The royal prerogative in the realms Abstract



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(2007) 33(4) Commonwealth Law Bulletin 611-638

The royal prerogative in the realms
Abstract
From 1840 the laws of New Zealand have comprised the common law and statute law, both of which – but especially the former – were originally based upon the laws of England, and which continued to draw upon England jurisprudence. Since New Zealand was regarded as a settled colony, the settlers brought with them such of the laws of England as were applicable to the circumstances of the colony. This included the royal prerogative.
Although elements of the royal prerogative are obsolete or have been subsumed in parliamentary enactments, there are a number of aspects which continue to be used by the Crown today. One is the honours prerogative. The changed nature of the Crown (and in particular its division among the realms) has, however, led to some uncertainties. In particular, the have been questions regarding the use of the royal prerogative in respect of armorial bearings, and the proper exercise and application of the Law of Arms. This has never caused serious difficulties in New Zealand – if indeed it can be said to be an issue at all – but the Canadian case of Black v Chrétien has shown that disputes over honours and dignities can arise, and can have serious political or constitutional implications.
This paper considers the introduction of the royal prerogative to the realms, and some of the implications and possible difficulties which this process may have led to.


Introduction
Once common to all Englishmen,1 the common law is now one of the great world legal systems,2 and spread across much of the globe.3 This legal expansion4 was a corollary of imperial growth, and the evolution of that empire in part mirrored and was in part determined by the evolution of the law.5 At the same time it has evolved, so that it is difficult to speak of a single common law, or perhaps even of a single royal prerogative. We will look at the examples of New Zealand and Canada, and the prerogative of honours, in an attempt to further understand this process of devolution.
From 1840 the laws of New Zealand have comprised the common law and statute law,6 both of which – but especially the former – were originally based upon the laws of England,7 and which continue, to some extent, to draw upon England jurisprudence.8 When the legal system was adopted in 1840, New Zealand was regarded in law and practice as a settled colony.9 It was the standard constitutional practice that the settlers brought with them such of the laws of England as were applicable to the circumstances of the colony at that time.10 This included the royal prerogative, which indeed has been said to apply throughout the Commonwealth, even in countries where the common law proper is not itself in force.11 Partly this was because of the pre-twentieth century doctrine of the indivisibility of the Crown, and partly because the royal prerogative encompasses powers, authorities, privileges and immunities which are important to any executive government.12
The royal prerogative has a number of aspects which continue to be of use today.13 One is the honours prerogative.14 This has been used to control the use of armorial bearings,15 and to regulate matters which, in England and Scotland, are the concern of specialist courts,16 as well as to bestow honours and decorations.17 Although the application of the common law and statute law of England to New Zealand caused few practical problems (aside, that is, from its impact on pre-existing indigenous law),18 there remain a few areas of uncertainty with respect to the royal prerogative, which itself is related to, though not strictly part of, the common law.19
In particular, there have been questions regarding the use of the royal prerogative in respect of armorial bearings, and the proper exercise and application of the Law of Arms.20 This has never caused serious difficulties in New Zealand – if indeed it can be said to be an issue worth examining at all21 – but the Canadian case of Black v Chrétien22 has shown that disputes over honours and dignities can arise, and can have serious political or constitutional implications.23
This paper considers the introduction of the royal prerogative to the realms,24 and some of the implications and possible difficulties which this process may leave us today. It will begin with a review of the arrival of English laws in New Zealand. It will then consider the specific details of the application of the royal prerogative to New Zealand. It will then examine some aspects of the nature of the royal prerogative which have been problematic. Finally, it will consider who the application of the royal prerogative in the United Kingdom and Canada has highlighted potential difficulties for New Zealand and other countries which retain Elizabeth II as their Queen.
It should be noted that some writers refer to the “prerogative” as those rights and capacities which the Crown alone enjoys as distinct from those it enjoys along with the public.25 This narrower usage is here preferred, though generally any distinction between “prerogative” powers and “personal” powers is of relatively little practical significance, and both can be treated by the courts as aspects of the royal prerogative.

