The Royal Prerogative and
Constitutional Law
This book examines the royal prerogative in terms of its theory, history, and application today.
The work explores the development of the royal prerogative through the evolution of imperial government, and more recent structural changes in the United Kingdom and elsewhere in the Commonwealth. While examining specific prerogative powers, the development of justiciability of the prerogative, and the exercise of the prerogative, it lays bare the heart of constitutionality in the Westminster system of government. There is said to be a black hole of unaccountable authority at the heart of the constitution and it is this which this book examines. The focus is upon the constitutional development of the United Kingdom and the old dominions of Canada, Australia, and New Zealand. This approach is comparative and historical, using specific case studies of such events as the dissolution of Parliament and the appointment and dismissal of Prime Ministers.
The book will be of interest to academics and researchers working in the areas of constitutional law and politics.
Noel Cox is a Barrister and Solicitor of the High Court of New Zealand. Formerly Professor of Law at Aberystwyth University and at the Auckland University of Technology
Routledge Research in Legal History
The Royal Prerogative and Constitutional Law
A Search for the Quintessence of Executive Power
Noel Cox
Procedural Justice and Relational Theory
Empirical, Philosophical, and Legal Perspectives
Edited by Denise Meyerson, Catriona Mackenzie, and Therese MacDermott
See more at https://www.routledge.com/Routledge-Research-in-Legal-History/book-series/RRLEGHIST.
First published 2021
by Routledge
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2021 Noel Cox
The right of Noel Cox to be identified as author of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Cox, Noel, 1965- author.
Title: The royal prerogative and Constitutional Law : a search for the quintessence of executive power / Noel Cox.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Routledge research in legal history | Includes bibliographical references and index.
Identifiers: LCCN 2020014133 (print) | LCCN 2020014134 (ebook) | ISBN 9780367500795 (hardback) | ISBN 9781003048718 (ebook)
Subjects: LCSH: Prerogative, RoyalGreat Britain. | Prerogative, RoyalCommonwealth countries.
Classification: LCC KD4435 .C69 2020 (print) | LCC KD4435 (ebook) | DDC 342/.1241062dc23
LC record available at https://lccn.loc.gov/2020014133
LC ebook record available at https://lccn.loc.gov/2020014134
ISBN: 978-0-367-50079-5 (hbk)
ISBN: 978-1-003-04871-8 (ebk)
Typeset in Galliard
by Taylor & Francis Books
To my dearly beloved wife Katy, whose support, patience and understanding are always appreciated, and to my late twin brother John, with whom many of the issues covered in this work were discussed, and to whom they were ever important.
Contents
The British constitution is marked by the unusual characteristics of being unwritten and uncodified. Thus, although it embraces such concepts as the rule of law and the separation of powers, all is not certain, settled or predictable. It is certainly not immutable or unchanging. As an example, the well-known doctrine of the separation of powers has been but imperfectly applied, despite Montesquieu's description of it as being central to the British constitution in the eighteenth century, and judicial support for the view that the constitution is firmly based on the doctrine. Indeed, the departure from the simplistic purity of the doctrine seems to have been pivotal to the success of the Westminster system of parliamentary democracy. This dichotomy is at the heart of the British constitution, and arguably helps give it its flexibility and longevity. Another of the distinctive features of the common law constitution in the British tradition is the nature and characteristics of the executive power, the historic core of which is the royal prerogative. In addition, conventions provide a significant gloss on the notional or nominal powers of the executive (as well as the substantive), which are at least formally extensive, and govern the conduct of the legislature and judiciary, and their relationship with each of the other parts of government. Excepting, in most instances, its unwritten and unentrenched nature, this constitutional model was exported to the countries of the Commonwealth, and many others which have been influenced by British constitutional thought and practice and by the common law legal system.
The constitution is distinguished, amongst other things, by the existence of the royal prerogative. This may be described as the residual powers, privileges and immunities which the Crown, as personification of the State (or the Sovereign as head of State, depending upon the specific prerogative, and the circumstances), retains which are not dependent upon the legislative authority of the Sovereign-in-Parliament. The prerogative has a number of elements which continue to be of use regularly today by the executive branch of government. One is the honours prerogative. This has been used to control the use of armorial bearings, and to regulate matters which, in England and Scotland, are the concern of specialist courts, as well as to bestow honours and decorations. More politically sensitive prerogatives include the war powers, and the control of the civil and military services though both the latter are now in part at least regulated by statute. Perhaps most important today, constitutionally speaking, are the political prerogatives of the appointment and dismissal of Prime Ministers, and the summoning, prorogation and (until the passage of the Fixed-term Parliaments Act 2011 (U.K.)) the dissolution of Parliament. All of these prerogatives have, at some time in the past, been the subject of controversy, and in some cases remain so. At the very least they have been the focus of attention when the royal prerogative, or rather its curtailment, is discussed. Many, if not most, apply in almost all those countries which have been influenced by British constitutional theory, excepting some where it was abolished, expressly or by implication, and always subject to any statutory abrogation or reform.
The royal prerogative remains a unique and separate area of law, founded in custom and the necessary attributes of kingship, or executive government as we would more usually say today. In such an environment, of a gradually waning prerogative, it might be questioned why one would embark upon a major new study of the prerogative, particularly since it might be thought that prerogative powers were either very well understood, or were facing extinction. But the answer lies partly in the question. There hasn't been a full systematic analysis of the scope and nature of the royal prerogative for many years perhaps not since Chitty in 1820. When we are considering codifying, or abolishing the prerogative, it would be logical to proceed from the basis of a thorough understanding of what we are reviewing. One must also distinguish between the factual existence of the prerogative and the normative role it plays, and between the concept of the Crown and the exercise of the prerogative. Recent events, such as the judicial review of the royal prerogative of prorogation, have again placed the prerogative in the spotlight, and raised questions about the role of the prerogative.