Executive Power

Question 1

What are the three sources of executive power?

Answer 1

Statutory
Prerogative
Third Source

Question 2

What are the reserve powers? And how do they relate to the Governor-General?

Answer 2

The reserve powers are a set of ancient powers exercisable only by the sovereign or her representatives.

The Governor-General embodies this power but does not exercise without the advice of the Prime Minister, this is convention

Question 3

Are there circumstances where the Governor General can break from convention and act of their own accord?

Answer 3

Yes, when hung parliaments occur or where the PM has lost of the confidence of the house but no governing body emerges

Question 4

What is the timeline of the Bennet-Gray controversy? And what does it illustrate with regards to the GG’ reserve powers?

Answer 4

1989 election in Tasmania results in hung parliament

Opposition leader Bennet forms agreement with the Greens in confidence and supply

Incumbent PM Gray disputes the integrity of agreement and forms his own government but is immediately overthrown in no confidence vote

GG seeks assurances from Bennet that his agreement is viable. Upon receiving this assurance he summons Gray who resigns

This case illustrates when it is appropriate that the GG act of his own accord in break with convention

Question 5

What is the timeline of the Canadian Coalition Crisis? And what does it illustrate with regards to the GG’ reserve powers?

Answer 5

PM Harper forms coalition out of 2008 hung parliament with NDP

Forces an aggressive budget through the house which results in the NDP deserting

Opposition parties unite with the intention of forming coalition to overthrow Harper.

Harper summons GG back to Canada and prorogues parliament despite Opposition leader Dion assuring her that he has support.

In the prorogation period, Dion’ position collapses and coalition dissolves.

This case illustrates how the PM can use the reserve powers of the GG, in break with convention, for political ends.

Question 6

How does Entick v Carrington serve as a legal check on prerogative powers?

Answer 6

The Kings Men, under warrant from the SoS, search and seize papers from the home of Entick. Entick sues.

Court rules that there is no statutory basis for the warrant and there is no prerogative power for this

In order for something to be legal, it must be found in the law

Question 7

Facts of Attorney-General v De Keyser 1920

Answer 7

Crown seizes hotel to house staff of the Royal Flying Corps

Initial negotiation with hotel owners which stalls leading to the Crown seizing the property without compensation

Question 8

What was the courts ruling in De Keyser?

Answer 8

The court ruled that where statutes codifies prerogative powers, the statute will always prevail but only if it is conclusive enough

In De Keyser, the prerogative power of requisition has no compensatory obligations. It was sourced from medieval law which had since been supplanted by the Defence Act 1842 which attaches said obligation.

The nature and extent of the act superseded and suspended the prerogative power it was based on and therefore the Crown must follow statute which requires requisitions to be compensated

Question 9

Facts of R v Secretary of State, Ex Parte Northumbria Police Authority 1989

Answer 9

Racial riots explode in South London leading which spreads to other parts of England.

Prime Minster Margret Thatcher orders the SoS to allow Police to buy anti-riot supplies to quell unrest.

The Police Authority decries this as illegal as any provision of anti-riot supplies requires their consent.

SoS argues the contrary, justifying their powers through statute then prerogative power

Question 10

What was the courts ruling in Northumbria?

Answer 10

Section 4(4) of the Police Act does allows PA to provide anti-riot supplies but does not grant them that exclusive right.

Section 41 allows the Crown to provide certain services to frontline Police

The court reads the lack of exclusivity in 4(4) alongside the ability of the Crown to provide services, the selling of anti-riot supplies, to mean that SoS had statutory power

Question 11

What does the court say in obiter with regards to the prerogative power in Northumbria?

Answer 11

The court having already affirmed the Crowns statutory power considered the backup prerogative argument in obiter.

They commented that prerogative power was sourced from law in the ancient power of the King to keep the peace. The degree and extent of that power was vague but equates the admin of justice.

They commented that the Police Act was not conclusive enough to suspend the prerogative power and the two could co-exist

Question 12

What are the three cases of judicial review of prerogative power?

Answer 12

GCHQ case ( Civil Service Unions v Minister for “ “ 1983)
Bancoult Case #2 ( R v Secretary of State for Foreign and Commonwealth Affairs, 2008)
Miller #2 (R v Prime Minister and Cherry v Advocate General for Scotland)

Question 13

Facts of the GCHQ Case

Answer 13

PM Thatcher issues order in council banning intelligence officers from joining unions to safeguard national security, fear that industrial action would weaken defence.

