The royal prerogative and ministerial advice

Legal powers used under the royal prerogative are those which do not require parliamentary authority. Historically, these executive, legislative and judicial powers would have been exercised by a monarch directly but, over time, the majority have been abolished, delegated to ministers or replaced by statute. Some, however, remain, for example the dissolution of Parliament or the prerogative of mercy. Most are guided by constitutional conventions and what is known as ministerial advice.

Types of prerogative power

Prerogative powers can be exercised by the King acting alone (the appointment of a Prime Minister and conferral of certain honours), by the King on the advice of ministers (public appointments), by Ministers of the Crown (treaties and foreign affairs) or by the King in Council (a meeting of the Privy Council at which the King is present). Separately, ministerial advice also informs statutory powers carried out by the King or the Privy Council.

The exercise of most prerogative powers results in some sort of legal “instrument”, a formal document containing an expression of “the King’s will”. The main types are an Order in Council, a Royal Order, Commission or Warrant made under the Royal Sign Manual (the monarch’s personal signature), or Proclamations, Writs or Letters Patent issued under the Great Seal.

Where there is a conflict between the prerogative and statute, statute prevails. Use of the prerogative remains subject to the common law duties of fairness and reason and can be subject to judicial review in most cases. While the prerogative can be abolished or abrogated by statute, it has been argued that it can be revived.

Ministerial advice

Most of the King’s prerogatives and statutory powers depend upon “advice” from ministers. The responsibility for the monarch’s actions based on that advice rests with the minister who gave it, and that minister is accountable to Parliament. Advice can also come from the Cabinet, Parliament, the Privy Council and judges. Formal advice is constitutionally binding and must be followed by the monarch.

The prerogative today

Although this briefing includes an examination of the historical development of the prerogative, its main focus is on the prerogative as it stands today: its different categories, how it is used and by whom.

Although much diminished in scope, the prerogative remains an important source of constitutional law in the UK and continues regularly to be exercised by ministers on a UK-wide basis or, where responsibility for its use is devolved, in England (or England and Wales) alone, Scotland, Wales and in Northern Ireland.

This briefing also examines the courts and the prerogative as well as proposals for its reform (or abolition) since the early 1980s.

A supporting document lists prerogative and statutory appointments made by the King, mostly on advice.