Anne Dennett. Public Law Directions (1 ed 2019). p 269.
12.2.3 Royal prerogative
The royal prerogative ‘encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation’ (R (Miller) v Secretary of State for Exiting the European Union  UKSC 5 ; see generally [40–53]).
The royal prerogative has its roots in the historic powers of the monarch to govern the country but it is now closely aligned with the executive. As royal power diminished and responsible and representative government developed in the nineteenth century, many of the monarch’s prerogative powers came to be exercised by government ministers (the Crown as executive) rather than the monarch personally, although those powers are still exercised in the name of the monarch. Dicey described the royal prerogative as ‘the residue of discretionary or arbitrary
authority, which at any given time is legally left in the hands of the Crown’ (A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London: Macmillan 1959), p 424). Blackstone defined it as special powers: ‘that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of common law, in right of his regal dignity’ (Sir William Blackstone, Commentaries on the Laws of England (1765)), but Dicey saw it as every act which the Crown can lawfully do without the authority of an Act of Parliament. Prerogative power therefore refers to the remaining rights and powers of the Crown (monarch and ministers) which they can exercise without the need for Parliament’s approval, or in many cases without reference to Parliament. Prerogative power is part of the common law and is not based in statute. (Where a prerogative power is incorporated into a statute, it becomes a statutory power; an example is the Fixed-term Parliaments Act 2011). New prerogative powers cannot be created or extended; as Diplock LJ said, ‘It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative’ (BBC v Johns  Ch 32 , 79). The prerogative remains an important source of government power, enabling government to function efficiently. It is regulated by constitutional convention, and can be judicially reviewed by the courts (see section 18.104.22.168).
If Parliament does not approve the use of most prerogative powers, where is the accountability?
- Isn't the answer in the last sentence above THINKING POINT — "constitutional convention" and judicial review by courts?
In the UK, members of central government are drawn from Parliament: the political party with the largest number of seats in the House of Commons after a general election normally forms the new government. The executive is therefore embedded in the heart of the legislature (the Westminster system). The government is accountable to Parliament for its activities (this is the principle of responsible government) and it must command the confidence of the House of Commons in order to function. Each government needs parliamentary approval to turn its policies into law and relies on it for finance (see Table 12.1).
- How's THINKING POINT right to assume "Parliament does not approve the use of most prerogative powers"? How can this be, when "prerogative remains an important source of government power" (above) and the government can dominate the UK Parliament (below)? p 256.
The ‘elective dictatorship’
The government can dominate the UK Parliament because of the first past the post electoral system and the lack of separation of powers between the executive and the legislature. Where a government has a large majority in the House of Commons (such as the Conservative majority of 144 in 1983 and Labour’s majority of 177 in 1997), its power is, as Lord Steyn pointed out in Jackson v AG  UKHL 56, ‘redoubtable’ (). This means that the government will carry votes in the House of Commons with little likelihood of losing them. About one sixth of MPs are members of the government (rising to 20 per cent of MPs if parliamentary aides are included) so their support is guaranteed; this is known as the ‘payroll vote’. This is Lord Hailsham’s ‘elective dictatorship’: dominant government at the heart of a sovereign Parliament.