Prerogative Power

Question 1

What is the royal prerogative?

Answer 1

Every act which the GOV can lawfully do without authority of PARL

Question 2

What does ‘residual’ mean in the context of prerogative powers?

Answer 2

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

Question 3

Can the scope of prerogative powers ever be expanded?

Answer 3

No - only reduced; prerogative power is finite stock of executive power

Question 4

Who exercises prerogative power?

Answer 4

Central GOV - with PM at its head

Monarch left to perform cermonial exercise of that power

Question 5

What are the 3 types of prerogative power?

Answer 5

1. Ministerial/executive prerogative powers
2. The monarch’s constitutional prerogatives
3. The Crown’s legal prerogatives

Question 6

How are executive prerogative powers exercised?

Answer 6

By ministers without the need for royal permission

Question 7

Does the King exercise the monarch’s constitutional prerogatives?

Answer 7

Yes - but on the advice of the PM (which he must follow on convention)

Question 8

What are the 3 areas of executive prerogative powers?

Answer 8

1. Foreign affairs
2. Armed forces/emergencies
3. Judicial (‘mercy’)

Question 9

What GOV functions come under the foreign affairs prerogative?

Answer 9

• Recognition of other sovereign states and their reps
• Making/ratification of treaties
• Conduct of diplomacy
• Granting/revoking passports
• Governance of British Overseas Territories

Question 10

Do treaties - contracts between states - require approval of PARL?

Answer 10

No generally

Question 11

What GOV functions come under the armed forces/emergencies prerogative?

Answer 11

• Measures necessary in ‘defence of the realm’
• Mobilisation of armed forces
• Taking action at times of war (e.g. requisition ships)

Question 12

What GOV functions come under the judicial prerogative?

Answer 12

The Home Sec can pardon those convicted of criminal offences

Question 13

What are the monarch’s constitutional prerogatives?

Exercised on advice of the PM

Answer 13

• Appointment of PM
• Right to assent to legislation
• Right to prorogue (end session of) PARL

Could technically refuse but has never

Question 14

What are the remaining Crown’s legal prerogatives?

Answer 14

• 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

Question 15

How can the control of prerogative power be controlled?

Answer 15

• By application of public law (judicial review)
• The over-riding effect of statute (legislation trumps prerogative)
• Political pressure/media
• Changes to convention over time

Question 16

How can PARL legislate to control prerogative powers?

Answer 16

• 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

Question 17

What is the war powers convention?

Answer 17

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

Question 18

Who has responsibility for determining if a prerogative power exists and its scope? And why?

Answer 18

• 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

Question 19

Can a particular form of prerogative be said to exist if there was no precedent for its use in the past?

Answer 19

No

Question 20

What does it mean for the courts to be able to review what the scope of a prerogative power is?

Answer 20

What exactly the power entails/encompasses

Question 21

Is prerogative power superior to statutory power?

I.e. prerogative > legislation?

Answer 21

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

Question 22

Can parliamentary intention take primacy over prerogative?

I.e. legislation has not yet been implemented but minister wants to introduce scheme contrary to it

Answer 22

Yes! As part of primacy of statutory law over other forms of common law (prerogative)

Even if statutory scheme not yet put into operation

Question 23

What did the Miller case show?

May wanted to use prerogative power re treaty-making to trigger Article 50 process of leaving EU

Answer 23

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

Question 24

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?

Answer 24

Yes (post GCHQ) - all EXEC powers should be reviewable so rule of law can be effective

Judicial review applies to both

Question 25

Will courts ever not review the use of prerogative powers?

Answer 25

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

Question 26

What is meant by ‘substance not form’ re interventionism?

Answer 26

Courts have increasingly taken approach based on nature of power that GOV has exercised rather than its form

Question 27

When will courts be more interventionist?

Even in higher policy matters

Answer 27

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

Question 28

Will the court review matters of foreign policy?

I.e. a decision of the exec in field of foreign relations

Answer 28

Foreign policy matters are not immune, but degree of review will be light

More of a political decision than a legal one

Question 29

Will the courts intervene on matters of defence of the realm?

Answer 29

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

Question 30

What was concluded in ex parte Smith?

Dismissed from armed forces for being gay

Answer 30

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