Prerogative Power Flashcards
What is the royal prerogative?
Every act which the GOV can lawfully do without authority of PARL
What does ‘residual’ mean in the context of prerogative powers?
The area of governmental power that has not been created/regulated by PARL; is a left-over source of power from a previous age which is still recognised by the courts as part of common law
I.e. GOV powers that have not been put on a statutory basis by PARL
NB as part of gradual transition from the monarch to the GOV
Can the scope of prerogative powers ever be expanded?
No - only reduced; prerogative power is finite stock of executive power
Who exercises prerogative power?
Central GOV - with PM at its head
Monarch left to perform cermonial exercise of that power
What are the 3 types of prerogative power?
- Ministerial/executive prerogative powers
- The monarch’s constitutional prerogatives
- The Crown’s legal prerogatives
How are executive prerogative powers exercised?
By ministers without the need for royal permission
Does the King exercise the monarch’s constitutional prerogatives?
Yes - but on the advice of the PM (which he must follow on convention)
What are the 3 areas of executive prerogative powers?
- Foreign affairs
- Armed forces/emergencies
- Judicial (‘mercy’)
What GOV functions come under the foreign affairs prerogative?
- Recognition of other sovereign states and their reps
- Making/ratification of treaties
- Conduct of diplomacy
- Granting/revoking passports
- Governance of British Overseas Territories
Do treaties - contracts between states - require approval of PARL?
No generally
What GOV functions come under the armed forces/emergencies prerogative?
- Measures necessary in ‘defence of the realm’
- Mobilisation of armed forces
- Taking action at times of war (e.g. requisition ships)
What GOV functions come under the judicial prerogative?
The Home Sec can pardon those convicted of criminal offences
What are the monarch’s constitutional prerogatives?
Exercised on advice of the PM
- Appointment of PM
- Right to assent to legislation
- Right to prorogue (end session of) PARL
Could technically refuse but has never
What are the remaining Crown’s legal prerogatives?
- Legislation does not apply to the Crown unless express words used/can be inferred that PARL did intend to bind the Crown
- Crown is immune from contempt of court and prosecution for being sued/wrongful act
How can the control of prerogative power be controlled?
- By application of public law (judicial review)
- The over-riding effect of statute (legislation trumps prerogative)
- Political pressure/media
- Changes to convention over time
How can PARL legislate to control prerogative powers?
- Can modify, abolish or put statutory footing on particular prerogative (e.g. Fixed-term PARL Act replaced prerogative to dissolve PARL)
- Ministers are accountable to PARL for all actions
- Constitutional conventions can be adopted
What is the war powers convention?
Seeking PARL approval before taking UK to war
Started when Blair sought PARL approval before Iraq war - Cameron did the same in 2013 with Syria
Who has responsibility for determining if a prerogative power exists and its scope? And why?
- The courts
- The prerogative’s power has legal enforceability because it is recognised and accepted by the courts through common law
Power is legitimated through recognition in the common law
Can a particular form of prerogative be said to exist if there was no precedent for its use in the past?
No
What does it mean for the courts to be able to review what the scope of a prerogative power is?
What exactly the power entails/encompasses
Is prerogative power superior to statutory power?
I.e. prerogative > legislation?
No - statutory power is a superior form (reflecting PARL SOV)
The De Keyser principle
E.g. De Keyser - Army took ctonrol of hotel during WW1 - hotel wanted compensation under statutory regulation - Army said no as prerogative should override - but Crown here was bound by statutory regime providing compensation
Can parliamentary intention take primacy over prerogative?
I.e. legislation has not yet been implemented but minister wants to introduce scheme contrary to it
Yes! As part of primacy of statutory law over other forms of common law (prerogative)
Even if statutory scheme not yet put into operation
What did the Miller case show?
May wanted to use prerogative power re treaty-making to trigger Article 50 process of leaving EU
Was constitutionally inappropriate to use prerogative when effects and consequences would be so significant for the UK
Notable change to law in land had to be sanctioned through Act of PARL
As well as the scope, can the court review how GOV uses its prerogative powers?
In same way it can review use of statutory powers?
Yes (post GCHQ) - all EXEC powers should be reviewable so rule of law can be effective
Judicial review applies to both
Will courts ever not review the use of prerogative powers?
Matters of high policy should generally not be ‘susceptible’ to review by the courts
Obiter from GCHQ
Gave examples of:
* Making of treaties
* Mercy
* Dissolution of PARL
* Defence of the realm
* Granting of honours
* Appointment of ministers
What is meant by ‘substance not form’ re interventionism?
Courts have increasingly taken approach based on nature of power that GOV has exercised rather than its form
When will courts be more interventionist?
Even in higher policy matters
Where the matter is more administrative and less policy-based, and involves a great deal of importance to the individual
E.g. refusal of a passport
Will the court review matters of foreign policy?
I.e. a decision of the exec in field of foreign relations
Foreign policy matters are not immune, but degree of review will be light
More of a political decision than a legal one
Will the courts intervene on matters of defence of the realm?
Less deferential re operational matters (e.g. combat immunity - excludes liability for negligence in relation to military combat)
E.g. will accept that decisions taken by military commanders re military engagements should not be subject to JR, but did not accept that immunity should apply re failings that were remote from the pressures of the battlefield
What was concluded in ex parte Smith?
Dismissed from armed forces for being gay
Court is not the primary decision-maker in regulating conditions of service in the Crown’s armed forces, but it does have the constitutional role to ensure rights of citizens are not abused by unlawful exercise of executive power
