Prerogative and Powers (L10) Flashcards
What are statutory powers?
Act of Parliament confers powers on Ministers.
E.g. Public Bodies Act 2011, s1:
“A Minister may by order abolish a public body of office specified in Schedule 1”
Parliament makes the law; the law confers powers on Ministers; Ministers exercise their powers subject to judicial review (by the courts) and are accountable to Parliament for their actions and decisions.
What are prerogative powers?
The legal powers which the common law recognises as vesting in the Crown.
Some are still exercised by the Monarchy itself.
Most are now exercised by Ministers.
Examples:
The power to make treaties.
The power to declare war or to commit HM Armed Forces in combat.
The power to employ civil servants.
The power to advise that Parliament be prorogued.
How have prerogative powers been defined?
Blackstone, 1760s.
- The legal powers unique to the Crown (“in its nature singular and eccentrical”).
Dicey, 1885.
- The residue of discretionary authority legally left in the hands of the Crown.
BBC v Johns [1965] Ch 32.
- Diplock LJ: “it is 350 years and civil war too late for the Queen’s courts to broaden the prerogative”.
In which cases have prerogative powers been defined recently?
R v Home Secretary, ex parte Northumbria Police Authority [1989] QB 26.
Attorney General v De Keyser’s Royal Hotel [1920] AC 508.
What has case law said about third-source powers?
R v Somerset CC, ex parte Fewings [1995] 1 All ER 513.
- Laws J: whereas individuals may do anything the law does not prohibit, the opposite applies to public bodies—anything they do must be authorised by positive law.
R (Shrewsbury and Atcham BC) v Secretary of State [2008] EWCA Civ 148.
- Carnwath LJ: the powers of public bodies extend, subject to the rights of others, to anything which could be done by a natural person.
R (New London College) v Home Secretary [2013] UKSC 51.
- Lord Sumption: “it is open to question whether the analogy with a natural person is really apt in the case of public or governmental action, as opposed to purely managerial acts of a kind that a natural person could do, such as making contracts, acquiring or disposing of property, hiring and firing staff, and the like.”
What did the “GCHQ case” (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) tell us about prerogative powers?
It’s not the source of the authority that may render a matter nonjusticiable, but the subject-matter of the decision.
What did Miller I (R (Miller) v Secretary of State [2017] UKSC 5) tell us about the (prerogative) treaty-making power?
Could Ministers rely on the prerogative power of treaty-making to give formal notice under Article 50 TEU of the UK’s intention to withdraw from the European Union?
UKSC ruled (8:3): no they could not. Ministers needed bespoke statutory authority to do this (which was later provided by Act of Parliament).
Why? Because EU law took effect in the UK by virtue of an Act of Parliament (the European Communities Act 1972). To enable EU to cease to take effect in the UK would require primary legislation—Ministers could not achieve this result by relying on the prerogative alone.
This case can be seen as a re-enforcement of both the separation of powers and the sovereignty of Parliament.
What did Miller II (R (Miller) v Prime Minister; Cherry v Advocate General [2019] UKSC 41) tell us about the (prerogative) power of prorogation?
Did Ministers have the prerogative power to advise the Queen to prorogue Parliament for five weeks?
In England the High Court had ruled the matter non-justiciable (it was a political question).
In Scotland the Court of Session had ruled that Ministers had acted unlawfully because their motive had been to stymie Parliament.
In a unanimous judgment the UKSC agreed with the Court of Session, but for a different reason. UKSC focused not on motive but on effect—the effect of the five-week prorogation was to prevent Parliament from doing its job of holding the Government to account (in particular, but not only, as regards its policy as to when and how the UK should leave the EU).
This judgment reverberates with echoes of the separation of powers and the sovereignty of Parliament.
