The Royal Prerogative

Godden v Hales [1686]

• Could King James II exempt a Roman Catholic army officer from the legal requirements to swear allegiance to the Church of England?
• The court found he could and in sweeping terms said that ‘the laws of England are the king’s laws’; therefore, the King could dispense with penal law and could be the sole judge because power was not given to the King by the people but was part of the prerogative power which ‘has not, and cannot, be taken away’.

Glorious Revolution of 1688 and the Bill of Rights 1689

• The powers of the Crown were controlled by law and ‘there were no powers of the Crown that could not be taken away or controlled by statute’.
• The Crown had no right to raise tax either directly (e.g. income tax) or indirectly (e.g. through excise duties in ports).
• The Crown had no right to maintain a standing army.
• Parliament should meet regularly and had freedom of expression.
• The Crown had no right to suspend laws
• Note : onwards it was accepted that prerogative powers were residual, i.e. they could not be expanded.