7 - Prerogative Power

Question 1

What is the royal prerogative?

Answer 1

“The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown… Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.”

In other words - The royal prerogative is the area of governmental power that is not created or regulated by Parliament, a ‘left-over’ source of power. Powers that can be exercised by Government without the authority of Parliament. This power has not been legitimised through the parliamentary process.

Question 2

What does the ‘residue’ of the royal prerogative mean?

Answer 2

Many governmental powers have been put on a statutory basis by Parliament, reducing the area of power governed by prerogative.

The royal prerogative today is ‘residual’, meaning it covers the area of governmental power not created by Parliament. Prerogative power can only be reduced (through statutory incursion) and never expanded.

Question 3

Who exercises prerogative power today?

Answer 3

As the UK transitioned from an absolutist monarchy to a constitutional monarchy, the power to govern passed from the monarch to the executive branch of government.

Today, prerogative power is exercised by the central government, headed by the Prime Minister and the Cabinet. These elected officials exercise executive power on behalf of the Crown.

While the monarch retains certain ceremonial functions, the real political decisions are made by elected politicians, meaning that the monarch no longer exercises personal control over political matters.

Question 4

What are the types of prerogative power?

Answer 4

There are three broad types of prerogative powers:
1. Ministerial or ‘executive’ prerogative powers: These powers are now exercised by ministers without needing the permission of the monarch.
2. The monarch’s constitutional prerogatives: These include appointing the Prime Minister, giving royal assent to legislation, and proroguing Parliament.
3. The Crown’s legal prerogatives: These are the powers and immunities that the Crown holds in legal matters.

Question 5

What are the main areas of executive prerogative powers?

Answer 5

Executive prerogative powers are now exercised by government ministers, while the monarch exercises constitutional prerogative powers but only on the advice of the Prime Minister, meaning the monarch has no discretion in these matters.

Executive prerogative powers cover three broad areas:
1. Foreign affairs: The Government has the authority to manage diplomatic relations, recognise foreign states, make treaties, and govern British Overseas Territories.
2. Armed forces and emergencies: The Government controls the deployment of the armed forces and can take emergency measures, such as requisitioning property in times of war.
3.** Judicial (mercy)**: The Government has the power to issue pardons to individuals convicted of criminal offences, often referred to as the prerogative of mercy.

Question 6

What are the prerogative powers of the executive in the area of foreign affairs?

Answer 6

The royal prerogative grants the Crown several key powers in foreign affairs, including:
- The recognition of other sovereign states and their diplomatic representatives.
- The power to make and ratify international treaties on behalf of the UK, without the need for Parliament’s approval
- The authority to conduct diplomacy with other nations.
- The ability to grant and revoke British passports.
- The governance of British Overseas Territories, which remain under the Crown’s jurisdiction.

Question 7

What prerogative powers of the executive relate to the armed forces and emergencies?

Answer 7

In the defence of the realm, the Government has prerogative powers to control the mobilisation and deployment of the armed forces.

As confirmed by Lord Reid in Chandler v Director of Public Prosecutions [1964] AC 777, the Crown has exclusive discretion over military decisions, such as the placement and use of armed forces.

In emergencies, the Crown may requisition private property, such as ships, for public use during wartime.

Question 8

What is the judicial prerogative of mercy that the executive holds?

Answer 8

The prerogative of mercy allows the Home Secretary, acting on behalf of the Crown, to pardon individuals who have been convicted of criminal offences prosecuted by the Crown.

This power has been legally challenged in certain cases, such as R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All ER 442, where a posthumous pardon was granted for Derek Bentley, who had been hanged in 1953.

Question 9

What are the monarch’s constitutional prerogatives?

Answer 9

Appointing the Prime Minister, typically the leader of the party with the most seats in the House of Commons.

Assenting to legislation, where the monarch formally agrees to bills passed by Parliament.

Proroguing Parliament, which is the formal closure of a parliamentary session.

