Crown and Prerogative Flashcards
Historical Evolution of the Crown and Prerogative Powers
No clear concept of the state in English law
Occasional use of the term in legislation and by the judiciary
Nearest equivalent legal concept is that of the Crown
Distinguish between monarch and the Crown
Problem: traditionally the Crown is immune from the legal process
Hence: reform proposals
What is the Crown?
Maitland, Constitutional History
the Crown is ‘a convenient cover for ignorance that saves us from asking difficult questions
What is the Crown? Coke CJ in Calvin
Crown is a legal symbol of public power
Crown exists ‘to do justice and judgement, to maintain the peace of the land, etc, to separate right from wrong, and the good and bad’
What is the State?
‘State’ came to denote not merely the prevailing regime, but the entire structure of the institutions of government
Most distinct through the work of lawyers and property
Public revenues were separated from the private property of the king
Main Categories of Prerogative Powers
- Parliament
- Judiciary
- Foreign Affairs
- Armed Forces
- Appointments and honours
- Immunities and privileges
- Emergencies
- Miscellaneous
Prerogative Defined: Locke
‘power to act according to discretion for the public good, without the prescription of law and sometimes even against it’
Prerogative defined: Dicey
‘the residuary of discretionary power left at any moment in the hands of the Crown… Every act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative’
Prerogative defined: Blackstone
prerogative is ‘in its nature singular and eccentrically; it can only be applied to those rights and capacities which the king enjoys alone… and not to those which he enjoys in common with any of his subjects’. It is ‘that special pre-eminence, which the king hath, over and above all other person, and out of the ordinary course of the common law, in right of his royal dignity’
