Prerogative power Flashcards
What is the royal prerogative?
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.
What is the role of the courts in determining prerogative powers?
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.
Who exercises prerogative power?
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.
What are some examples of executive prerogative powers?
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.
How are prerogative powers of the Crown affected by statutory powers?
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.
What is non-justiciability and how has it been described by the judiciary?
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.
How does legislation affect the Crown’s authority?
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.
What are the types of prerogative power?
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.
How have the courts approached the exercise of prerogative powers after the GCHQ case?
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.
How can prerogative power be controlled?
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.
What was the majority decision in the R (Miller) v Secretary of State for Exiting the European Union case?
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.
How have constitutional conventions been used to modify prerogative powers?
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.
What are matters of higher policy in relation to defence of the realm?
Decisions to take military action and how to conduct such operations are clearly matters of higher policy in relation to defence of the realm.
What factors determine the intensity of judicial review in cases involving prerogative powers?
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
What is the role of the judiciary in controlling prerogative powers?
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.
