Whether Constitutional Conventions are an effective control of the use

of the Royal Prerogative

The UK constitution (the “constitution”) although uncodified has a clear allocation of powers.
Parliament is sovereign and legislates via statue. However, the Crown retains the power which it
exercises via the royal prerogative (the “prerogative”), the prerogative power is derived from
the sovereign himself. Conventions of the constitution are uncodified rules that are followed by
the political actors. Although there are no legal consequences for the violation of a convention, a
violation can lead to negative political consequences for the political actor involved. In this
paper, I will argue that although conventions are not an effective way to control the use of the
prerogative, they certainly do restrain the use of the prerogative.

Definition of Convention

Dicey1 states that though conventions may regulate the conduct of the political actors of the
constitution they are not enforced by the courts. Jennings2 states that conventions provide the
flesh which clothes the dry bones of the law and keeps the constitution in touch with modern
ideas. Feldman3 states “conventions of the constitution are a means of holding in check the
tension between the formal legal appearance of the constitution and the current practice.”

An example of a convention is the office of the Prime Minister, although not statutorily defined,
the Prime Minister is usually the leader of the party which is able to command majority seats in
the House of Commons.

The convention of ministerial responsibility entails that Government Ministers must be

accountable to Parliament for their actions. Further, the cardinal convention requires the Crown
to give assent to a bill passed by Parliament and follow the advice of the Government Ministers
in exercising its prerogative powers.

1
AV Dicey, Introduction to the Study of the Law of the Constitution
2
Sir Ivor Jennings, The Law and the Constitution
3
David Feldman, None, One or Several? Perspectives on the UK’s Constitutions(s)
The convention of collective ministerial responsibility and its derivative cabinet secrecy has been
recognized by the Court in Crossman Diaries4 case. However, instead of directly enforcing the
convention the Court gave effect to the principle of cabinet secrecy using existing common law
rules and forbid the publication of the ministerial records.

Definition of the Prerogative

Dicey5 defines the prerogative powers as the residue of powers which is legally left with the
Crown although the prerogative powers are exercised by the Government Ministers. Blackstone 6
defined prerogative powers as special powers at the Monarch’s disposal which are not available
to ordinary citizens. Feldman7 states that “because of the convention that nearly all prerogative
is exercised in accordance with the advice of the Prime Minister, the prerogative is wholly an
instrument of the executive government”. There are two types of prerogative powers: ministerial
prerogatives and personal prerogatives. The personal prerogatives of the Crown such as royal
assent to legislation passed by Parliament and mercy pardon to felons do not require any
discretion on part of the crown. Ministerial prerogative powers include the power of making
treaties subject to the Constitutional Reform and Governance Act 20108 and deployment of the
armed forces overseas, to name a few.

However, not all prerogative powers have been identified as was stated by the Court in the
Northumbria case9. The Court in Burmah Oil10 stated that presence of a prerogative power is not
always clear. If the prerogative existed before Parliament exerted supremacy over the Crown,
then it could be said that the prerogative exists. Further, the court in the BBC 11 case said that no
new prerogative powers could be created.

Interaction of the Prerogative and Convention

4
Attorney-General v Jonathan Cape Ltd (1976) QB 752
5
Ibid
6
William Blackstone, Commentaries on the Laws of England I (first publisher 1765-69), Oxford University Press
2016) 155.
7
Ibid
8
Constitutional Reform and Governance Act 2010, ss 20-5
9
R v Secretary of State for the Home Department ex p Northumbria Police Authority
10
Burmah Oil Company Ltd v Lord Advocate
11
BBC V Johns (Inspector of Taxes)
Individual ministerial responsibility provides that Government Ministers are accountable to
Parliament for their personal actions or the actions of their department. Ministerial responsibility
has been codified in the Cabinet Manual and the Ministerial Code.

In the Crichel Down Affair12 the minister Thomas Dugdale resigned due to the mistakes by his
department. In the recent case of Home Secretary Priti Patel, she was found to have bullied her
colleagues at the Home Ministry13 but she chose not to resign her post.

In recent years a convention has emerged to restrain the prerogative power to declare war, after
former Prime Minister Tony Blair sought Parliament’s approval before declaring war on Iraq in
2003. Consequently, there was a consensus in Parliament that its’ approval must be sought
before declaring war. However, in 2017 Theresa May approved UK military action against Syria
citing humanitarian reasons.

Conventions have limitations such as a Minister in breach of a convention does not face any
legal sanction. However, the political fallout from a breach of convention may cost the said
Minister’s party at the polls.

Other Means to Control the Use of the Prerogative

A more effective way to control the exercise of prerogative has emerged after the seminal GCHQ
case14 where, for the first time, the House of Lords held that there are certain prerogative powers
which are justiciable. However, prerogative powers related to national security and foreign
15
affairs are considered non-justiciable by the court. In the Bancoult case Lord Hoffman
distinguished between parliamentary legislation and use of the prerogative powers in Orders in
Council, stating that prerogative powers while legislative in nature are still executive actions and
therefore can be subject to judicial review.

Codification of the prerogative power of dissolution of parliament via the Fixed Term Parliament
Act 2011 curbed the discretionary use of the said prerogative. However, problems have emerged

12
Constitutional and Administrative Law, Hilaire Barnett, Pg 251
13
https://www.businessinsider.com/boris-johnsons-bullying-inquiry-chief-resigns-over-priti-patel-allegations-2020- 11
14
Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9
15
R(on the Application of Bancoult) V Sec of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61
in its application16. Codification of the Ponsonby rule in the CRA Act 2010 17, gave the
convention a legal sanction.

Evaluation

Judicial review is an effective curb on the use of the prerogative powers. However, there are
matters which the courts consider non-justiciable and the judicial review of the prerogative only
takes place ex post facto.

The effect of conventions can be felt before a Minister undertakes the exercise of a prerogative, a
Minister must consider the consequences of a breach of convention when he or she would face
parliament scrutiny.

In conclusion, though conventions are soft law, they are flexible and can adapt to the political
development in the constitution. Consequently, they exercise control over the prerogative
powers via moral and political means.

16
https://www.instituteforgovernment.org.uk/blog/ftpa-should-not-be-replaced-something-worse
17
Ibid