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A Peculiar Prerogative

Sir Antony

When King Charles I was executed by the command of Parliament, on a cold morning in 1649, the peoples, of the then Commonwealth of England lived supressed under the rule of an omnipotent Lord Protector. Between 1653 and 1660 the peoples of England, Scotland and later Ireland lived in what was Britain’s first and last republic.  The Civil War of England was the pinnacle event in the struggle between Parliament and the Crown which resulted in the execution of a king, the rejection of the doctrine of divine right and later the establishment of the Constitutional Monarchy that we know and love today. It was in the Restoration of the Monarchy that Parliament deemed that certain powers should remain of the Sovereign’s Prerogative and thus the Royal Prerogative was born. It was indeed, a rather odd move for Parliament, whom having just won the Civil War, had the upper hand in the intensive bargaining that followed the restoration. Never-the-less over 340 years later, a convention had developed by which the Monarch invested the Prerogative Powers in the government of the day. The exercising of these powers is fundamental to the British Government, whom would be legally powerless in the conduction of defence, foreign affairs and national security without them. Thus, in such matters of state the Monarch has significant constitutional presence. Some would argue that the Monarch has very limited authority, through convention, to exercise the powers of the Royal Prerogative. However, in the case of Her Majesty, it would be difficult to find a person with any legal basis to question the execution of these powers by a much-loved and ever-loyal Queen, whom can boast over sixty years of experience and a life-time of training. The Royal Prerogative Powers of the United Kingdom are a set of historic powers held by the Queen and accordingly used by the Government of the day. In legal terms the Royal Prerogative enables the Executive to make decisions without the backing or consultation of Parliament.

This said, there are numerous Prerogative Powers that are still held and executed by the Sovereign without the interference of the government and the honours system is a prime example of this. Despite the Civil War concluding with the agreement that only Parliament could raise an army, under the Crown Proceedings Act 1947, the Monarch is the authority of the armed forces. The Courts have no authority to question the organisation, deployment and disposition of Her Majesty’s Armed Forces. The Crown, thus under the Royal Prerogative has the authority to commission officers, and recruit members. All armed service personnel take an oath of allegiance to the Queen, thus reaffirming that Her Majesty is the Commander-In-Chief of one of the most respected Forces in the world.

You may be shocked to discover that your passport, despite the fact that you paid nearly £100 for it, belongs to The Queen. Take a close look at the little maroon book and the first thing that you will notice is the cover which bears the Royal Arms, indicating that your passport is and remains the property of the Sovereign. In 1955 the issue of passport ownership was raised in the House of Lords. It was noted by a former Attorney-General that the government as a dynamic body, could not according to the law, own anything. Like most of the prerogative powers the granting of a passport is exercised through Her Majesty’s ministers. While the members of the Lords in 1955 could not agree on who owned passports it is most likely that should the matter be contested in the courts that the judge would exclaim that the right to grant and retract passports is a prerogative power and as such it remains the property of the Sovereign.


One of the most peculiar prerogatives is a statute called Prerogativa Regis. This statute which became law in 1324 is still intact to this day and states that the “King shall have throughout the realm, whales and great sturgeons taken in the sea or elsewhere within the realm”. When a whale was washed up in 1970, the Law Commission sent an urgent recommendation to Parliament calling for this prerogative right to be abolished. The Government voted on the issue and a bill to repeal the 1324 statute was voted down by the House of Lords. So, should a whale or any “great sturgeons” take the liberty to wash up upon the shores of Her Majesty’s Kingdom, it is within Her Majesty’s prerogative to claim the corpse as her own. This prerogative has done much to protect the conservation of wales as its existence practically outlaws whaling in British territorial waters.

The proclaiming of new territories is to many, something of a bygone age; however in 1955, Lieutenant Commander Scott stood on the disputed Island of Rockwell, some 300 miles from the coast of Scotland and claimed: “In the name of Her Majesty Queen Elizabeth II, I hereby take possession of the Island of Rockwell”. Following this proclamation a 21-gun salute was fired and the Royal Navy sailed back to Britain having used Her Majesty’s right under the Royal Prerogative to conquer the uninhabited island. Despite the fact that the island had been seized by the Royal Navy the island did not form part of the United Kingdom as it is was sized under the Royal Prerogative and thus Rockwell became a Royal Peculiar. Royal Peculiars belong to the Queen in her personal capacity and thus on the Island of Rockwell between 1955 and 1971 The Queen’s jurisdiction was absolute (every Monarchist’s dream!). Despite the fact that under an act in 1971 the island became part of Inverness-shire the status of Rockwell remains a patchy area of law to this day.

The established doctrine of the rule of law within the United Kingdom states, in the most basic of terms, that nobody is above the law. However, academics, politicians and historians alike, agree that in principle this is not true. Indeed, Her Majesty the Queen is above the law. For as the fount of all justice, all criminal prosecutions are tried in the name of the Crown. This exemption from standing trial is by no means extended to other members of the Royal Family, as demonstrated in Princess Anne’s prosecution under the Dangerous Dogs Act. It was in 1626, at the impeachment of the Duke of Buckingham, that the Monarch’s ability to appear and give evidence before the courts was tested and later concluded. It was agreed, that as the King could not be found guilty of perjury (if found to be lying in the court) then any statements made in the courts by the Sovereign, are to be deemed as “worthless” under English law.

There are many, many more rights established under the Royal Prerogatives many of them minor and some very obscure in modern times. However, these peculiar rights established as a matter of law, ensures that the Monarch remains constitutionally empowered against the government of the day, to exercise such authority needed to protect the peoples of her realms and territories, in times of emergency or God forbid it, in times of oppression and tyranny.

Pictures: #1 in the public domain, #2 ukhomeoffice

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