Arrival of English laws in New Zealand
The application of the laws of England to settled colonies is one of the touchstones of Commonwealth constitutional law.26 The classic distinction, representing the common law doctrine of the seventeenth and eighteenth centuries27 – though never entirely consonant with the facts and much altered in its application and shorn of its importance by subsequent legislation28 – is that between settled and conquered or ceded colonies.29 It differentiates colonies which had been added to the empire by the migration thither of British subjects,30 who had entered into occupation of lands previously uninhabited or at least not governed by any civilised power,31 and therefore not subject to any civilised legal system,32 and those which had been acquired by conquest or cession from some recognised power hitherto capable of governing and defending it.33
The legal situation of the inhabitants of a settled colony presents one important initial difference from that of the inhabitants of a conquered colony. The former carried with them the law of England so far as applicable to the conditions of the infant colony,34 and they continued to enjoy as part of the law of England all their public rights as subjects of the British Crown.35 The prerogative of the Crown towards them was therefore limited.36 The corollary of this was that the migration left these subjects still under the protection of the Crown and entitled to all the legal safeguards which secured the liberties of natural-born subjects.37 Foremost among these was the right to a legislative assembly analogous to the imperial Parliament.38
Lord Wensleydale, after observing that Newfoundland was a settled,39 not a conquered, colony, added:
To such a colony there is no doubt that the settlers from the mother-country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have, on the one hand, the same laws and the same rights, unless they have been altered by parliament; and on the other hand, the Crown possesses the same prerogative and the same powers of government that it does over its other subjects’.40
For reasons which owed much to the reality of politics and the practical impossibility of an alternative, it was early established as a principle of imperial constitutional law that settled colonies took English law, rather than that of Scotland or Ireland.41 This was so whatever the dominant ethnic composition of the settlers.42
The laws of New Zealand are based upon the reception of English laws in the middle of the nineteenth century,43 when it was first settled as a colony.44 New Zealand was, from the beginning, administered as a Crown colony.45 It was held to be a settled colony, though not without conceptual difficulty.46 From the contemporary British perspective the Treaty of Waitangi was a treaty of cession which allowed for settlement and for the purchase of land.47 However, because the chiefs actually had little formal law – at least as understood by the settlers48 – and because of the direct proclamation of sovereignty over the South Island,49 New Zealand was treated thereafter as a settled colony.50 This meant that the royal prerogative was limited in the same way as it was in England – if indeed the royal prerogative was applicable to the circumstances of the colony in 1840.
It has been established beyond reasonable doubt, by both colonial and imperial legislation and judicial decisions of that Canada,51 Australia,52 and New Zealand53 each acquired English law as it existed at the various times of settlement.54 But it was only those laws which were applicable to their new situation and to the condition of a new colony.55 It is not always easy to apply the test.56 English laws which were to be explained merely by English social or political conditions had no application in a colony,57 yet the courts have generally applied the land law,58 which has a feudal origin.59 Rules as to real property and conveyancing have been held to be generally applicable in colonies, both settled and conquered.60 The qualification is in fact to be taken as one of limited extent.
Blackstone’s statement that “colonists carry with them only so much of the English Law as is applicable to their own situation and the condition of the infant colony”61 is, like many generalisations, misleading. It would have been more complete if he had said “colonists carry with them the bulk of English law, both common law and statute, except those parts which are inapplicable to their own situation and the conditions of the infant colony”. What was held to be applicable – in all the settled colonies – was far greater in content and importance that what had to be rejected.62 It is indeed a general rule that common law principles applied to a colony unless it is shown to be unsuitable.63 However, in contrast, imperial statutes did not apply unless they were shown to be applicable64 – and we may surmise that this owed much to the early constitutional nature of Parliament, and statutes as amendments to the body of the common law – amendments which might themselves by inapplicable.
In the early decades of the history of the new colony there were legal uncertainties which Parliament was eventually to be asked to resolve.65 The English Laws Act 185866 was passed, in the words of the long title, “to declare the Laws of England, so far as applicable to the circumstances of the Colony, to have been in force on and after the Fourteenth day of January, one thousand eight hundred and forty”.67 The purpose of the statute was to clarify some uncertainty as to whether or not all Imperial acts passed prior to 1840 were in force in New Zealand, if otherwise applicable. The principle of this Act has been followed in all relevant legislation passed by the New Zealand Parliament since then, with the original date of application unchanged.68
The uncertainty had been specifically about statutes, which were not generally applicable in settled colonies69 – which was perhaps the reason for the uncertainty.70 But the 1858 Act went further than was strictly necessary, and defined applicable law more widely. It expressly stated that: “The Laws of England as existing on the fourteenth day of January, one thousand eight hundred and forty, shall, so far as applicable to the circumstances of the said Colony of New Zealand, be deemed and taken to have been in force therein on and after that day, and shall continue to be therein applied in the administration of justice accordingly.”71
Thus the laws of New Zealand were based upon the “laws of England” as applicable, borrowing from Blackstone’s phrase of a century earlier. It was left to the courts to determine precisely what was, and was not applicable. For the most part the applicable law was the statute and common law of England, and the royal prerogative.72 It did not however include the ecclesiastical law,73 nor any particular local laws (whether statutory, common, or customary law).74 The ecclesiastical law was inapplicable, largely because:
It cannot be said that any Ecclesiastical tribunal or jurisdiction is required in any Colony or Settlement where there is no Established Church, and in the case of a settled colony the Ecclesiastical Law of England cannot, for the same reason be treated as part of the law which the settlers carried with them from the Mother-country.75
The ecclesiastical law is a part of the laws of England,76 but not part of the common law.77 More importantly, an established Church is, by its very essence, of a territorial nature, and requires to be expressly transplanted from its native soil.78 The royal prerogative is not territorially limited, nor is it unique to any particular social order or society, since it represents the residual executive authority of the country.79 For this reason it was applicable to the circumstances of any colony – or so it would seem (remembering that it is for the courts to determine whether a law is applicable or not).