These prerogatives are exercised on the advice of the Prime Minister, and the monarch is constitutionally required to follow this advice.

The limits of these powers were highlighted in the case of R (Miller) v Prime Minister [2019] UKSC 41, which ruled that the prorogation of Parliament was unlawful.

Question 10

What are the Crown’s legal prerogatives?

Answer 10

Historically, the monarch was regarded as the ‘fountain of justice’ and had significant legal authority. However, most of the legal system is now statutory.

The remaining legal prerogatives include:
- Crown and statute: The presumption is that the Crown is not bound by statutes unless Parliament explicitly or implicitly indicates otherwise.
- Immunity from litigation: The Crown is not subject to the contempt jurisdiction, and the sovereign enjoys personal immunity from being prosecuted or sued.

Question 11

How is prerogative power controlled?

Answer 11

Public law: The courts can subject prerogative power to judicial review, allowing them to rule on the lawfulness of the exercise of prerogative powers. This is the main way that the prerogative is controlled.

Statutory control: Parliament can override prerogative powers by passing legislation, as statutes take precedence over prerogative powers.

Political pressure: The exercise of prerogative powers can be influenced by government practices, media scrutiny, and public opinion.

Constitutional conventions: Over time, informal changes in political practice can affect how prerogative powers are used, reflecting the evolving nature of the UK’s constitutional framework.

Question 12

Provide a summary of the meaning and constitutional function of the royal prerogative.

Answer 12

• Prerogative powers are those common law powers which the government can exercise without authority of Parliament.
• Contemporary prerogative powers were historically exercised exclusively by the monarch, and now are exercised by the executive.
• The courts have always had the power to decide whether a prerogative power exists or not.
• Executive prerogative powers include those relating to ‘defence of the realm’ and to diplomatic relations and treaty making.
• The Monarch’s ‘personal prerogatives’ such as the power to prorogue Parliament, are exercised ‘on the advice of’ the Prime Minister.
• Legislation does not bind the Crown unless this is stated or clearly implied.
• The Crown is immune from some types of legal action.
• Prerogative power can be ‘controlled’ by legislation, the courts, or political pressure.

Question 13

What powers do Parliament have to control the prerogative powers of the executive?

Answer 13

The potential for prerogative powers to be abused is higher than with statutory power as it has not been legitimised through parliamentary processes.

Parliament can:
- Legislate to modify, abolish, or put on a statutory footing any particular prerogative power (e.g., the prerogative power to dissolve Parliament was replaced by the Fixed-term Parliaments Act 2011).
- Hold Ministers accountable for all actions, including those taken under prerogative powers.
- Adopt constitutional conventions to modify the strict legal effect of prerogative power (e.g., in 2003, Tony Blair sought prior parliamentary approval before taking the UK into the war in Iraq, creating a “war powers convention”).

Question 14

How do the courts control prerogative powers?

Answer 14

This is the main way that prerogative powers are controlled.
- The court has the ability to ‘check’ or review the executive’s use of its prerogative powers.

Example: In GCHQ [1985] AC 374, the House of Lords held that the government’s prerogative powers are subject to judicial review, establishing the principle that prerogative powers must be exercised within the bounds of law.

The prerogative is a form of power that has legal enforceability because it is recognised and ‘accepted’ by the courts through common law.

Judges determine how and to what degree they are able to ‘control’ its use.

Question 15

What is the significance of the Case of Proclamations (1611) in understanding prerogative powers?

Answer 15

Chief Justice Coke established the view that the royal prerogative represented a finite stock of power, meaning the Crown’s powers were not limitless.

Crown power was legitimated through recognition in common law, and a particular form of prerogative power could not exist unless the courts accepted that there was a precedent for its use.

Question 16

What is the scope of prerogative powers?

Answer 16

Courts can determine whether a purported governmental power was legitimately part of the royal prerogative, as seen in R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, where the court examined the legality of government actions concerning foreign aid.

Courts can review what the scope of a prerogative power is—what exactly that power entails and encompasses, as highlighted in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, where the court clarified the limitations of prerogative powers in relation to significant constitutional changes.

