prime Minister

In 2019 the Queen, acting on the advice of the then Prime Minister, Boris Johnson, prorogued Parliament. The Government argued that this was needed as Parliament had been in session for so long, however, critics argued that it was being done to frustrate Parliament’s will to actively prevent a no-deal Brexit. The Prime Minster wanted to keep the risk of a no-deal Brexit alive to force Parliament into accepting a deal with the EU. Gina Miller (acting alongside Joanna Cherry in Scotland) launched a judicial review. In its judgement the Supreme Court unanimously ruled that the prorogation had been unlawful because it was based on an attempt to limit the ability of Parliament to scrutinise the Government’s Brexit plans. As such, the Supreme Court ordered that the prorogation proclamation had the legal effect of a “blank sheet of paper” and said, consequently, Parliament was still in session.

Why are prerogative powers so significant?

Royal prerogative are undoubtedly hugely significant. Some of the most important decisions that can be taken by a government, like ordering military action, are decisions that legally are taken by the Government alone. However, these powers are not subject to parliamentary scrutiny and in a liberal democracy this can be challenging.

Whilst statute law can be passed to change royal prerogative powers, the political landscape makes this difficult. Doing so would require the main two-parties to agree. In the case of the opposition, whilst this may be in their short-term interest, they know they will rue that decision when they are in power. Consequently, there is usually a tacit understanding that these ancient and unchecked powers should remain with the government.

A British Taskforce was ordered to the Falklands without a parliamentary vote.

That said, prerogative powers have a place. Sometimes decisions may have to be taken at short-notice without time for full parliamentary debate and consideration. The reaction to the COVID-19 pandemic is an example of this, as is the reaction of the British government to the invasion of the Falkland Islands in 1982. In addition, the misuse of the powers is likely to have a democratic impact at the next General Election.

Article Summary

The Royal Prerogative powers are those that are mainly exercised by the Government in the name of the Monarch. They are very expensive and largely beyond parliamentary scrutiny. As a result of other factors, such as the fusion of powers, the Royal Prerogative powers make the UK Prime Minister very powerful, indeed, perhaps more powerful than the President of the United States in domestic affairs.

Key Terms

Royal Prerogative powers – A number of privileges and powers of the monarch, most of which have now been passed to the Prime Minister and members of the government.

House of Lords Appointment Commission – An independent commission that appoints crossbench peers to the House of Lords and also vets party nominations for the chamber. 

Fixed-Term Parliaments Act – A now repealed constitutional reform that set General Elections for a set date in five years, under which an early election could be held only if two-thirds of MPs voted for it or if a government lost a vote of no confidence. 

Posonby Rule – A convention of the UK Constitution that dictated that any international treaty must be placed before Parliament at least 21 days before ratification. 

Ultra Vires – A finding that the government or a government body has acted beyond its power or authority. 

Judicial Review – The process whereby the Judiciary considers whether or not the government has acted beyond the law. 

Miller v Secretary of State for Exiting the European Union – A significant Supreme Court Case that challenged the right of the Government to instigate Article 50 without the explicit approval of Parliament. This case limited the Royal Prerogative powers of the Executive. 

Miller vs Prime Minister (2019) – A Supreme Court case in which Gina Miller challenged the right of Boris Johnson to advise the Queen to prorogue Parliament in August 2019. The Supreme Court ruled that the prorogation had been unlawful. 

Parliamentary democracy – A system whereby the Executive holds power by virtue of the support it has from the legislature.

Order-in-Council – A type of legislation that brings prerogative powers into effect and does not need the consent of Parliament.

Constitutional Reform and Governance Act (2010) –  A statute law that amongst other things codified the Posonby Rule into law.

Commander-in-Chief – The person who had ultimate control over the armed forces.

Prorogation – The discontinuance of a session of Parliament.

Peerage – A system of noble titles granted by the Monarch. A life peerage allows a person to sit in the House of Lords.

Specification Links:
Edexcel: Paper 2 – 3.1 (Prime Minister and Executive)
AQA: Paper 1 – (The Prime Minister and Cabinet)
WJEC: Paper 1 – 1.2 (The Government of the UK)

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