In 1611 it was made clear that the King can legislate only within

areas of prerogative allowed to him by the general law (Case of Pro-

clamations (1611)). The debate therefore shifted to exploring the limits

of the prerogative. The Stuarts attempted to extend the prerogative

and to impose taxes and override the ordinary law. However, even

they submitted themselves to the courts and, in a series of famous

cases punctuating the political conflicts of the time, the scope of the

prerogative was inconclusively argued (for example, Bates Case (1606);

R. v. Hampden (1637); Godden v. Hales (1686)).

The short-lived settlement of 1641 between Charles I and Parlia-

ment saw the abolition of the prerogative courts. One legacy of these

events was a deep-seated distrust among English lawyers of the idea

of a separation between ‘public’ and ‘private law’, ‘public law’ being

associated with prerogative courts. This led to Dicey’s belief that the

subjection of government and governed alike to the ordinary law was

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an essential part of the ‘rule of law’. As we saw in Chapter 4, the conflict

between King and Parliament was resolved in 1688. The Bill of Rights

outlawed certain aspects of the prerogative including the power to

suspend laws without parliamentary consent. The power to dispense

with laws (that is, to free individuals from penalties) was abolished only

‘as it hath been assumed and exercised of late’, thus preserving the

prerogative of mercy which is exercised in modern times by the Home

Secretary. The Bill of Rights also banned taxation under the Royal

Prerogative. Modern judges have taken this further by refusing to

Imply a power to tax directly or indirectly without very clear statutory

language (see A-G v. Wilts United Dairies (1921); Congreve v. Home

Office (1976); Macarthy and Stone Ltd v. Richmond LBC (1991)).

The 1688 settlement provides the framework of the modern law.

This can be summarised as follows:

. In principle the Royal Prerogative remains but must give way to

statute.

. No new prerogatives can be created (see BBC v. Johns (1965)) but

new applications of existing prerogatives are possible.

. The prerogative can be controlled by the courts, although the extent

of such control depends upon the type of prerogative power in

question and the context.

13.4.2 Prerogative or prerogatives?

Influenced by Locke’s True End of Civil Government and Blackstone’s

Commentaries, Lord Denning in Laker Airways Ltd v. Department of

Trade and Industry (1977) considered that the Crown had a general

discretionary power to act for the public good in certain spheres of

governmental activity for which the law had otherwise made no provi-

sion (at p. 192). This suggests that the state may benefit from a single,

over-arching power to interfere in private rights where it perceives an

important public benefit may result, especially in times of emergency.

This interpretation is, however, inconsistent with Entick v. Carrington

(1765). Here the court emphatically rejected a claim of ‘executive neces-

sity’ that officers of the state had a general power to enter and search

private property in the absence of express statutory or common law

powers (see also IRC v. Rossminister (1980)). Lord Denning’s views

were not supported by the other members of the Court of Appeal. They

are also inconsistent with ideas of limited government. The better view

is that, although the Crown has certain discretionary powers in relation

to emergencies, such as the requisitioning of ships, the prerogative

302 General Principles of Constitutional and Administrative Law

comprises a finite number of powers rather than one general power to

act for the public good (Vincenzi, 1998).

13.4.3 Modern prerogative powers

Prerogative powers are exercised either directly by ministers or by

prerogative orders in council. The latter requires a formal meeting of

the Privy Council (a quorum of four) in the presence of the monarch.

Many prerogative powers remain of central importance. Prerogative

orders in Council, although laws, are not published in an easily

accessible form, thus violating an important aspect of the rule of law.

Prerogative powers include the making of treaties, the waging of war,

and indeed most matters concerned with foreign affairs, defence and

national security although the security services are now subject to a

loose statutory regime. Control over the civil service and armed forces

is based on prerogative powers, although, particularly in respect of

the army, intermingled with statute. There is an uncertain and potenti-

ally threatening area of prerogative power concerned with ‘keeping

the peace’ and defending the realm. This has been used to justify arm-

ing the police (R. v. Secretary of State for the Home Department ex

parte Northumbria Police Authority (1988)) and may justify entry to

private property (see Burmah Oil Co. Ltd v. Lord Advocate (1965)).

The ancient writ of ne exeat regno prevents persons from leaving the

country. Although ne exeat regno is sometimes regarded as obsolete

there is no doctrine of obsolescence in English law (see Felton v. Callis

(1969); Parsons v. Burke (1971)). Other important prerogatives include

the following:

. the monarch’s powers in relation to the appointment of ministers

and the summoning and dissolving of Parliament (above);

. various Crown immunities (below);

. the prerogative power to pardon offenders resides with the Home

Secretary;

. the Attorney-General has a prerogative power to institute legal

proceedings in the public interest. There is also a prerogative power

to stop criminal proceedings by issuing a nolle prosequi;

. powers relating to the Church of England;

. ‘parens patriae’: the care of children and other vulnerable groups

although this is now largely regulated by statute;

. the administration of charities and trusts through the courts again

subject to statutory regulation;

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. the award of peerages and other titles, medals, etc., the Crown being

the ‘fount of honour’;

. the granting of Royal Charters to bodies such as universities,

learned societies, charities or professional associations which gives

the body the status of a legal person and signifies state approval of

its activities;

. the appointing and receiving of ambassadors and the issue of

passports.

13.4.4 Two kinds of prerogative power?

There is ambiguity as to what a prerogative power is. Blackstone, the

eighteenth-century authority, whose view seems to be technically cor-

rect, regards the prerogative as confined to the special powers which

the Crown preserves ‘over and above all other powers and out of the

ordinary course of the common law’ (1 B1. Comm. 239). A century

later, however, Dicey described the prerogative as including all the

non-statutory powers of the Crown including the ‘private law’ powers

of ownership, contracting, etc., possessed by the Crown as a person in

common with everyone else (1915, p. 429).

Professor Wade has endorsed Blackstone’s view arguing, for

example, that the control of civil servants is not really a matter of

prerogative since anyone can employ others (Wade, 1980, pp. 46–53).

This does not seem to be the best example. The Crown’s overriding

right to dismiss a civil servant or member of the armed forces is surely

sufficiently ‘special’ to put that matter in the prerogative camp. Orders