This issue is part of the legality review of prerogative powers. The requirement of legality stipulates that the government must respect and act within the confines of the law.

Question 17

What is the relationship between prerogative powers and statutory power?

Answer 17

The relationship was clarified in Attorney General v De Keyser’s Hotel Ltd [1920] AC 508, where the court ruled that statutory power takes precedence over prerogative power.

Question 18

What is the De Keyser principle?

Answer 18

The law lords stated that the Crown was bound by the statutory regime under the Defence of the Realm Act.

In De Keyser’s Hotel, statutory powers had ‘abridged’ older prerogative powers, and the prerogative was to be considered ‘in abeyance’.

“[W]hen a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force…”

Overall, statutory power takes precedence over prerogative power.

Question 19

How has the De Keyser principle been extended in the case of R v Secretary of State for the Home Department, ex p Fire Brigades Union?

Answer 19

This case accentuated the importance of following parliamentary intention when overlapping statutory and prerogative powers exist.

The Home Secretary’s use of prerogative powers to introduce a new criminal injuries compensation scheme was challenged, as Parliament had legislated for a statutory scheme.

The law lords found against the Home Secretary, emphasising the primacy of statutory law over other forms of common law.
“…prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute…”

Question 20

What is the significance of the case R (Miller) v Secretary of State for Exiting the European Union showing the relationship between prerogative and statutory powers?

Answer 20

The Prime Minister sought to trigger Article 50 using prerogative power after the EU referendum in 2016.

The power to do so was challenged in court, arguing it could not be triggered by prerogative given the significant consequences for the UK.

The court agreed that such a far-reaching change should be sanctioned by Parliament through primary legislation, reinforcing the need for parliamentary approval in matters of significant constitutional importance.

Question 21

Provide a summary of how prerogative powers can be controlled.

Answer 21

• Prerogative power is mainly “controlled” legally by the judiciary but there are political mechanisms too, notably through constitutional conventions modifying the strict legal powers in the prerogative.
• The courts have responsibility for determining if a prerogative power exists and what its scope is.
• The relationship between statutory and prerogative power is governed by the De Keyser principle.
• Statutory powers are seen as superior to common law prerogative powers.
• Statutory duties or obligations on government cannot be indirectly or impliedly by-passed through use of prerogative power.
• The important recent case of Miller (1) represents a continuation of the principles in earlier ‘legality’ based cases.

Question 22

What significant change did the GCHQ case bring regarding judicial review of prerogative powers?

Answer 22

Until the mid-1980s, UK courts only adjudicated on whether the government had a particular prerogative power and what its exact scope or limits were.

Courts were not prepared to review how the government used prerogative powers.

This changed with Council for the Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ case), prompted by PM Margaret Thatcher’s decision to ban trade union membership at GCHQ Cheltenham.

Her authority came from the PM’s prerogative power to regulate Civil Service working conditions.

The issue was not her authority but the manner of using her prerogative, as she banned union membership without prior consultation.

The House of Lords ruled that the use of prerogative powers should not be immune from judicial review, as both statutory and some characteristics of prerogative executive powers are subject to judicial control.

Question 23

How did the GCHQ case redefine the relevance of the source of power in judicial review?

Answer 23

The traditional distinction between powers given by Parliament and those from the prerogative should no longer determine if government actions were reviewable.

The government could no longer shelter behind the fact that a power came from the prerogative.

In principle, all executive powers should be reviewable to promote the rule of law.

Question 24

What was the PM’s second line of defence in the GCHQ case, and what word of caution did the judges offer?

Answer 24

Although the PM lost on the key issue of principle, she defended the case by arguing that public interest justified not consulting, as advance notice may have triggered strike action, jeopardising national security.

The court ultimately ruled that her actions were lawful.

Despite ruling that prerogative powers are subject to review, the judges issued a caution: some prerogative powers, involving high policy matters, should not be susceptible to judicial review.
Lord Roskill’s obiter comments on these powers have influenced subsequent law development.