The extension of the royal prerogative to New Zealand
There are several views as to what comprises the royal prerogative. Blackstone had a narrower definition. For him, a power held in common with the King’s subjects ceased to be a royal prerogative, and was merely a freedom for action not prohibited by law.80 Dicey had a wide view of the royal prerogative. To him, the royal prerogative was the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.81 The definition of prerogative powers is controversial82 but courts have generally accepted Dicey’s broad definition of the royal prerogative – for what this may be worth.
For the most part, such a distinction is academic, since the courts will review executive action whether it purports to be based upon the royal prerogative, or any other basis, such as the personal powers of the Sovereign.83 However, it may be unclear whether the royal prerogative or a statutory source of power has been exercised, and this may affect whether review is brought – in New Zealand – under the Judicature Amendment Act 1972 or at common law.84
The royal prerogative has been classified as a branch of the common law, because it is the decisions of the common law Courts which determine its existence and extent.85 This would appear, however, to be true only in the sense that there could be no extraordinary prerogative above the law.86 It must be remembered that the royal prerogative applies even in countries where the common law does not.87 It is, however, in some degree controlled by the common law courts, though only in determining its scope, and not necessarily its exercise.88 The Crown may only exercise a royal prerogative which the common law has recognised,89 and the royal prerogative may be said to consist of “the powers and privileges accorded by the common law to the Crown.”90 In many respects the relationship between common law and prerogative parallels that between common law and ecclesiastical law.91
Prerogative powers are not, however, all of the same nature, and this factor may be important to understanding some of the difficulties which have arisen. Chitty drew a distinction between those prerogative powers which he defined as being minor (which were merely local to England), and those others, which were fundamental rights and principles on which the king’s authority rested,92 and which were necessary to maintain it.93 Of the minor royal prerogatives it was said that they “might be yielded, where they were inconsistent with the laws or usages of the place, or were inapplicable to the condition of the people”.94 The minor prerogatives would apply to the common law colonies (settled and where common law has been applied by prerogative or legislative action), except that they that they may be excluded or modified by local circumstances.
The major royal prerogatives were said to be those that were fundamental, or which other than local, in the words of Story:
In every question, that respected the royal prerogatives in the colonies, where they were not of a strictly fundamental nature, the first thing to be considered was, whether the charter of the particular colony contained any express provision on the subject. If it did, that was the guide. If it was silent, then the royal prerogatives were in the colony precisely the same, as in the parent country; for in such cases the common law of England was the common law of the colonies for such purposes.95
The presumption remains that the prerogatives applied in the colonies. Blackstone advocated a similar definition to that of Chitty, that of direct and incidental:
The direct are such positive substantial parts of the royal character and authority, as are rooted in and spring from the king’s political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending ambassadors, of creating peers, and of making war or peace.96

These might be seen as the major prerogatives.



