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Thank you.

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Hello and welcome to this Bench Report series on the UK Constitution.

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Not a written document, but a collection of sources evolving over centuries.

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Today's first episode focuses on the powers of the crown.

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And this idea of the crown, it's interesting because it doesn't just mean one single thing, does it?

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No, exactly. Professor Blackburn, for instance, has pointed out it's quite multifaceted. Sometimes it refers to the king personally.

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But other times it's really about the authority of the government itself.

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The dignified part.

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The monarchy, the ceremony.

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And then the efficient part.

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The government actually doing things, getting business done.

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So today we're going to explore those key powers, looking at the crown as the formal head of state and also as that more symbolic head of nation. A

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good place to start is probably the royal prerogative.

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Right. The prerogative. Define that for us.

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Well, fundamentally, it's the residual power that's inherent in the sovereign. Historically, the monarch's powers. But

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now?

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Now it's mostly exercised on the advice of the prime minister and ministers of the crown.

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And these powers, they don't need parliament's direct say-so.

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Not directly, no. They exist independently of statute, although statute law can interact with them, limit them, or even support them. Think of them as inherited powers.

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So how does that work in practice? How are these powers actually used?

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There are a few different ways. Sometimes the king acts alone. personally. Appointing the prime minister is a key example and granting some specific honors.

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But that's less common.

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Much less common than the king acting on ministerial advice. That's the main way.

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Things like ending a session of parliament prorogation.

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Precisely. Also, certain public appointments are made this way, often through formal submissions put to the king.

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And there's a strong convention, isn't there, that the advice is accepted?

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Oh, absolutely. It's a cornerstone convention that the monarch accepts ministerial advice. Then you have powers exercised directly by Ministers of the Crown.

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Using the prerogative themselves.

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Yes. Making treaties, handling foreign affairs. Ministers do that under prerogative powers. And finally, there's the king acting in council.

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With the Privy Council.

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That's right. They issue things called prerogative orders in council.

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Okay, so different mechanisms. What about the documentation? The formal side of it.

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Ah, the prerogative instruments. Yes, there are several types.

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Like those orders in council you just mentioned?

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Exactly. Prerogative orders in council used for various things, public appointments, maybe amending the bylaws of organizations that have a royal charter. You have commissions or warrants under the royal sign manual.

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Meaning the king's personal signature?

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That's the one. Then there are writs. Think of summoning parliament or directing elections.

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And letters patent. I've heard of those.

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Letters patent under the great seal. often used for public appointments. The Crown Office handles these, and they involve seals.

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Any significance to the seals themselves?

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Well, traditionally, different colors might be used, say dark green for peerage creations, blue for others. It adds to the formality. Then you have royal charters themselves.

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As an instrument.

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Yes. And finally, prerogative royal proclamations. They become effective once they pass under the great seals.

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It sounds like a wide range of powers. Are there checks and balances? Limits?

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Yes, definitely. There are significant limitations. For one thing, it's actually quite difficult sometimes to pin down the precise scope of every prerogative power. They're historical.

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And you can't just invent new ones.

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Absolutely not. It's a long established principle. New prerogative powers cannot be created.

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What if a prerogative power clashes with an act of parliament?

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Statute law always wins. Always. If parliament passes a law that covers the same ground as a prerogative power, the statute overrides the prerogative.

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And the prerogative power is just gone.

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Essentially, yes. It would need a specific act of parliament to bring it back, to revive it.

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Interesting. You also mentioned something called third source powers.

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Ah, yes. That's a slightly different concept. These are sort of general administrative powers the government has, which aren't strictly prerogative and don't need a specific statute either. They just arise from the nature of government.

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And the courts, can they get involved?

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They can, and they do. Courts can rule on whether a claimed prerogative power actually exists. They can determine if statute law limits that power. And they can review whether the power, if it exists, has been exercised lawfully.

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But not always. Are there exceptions?

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There are. The courts recognize certain excluded categories areas they generally won't review. Things like making treaties, matters of national defense, the granting of honors,

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dissolving parliament, appointing ministers.

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Those two. They're seen as core political areas often unsuitable for judicial review.

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What about those unwritten rules we hear about constitutional conventions? How important are they?

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Extremely important. They aren't laws you can enforce in court, but politically they are considered binding. Very much so.

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Any key examples related to the crown?

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The big one is the so-called tripartite convention. The king has the right to be kept informed by the government, the right to be consulted, and the right to advise, encourage, and warn ministers.

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The right to advise, encourage, and warn ministers.

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Yes. And linked to that is the Cardinal Convention we touched on earlier. The monarch almost invariably acts on the advice of ministers.

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Could you give us some concrete examples, prerogative powers in action?

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Sure. Dissolution of parliament, calling a general election. That's a prerogative power. But crucially, exercised only on the prime minister's advice.

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And royal assent, making bills into laws.

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That's another key one. The final stage of legislation. The king can grant it in person. though usually it's done by royal commissioners acting under letters patent.

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What about dealings with other countries?

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Treaties. Ministers or other representatives sign treaties using prerogative powers, acting under what are called full powers granted by the monarch.

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Public appointments.

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Many are delegated to ministers now, but the king still makes some very senior appointments. Again, always on ministerial advice. This includes appointing the independent commissioner for public appointments.

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And honors knighthoods, MBEs, that sort of thing.

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The sovereign is the sound of honor. But most honors are granted based on government recommendations.

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Can they be taken away?

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Yes. Forfeiture can happen, but it follows a recommendation from the Cabinet Office Honors Committee and requires the king's approval.

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Any others spring to mind?

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The prerogative of mercy. Pardoning people or reducing sentences. Exercised on ministerial advice. Formalized with a royal sign manual warrant.

