EXECUTIVE POWERS 2: THE ROYAL PREROGATIVE Flashcards
what is the royal prerogative?
Collection of rights, powers, privileges and immunities that attach to the crown
Not delegated by statute
Gives the executive discretion in some areas without the need for approval from parliament
Recognised by common law (courts accept inherent authority of the crown)
Vested in ‘the crown’
The queen (personal capacity)
The executive as a whole (government)
what are the prerogative powers?
Powers in all 3 branches of gov
Executive
Right to appoint the PM
Foreign affairs
Declaration of war/deployment of armed forces
Diplomacy
Legislative
Royal assent
Proroguing and dissolving parliament
Judicial
Royal pardon
Misc.
political control
Parliamentary process: gov is accountable to parliament
PM’s questions
Scrutiny committees
Motions and debates
Not always required to have parliament consent before excercising preorogative power
Can scrutinise and debate after this event
Constitutional conventions
Conventions can limit the scope for discretion when excercisisng prerogative powers
Maintains flexibility without need to codify the prerogative
Prerogative power: the King gives royal assent to parliamentary bills
Constitutional convention: the King must always give royal assent to parliamentary bills
prerogative and convention - declaration of war
Prerogative powers: to declare war and deploy armed forces
Gov asked for parliamentary consent before entering war in Iraq 2003 and Syria 2013
Does this mean a convention has been created?
Technicasllly yes, but may not apply in all situations - depends on the political pressure and consequences if a vote on military action is not taken
Prerogative powers and the courts
Only limited control historically
Court could determine whether preorogative powers existed and what it allowed the executive to do
If power did not exist then can be challenged in the courts (BBC v Johns 1965)
If poweer exists then exectuive can exercise it as they wished
Saltpetre Case (1607) - power in emergency to enter private land - King could decide if emergency existed and what measures to take
Allen 1862 ‘for Parliament and not the courts to remedy’
Blackburn v AG 1971 in ‘the power to determine whether to prosecute or not, whether the AG is right or wrong, the court cannot interfere
Preorogative powers can now be reviewed by the courts (judicial review)
Council of civil service union v minister for the civil service (1985)
Ministerial decision restricting GCHQ workers from joining a trade union
Did not consult before making the decision - workers claimed there was legitimate expectation to be consulted
Ultimately lost the case bc national security outweighed the need for consultation
CCSU (GCHQ) recognised that prerogative powers can be reviewable just as any other executive power
Not every preorogative power is justiciable
Deference to the executive
Some areas that seemed non justiciable have been challenged (Ex p Bentley 1994 → mercy/pardon, R (Abbasi) v Secretary of state for foreign and commonwealth affairs 2002) - foreign affairs (limited review)
Courts reluctant to interfere on many issues (R sandiford v foreign and commonwealth secretary 2014, providing legal assistance abroad a matter for the giv - foreign affairs -)
Brext: Miller 2017
Government claimed they could trigger article 50 to start the process to withdraw from the EU through its royal preorogative (foreign affairs)
Court needed to determine whether UK gov had this power or not
Treaty signed with EU, making UK a member → any country can leave, provided it gives 2 years notice.
In light of brexit referendum, the UK decided they would draft a letter and leave the UK
Miller argued that an Act of Parliament was required to leave the EU
Government argued that they did not need this → Gov argued that it had the royal prerogative on its side
Court said that the EU treaty affects rights, this is therefore not a case where the prerogative is something which will allow for this to have effect
