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Parliamentary sovereignty Flashcards

1
Q

What type of power did Tony Blair use to take the UK to war in Iraq in 2003 or Margaret Thatcher sending the task force to the Falkland Islands?

A

Prerogative power of the crown

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2
Q

Do PMs need parliamentary consent to commit British troops as a matter of law?

A

No

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3
Q

What is the Dicey definition of prerogative power?

A
  • Discretionary/arbitrary authority left in the crown
  • Every act the executive government can lawfully do without requiring authority of an act of parliament
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4
Q

Which courts are the arbiters of the existence and extent of a claimed prerogative power?

A

Administrative Court and upwards

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5
Q

Have all of the old monarchical powers eroded?

A

No, some significant ones remain

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6
Q

Who exercises powers of the monarch?

A

Government on behalf of the monarch

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7
Q

What lead to the Miller case?

A

Government’s attempts to trigger Article 50 without parliamentary approval

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8
Q

What was the effect of the HoL decision in GCHQ?

A

extended reviewability of prerogative powers

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9
Q

What is a constitutional monarchy?

A

Where monarch is head of state but not political head of government and whose powers to govern are limited

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10
Q

What powers is most government business conducted under?

A

Statute

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11
Q

In areas where royal prerogative still retains significance, how is the power usually governed?

A

By convention

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12
Q

What are the ministerial prerogative powers relating to?

A
  • Judicial system
  • Foreign affairs
  • Defence of the realm
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13
Q

What is the home secretary’s judicial prerogative power?

A

To pardon those convicted of criminal offences prosecuted by the crown (prerogative of mercy)

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14
Q

What are the foreign affairs prerogative powers?

A
  • Grant/revoke passports
  • Recognition of other soveriegn states/representatives
  • Making/ratifying treaties
  • Governance of British Overseas Territories
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15
Q

What is defence of the realm?

A

Armed forces, war and times of emergency

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16
Q

What are the monarch’s prerogative powers on the advice of the PM?

A
  • Appointing/removing ministers
  • Appointing PM
  • Assent
  • Creating peers/granting honours
  • Dissolve + prorogue parliament
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17
Q

What are the crown’s legal prerogatives?

A
  • Not bound by statute unless express/inferred
  • Not subject to contempt
  • personal immunity from prosecution or being sued for a wrongful act
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18
Q

How can prerogative power be controlled?

A
  • Public law (judicial review)
  • overriding effect of statute
  • political pressure
  • changes to convention over time
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19
Q

Is prerogative power legitimised by parliament?

A

No

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20
Q

How is the use of prerogative power primarily controlled?

A

Through the courts

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21
Q

Why does prerogative power have legal enforceability?

A

Because it is recognised and accepted by courts through the common law.

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22
Q

Who determines how and to what degree courts can control use of prerogative power?

A

Judges

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23
Q

What was the effect of the case of proclamations (1611)?

A
  • royal prerogative = finite stock of power
  • crown power legitimated through common law
  • prerogative power couldn’t exist unless there was precedent
24
Q

What did Entick v Carrington confirm?

A

There must be precendent in common law for a prerogative power to exist

25
What is the review of the legality of prerogative power?
Courts determining the scope of prerogative power
26
What was the effect of the De Keyser case?
Statutory power is superior to prerogative power
27
What was the effect of the Fire Brigades Union case?
Statutory takes primacy over prerogative powers even where statutory scheme hadn't been implemented yet
28
Why was the governmnet's triggering of article 50 in Miller illegal?
Because the effects were so significant, leading to notable change in the law of the land and individual rights
29
What were the courts restricted in doing before GCHQ?
Only adjudicate on whether government had a prerogative power/scope and limits not how they were exercised.
30
What was the issue in GCHQ?
Thatcher banning trade union membership at a government listening base
31
What was the basis of the claim in GCHQ?
legitimate expectation of being consutled before any notable changes in working conditions as had been the case for the past 4 decades
32
What was the effect of GCHQ?
All executive powers are reviewable, not just statutory
33
What was the result of GCHQ for Thatcher?
Use of power was lawful
34
What are the areas of policy that would not be amenable to judicial process in the obiter of GCHQ?
- Treaties - Defence of the realm - Mercy - Honours - Disollution of Parliament - Appointing ministers
35
What approach do judges apply where they are considering the substance of a prerogative power?
Contextual
36
What was the issue in Bentley and was it suitable for JR?
Granting posthumous pardon (failure to consider different types of pardons), yes
36
If the prerogative power is of higher policy, what will the degree of intensity of review be?
Low
37
What was the issue in Everett and was it suitable for JR?
Refusal to grant passport, yes
38
Are diplomatic relations a matter of low or high policy?
High
39
What was the outcome in Abassi?
Unsuccessful however Court said if there had been no consideration of represenations, they would have ordered Foreign Office to make them.
40
Is military action a matter of low or high policy?
High
41
What did the court decide in Smith, Ellis and Albutt?
Doctrine of combat immunity should be construed narrowly
42
What was the issue in Smith?
Homosexuals being dismissed from military
43
Was Smith justiciable?
Yes
44
What did the CoA say in Bancoult?
The prerogative power of colonial governance enjoys no generic immunity from JR
45
What was the outcome in Bancoult?
Majority narrowly deferred to government
46
What enshrined parliamentary sovereignty?
Bill of Rights 1689 Acts of Settlement 1701
47
Did monarchs still have political power after the 17/18th century?
Yes, the country remained an oligarchy
48
What are the three key concepts of Dicey's theory of parliamentary sovereignty?
- Supreme lawmaking body - Can't be bound by previous/bind future - no person may question validity of enactment of parliament
49
What did the Canon Selwyn case shown about being the supreme lawmaking body?
Parliament can pass legislation that laters part of the constitution
50
Can Parliament pass legislation contrary to fundamental rights?
Yes, subject to consequences
51
Can Parliament pass legislation contrary to international law?
Yes
52
Can Parliament pass retrospective legislation?
Yes
53
What did Dicey mean by Parliament can't be bound?
No entrenchment
54
What types of repeal are there?
Express, implied
55
What is express repeal?
Legislation expressly states an intention that an earlier act should be replaced
56
What is implied repeal?
A new act is wholly/partially inconsistent with a previous act

Public Law (8 decks)

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