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And lawyers becoming casees.

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King's counsel, yes. That appointment is also made under the royal prerogative.

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Okay, so that covers the prerogative. But you mentioned Parliament can grant powers too. Let's talk about those statutory powers.

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That's right. It's not all about prerogative. Parliament explicitly grants many powers to the crown through legislation, through statutes.

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The most obvious one being?

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The king and parliament enacting primary legislation itself. The whole process of making laws involves the crown as a formal part of parliament, king, lords, and commons.

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What about the king and council using statutory powers?

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Yes. The privy council is often given specific jobs by acts of parliament. For example, implementing boundary commission reports the ones that redraw constituency maps, conferring borough status on towns. Certain Church of England matters too, like dealing with vacant archbishoprics or approving changes to diocese names.

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And the law sets out how the council must act.

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Often, yes. Statutes might specify a quorum, the minimum number of privy councillors needed for that particular decision, which can sometimes be quite small, maybe just three.

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And just as statutes can grant power, they can also limit the crown, can't they?

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Absolutely. We have major historical examples. The Bill of Rights 1689 famously stated the king couldn't just suspend laws or ignore them without parliament's consent.

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A fundamental shift.

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Huge. And the Crown and Parliament Recognition Act confirmed the legitimacy of the monarchs after the Glorious Revolution and the laws passed then.

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What about more modern examples?

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Well, statutory instruments that secondary legislation made under the authority of an act of parliament can confer powers on the crown. but there are also specific restrictions written into law.

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Like what?

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For instance, the crown estate commissioners need treasury consent to dispose of the territorial seabed. Can't just sell it off.

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Makes sense. Appointments, too.

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Yes. Some appointments that might seem prerogative are actually statutory. The king appoints the senior civil service commissioners, but the statute says it must be on the recommendation of the minister for the civil service.

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And the head of the national audit office?

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A controller and auditor general appointed by the king, but only after an address, a formal request from the House of Commons.

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Going back to the Church of England, Link.

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That's rooted in statute, too. The Act of Supremacy, 1558, annexed jurisdiction over the church to the crown.

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And the Coronation Oath.

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The content of the oath, particularly regarding the church, is set out in the Coronation Oath Act, 1688. Even quite technical things, like the king issuing letters, patents, or writs to allow new bishops access to their church properties, the temporalities that process is governed by statute.

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Let's pull the threads together a bit. How does the crown fit in with the main branches of government, parliament first?

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Well, you could argue the legal existence of parliament itself originally stemmed from the royal prerogative. Today, the legislature for many key UK-wide matters is formally the king in parliament. That means the sovereign, the lords, and the commons acting together.

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Despite parliamentary sovereignty.

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Parliamentary sovereignty is the key principle, yes. But even the Devolution Acts, setting up parliaments and assemblies in Scotland way Wales and Northern Ireland explicitly preserve the ultimate supremacy of the UK Parliament.

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And the monarch's direct role.

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Still formally dissolves Parliament before an election and opens each new session with the King's speech.

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And royal assent, as we said.

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Absolutely critical. No bill becomes law without it.

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How does the Crown communicate its wishes or government positions to Parliament?

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There are formal mechanisms. Phrases like king's pleasure or king's recommendation are used to signify government support, backed by the crown, for financial matters, for example.

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And there are rules about mentioning the king in debates.

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Yes. A strong convention against bringing the sovereign's name or personal influence directly into parliamentary debate and direct criticism of the king or royal family in parliament is also considered out of order.

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Okay. What about the crown and the executive of the government?

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This is where most of the day-to-day power lies. As we've discussed, the vast majority of prerogative powers are now exercised on the advice of ministers.

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And the king meets the prime minister regularly.

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Yes, the confidential weekly audience is a key part of the relationship. The king is informed, consulted, can advise.

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But the final decisions?

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Rest with the ministers. They are responsible to parliament, not to the crown, for policy and actions. The king's input is important, but ministers hold the decision-making power.

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Though the sovereign still appoints the PM.

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Formally appoints the prime minister as the person who can command the confidence of the House of Commons. And legally, a minister of the crown has a specific definition.

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And in Scotland.

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The legislation there explicitly states that the functions of Scottish ministers are exercisable on behalf of his majesty. They reflect that underlying structure.

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Lastly, the crown and the judiciary.

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The king is the formal head of the judiciary. the fount of justice.

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So judges.

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Judges swear an oath of allegiance to the crown upon appointment.

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And king's council appointments we mentioned.

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Yes. And the crown office, part of the ministry of justice, supports judicial appointments made formally by the king. Even police officers are technically servants of the crown and swear an oath to the king.

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What about the king being sued?

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The monarch has personal immunity. You can't bring legal proceedings against the king in his private capacity.

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But you can sue the government.

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Yes. You can bring civil actions against the crown, but that means the crown and right of the government, not the person of the king.

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So just to recap the main constraints on all these powers.

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The big ones are statute law passed by parliament, which is supreme, the common law developed by the courts, which interprets powers, constitutional conventions, those vital unwritten rules, especially acting on advice, and overarching everything, parliamentary sovereignty itself.

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A complex interplay of history, law, and convention.

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Very much so. It's a blend of ancient prerogative and modern statute, exercised in various ways, often through ministers, and always subject to those crucial limitations. It remains a central feature of the UK's constitutional setup, both symbolically and legally.

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It certainly makes you think about how that balance between prerogative, statute, and convention has shifted over centuries, and what that means for how the UK is governed today.

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Absolutely. It's a constantly evolving picture.

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Thanks for listening. Next in our series on the UK Constitution, we look at the powers and procedures of the UK Parliament. Hope you can join us. Take care.