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 prerogative", and the source of many of the executive powers of the British government.
Prerogative powers were formerly exercised by the monarch acting on their own initiative. Since the 19th century, by convention, the advice of the prime minister or the cabinet—who are then accountable to Parliament for the decision—has been required in order for the prerogative to be exercised. The monarch remains constitutionally empowered to exercise the royal prerogative against the advice of the prime minister or the cabinet, but in practice would likely only do so in emergencies or where existing precedent does not adequately apply to the circumstances in question.
Today, the royal prerogative is available in the conduct of the government of the United Kingdom, including foreign affairs, defence, and national security. The monarch has a significant constitutional weight in these and other matters, but limited freedom to act, because the exercise of the prerogative is conventionally in the hands of the prime minister and other ministers or other government officials.
Definition
The royal prerogative has been called "a notoriously difficult concept to define adequately", but whether a particular type of prerogative power exists is a matter of common law to be decided by the courts as the final arbiter. A prominent constitutional theorist, A. V. Dicey, proposed in the nineteenth century that:
While many commentators follow the Diceyan view, there are constitutional lawyers who prefer the definition given by William Blackstone in the 1760s:Loveland (2009) p. 92 Dicey's opinion that any action of governance by the monarch beyond statute is under the prerogative diverges from Blackstone's that the prerogative simply covers those actions that no other person or body in the United Kingdom can undertake, such as declaration of war. Case law exists to support both views. Blackstone's notion of the prerogative being the powers of an exclusive nature was favoured by Lord Parmoor in the De Keyser's Royal Hotel case of 1920, but some difficulty with it was expressed by Lord Reid in the Burmah Oil case of 1965. A clear distinction has not been necessary in the relevant cases, and the courts may never need to settle the question as few cases deal directly with the prerogative itself.Review of the Executive Royal Prerogative Powers: Final Report, Chapter Two paragraph 26
History
Prior to the 13th century, the English monarch exercised supreme power, which was checked by "the recrudescence of feudal turbulence in the fourteenth and fifteenth centuries". The royal prerogative was a way to exercise his power without the consent of others but its limits were unclear and an attempt to legally define its scope was first made in 1387 by Richard II.
This "turbulence" began to recede over the course of the 16th century and the monarch became truly independent when Henry VIII and his successors became head of a Protestant Church of England, and therefore answerable neither to the clergy nor the Pope. Although the monarch was "the predominant partner in the English constitution", the courts recognised the growing importance of Parliament by stopping short of declaring him all-powerful. In Ferrers' Case,1 Parl. Hist. 555 Henry accepted this restriction, believing he was far more powerful ruling with the consent of Parliament than without, especially in the matter of taxation. Sir Thomas Smith and other contemporary writers argued the monarch could not levy taxes without parliamentary approval.
Henry and his descendants normally followed legal decisions, even though in theory they were not bound by them. One suggestion is they recognised stable government required legal advice and consent, while "all the leading lawyers, statesmen and publicists of the Tudor period" agreed everyone was subject to the law, including the king. Although possessing "unfettered discretion" in when to use the prerogative, the monarch was limited in areas where the courts had imposed conditions on its use or where he had chosen to do so himself.
James I of England challenged this consensus in the 1607 Case of Prohibitions, arguing the king had a divine right to sit as a judge and interpret the common law as he saw fit. Led by Sir Edward Coke, the judiciary rejected this idea on the grounds that while not subject to any individual, the monarch was subject to the law. Until he had gained sufficient knowledge of the law, he had no right to interpret it which Coke also pointed out "requires long study and experience, before that a man can attain to the cognisance of it". In the 1611 Case of Proclamations, Coke further ruled the monarch could only exercise existing prerogatives, not create new ones.
After the Glorious Revolution in November 1688, James II of England was replaced by his eldest daughter Mary II and her husband William III, who accepted the throne under conditions set out in the Bill of Rights 1689. These included limits to the royal prerogative, which many felt had been misused by James; Article 1 prevented the monarch suspending or executing laws without consent of Parliament, while Article 4 made it illegal to use the prerogative to levy taxes "without grant of Parliament". The Bill also allowed Parliament to limit the use of remaining prerogatives in future, one example being the Triennial Act 1694, which required the monarch to dismiss and call Parliament at certain times.
