Prerogative power Flashcards

1
Q

What is the royal prerogative?

A

The royal prerogative is the residue of discretionary or arbitrary authority that is legally left in the hands of the Crown. It encompasses every act that the executive government can lawfully do without the authority of an Act of Parliament.

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2
Q

What is the role of the courts in determining prerogative powers?

A

The courts have the power to decide whether a prerogative power exists or not. They can also control prerogative power through legislation, court rulings, or political pressure.

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3
Q

Who exercises prerogative power?

A

As the UK developed from being an ‘absolutist monarchy’ to a ‘constitutional monarchy’, the power to govern the country effectively passed from the monarch to the executive. In practice, this means the central government, with the Prime Minister at its head, carries out the real political decision-making.

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4
Q

What are some examples of executive prerogative powers?

A

Executive prerogative powers include those relating to ‘defence of the realm’, diplomatic relations, and treaty making. The Monarch’s ‘personal prerogatives’, such as the power to prorogue Parliament, are exercised ‘on the advice of’ the Prime Minister.

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5
Q

How are prerogative powers of the Crown affected by statutory powers?

A

Under the principle in De Keyser, if Parliament has conferred on the executive statutory powers to do a particular act, that act can only be done under the statutory powers. Any pre-existing prerogative power to do the same act is excluded to that extent.

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6
Q

What is non-justiciability and how has it been described by the judiciary?

A

Non-justiciability refers to areas where the judiciary does not intervene or review matters. The phrasing used by the judiciary to describe non-justiciability may not always be precise or helpful. Some viewpoints have used phrases such as ‘forbidden areas’ or ‘excluded categories’. However, the issue is debatable in the modern day and not as binary as it was once believed.

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7
Q

How does legislation affect the Crown’s authority?

A

Legislation does not bind the Crown unless it is stated or clearly implied. The Crown is immune from some types of legal action. However, legislation can control prerogative power by modifying, abolishing, or putting it on a statutory footing.

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8
Q

What are the types of prerogative power?

A

There are generally thought to be three broad types of prerogative power: ministerial or executive prerogative powers, the monarch’s constitutional prerogatives, and the Crown’s legal prerogatives. Executive prerogative powers are now exercised by ministers on their own authority, without any need for royal permission.

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9
Q

How have the courts approached the exercise of prerogative powers after the GCHQ case?

A

After the GCHQ case, the courts have increasingly tailored their interventionism based on the nature of the power used by the government rather than its form. They have taken an approach that considers the substance of the issue rather than being restricted by pre-conceived limitations. This has led to an expanded remit of judicial review and a trend towards enhanced judicial control over how governmental power is used.

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10
Q

How can prerogative power be controlled?

A

Prerogative power can be controlled through the application of public law (judicial review jurisdiction of the courts), the over-riding effect of statute (legislation ‘trumps’ the prerogative), political pressure in government and public life, and changes to convention over time.

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11
Q

What was the majority decision in the R (Miller) v Secretary of State for Exiting the European Union case?

A

The majority in the UK Supreme Court ultimately agreed that it was constitutionally inappropriate for the process of leaving the EU to be triggered by the prerogative. They felt that such a significant change should only be sanctioned by Parliament through primary legislation.

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12
Q

How have constitutional conventions been used to modify prerogative powers?

A

Constitutional conventions can be adopted to modify the strict legal effect of prerogative power. For example, conventions have been established regarding war powers and Royal Assent. Prime Ministers have sought parliamentary approval before taking the UK into wars, and no monarch has refused to give Royal Assent since 1708.

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13
Q

What are matters of higher policy in relation to defence of the realm?

A

Decisions to take military action and how to conduct such operations are clearly matters of higher policy in relation to defence of the realm.

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14
Q

What factors determine the intensity of judicial review in cases involving prerogative powers?

A

The intensity of judicial review in cases involving prerogative powers depends on the subject matter and whether it is justiciable. Matters of high policy tend to receive a lighter or low level of review, while issues falling at the administrative or operational end of the spectrum of governmental powers tend to receive a higher level of review. The courts consider whether the matter can or should only be judged politically rather than legally

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15
Q

What is the role of the judiciary in controlling prerogative powers?

A

The courts have the responsibility for determining if a prerogative power exists and what its scope is. They also govern the relationship between statutory and prerogative power, with statutory powers being seen as superior to common law prerogative powers. The courts ensure that statutory duties or obligations on the government cannot be bypassed through the use of prerogative power.

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16
Q

How do the courts view decisions or actions related to military engagements?

A

The courts are likely to see decisions or actions related to military engagements as non-justiciable, meaning they are not subject to judicial review.

