Royal Prerogative: Difference between revisions

[[:en:Royal Prerogative]]

The '''Royal Prerogative''' is a body of customary authority, privilege, and immunity, recognized in [[common law]] and, sometimes, in [[Civil law (legal system)|civil law]] jurisdictions possessing a monarchy as belonging to the [[Sovereign]] alone.<ref>In [[Commonwealth]] realms, the wording "[[the Crown]]" is usually used in this context instead of "King or Queen"</ref> It is the means by which some of the [[executive (government)|executive]] powers of government, possessed by and vested in a [[monarch]] with regard to the process of governance of their state, are carried out. Individual prerogatives can be abolished by Parliament, although in the [[United Kingdom]] special procedure applies.  

Though some [[republic]]an heads of state possess similar powers, they are not coterminous, containing a number of fundamental differences, and may be either more or less extensive.{{Verify source|date=January 2008}} See [[reserve power]]s.

While prerogative powers were originally exercised by the monarch acting alone, and do not require [[parliament]]ary consent, they are now always exercised on the advice of the [[Prime Minister]] or the [[Cabinet (government)|Cabinet]], who is then accountable for the decision to Parliament. There may be situations in which the monarch could choose to exercise the Royal Prerogative without the advice of the Prime Minister and the Cabinet. Such situations are rare, and generally only occur in emergencies or where existing precedent does not adequately apply to the circumstances in question.  In many [[liberal democracy|liberal-democratic]] [[constitutional monarchies]], such actions could precipitate a [[constitutional crisis]].

Not all constitutional monarchs have royal prerogative that can be exercised independently however. For example, the [[Monarch of Sweden|King of Sweden]] and the [[Emperor of Japan]] have specific government duties that cannot be exercised with any degree of individual discretion, no matter what the circumstance.

In the [[Kingdom of England]] (up to 1707), the [[Kingdom of Great Britain]] (1707&ndash;1800) and the [[United Kingdom]] (since 1801), the Royal Prerogative historically was one of the central features of the [[realm]]'s governance.

Constitutional theorist [[AV Dicey]] gives the standard definition of what prerogative powers are:

Today, some prerogative powers are directly exercised by ministers without the approval of Parliament, including, in the United Kingdom, the powers to regulate the civil service, issue passports and grant honours.<ref>[http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_19.cfm UK Parliament - PASC 19<!-- Bot generated title -->]</ref> Some prerogative powers are exercised nominally by the monarch, but on the advice of the [[Prime Minister of the United Kingdom|Prime Minister]], with whom the monarch meets on a weekly basis, and on the advice of [[Cabinet of the United Kingdom]]. Some key areas of the British system of government are still carried out by means of the Royal Prerogative, but its usage has been diminishing as functions are progressively made statutory.  

In the ''Case of Proclamations'' (1611) during the reign of King [[James I of England|James I/VI]], [[England|English]] common law courts judges emphatically asserted that they possessed the right to determine the limits of the Royal Prerogative. Since the [[Glorious Revolution]] (1688), which brought co-monarchs Queen [[Mary II of England|Mary II]] and King [[William III of England|William III]] to power; this interpretation of there being a separate and distinct power of the Judiciary has not been challenged by [[the Crown]].  It has been accepted that it is emphatically the province of the Court(s); to say what the law is, or means.  This is a crucial corollary and foundation to the concept of the Judicial Power; and its distinct and separate nature from the Executive Power possessed by the Crown itself, or its Ministers.

In Canada, the power to issue passports remains under the Royal Prerogative. The government has used the Royal Prerogative to deny passports to a citizen whom the US government had held, and released, from the American prison in the US Naval base at [[Guantanamo Bay Naval Base|Guantanamo Bay]]. [[Abdurahman Khadr]] was denied a passport by the Canadian government.  

In the other [[Commonwealth realms]], the Royal Prerogative varies significantly from the prerogative in the United Kingdom, and is exercised by the Monarch's representative, the [[Governor-General]]. The [[Constitution]] of a Commonwealth realm may sharply limit the prerogative in ways that do not apply in the United Kingdom and many governmental acts which would be done under the prerogative in the United Kingdom are given effect by the Constitution or Acts of Parliament in a Commonwealth realm.

Generally, the crown retains all the power of the state in a crown colony (even if in practice it is not directly exercised).  Thus the royal prerogative is in theory an unlimited, arbitrary authority<ref>[[Campbell v. Hall]], 1774</ref>.  In [[British overseas territories]] however, each inhabited territory has a constitution by which the territory is governed locally.

