Political power of Queen ojf the UK

Because of the sovereign's place in the enactment of laws, the enacting clause of acts of parliament may mention him or her, as well as the other one or two bodies of parliament. For example, modernCanadian acts of parliament typically contain the following enacting clause: NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows... Similarly, British Acts of the Parliament will start with: BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows... The phrasing, however, is different when the bill is passed under the provisions of theParliament Acts 1911 and 1949, without the consent of the Lords. Because the Queen remains a part of parliament, the enacting clause does not need to explicitly mention her as in realms such asAustralia and Tuvalu, where the clause is simply The Parliament of Australia enacts and ENACTED by the Parliament of Tuvalu..., respectively. This may represent a distinction between whether Parliament or the Queen is the primary legislator, however.

The Scottish parliament follows a different approach: although its acts require Royal Assent, the concept of Queen-in-Parliament has not been incorporated. Instead of the enacting clause seen in UK acts, acts of the Scottish parliament bear the following text above the long title: The Bill for this Act of the Scottish Parliament was passed by the Parliament on DATE and received Royal Assent on DATE.

Dissolution of Parliament

In 1950 the King's Private Secretary writing pseudonymously to the Times newspaper asserted a constitutional convention: according to the Lascelles Principles, if a minority government asked to dissolve Parliament to call an early election to strengthen its position, the monarch could refuse, and would do so under three conditions. When Prime Minister Wilson requested a dissolution late in 1974, the Queen granted his request as Heath had already failed to form a coalition. The resulting general election gave Wilson a small majority. The monarch could in theory unilaterally dismiss a Prime Minister, but a Prime Minister's term now comes to an end only by electoral defeat, death, or resignation. The last monarch to remove a Prime Minister was William IV, who dismissed Lord Melbourne in 1834. The Fixed-term Parliaments Act 2011 removed the monarch's authority to dissolve Parliament. 

Royal Prerogative

The Royal Prerogative is a body of customary authority, privilege, and immunity, recognised in the United Kingdom as the sole prerogative of the Sovereign. Many of the executive powers of British government, vested in a monarch, have been bestowed under the mandate of the Royal Prerogative.

Prerogative powers were formerly exercised by the monarch acting alone. Since the 19th century, 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 is constitutionally empowered to exercise the Royal Prerogative against the advice of the prime minister or the cabinet, but does so only in emergencies or where existing precedent does not adequately apply to the circumstances in question.

Today the Royal Prerogative is concerned with several areas critical to the government of the United Kingdom, including the conduct of foreign affairs, defence, and national security. The monarchy has a significant constitutional presence in these and other areas, but very limited power, because the prerogative is nowadays 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 prominent constitutional theorist A. V. Dicey has written that:

The prerogative appears to be historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown. The prerogative is the name of the remaining portion of the Crown's original authority ... Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative.

The Diceyan view is the one most commentators follow, but some constitutional lawyers prefer the definition given by William Blackstone:

By the word prerogative we usually understand that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of common law, in right of his regal dignity ... it can only be applied to those rights and capacities which the King enjoys alone, in contradiction to others, and not to those which he enjoys in common with any of his subjects".

 The two views are divergent. Dicey's opinion is that any action of governance by the monarch beyond statute is under the prerogative. Blackstone, however, maintains that the prerogative simply covers those actions that no other person or body in the United Kingdom can undertake, such as the dissolution of Parliament.  
 

History

The Royal Prerogative originated as the personal powers of the monarch. From the 13th century in England, as in France, the monarch was all-powerful, but this absolute power was checked by "the recrudescence of feudal turbulence in the fourteenth and fifteenth centuries".An early attempt to define the Royal Prerogative was stated by Richard II's judges in 1387.

During the 16th century, this "turbulence" began to recede, and the monarch became truly independent. Under Henry VIII and his successors, the king was the head of the Protestant English church, and therefore not answerable to the clergy. The rise of Parliament in this period, however, was problematic. While the monarch was "the predominant partner in the English constitution", the courts stopped short of declaring him all-powerful, recognising the role that Parliament played. In Ferrer's Case, Henry recognised this, noting that he was far more powerful with the consent of Parliament than without. Nowhere was this more apparent than in the matter of taxation: Sir Thomas Smith and other writers of the period pointed out the monarch could not impose taxation without Parliament's consent.

At the same time, Henry and his descendants normally followed the will of the courts, despite the fact that they were theoretically not bound by judges. William Holdsworth infers that by regularly asking the legal officers of the crown and judiciary for legal advice and consent, Henry recognised the need for a stable government to follow the law. He also contends that the view that the law is supreme over all "was the view of all the leading lawyers and statesmen and publicists of the Tudor period".It was accepted that while the King had "unfettered discretion", he was limited in areas where the courts had imposed conditions on the use of the prerogative, or where he had chosen to do so.

The first dent in this stability came about in 1607, with the Case of Prohibitions. James VI and I claimed that as monarch, he 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, stating that while the monarch was not subject to any individual, he was subject to the law. Until he had gained sufficient knowledge of the law, he had no right to interpret it; Coke pointed out that such knowledge "demanded mastery of an artificial reason ... which requires long study and experience, before that a man can attain to the cognizance of it". Similarly, in the Case of Proclamations in 1611, Coke held that the monarch could only exercise those prerogatives he already had, and not create new ones.

With the Glorious Revolution, the monarchy of the House of Stuart fell, and William III became King of England. At the same time the Bill of Rights 1689 was drafted, which cemented the monarch's subservience to Parliament. It specifically limited the Royal Prerogative, with Article 1 holding that the "power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal", and article 4 confirming that "levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal". The Bill also confirmed that Parliament had the right to limit the use of remaining prerogatives, as evidenced by the Triennial Act 1694, which required the monarch to dismiss and call Parliament at certain times.