17
Q

What is the relationship between prerogative and statutory power?

A

The relationship between prerogative and statutory power was clarified in the case of Attorney General v De Keyser’s Hotel Ltd (1920). The law lords stated that statutory power is superior to prerogative power, reflecting the importance of parliamentary sovereignty in the UK constitution.

18
Q

What was the significance of the GCHQ case in relation to judicial review of prerogative powers?

A

The GCHQ case marked a notable development in the law regarding judicial review of prerogative powers. It established that the courts could review how the government used its prerogative powers, not just determine the existence and scope of those powers.

19
Q

What was the Supreme Court’s decision in the Smith, Ellis and Allbutt v Ministry of Defence case?

A

The Supreme Court held that the doctrine of combat immunity should be construed narrowly. While decisions taken by military commanders in relation to military engagements should not be subject to judicial review, immunity should not apply to failings that were remote from the pressures and uncertainties of the battlefield.

20
Q

What are the remaining legal prerogatives of the Crown?

A

The remaining legal prerogatives of the Crown include the presumption that the Crown is not bound by statute unless express words have been used or it can be inferred that Parliament intended to bind the Crown. The Crown also has immunity from some litigation, such as contempt of court, and the sovereign has personal immunity from prosecution or being sued for a wrongful act.

21
Q

How did the case of R v Secretary of State for the Home Department, ex p Fire Brigades Union (1995) emphasize the importance of parliamentary intention?

A

In this case, the Home Secretary attempted to introduce a new criminal injuries compensation scheme using prerogative powers, despite Parliament having legislated for a statutory scheme. The law lords found against the Home Secretary, highlighting the primacy of statutory law over other forms of common law.

22
Q

What is the role of the monarch in exercising prerogative power?

A

The monarch is left to perform the ceremonial exercise of prerogative power, but the real political decision-making is carried out by elected politicians in government. The monarch exercises prerogative powers on the advice of the Prime Minister, which they are obliged to follow according to strong constitutional convention.

23
Q

What is the constitutional role of the court in relation to the conditions of service in the armed forces?

A

The court’s constitutional role and duty are to ensure that the rights of citizens are not abused by the unlawful exercise of executive power. While the court must defer to the expertise of responsible decision-makers, it must also fulfill its duty to “do right to all manner of people.”

24
Q

What did Lord Roskill list as prerogative powers not susceptible to judicial review?

A

Lord Roskill listed prerogative powers such as making treaties, defense of the realm, granting of honors, dissolution of Parliament, and appointment of ministers as not susceptible to judicial review due to their nature and subject matter.

25
Q

How did the case of R v Secretary of State for the Home Department, ex p Fire Brigades Union (1995) impact the relationship between statutory and prerogative powers?

A

The case emphasized the importance of following parliamentary intention when there are overlapping statutory and prerogative powers. The law lords underlined the primacy of statutory law over other forms of common law, even if the statutory scheme had not yet been implemented.

26
Q

What is the significance of the royal prerogative in relation to the common law?

A

The royal prerogative is still recognized by the courts as part of the common law and a legitimate source of power. It is a residual area of governmental power that has not been created and regulated by Parliament.

27
Q

How has the royal prerogative been limited over time?

A

The royal prerogative can only be reduced in scope through statutory incursion and never expanded. Changes to convention over time, the over-riding effect of statute, political pressure, and the application of public law through judicial review have all contributed to limiting the royal prerogative.

28
Q

How does the intensity of review differ between policy-based matters and administrative matters?

A

The intensity of review is lower in policy-based matters and higher in administrative matters. In areas where the matter is more administrative and less policy-based, the courts have become more interventionist.

29
Q

Is the granting and revocation of passports a prerogative power?

A

Yes

30
Q

Types of prerogative powers?

A
  • Ministerial or ‘executive’ prerogative powers
  • The monarch’s constitutional prerogatives
  • The Crown’s legal prerogatives
31
Q

Executive prerogative powers?

A
  • Foreign affairs
  • Armed forces/ emergencies
  • Judicial (‘mercy’) (The Home Secretary (on behalf of the Crown) may pardon those convicted of criminal offences prosecuted by the Crown.)
32
Q

‘Foreign affairs’ prerogative powers?

A
  • The recognition of other sovereign states and their representatives
  • The making and ratification of treaties
  • The conduct of diplomacy
  • Granting and revoking passports
  • The governance of British Overseas Territories.
33
Q

Control of prerogative power?

A

· By the application of public law (the judicial review jurisdiction of the courts)
· By the over-riding effect of statute (legislation ‘trumps’ the prerogative)
· Informally, by political pressure in government and public life (e.g. the media)
· Informally, by changes to convention over time