Question 25

What prerogative powers did Lord Roskill suggest were not susceptible to judicial review in the GCHQ case?

Answer 25

Lord Roskill listed several prerogative powers as being not susceptible to judicial review because their nature and subject matter were not amenable to the judicial process. These include:
- The making of treaties
- Defence of the realm
- Mercy
- Granting of honours
- Dissolution of Parliament
- Appointment of ministers (now governed by statute)

Question 26

How did the GCHQ case raise separation of powers concerns?

Answer 26

Lord Roskill’s comments about the ‘amenability’ of certain prerogative powers to judicial review demonstrated how the judiciary regulates its involvement in political areas.

In the UK’s uncodified constitution, the judiciary respects informal lines of responsibility and balances separation of powers by considering the competencies of the three branches of state.

The judiciary, lacking an electoral mandate, must tread carefully when reviewing prerogative powers.

Question 27

What does non-justiciability mean in the context of prerogative powers, and how was this expressed in the GCHQ case?

Answer 27

Some prerogative powers are considered non-justiciable because they involve political judgement-calls not suitable for court adjudication.

Examples include the appointment of ministers by the PM and granting of honours.

These powers are difficult to adjudicate on beyond their pure legality, and some commentators refer to such powers as “forbidden areas” or “excluded categories,” though this binary view is debated today.

Question 28

How has the courts’ approach to reviewing government powers evolved since the GCHQ case?

Answer 28

Since GCHQ, courts increasingly focus on the substance of the government’s use of powers, rather than their form.

The degree of judicial intervention is tailored based on the nature of the power exercised by the government.

This approach ensures that prerogative powers involving administrative or operational matters are reviewed, while high policy elements remain less subject to scrutiny.

Question 29

Provide a summary of the GCHQ case, origins of JR, and the use of prerogative powers.

Answer 29

• Prior to the decision of the House of Lords in GCHQ, the courts had not intervened in or reviewed the manner in which prerogative powers were exercised by the government.
• The judgment in GCHQ shows that the courts have power to review whether the exercise of the prerogative has been carried out lawfully.
• The courts no longer look to the source of the power but rather to its nature.
• Though the PM lost on the major matter of principle in GCHQ, she was able to defend the claim against her ultimately
• Following the ratio in GCHQ, some of the judges, notably Lord Roskill, warned in obiter that some prerogative powers should remain non-justiciable, based on their nature.

Question 30

What was the general trend in judicial control of prerogative power post-GCHQ?

Answer 30

The subsequent pattern of development can be seen as a further expansion of the remit of judicial review, though the judiciary still displays some caution about its constitutional role.

A trend towards enhanced judicial control over how governmental power is used has become more noticeable, reflecting a greater modern emphasis on the principle of accountable government subject to the rule of law.

As a matter of principle, the exercise of prerogative power should be just as reviewable by the courts (via judicial review) as the exercise of statutory powers

Question 31

How did post-GCHQ developments affect the rule of law and accountability?

Answer 31

• The trend post-GCHQ has been an expansion of judicial review, but the judiciary remains cautious of its constitutional role.
• The courts apply a lower ‘intensity’ of review for issues involving higher policy and a higher intensity for other matters.
• Courts assess whether an issue is better suited to political judgment rather than legal adjudication.

Question 32

How do cases such as Everett and Bentley illustrate the variable intensity of review?

Answer 32

Everett and Bentley illustrate cases where the prerogative powers involved were relatively low-level or administrative.

Both cases involved matters important to individuals (or in Bentley’s case, his relatives), yet the issues were about how administrative processes or policies were applied.

The courts had to balance judicial review of administrative prerogative actions with respect for higher policy areas, where the courts are more cautious.

Question 33

What is the approach of the courts towards foreign policy and diplomacy prerogative powers?

