Executive Powers

Question 1

Define the royal prerogative

Answer 1

A collection of rights, powers, privileges and immunities attaching to the Crown.

Question 2

What are the two types of prerorgative powers?

Answer 2

Ordinary prerogative
Absolute prerogative

Question 3

What is the ordinary prerogative? Case?

Answer 3

Royal functions that had to be exercised in a specific way, giving no discretion to the King (Prohibitions del Roy).

Question 4

What is the absolute prerogative?

Answer 4

Functions the King could exercise in his discretion.

Question 5

Name 2 political controls on the use of prerogative powers

Answer 5

1) Parliamentary process
2) Constitutional conventions

Question 6

Name 2 legal controls on exercise of prerogative powers

Answer 6

1) Courts via judicial review
2) Statutes

Question 7

Role of the Dissolution and Calling of Parliament Act 2022 (2 elements)

Answer 7

1) Repeals the Fixed Term Parliaments Act 2011
2) Revives the prerogative power

Question 8

Constitutional question surrounding the role of the Dissolution and Calling of Parliament Act 2022?

Answer 8

Does the 2022 Act revive the prerogative power OR exercise a new statutory power?

Question 9

What is the Ponsonby Rule?

Answer 9

A constitutional convention that when government is ratifying treaties, they would be laid before Parliament for 21 days

Question 10

Where has the Ponsonby Rule now been codified?

Answer 10

Constitutional Reform and Governance Act 2010

Question 11

What does GCHQ (1985) establish about prerogative powers?

Answer 11

Prerogative powers CAN be subject to judicial review

Question 12

In GCHQ (1985), which 5 powers did Lord Roskill suggest were too political for courts’ involvement?

Answer 12

1) Making treaties
2) Defence of the realm
3) Granting honours
4) Dissolution of Parliament
5) Appointing Ministers

Question 13

Which case establishes that legal assistance abroad is too political for court interference?

Answer 13

Sandiford (2014)

Question 14

Miller I (2017) establishes…

Answer 14

That prerogative powers cannot be used to remove rights, only an Act of Parliament can remove rights

Question 15

Why was the prorogation in Cherry / Miller No.2 held to be unlawful?

Answer 15

As the prorogation had the effect of frustrating parliamentary process and scrutiny

Question 16

Narrow view - co-existence of statute and prerogative power? Cases (x2)

Answer 16

Statute and prerogative powers can co-exist but only where the prerogative does not conflict with Parliament’s intentions.

R v SSHD ex p Northumbria Police Authority

Ex p Fire Brigade Union

Question 17

Wide view - co-existence of statute and prerogative power? Cases (x2)

Answer 17

If statute comprehensively covers prerogative power, prerogative cannot be used.

AG v De Keyser’s Royal Hotel Ltd

R (Munir) v SSHD (confirms this view)

Question 18

Current debate: prerogative power and conventions - declaration of war…

Answer 18

Is there a prerogative emerging that there will be a debate in Parliament before the government deploys armed forces?

Was done in 2003, 2013 and 2015…

Question 19

Saltpetre (1607) establishes…

Answer 19

Where royal prerogative powers exist, courts must allow the executive to exercise this power (and courts must not interfere).

Question 20

Blackburn v AG (1971) establishes…

Answer 20

The power to prosecute lies with the Attorney General, not the courts.

Significant as in 1970’s - note 1980’s onwards courts more ready to interfere in decisions.

Question 21

In Ex Parte Bentley (1994) and Abassi (2002), the courts DID interfere via judicial review on which areas previously stated to be too political for judicial involvement in CCSU (1985)?

Answer 21

Ex Parte Bentley (1994) - mercy / pardon

Abassi (2002) - foreign affairs

Question 22

Define delegated legislation

Answer 22

Legislature (Parliament) defers powers to the executive (Government) to legislate on certain matters on its behalf.

Question 23

Give an example of wide and very wide powers conferred under delegated legislation

Answer 23

Henry VIII Powers
Skeleton Bills

Question 24

Name the 3 types of Statutory Instruments

Answer 24

Orders in Council
Regulations
Rules, warrants, schemes, directions

Question 25

Define Orders in Council

Answer 25

Legislation (mostly statutory instruments) made formally by the Monarch, on the advice of the Privy Council.

Question 26

Affirmative resolution procedure

Answer 26

Statutory Instrment must be laid before Parliament, debated and voted upon.

Question 27

Negative resolution procedure

Answer 27

Statutory Instrument must be laid before Parliament, but as long as no MP raises it for debate within 40 days, it becomes an official SI without need for a vote or debate.

Question 28

Super affirmative resolution procedure

Answer 28

Politically sensitive matters: Statutory Instruments will be scrutinised and subject to representations from MPs and committees that ministers must consider.

Question 29

Name a challenge to effective scrutiny of statutory instruments

Answer 29

Once a Statutory Instrument is in Parliament, it cannot be amended (can only be accepted or rejected in full).

Question 30

Example of a Henry VIII power

Answer 30

s.8 European Union (Withdrawal) Act 2018

Question 31

Example of a Skeleton Bill

Answer 31

ss.11-16 Retained EU Law (Revocation and Reform Act) 2023

Question 32

What is an arm’s length body?

Answer 32

An organisation delivering public services. Not a ministerial government department: operates at a distance from ministers.

Question 33

Bancoult No.2 (2009) establishes that

Answer 33

Prerogative Orders in Council can be judicially reviewed

Question 34

AG v De Keyser’s Royal Hotel establishes…

Answer 34

Where wide statutory powers are introduced, exercise of the prerogative became unneeded.

Question 35

Name the 2 elements of ministerial responsibility

Answer 35

1) Individual ministerial responsibility

2) Collective responsibility

Question 36

Haldane Convention

Answer 36

Civil Servants are accountable to Ministers (not Parliament)