A WHAT IS THE PREROGATIVE?
1. This note seeks to describe as fully as possible the extent of the prerogative. However, as will become clear, the exact limits of the prerogative cannot be categorically defined. The note goes on to describe the way in which the exercise of prerogative power is controlled by Parliament and the Courts.
2. There is no single accepted definition of the prerogative. It is sometimes defined to mean all the common law, ie non-statutory powers, of the Crown. An alternative definition is that the prerogative consists of those common law powers and immunities which are peculiar to the Crown and go beyond the powers of a private individual eg the power to declare war as opposed to the normal common law power to enter a contract.
3. Whichever definition is used there is no exhaustive list of prerogative powers. Some have fallen out of use altogether, probably forever - such as the power to press men into the Navy. It may be of more practical assistance to identify those powers which have been consistently recognised by the courts in the past, mindful of the encroachment into the prerogative as a result of the control exercised by Parliament and the courts.
4. Although this is the area in which legislation has increasingly been introduced thereby limiting the extent of the prerogative, some significant aspects of the prerogative survive in the area of domestic affairs. These include:
the appointment and dismissal of Ministers;
the summoning, prorogation and dissolution of Parliament;
royal assent to Bills;
the appointment and regulation of the civil service;
the commissioning of officers in the armed forces;
directing the disposition of the armed forces in the UK;
the appointment of Queen's Counsel;
the prerogative of mercy. (This no longer saves condemned men from the scaffold but it is still used eg to remedy errors in sentence calculation) ;
the issue and withdrawal of UK passports;
the granting of honours;
the creation of corporations by Charter;
the King (and Queen) can do no wrong (for example the Queen cannot be prosecuted in her own courts)
5. The conduct of foreign affairs remains very reliant on the exercise of prerogative powers. Parliament and the courts have perhaps tended to accept that this is an area where the Crown needs flexibility in order to act effectively and handle novel situations.
6. The main prerogative powers in this area include:
the making of treaties;
the declaration of war;
the deployment of the armed forces on operations overseas;
the recognition of foreign states;
the accreditation and reception of diplomats.
Can the prerogative powers be extended?
7. The Crown cannot invent new prerogative powers. This is consistent with the residual nature of the prerogative. However, because the prerogative is not codified or frozen at a particular point of time, it can still to some extent adapt to changed circumstances. The Lord Privy Seal, in written answer in the House of Lords on 1st February 1996 to the question "what are the categories of powers exercised by ministers exclusively under the royal prerogative" said "the government shares the view of Wade and Bradley, in their work Constitutional and Administrative Law (11th Ed. 1993), that it is not possible to give a comprehensive catalogue of prerogative powers". This government also shares that view.
8. So there is scope for the courts to identify prerogative powers which had little previous recognition. In R v Secretary of State for the Home Department, ex parte Northumbria Police Authority  1 QB 26 (CA), the Court of Appeal examined the interaction between known prerogative powers and prerogative powers that might exist. The facts concerned the Home...