Trade Unions seeks judicial review of case

Question 14

What was the courts basis in GCHQ to judicially review prerogative power?

Answer 14

Court held that despite the Crown acting from a non-statutory source, they still had the power to review their actions

Question 15

What was the courts ruling in the GCHQ case?

Answer 15

Courts rules for the Crown, argues that they cannot intervene in cases where the prerogative power is used towards a national security concern.

They see these issues as not justiciable, they are policy issues not judicial ones.

The trade unions argument that they were not consulted is ignored. Consultation would have led to industrial action thereby validating the Crowns concerns

Question 16

Facts of Bancoult #2

Answer 16

Crown orders residents of the Chagos islands to vacate, allows them to return, then orders them to vacate again.

Judicial review sought of the crowns actions

Question 17

What was the majority ruling in Bancoult #2?

Answer 17

The court ruled that this issue was not justiciable. It was found that the Crown used their prerogative power towards a national security concern. This concern was founded in neighbouring US territory which made this political matter and not one for the courts.

Question 18

What was the minority view in Bancoult #2?

Answer 18

The minority argued that the Crown had not prerogative basis to order the resident to move around. No where in the law, present or past, could the Crown order its subjects to relocate.

Prerogative power of conquest was not extant

Question 19

Facts of Miller #2

Answer 19

Prime Minster Boris Johnson wins snap election to force through his Brexit deal before proroguing it for an intended 10 weeks to shut down parliamentary scrutiny.

Review sought

Question 20

How did the court justify going ahead with judicial review in Miller #2?

Answer 20

The court dismissed the non-justiciability position of the GCHQ case arguing that despite being a political matter, they are not reviewing how the power (manner) was used but the nature and extent of that power.

Question 21

What is the manner-nature distinction in Miller #2? And how does it relate to this case (ruling)?

Answer 21

The manner in which the prerogative power is used is political but the court is looking at the extent of those of powers and whether it was met here.

It was ruled that prerogative power used to frustrate parliaments ability to carry out a constitutional function is illegal and the limit.

Prorogation held illegal as prerogative power used to prevent parliament from scrutinising case?

Question 22

Define the third source of executive power?

Answer 22

Third source powers are powers used towards an end not prohibited by law.

Third source overrides common law but never statute

Question 23

Facts of Malone v Metro Police

Answer 23

Suspected thief get wiretapped by Police via the post office down the road.

Wiretapping powers not found in statute or prerogative. Furthermore, no right to protect from wiretapping.

Question 24

What is the courts ruling in Malone v Metro Police?

Answer 24

Ruled for the Crown.

No common law principle of privacy or confidentiality to protect from wiretapping.

No statute that grants nor protects from wiretapping.

There is no law therefore it cannot be illegal.

Question 25

What was the European Courts ruling in Malone?

Answer 25

English courts rejected rights argument under European Law as it was not ratified yet.

Taken to European Courts where it was held to be illegal.

New act set up for wiretapping guidelines and privacy act

Question 26

Facts of Minister for Canterbury Earthquake v Fowler

Answer 26

Red zone decisions made by Minister on the third source. Residents argues it deprived them of swathes of rights found in BORA.

Question 27

What was the courts ruling Fowler?

Answer 27

Court found that there was already a conclusive statute governing the rebuild of Christchurch and the reliance on third source was illegal. Furthermore, it was illegal in that it violated rights.

Wherein cases there is a statute that operates in place of the third source, it always succeeds. Rights breaches constitute illegality for third source rendering it void

Question 28

Facts of Republic of Fiji v Prasad

Answer 28

Cabinet taken hostages by ethnic terrorists. President (GG) appoints new PM who advises him to dissolve parliament. Head of military takes over to maintain law and order, while doing so he attempts to seize power and suspends the constitution

Question 29

Was the Doctrine of Necessity applicable in Prasad?

Answer 29

The court could not justify the Generals actions through the doctrine of necessity.

The doctrine of necessity provides for sudden transferal of power to maintain law and order (integrity of the state) however it prohibits any changes to the existing order.

So when he acted against that integrity by suspending the constitution, the existing order, he was held to have stepped outside the bounds of necessity.

Question 30

Was the Doctrine of Efficacy applicable in Prasad?

Answer 30

The court could not justify the Generals action through the doctrine of efficacy.

The doctrine of efficacy legalises illegal transfers of power if there is widespread public support. The idea is that public support supplants the old order for the new. But here, the General did not enjoy widespread support.