Prerogative power Flashcards
What is the definition of the royal prerogative?
The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown…every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.
Who exercises prerogative power?
The central Government (executive), with the PM at its head.
What is an example of ministerial/executive prerogative power?
Foreign affairs, such as granting and revoking passports.
Armed forces and emergencies, taking measures necessary in defence of the realm.
Pardoning those convicted of criminal offences-Bentley (1993).
What is an example of the monarch’s constitutional prerogative?
Appointment of the PM.
Royal Assent.
Right to prorogue Parliament.
In what four ways can prerogative power be controlled?
- Judicial review
- Political pressure
- Overriding effect of statute
- Changes to convention over time
What is the war powers convention?
PMs should seek parliamentary approval before entering a war.
What is the De Keyser principle?
Statutory power is a superior from of power than prerogative power. When both powers conflict, statutory power prevails.
Describe the GCHQ case (1985) in relation to control of the prerogative.
FACTS: the PM, Margaret Thatcher, ruled that any and all employees of GCHQ were prohibited from joining any trade union. This decision was justified based on the potential threat to national security, and enforced using an Order of Council which is an exercise of the Royal Prerogative Power. The employees appealed against this decision.
HELD: Lord Diplock found that where a person’s ‘private rights or legitimate expectations’ are effected by the execution of the prerogative power, then that execution of power should be amenable to review. However, the PM managed to defend the case as the Lords accepted there was a justifiable public interest in not consulting as advance notice could have triggered strike action which would have affected national security.
What prerogative powers involving matters of high policy are not susceptible to review by the Courts?
-The making of treaties
-Mercy
-Dissolution of Parliament
-Defence of the realm
-Granting of honours
-Appointment of ministers
Also known as non-justiciable matters.
What is the trend post-GCHQ in relation to judicial review of prerogative power?
If the matter to be reviewed is one of higher policy, the degree or intensity of the review tends to be light or low. In contrast, at the other end of the spectrum of issues, the intensity tends to be higher.