The absoluteness of the royal prerogative in the colonies was however defeated in the case of [[Campbell v. Hall]], in 1774.  Campbell v. Hall decided that once a colony gained a representative assembly (or once the governor has been instructed to call one) then the royal authority is limited to the familiar prerogatives; without the assembly's consent the Crown could not raise taxation nor change the law.

In August 2009 the Government of the [[Turks and Caicos Islands]], a [[UK]] Dependency, was revested in the [[Governor]], on the advice of [[HM Government]] in the [[UK]], under an [[Order-in-Council]]<ref>The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009</ref> of 18 March 2009, which suspended and amended parts of the Islands' [[Constitution]], and vacated all the offices of [[Government minister|Ministers]] and the House of Assembly. This was not itself an exercise of the Royal Prerogative, as it was made under "the West Indies Act 1962 and of all other powers enabling Her to do so". However, in effect the Order extended the Royal Prerogative in the Islands, vesting wide discretionary legislative and executive powers in [[Her Majesty]]'s [[Governor]]. The [[Governor]] remains subject to the amended Constitution, and in practice to the instructions of [[the Queen]]'s [[Foreign Office]] in the UK.

In the case of [[Chagos Archipelago]] islands, in 2000, the [[High Court of Justice of England and Wales]] ruled that a local Ordinance made by the Commissioner of the [[British Indian Ocean Territory]] exiling the islanders was unlawful, a decision which was accepted by the British [[Foreign Secretary]] [[Robin Cook]]. However that Ordinance was legislation passed under authority given by the royal prerogative, not an exercise of the prerogative itself, and was overturned as being beyond the powers given. After this decision, the British Government issued an [[Order in Council]], a primary exercise of the royal prerogative, to achieve the same objective. This Order was also ruled unlawful by the [[High Court of England and Wales|High Court]], a ruling upheld in the [[Court of Appeal of England and Wales|Court of Appeal]].  However on Wednesday, 22 October 2008, the Government won its appeal in the [[Judicial Committee of the House of Lords|House of Lords]] against the previous rulings. The House decided by a three-to-two majority that the Order in Council was a lawful exercise of authority <ref>[http://afp.google.com/article/ALeqM5hdjVkpT6_bzQxOkAQiXHQRIerOtw  Britain wins appeal over Chagos islanders' return home]</ref><ref>[http://ukpress.google.com/article/ALeqM5jAGxtNEsx6bLfJqWoxpoftSmC98A Chagos islanders cannot return home]</ref>.

The [[Spanish Constitution of 1978]], Title II ''The Crown'', Article 62, delineates the powers of the king, while Title IV ''Government and Administration'', Article 99, defines the king's role in government.<ref name="Wiki Source Spa Constitution 78">[http://es.wikisource.org/wiki/Constituci%C3%B3n_espa%C3%B1ola_de_1978:_04 Título II. De la Corona, Wikisource]</ref><ref name="Official website of the Royal Household">[http://www.casareal.es/laCorona/laCorona-iden-idweb.html The Royal Household of H.M. The King website]</ref><ref name="King and Prime Minister">[http://es.wikisource.org/wiki/Constituci%C3%B3n_espa%C3%B1ola_de_1978:_06 Part IV Government and Administration]</ref> Title VI ''Judicial Power'', Article 117, Articles 122 through 124, outlines the king's role in the country's [[Independence of the judiciary|independent judiciary]].<ref name="King and Judicary">[http://es.wikisource.org/wiki/Constituci%C3%B3n_espa%C3%B1ola_de_1978:_08 Título VI. Del Poder Judicial]</ref> However, by [[Constitutional convention (political custom)|constitutional convention]] established by Juan Carlos I, the king exercises his prerogatives having solicited government advice while maintaining a politically [[non-partisan]] and independent monarchy. Receiving government advice does not necessarily bind the monarch into executing the advice, except where prescribed by the constitution.

*''b. To summon and dissolve the ''[[Cortes Generales]]'' and to call for elections under the terms provided for in the Constitution.''

*''e. To appoint and dismiss members of the [[Government of Spain|Government]] on the [[President of Spain|President of the Government]]'s proposal.''

*''f. To issue the decrees approved in the [[Council of Ministers of Spain|Council of Ministers]], to confer civil and military honours and distinctions in conformity with the law.''  

*''h. To exercise supreme command of the [[Spanish Armed Forces|Armed Forces]]''

* [[Walter Bagehot]], ''The English Constitution''

* [[Stanley Alexander de Smith|Stanley de Smith]] and [[Rodney Brazier]], ''Constitutional and Administrative Law''

* [[A. B. Keith]], ''The King and the Imperial Crown'' (1936)