Royal prerogative a source of constitutional confusion

The Royal prerogative – the undefined, uncertain, residual powers retained by the sovereign – should be replaced with clearly defined statutory law, writes Emma Ricketts.

The royal prerogative is described by Philip Joseph as “a bundle of miscellaneous rights and powers”.[1] The historic, absolute power of the monarch became qualified in the seventeenth century, with the Bill of Rights 1688 ensuring that Parliament can abolish, restrict, or qualify the exercise of prerogative power through express words.[2] During the age of colonisation, the Crown’s prerogatives travelled to new territories. What now remains is very uncertain in scope and application. By considering its place in various jurisdictions today, it becomes apparent that to retain it promotes uncertainty in the law. In New Zealand, it should be abolished and replaced by statute.

In New Zealand the royal prerogative is part of our unwritten constitution. Undoubted prerogative powers of the modern government include summoning, proroguing or dissolving Parliament, conferring honours, assenting to legislation, conducting foreign affairs, and controlling the armed forces.[3] The Crown cannot be dispossessed of these powers except by express statutory authority.[4]

In Canada, the royal prerogative underlies the written constitution. Section 9 stipulates that “the Executive Government and Authority of and over Canada is vested in the Queen”. While the scope of the prerogative has diminished over the course of history through statute and the rise of democratic norms, some are still in effect.[5] They are exercised by the Governor-in-Council (Prime Minister and Cabinet) and co-exist with democracy through the concept of responsible government. [6]

In 1947 the Supreme Court of Ontario highlighted how, through the evolution of independence in Britain’s realms, the prerogative was never dealt with and defined. As a result, it lacks clarity to the extent of who can exercise it. In Black v Chrétien the British Prime Minister had advised the Queen to confer a peerage on Mr Black, but the Canadian Prime Minister intervened and advised her not to.[7] Ultimately the Court found that, although Letters Patent empower the Governor-General of Canada to exercise the prerogative, it doesn’t follow that only the GG can exercise it.

In Australia, s 61 of the Constitution Act extends the prerogative to the execution and maintenance of the Constitution. Although innovative in constitutional drafting, reference to this has not proven to be clear.[8] It has been held that s 61 is “meagre and highly abstract”,[9] with the words of the provision inadequate to serve as “an invariable measuring-rod of Commonwealth executive power”.[10] As a result, conflicting perceptions have arisen as to the basis for Commonwealth executive power. One view, principally developed by the High Court of Australia, considers that Executive power is to be directly sourced from s 61, given content by interpreting the provision consistently with the Commonwealth’s status as a national government.[11] Another view, advanced by leading constitutional scholars, is that the non-statutory aspect of s 61 can only be given sufficient meaning by reference to the Crown’s prerogative powers.[12]

In the United Kingdom, the justiciability of the prerogative powers has slowly been developed by the courts. During the seventeenth century it was held that courts could determine the existence and extent of a prerogative power, but they could not question or review the manner in which it was exercised.[13] This view persisted until the mid-1980s, when the House of Lords decided in Council of Civil Service Unions v. Minister for the Civil Service that where “the subject matter in respect of which prerogative power is exercised is justiciable” then the exercise of power would be subject to ordinary public law principles.[14] However, this case contributed to uncertainty as the Lords did not rule specifically on the question of whether the prerogative itself was subject to judicial review under normal principles.

In 2008, the House of Lords was once again called upon to consider the limits of prerogative power. In R v Secretary of State for Foreign and Commonwealth Affairs they found “no reason why prerogative legislation should not be subject to review on ordinary principles”.[15] Commentators have since regarded this decision to be a mere curiosity, or a mistake.[16] The case is noteworthy as it gave a forum for questions on the mystery of executive power. The disagreement surrounding the decision demonstrates that questions regarding the limits of the prerogative powers remain disputed.

Most recently, the scope of the royal prerogative has been called into question Miller’s case. Following the non-binding Brexit referendum, the claimants sought judicial review of the Executive’s ability to initiate withdrawal from the EU. The UKSC found that an Act of Parliament was required to invoke Article 50 of the Treaty on the European Union. This is in line with parliamentary sovereignty. Invoking Article 50 would result in a series of Parliament-created rights being nullified, so Parliament has the exclusive right to trigger notification.[17] This case exemplifies the lack of understanding which even the UK’s government has as to the extent and limits of the prerogative.

A Constitution for Aotearoa NZ proposes that the prerogative powers be abolished in New Zealand and replaced by powers conferred by Parliament.[18] It is evident that the powers have never been adequately defined or the scope of them well understood. Nowadays, they are contentious with little clarity. Inclusion of them in the constitutions of Australia and Canada has further confused, rather than shed light on, the situation. Cases before the courts have demonstrated the continuing difficulty in understanding the place of these historic powers in modern day legal systems, with Miller’s case proving that this is still an issue today.

Given this, the proposition in Constitution Aotearoa NZ is desirable. It would be more in line with the rule of law, making the powers accessible with a clear indication of their scope.[19] Furthermore, having the powers conferred by an elected Parliament is consistent with democracy. By including these powers in a supreme written constitution, they would be protected by the entrenched law with more stringent requirements to repeal or amend them.

Accordingly, this is the best option in New Zealand. By abolishing the royal prerogative and replacing the powers with ones conferred by statute, the law would be clearer, more accessible, and more in line with the rule of law and democratic expectations of modern society.


Notes

[1] Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at 581.

[2] Bill of Rights 1688 (Eng) 1 William & Mary Sess 2 c 2, s 1; Laws of New Zealand Constitutional Law (online ed) at [142].

[3] Noel Cox “The Royal Prerogative in the Realms” (2007) 33(4) CLB 622 at 622.

[4] Letters Patent Constituting the Office of the Governor General of New Zealand 1983, cl 19.

[5] Halsbury’s Laws of Canada Constitutional Law (Division of Powers) (2015 Reissue) (online ed) at [HCL-8].

[6] At [HCL-8].

[7] Black v Chretien (2001) CarswellOnt 1672.

[8] George Winterton “The Limits and Use of Executive Power by Government” (2003) 31 FL Rev 421 at 423.

[9] At 424.

[10] Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd [1922] Argus LR 106 at 144.

[11] Nicholas Condylis “Debating the Nature and Ambit of the Commonwealth’s Non-Statutory Executive Power” (2015) 39(2) MULR 385 at 387.

[12] At 387.

[13] Case of Proclamations (1611) 12 Co Rep 74, 76.

[14] Council of Civil Service Unions v. Minister for the Civil Service (1985) A.C. 374 at 407.

[15] R v Secretary of State for Foreign and Commonwealth Affairs ex p Bancoult (No 2) [2008] UKHL 61 at [35].

[16] Thomas Poole “United Kingdom: The Royal Prerogative” (2010) 8(1) Int J Const Law 146 at 155.

[17] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 at [124].

[18] Geoffrey Palmer and Andrew Butler A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016) at 96.

[19] At 96.

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