Thursday 15 October 2009

The Royal Prerogative

The Ministry of Justice has just published a list of royal prerogative powers

Ministerial prerogative powers

Government and the Civil Service

Powers concerning the machinery of Government including the power to set up a department or a non-departmental public body
  • Powers concerning the civil service, including the power to appoint and regulate most civil servants
  • Power to prohibit civil servants and certain other crown servants from issuing election addresses or announcing themselves, or being announced as, a Parliamentary candidate or a Prospective Parliamentary candidate
  • Power to set nationality rules for ‘non-aliens’ – British, Irish and Commonwealth citizens – concerning eligibility for employment in the civil service
  • Power to require security vetting of contractors working alongside civil servants on sensitive projects
  • Powers concerning the Office of the Civil Service Commissioners, the Security Vetting Appeals Panel, the Office of the Commissioner for Public Appointments, the Advisory Committee on Business, the Civil Service Appeal Board and the House of Lords Appointments Commission, including the power to establish those bodies, to appoint members of those bodies and the powers of those bodies

Justice system and law and order

  • Powers to appoint Queen’s Counsel
  • The power to make provisional and full order extradition requests to countries not covered by Part 1 of the Extradition Act 2003
  • The prerogative of Mercy
  • Power to keep the peace

Powers relating to foreign affairs

  • Power to send ambassadors abroad and receive and accredit ambassadors from foreign states
  • Recognition of states
  • Governance of British Overseas Territories
  • Power to make and ratify treaties
  • Power to conduct diplomacy
  • Power to acquire and cede territory
  • Power to issue, refuse or withdraw passport facilities
  • Responsibility for the Channel Islands and Isle of Man
  • Granting diplomatic protection to British citizens abroad

Powers relating to armed forces, war and times of emergency

  • Right to make war or peace or institute hostilities falling short of war
  • Deployment and use of armed forces overseas
  • Maintenance of the Royal Navy
  • Use of the armed forces within the UK to maintain the peace in support of the police or otherwise in support of civilian authorities (eg to maintain essential services during a strike)
  • The government and command of the armed forces is vested in Her Majesty
    Control, organisation and disposition of armed forces
  • Requisition of British ships in times of urgent national necessity
  • Commissioning of officers in all three armed forces
  • Armed forces pay
  • Certain armed forces pensions which are now closed to new members
  • War pensions for death or disablement due to service before 6 April 2005 (section 12 of the Social Security (Miscellaneous Provisions) Act 1977 provides that the prerogative may be exercised by Order in Council
  • Crown’s right to claim Prize (enemy ships or goods captured at sea)
  • Regulation of trade with the enemy
  • Crown’s right of angary, in time of war, to appropriate the property of a neutral which is within the realm, where necessity requires
  • Powers in the event of a grave national emergency, including those to enter upon, take and destroy private property


  • Power to establish corporations by Royal Charter and to amend existing Charters (for example that of the British Broadcasting Corporation, last amended in July 2006)
  • The right of the Crown to ownership of treasure trove (replaced for finds made on or after 24 September 1997 by a statutory scheme for treasure under the Treasure Act 1996)
  • Power to hold public inquiries (where not covered by the Inquiries Act)
  • Controller of Her Majesty’s Stationery Office as Queen’s Printer:
  • the power to appoint the Controller
  • the power to hold and exercise all rights and privileges in connection with prerogative copyright
  • Sole right of printing or licensing the printing of the Authorised Version of the Bible, the Book of Common Prayer, state papers and Acts of Parliament
  • Power to issue certificates of eligibility in respect of prospective inter-country adopters (in non-Hague Convention cases)
  • Powers connected with prepaid postage stamps
  • Powers concerning the visitorial function of the Crown

Other prerogative powers

Constitutional/personal prerogatives of the Monarch

  • Appointment and removal of Ministers
  • Appointment of Prime Minister
  • Power to dismiss government
  • Power to summon, prorogue and dissolve Parliament
  • Assent to legislation
  • The appointment of privy counsellors
  • Granting of honours, decorations, arms and regulating matters of precedence.
  • Queen’s honours – Order of the Garter, Order of the Thistle, Royal Victorian Order and the Order of Merit
  • A power to appoint judges in a residual category of posts which are not statutory and other holders of public office where that office is non-statutory
  • A power to legislate under the prerogative by Order in Council or by letters patent in a few residual areas, such as Orders in Council for British Overseas Territories
  • Grant of special leave to appeal from certain non-UK courts to the Privy Council
  • May require the personal services of subjects in case of imminent danger
  • Grant of civic honours and civic dignities
  • Grant of approval for certain uses of Royal names and titles

Powers exercised by the Attorney General

  • Functions in relation to charities
  • Functions in relation to criminal proceedings – including the power to enter a nolle prosequi
  • Functions in relation to civil proceedings – including the ability to institute legal proceedings to protect a public right at the relation of a person who would otherwise lack standing (relator proceedings)

Archaic prerogative powers
( It is unclear whether some of these prerogative powers continue to exist. )

  • Guardianship of infants and those suffering certain mental disorders
  • Right to bona vacantia
  • Right to sturgeon, (wild and unmarked) swans and whales as casual revenue
  • Right to wreck as casual revenue
  • Right to construct and supervise harbours
  • By prerogative right the Crown is prima facie the owner of all land covered by the narrow seas adjoining the coast, or by arms of the sea or public navigable rivers, and also of the foreshore, or land between high and low water mark
  • Right to waifs & strays
  • Right to impress men into the Royal Navy
  • Right to mint coinage
  • Right to mine precious metals (Royal Mines); also to dig for saltpetre
  • Grant of franchises, e.g. for markets, ferries and fisheries; pontage & murage.
  • Restraining a person from leaving the realm when the interests of state demand it by means of the writ ne exeat regno
  • The power of the Crown in time of war to intern, expel or otherwise control an enemy alien

Legal Prerogatives of the Crown

The legal prerogatives of the Crown are powers that the Monarch possesses as an embodiment of the Crown. Sometimes described as Crown "privileges or immunities", these prerogatives have been significantly affected by statute - in particular, the Crown Proceedings Act 1947.

  • Crown is not bound by statute save by express words or necessary implication
  • Crown immunities in litigation, including that the Crown is not directly subject to the contempt jurisdiction and the Sovereign has personal immunity from prosecution or being sued for a wrongful act
  • Tax not payable on income received by the Sovereign
  • Crown is a preferred creditor in a debtor’s insolvency
  • Time does not run against the Crown (ie no prescriptive rights run)
  • Priority of property rights of the Crown in certain circumstances

The whole report on the Royal Prerogative is available here.