Prerogative powers
Legislature
The power to dissolve parliament is "perhaps the most important residual prerogative exercised personally by the sovereign, and represents the greatest potential for controversy."Barnett (2009) p. 106 This prerogative is normally exercised at the request of the prime minister, either at his or her discretion or following a motion of no confidence. Constitutional theorists have had differing views as to whether a unilateral dissolution of Parliament would be possible today; Sir Ivor Jennings wrote that a dissolution involves "the acquiescence of ministers", and as such the monarch could not dissolve Parliament without ministerial consent; "if ministers refuse to give such advice, she can do no more than dismiss them." A. V. Dicey, however, believed that in certain extreme circumstances the monarch could dissolve Parliament single-handedly, on the condition that "an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors ... A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation."Barnett (2009) p. 107
The monarch could force the dissolution of Parliament through a refusal of royal assent; this would very likely lead to a government resigning. By convention, the monarch always assents to bills; the last time royal assent was not given was in 1708 during the reign of Queen Anne when, on ministerial advice, she withheld royal assent from the Scottish Militia Bill. This does not mean that the right to refuse, even contrary to the wishes of the Prime Minister, has died: the threat of a royal veto by George III and George IV made Catholic Emancipation impossible between 1800 and 1829, whilst George V had been privately advised (by his own lawyer, not by the Prime Minister) that he could veto the Third Irish Home Rule Bill; Jennings writes that "it was assumed by the King throughout that he had not only the legal power but the constitutional right to refuse assent".Barnett (2009) p. 109 The royal prerogative to dissolve Parliament was abrogated by section 3(2) of the Fixed-term Parliaments Act 2011, and revived by the Dissolution and Calling of Parliament Act 2022, which repealed the 2011 act as if it "had never been enacted". Section 6(1) of the 2011 act however specifically stated that the monarch's power to prorogue Parliament is not affected by the act. Nonetheless, the Supreme Court's 2019 judgment in Miller II established that the prerogative of prorogation is not absolute.
The appointment of the prime minister is also, theoretically, governed by the royal prerogative. Technically the monarch may appoint as prime minister anyone he wants to appoint, but in practice the appointee is always the person who is best placed to command a majority in the House of Commons. Usually, this is the leader of the political party that is returned to Parliament with a majority of seats after a general election. Difficulties may result with a so-called hung parliament, in which no party commands majority support, as last occurred in 2017. In this situation, constitutional convention is that the previous incumbent has the first right to form a coalition government and seek appointment.Barnett (2009) p. 114 If the prime minister decides to retire in the middle of a parliamentary session, then unless there is a clear "prime minister-in-waiting" (e.g., Neville Chamberlain in 1937 or Anthony Eden in 1955) the monarch in principle has to choose a successor (after taking appropriate advice, not necessarily from the outgoing prime minister), but the last monarch to be actively involved in such a process was George V, who appointed Stanley Baldwin rather than Lord Curzon in 1923. In more modern times, the monarch left it to the politicians involved to choose a successor through private consultations (Winston Churchill in May 1940, Harold Macmillan in January 1957, Alec Douglas-Home in October 1963). Nowadays, the monarch has no discretion, as the governing party will elect a new leader who will near-automatically be appointed as he or she commands the support of the majority of the Commons (most recently Theresa May in 2016, Boris Johnson in 2019, Liz Truss and Rishi Sunak in 2022).Barnett (2009) p. 115
Judicial system The most noted prerogative power that affects the judicial system is the prerogative of mercy, which has two elements: the granting of pardons and the granting of nolle prosequi. Pardons may eliminate the "pains, penalties and punishments" from a criminal conviction, though they do not remove convictions themselves. This power is commonly exercised on the advice of the Secretary of State for the Home Department; the monarch has no direct involvement in its use. Exercises of this power may also take the form of commutations, a limited form of pardon where the sentence is reduced, on certain conditions. The granting of a pardon is not subject to judicial review, as confirmed by Council of Civil Service Unions v Minister for the Civil Service, AC 374 but the courts have chosen to criticise its application or lack thereof, as in R v Secretary of State for the Home Department, ex parte Bentley. Q.B. 349Barnett (2009) p. 116 Granting nolle prosequi is done by the Attorney General for England and Wales (or the equivalent in Scotland or Northern Ireland) in the name of the Crown, to stop legal proceedings against an individual. This is not reviewable by the courts, as confirmed by R v Comptroller-General of Patents, ex parte Tomlinson, 1 QB 909 (CA) (ex officio informations) and does not count as an acquittal; the defendant may be brought before the courts on the same charge at a later date.Barnett (2009) p. 117
Foreign affairs