5. The Monarchy and the Royal Prerogative

The UK Monarch as Head of State
  • The British monarch takes office under the hereditary principle.
  • The UK constitution is monarchical.
  • The constitutional role and duties of the British monarch are set out in the current version of s 3 Coronation Oath Act 1968.
  • The reigning monarch is the titular head of the executive, legislature, and the judiciary, commander in chief of the armed forces, and Supreme Governor of the Church of England.
  • The Privy Council advises Her Majesty’s Government on the exercise of prerogative powers and certain functions assigned to the reigning monarch and the Privy Council by Act of Parliament.
  • The monarch summons, opens, prorogues, and dissolves Parliament. The monarch also authorizes parliamentary general and by-elections and grants the Royal Assent to bills which have passed their necessary parliamentary stages.
  • The monarch was and is the constitutional source and fountain of justice from whom the jurisdiction of the UK courts is formally derived. However, the monarch cannot personally act in any office connected with the administration of justice nor order an arrest.

Privileges and Immunities of the British Monarch
  • The practical purpose of the privileges and immunities is to ensure that the monarch can properly carry out constitutional duties. They also make sure that the process of government runs smoothly. These privileges and immunities exist today:
  1. The monarch never dies.
    1. This means that the monarch’s successor can normally act as head of state immediately following the death of a reigning monarch and do not have to wait for the coronation.
  2. The monarch is never an infant.
    1. The law does not take into account the age of the monarch when they act as head of state.
  3. The monarch’s person is inviolable.
    1. This means that a reigning monarch cannot be arrested, detained, or imprisoned.
  4. The monarch can do no wrong.
    1. A monarch cannot be held legally accountable for their conduct as head of state or the consequences of decisions taken collectively by the government or individually by ministers. At common law the courts have no jurisdiction over the monarch in person.
  • The legal basis of the monarchy and the powers and duties of the monarch is the Royal Prerogative which is the special pre-eminence which the King/Queen has over and above all other persons, and out of the ordinary course of common law, in right of his/her royal dignity.

Relationship between the Royal Prerogative and Statute
  • Prerogative powers however well-established may be curtailed and abrogated by statute.
  • The statutory curtailment or abrogation may be by express words or by necessary implication.
  • It is inherent in its residual nature that a prerogative power will be displaced in a field which becomes occupied by a corresponding power conferred or regulated by statute.
  • It is a fundamental principle of the UK constitution that, because the Royal Prerogative does not enable ministers to change statute law or common law, ministers must exercise prerogative powers in a way which is consistent both with the common law as laid down by the courts and with statutes as enacted by Parliament.
  • Ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation.
  • The executive action is not immune from judicial review merely because it is carried out in pursuance of a power derived from the Royal Prerogative.
  • Prerogative legislation, made on the advice of ministers, is reviewable by the courts in the same way as Prerogative acts. The basis of review is illegality, irrationality, and procedural impropriety.
  • A monarch must act on the advice of ministers, appoint a member of the House of Commons, who has the confidence of the House, as Prime Minister, appoint government ministers, upon the Prime Minister’s recommendation, who are members of either the House of Commons or the House of Lords, normally accept any recommendation made by the Prime Minister to dissolve Parliament, and grant the Royal Assent to every Bill passed by Parliament.

Comments

Post a Comment

Popular posts from this blog

Criminal Law Cases

Case Name / Relevancy / Facts / Held Airedale NHS v Bland [1993] Actus Reus: Medical Treatment Doctors were granted approval to remove the feeding tube of Bland who had been left in a vegetative state after an injury suffered by the Hillsborough disaster. It was lawful to withhold life-extending treatment as the doctors have a duty to act in the best interests of their patients. R v Kimsey (1996) Actus Reus: Legal Causation D admitted engaging in a chase but not to trying to overtake just before the accident which left Osbourne dead. The dangerous driving did not have to be considered a ‘substantial’ cause of death but rather a cause of death which was sufficient to convict D. R v Dalloway (1847) Actus Reus: Legal Causation D was not holding on to the reins on a horse and cart which resulted in a child running out into the road was killed by one of the wheels. D was charged for driving in a negligent fashion and causing the death of the c
Read more

Madzimbamuto v Lardner-Burke [1969] AC 645

Facts: Crown colony of Southern Rhodesia, which had been self-governing since 1923, declared independence from Britain in 1965 British government considered its UDI to be illegal and refused to recognize the legitimacy of the Rhodesian government Before 1965, Madzimbamuto was detained under section 21 of the Regulations Madzimbamuto's wife challenged the legality of her husband's detention, on the grounds that the prolongation of the state of emergency was unlawful Issue: Whether a convention would be enforceable and have legal position of United Kingdom and Southern Rhodesia Held: The case reached the Privy Council who rejected the Rhodesian Minister for Law and Order's argument that because of the convention, the United Kingdom legislation overriding the Rhodesian detention law was invalid
Read more

According to the Terrorism and Immigration Act 2018, all recent refugees arriving in the UK seeking asylum are to be kept detained until their claims are processed and it can be ascertained that they do not pose a terrorist threat. The local detention centres are run by a private firm, ‘Home Away from Home.’ Estela, a recently arrived asylum seeker has been detained in one of the privately run facilities, and has had her room searched regularly by ‘Home Away from Home’ private security guards in case she has any contraband in her possession. As she has to wait outside while they are searching her room, Estela fears that the security guards may go through her private correspondence whilst searching. Advise Estela on any claims she may make on the grounds of the HRA 1998, including reference to any procedural requirements. [Note: This is a hypothetical scenario and the Terrorism and Immigration Act 2018 is not real legislation.]

It is unlawful for a public authority to act in a way which is incompatible with Convention rights. Estela could argue that these actions were illegal under Article 5 and 8. Estela has sufficient interest in the matter so therefore fulfills this requirement. This Act breaches Convention rights, as the public authorities must act fairly and without bias. Estela could therefore seek judicial review under procedural impropriety, and that the Act is therefore unlawful.
Read more