The gradual curtailment of the royal prerogative

In the United Kingdom and those countries that recognise Elizabeth II as their Queen, there are to be found certain fundamental constitutional principles. One of these is that much of the legal basis of executive power derives from the Crown, though this has, in the past, often been downplayed for political and other reasons. Indeed, in the Commonwealth as a whole, political independence has often been equated with the reduction of the role of the Crown to a position of subservience to the political executive. What remains important is the position of the Crown as an organising principle of government (the framework upon which the structure of government is built ), as a source of legitimacy, and as a symbol for permanent government. Executive power, therefore, remains based on the royal prerogative, and the ‘third source’ of authority (the legal powers of the legal natural person, as the Crown is a corporation aggregate), as well as upon statute law.

The royal prerogative is the residue of royal power which derives from the ancient rights, privileges and powers of the Sovereign, including the prerogative of mercy, political prerogatives such as declaring war or peace, and financial prerogatives such as bona vacantia. Within the scope of the royal prerogative, the Sovereign once had a comparatively free hand to act. Yet even these powers are now limited by the legal concept of convention, and, more recently, by the principles of administrative law. The Sovereign enjoys certain powers, but these are to be exercised (for the most part) by Ministers responsible to Parliament, rather than by the Sovereign personally, without, however, prior authorisation – or subsequent validation – by Parliament.

The idea that the prerogative is an uncomfortable fit with the supremacy of Parliament, and the rule of law, weakens its position (as does other factors), for it was seen as something of an enigma, or even a black hole. The very survival of the prerogative is now questioned in some quarters, though whether the curtailment of the prerogative results in its eventual extinction is a moot question – as is the question of whether this would be a desirable outcome.