Executive Powers Flashcards
Define the royal prerogative
A collection of rights, powers, privileges and immunities attaching to the Crown.
What are the two types of prerorgative powers?
Ordinary prerogative
Absolute prerogative
What is the ordinary prerogative? Case?
Royal functions that had to be exercised in a specific way, giving no discretion to the King (Prohibitions del Roy).
What is the absolute prerogative?
Functions the King could exercise in his discretion.
Name 2 political controls on the use of prerogative powers
1) Parliamentary process
2) Constitutional conventions
Name 2 legal controls on exercise of prerogative powers
1) Courts via judicial review
2) Statutes
Role of the Dissolution and Calling of Parliament Act 2022 (2 elements)
1) Repeals the Fixed Term Parliaments Act 2011
2) Revives the prerogative power
Constitutional question surrounding the role of the Dissolution and Calling of Parliament Act 2022?
Does the 2022 Act revive the prerogative power OR exercise a new statutory power?
What is the Ponsonby Rule?
A constitutional convention that when government is ratifying treaties, they would be laid before Parliament for 21 days
Where has the Ponsonby Rule now been codified?
Constitutional Reform and Governance Act 2010
What does GCHQ (1985) establish about prerogative powers?
Prerogative powers CAN be subject to judicial review
In GCHQ (1985), which 5 powers did Lord Roskill suggest were too political for courts’ involvement?
1) Making treaties
2) Defence of the realm
3) Granting honours
4) Dissolution of Parliament
5) Appointing Ministers
Which case establishes that legal assistance abroad is too political for court interference?
Sandiford (2014)
Miller I (2017) establishes…
That prerogative powers cannot be used to remove rights, only an Act of Parliament can remove rights
Why was the prorogation in Cherry / Miller No.2 held to be unlawful?
As the prorogation had the effect of frustrating parliamentary process and scrutiny
Narrow view - co-existence of statute and prerogative power? Cases (x2)
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
Wide view - co-existence of statute and prerogative power? Cases (x2)
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)
Current debate: prerogative power and conventions - declaration of war…
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…
Saltpetre (1607) establishes…
Where royal prerogative powers exist, courts must allow the executive to exercise this power (and courts must not interfere).
Blackburn v AG (1971) establishes…
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.
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)?
Ex Parte Bentley (1994) - mercy / pardon
Abassi (2002) - foreign affairs
Define delegated legislation
Legislature (Parliament) defers powers to the executive (Government) to legislate on certain matters on its behalf.
Give an example of wide and very wide powers conferred under delegated legislation
Henry VIII Powers
Skeleton Bills
Name the 3 types of Statutory Instruments
Orders in Council
Regulations
Rules, warrants, schemes, directions
Define Orders in Council
Legislation (mostly statutory instruments) made formally by the Monarch, on the advice of the Privy Council.
Affirmative resolution procedure
Statutory Instrment must be laid before Parliament, debated and voted upon.
Negative resolution procedure
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.
Super affirmative resolution procedure
Politically sensitive matters: Statutory Instruments will be scrutinised and subject to representations from MPs and committees that ministers must consider.
Name a challenge to effective scrutiny of statutory instruments
Once a Statutory Instrument is in Parliament, it cannot be amended (can only be accepted or rejected in full).
Example of a Henry VIII power
s.8 European Union (Withdrawal) Act 2018
Example of a Skeleton Bill
ss.11-16 Retained EU Law (Revocation and Reform Act) 2023
What is an arm’s length body?
An organisation delivering public services. Not a ministerial government department: operates at a distance from ministers.
Bancoult No.2 (2009) establishes that
Prerogative Orders in Council can be judicially reviewed
AG v De Keyser’s Royal Hotel establishes…
Where wide statutory powers are introduced, exercise of the prerogative became unneeded.
Name the 2 elements of ministerial responsibility
1) Individual ministerial responsibility
2) Collective responsibility
Haldane Convention
Civil Servants are accountable to Ministers (not Parliament)