Answer 33

• Matters of foreign policy and diplomacy are considered higher policy areas.
• A traditional outlook (as seen in Roskill’s GCHQ obiter) suggests that decisions involving these areas should face minimal judicial engagement.
• Nevertheless, the Administrative courts have allowed challenges by granting standing, though the intensity of review remains low.
• Courts recognise that foreign policy decisions are often unsuitable for detailed judicial scrutiny.

Question 34

What principle did the case of Abbasi highlight regarding judicial review of foreign relations?

Answer 34

• Abbasi concerned a UK national held at Guantanamo Bay, with his family challenging the UK Foreign Office’s efforts to extricate him.
• Lord Phillips MR posed key questions: to what extent can English courts review foreign state actions, and how justiciable are executive decisions in foreign relations?
• Though the court accepted the challenge, they ultimately found for the Foreign Office, showing the courts’ recognition of limited competence in foreign relations decisions.
• The key point was the individual’s legitimate expectation that his case would be “considered” by the Foreign Office, even though courts grant broad discretion in such matters.

Question 35

How do the courts apply a lower intensity of review in cases like Abbasi?

Answer 35

• The court in Abbasi allowed the challenge based on the legitimate expectation of diplomatic assistance.
• However, they emphasised that decisions in foreign relations were largely non-justiciable.
  Lord Phillips MR noted that if the Foreign Office had not “considered” making representations, the court might have ordered them to do so.
• The challenge ultimately failed, but the decision reinforced the principle of low-intensity review for foreign policy matters.

Question 36

How do the courts approach prerogative powers related to defence of the realm?

Answer 36

• Prerogative powers over defence include a wide range of governmental functions, from decisions to take military action to operational military issues.
• Decisions about military action and its conduct are matters of higher policy, where the executive holds sole competence.
• Courts usually regard such decisions as non-justiciable, as seen in R (Campaign for Nuclear Disarmament) v Prime Minister (2002), where Simon Brown LJ stated that military decisions are beyond judicial review.

Question 37

What is the judicial stance on operational issues in military matters?

Answer 37

• In Smith, Ellis and Allbutt v Ministry of Defence [2013], the Supreme Court held that combat immunity should be narrowly construed.
• The claimants, families of UK soldiers killed in Iraq, argued that the MoD had been negligent in providing adequate equipment and training.
• The court distinguished between high-level military decisions (which are non-justiciable) and operational decisions far removed from battlefield pressures, which can be subject to judicial scrutiny.

Question 38

How did R v Ministry of Defence, ex parte Smith [1996] address the dismissal of homosexuals from the armed forces?

Answer 38

• Smith involved a challenge to the Ministry of Defence’s policy banning homosexuals from serving in the armed forces.
• The claimants were dismissed solely due to their sexuality and argued that the decision was unreasonable or irrational.
• The Court of Appeal upheld the policy at the time, but the case demonstrated the courts’ approach to challenging prerogative powers regarding membership of the armed forces.
• The case was later heard at Strasbourg (Smith & Grady v UK), indicating the importance of human rights considerations in such challenges.

Question 39

What is the balance of competing interests in the Smith case according to Bingham’s speech?

Answer 39

It is not the court’s role or expertise to regulate armed forces service conditions.

However, the court has a constitutional role and duty to ensure citizens’ rights are not abused by unlawful executive power.

While the court defers to the expertise of responsible decision-makers, it must not avoid its duty to “do right to all manner of people.”

Question 40

Provide a summary of legal developments post-GCHQ re prerogative power.

Answer 40

• The trend post-GCHQ has been for a further expansion of judicial review into areas governed by prerogative power.
• The courts continue to be cautious, however, about expanding review into areas of high policy in which the executive has greater ‘competence’
• The courts will apply varying degrees of ‘intensity’ of review in cases where the claimant alleges unlawful exercise of the prerogative.
• The higher the level of policy, (e.g. in relation to defence of the realm), the lower the intensity of review.
• In areas where the matter is more administrative and less policy-based, however, the courts have become more interventionist, as in the Bentley and Everett cases.