Prerogative powers

Legislature

One of the monarch's historic prerogatives was the dissolution of Parliament, which was "perhaps the most important residual prerogative exercised personally by the sovereign, and represents the greatest potential for controversy".This prerogative was normally exercised at the request of Parliament and the prime minister, either at his or her discretion or following a motion of no confidence. The last time the monarch unilaterally dissolved Parliament was in 1835, when Earl Grey resigned as prime minister; although he had a fully functioning cabinet capable of carrying on without him, William IV chose to force it out of office. Constitutional theorists have differing views as to whether this 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".

The monarch could force the dissolution of Parliament through a refusal of royal assent; this inevitably lead to a government resigning. By convention, the monarch always assents to bills; the last time the royal assent was not given was in 1704 during the reign of Queen Anne. This does not mean that the right to refuse has died; George V believed 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".The royal prerogative to dissolve Parliament was abrogated by the Fixed-term Parliaments Act 2011.

The appointment of the prime minister is also, theoretically, governed by the Royal Prerogative. Technically the monarch may appoint as prime minister anyone she wants to appoint, but in practice the appointee is always the person who commands a majority in the House of Commons. Usually, this is the leader of the political party which 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. In this situation, constitutional convention is that the previous incumbent has the first right to form a coalition government and seek appointment. If the prime minister decides to retire in the middle of a parliamentary session, as Anthony Eden did in 1957, the queen has no discretion. There is usually a "prime minister-in-waiting" who commands the support of the majority of the Commons; he or she will near-automatically be appointed.

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 be used to eliminate the "pains, penalties and punishments" which come from a criminal conviction, although they do not remove convictions themselves. This power is commonly exercised on the advice of theSecretary 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 sentences 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, 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. Granting nolle prosequi is done by the Attorney General of England and Wales (or the Scottish or Northern Irish equivalent) 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 of Patents, and does not count as an acquittal; the defendant may be brought before the courts on the same charge at a later date.

Foreign affairs

The Royal Prerogative is in much use in the realm of foreign affairs. It is the monarch who recognises foreign states (although several statutes regulate the immunities enjoyed by their heads and diplomatic representatives), issues declarations of war and peace, and forms international treaties. The monarch also has the power to annex territory, as was done in 1955 with the island of Rockall. Once territory has been annexed, the monarch has complete discretion as to what extent it will take over the former government's liabilities; this was confirmed in West Rand Central Gold Mining Company v The King. The monarch also has the power to alter British territorial waters and cede territory. Her freedom to do this in reality rather than theory is doubtful, in that it would involve depriving British citizens of their nationality and rights. When the island of Heligoland was ceded to Germany in 1890, Parliamentary approval was first sought. The monarch can also regulate colonies and dependent territories by exercising the prerogative through Orders in Council. The courts have long fought with the monarch's use of this power; in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), the Court of Appeal ruled that using Orders-in-Council to frustrate judicial rulings was an unlawful abuse of power, although this was later overturned.

Passports are also regulated by the prerogative, although there are statutory grounds. Under the common law, citizens have the right to freely leave and enter the United Kingdom. In R v Foreign Secretary ex parte Everett, the courts held that it was their right to review situations where a British citizen has been granted or withheld a passport. The writ of ne exeat regno is also used to prevent a person leaving the country. The right to form treaties is a disputed prerogative power; under Blackstone's definition, a prerogative power must be one unique to the monarch. However, because a treaty cannot interface with United Kingdom law without an enabling Act of Parliament (such as the European Communities Act 1972), the monarch alone cannot bring one into force.

Other

The monarch also has power to exercise her prerogative over the granting of honours, the regulation of the armed forces and ecclesiastical appointments. Although the granting of most honours is normally determined by the executive, the monarch is still the person who technically awards them. Exceptions to this rule are membership of the Order of the Garter, the Order of the Thistle, the Royal Victorian Order and the Order of Merit, which the monarch has complete discretion to grant. In relation to the armed forces, the monarch is the Commander in Chief, and members are regulated under the Royal Prerogative. Most statutes do not apply to the armed forces, although some areas, such as military discipline, are governed by Acts of Parliament. Under the Crown Proceedings Act 1947, the monarch is the sole authority for the armed forces, and as such their organisation, disposition and control cannot be questioned by the courts. This exercise of prerogative power gives the crown authority to recruit members of the armed forces, appoint commissioned officers, and establish agreements with foreign governments to station troops in their territory. The prerogative empowers the monarch to appoint bishops and archbishops in the Church of England, and to regulate the printing and licensing of the authorised Church of England version of the Bible.

R v Secretary of State for the Home Department, ex parte Northumbria Police Authority, recognised that the prerogative also includes the power to "take all reasonable steps to preserve the Queen's peace", and in Burmah Oil Co. v Lord Advocate, the House of Lords took the view that it extended to "doing all those things in an emergency which are necessary for the conduct of [the Second World War]".

Use

Today, the monarch exercises the prerogative almost exclusively in line with the advice of her government. Leyland notes that:

The present Queen ... is kept very closely in touch with the exercise of governmental power by means of a weekly audience with the prime minister during which she is fully briefed about the affairs of government ... [But it] should be emphasised that the prime minister is not under any obligation to take account of royal opinions.

In simple terms, the prerogative is used to govern the realm in the name of the Crown; although the monarch has the "right to be consulted, the right to encourage, and the right to warn", her role involves no exercise of discretion.^[