But such prerogatives as are incidental bear always a relation to something else, distinct from the king’s person; and are indeed only exceptions, in favour of the Crown, to those general rules that are established for the rest of the community: such as, that no costs shall be recovered against the king; that the king can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects.97
These could equate to the minor royal prerogatives, now more satisfactorily defined as incidental to normal legal relations. These incidental royal prerogatives, like Chitty’s minor royal prerogatives, were indeed generally applied in the colonies. The key point is that neither definition fully explains the nature of the royal prerogative as applied to the colonies. But, like the common law, not all the prerogative powers that are exercised by Her Majesty in the United Kingdom necessary apply, nor are they necessarily exercised, in all her realms. For example, they do not include the royal prerogatives relating to the established Church of England (a major prerogative) – though even here this was not always necessarily the case.98
There are also other prerogatives in respect of which the Queen does not take advice99 – but which are nonetheless extant, if unused, for they did apply to the colonies and so had survived till today, through several centuries of constitutional evolution. It has been held that disused prerogatives are lost,100 though it is also said that disused prerogatives may be revived.101 The latter would seem to be the more historically probable view, and has been followed more recently,102 particularly to apply an old prerogative to new circumstances.
Whether a particular royal prerogative extends to a country depends upon the category to which it belongs and upon whether the legal system is based on English law.103 Whatever the definition preferred, it is clear that the major royal prerogatives apply throughout the Commonwealth, and are applied as a pure question of law,104 even in a country, such as Malta, where the common law is not otherwise in force.105 Minor royal prerogatives apply in all common law countries, except that they may be excluded or modified by local circumstances. Given the general circumstances of New Zealand, it might be supposed that the whole of the royal prerogative – except for the ecclesiastical prerogatives – extended to this country in 1840.
Indeed, it would seem that this was so. The prerogatives of executive government relating to the three branches of government;106 prerogatives in the nature of rights, privileges, or immunities;107 and the prerogatives personal to the Sovereign,108 have all been held to have applied to New Zealand. It has also been said of New Zealand that “the undoubted prerogatives of modern government include the following powers: to pardon criminals; to summon, prorogue or dissolve Parliament; to appoint Ministers, Judges and other Crown officials; to confer honours; to assent to legislation; to conduct foreign affairs; and to control the armed forces.”109 Most of these would constitute major or direct royal prerogatives. Incidental royal prerogatives, such as immunities and debt privileges, have also been held to apply. The royal prerogative in New Zealand would appear to be as full as that in England, with the qualification noted above.

The nature of the royal prerogative
It was long maintained that the royal prerogative was generally non-justiciable (or non-reviewable by the Courts),110 though it has always been the function of the courts to determine its existence.111 The more usual view now is that the justiciability or non-justiciability depends not upon the nature of the power – as part of the royal prerogative – but upon its subject matter.112 This has the potential effect of widened the scope of judicial review, though the Courts show deference to those who discharge royal prerogative powers, in the expectation that they will exercise such powers fairly, reasonably, and in accordance with law.113
Although the courts can now review the exercise of the royal prerogative in certain instances,114 as where there is a legitimate expectation, there is no general power of review.115 Having said that, in general terms, the exercise of royal prerogative powers is subject to judicial review, although there are exceptions – including the honours prerogative.116 These limits have been held to apply particularly to the exercise of what may be termed the political aspects of the royal prerogative. This will be important when we consider Black’s case.117
There hasn’t been a full systematic analysis of the scope and content of the royal prerogative, in part because of its fluidity. However, as generally categorised, the scope of the royal prerogative includes the foreign relations and defence aspects, including the making of treaties;118 and the defence of the realm.119 It has domestic applications, including keeping the peace;120 dissolution of Parliament (though this may not be so in New Zealand now121); the appointment of Ministers; grant of honours;122 and “other matters”.123 The “other” royal prerogatives – those not yet fully enumerated – will be identified by the Courts on a case-by-case basis.124
Despite its broad reach, the Crown prerogative can be limited or displaced by statute.125 Once a statute occupies ground formerly occupied by the royal prerogative, the prerogative goes into abeyance. The Crown may no longer act under the prerogative, but must act under and subject to the conditions imposed by the statute.126 The royal prerogative may revive, however, in some circumstances. Equally importantly, it would seem that the royal prerogative is sufficiently flexible that it may be exercised in ways and circumstances different to those traditional to it – more on this when we consider Black’s case.127
The royal prerogative is thus reviewable by the courts, who also decide whether it exists or not. Clearly, all the royal prerogatives which relate to the executive role of the Crown as will be applicable in settled colonies, including the honours prerogative. This is the means by which the Crown rewards service, and honours achievement. But the precise scope of the prerogative is perhaps unclear, although the courts have long held that the honours prerogative is unfettered. The royal prerogative may however be altered to suit new circumstances.
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