Prerogative Power Flashcards
What is prerogative power?
The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown
Considered a finite stock of executive power that can only be shrunk, and never expanded
What are the three broad types of prerogative power/
Executive
Monarch’s constitutional prerogatives
Crown’s legal prerogatives
What three main areas of do prerogative powers apply to?
Foreign affairs
Armed forces / emergencies
Judicial - mercy
What areas come under ‘foreign affairs’ in the exercise of prerogative power?
Recognising other sovereign states
Making treaties
Conducting diplomacy
Granting and revoking passports
Governance of British Overseas Territories
What personal prerogatives of the monarch still exist?
Appointment of the PM
Right to assent to legislation
Right to prorogue Parliament
How can prerogative power be controlled?
Application of public law
By the overriding effect of statute
By political pressure
Informally - changes to convention
How can Parliament control prerogative power?
Parliament can legislate to modify / abolish / statute any power.
How can courts check prerogative powers?
A particular form of prerogative power can’t be said to exist unless courts accept that there is a precedent for it having been used in the past
Courts also can review the scope of a prerogative power
What is the De Keyser principle?
Statutory power is a superior form of power than that of prerogative.
Statutory powers abridge any previous prerogative powers on the same issue and prerogative should be considered in abeyance - suspended, if not permanently extinguished
What did the case of Miller 1 say?
Something so significant as leaving the EU cannot be done via prerogative - the effects and consequences would be too great - primary legislation is needed here
What was the significance of the GCHQ case?
Pre-GCHQ - UK courts only felt able to adjudicate on whether government had a power or not
Post-GCHQ - courts felt like they could regulate the manner of the power’s exercise
ALSO: meant that prerogative decisions become justiciable
Which prerogative powers remain non-justiciable?
Treaties
Mercy
Dissolving parliament
Defence of the realm
Honours
Appointing ministers
What approach to justiciability has applied since post-GCHQ?
Exercising prerogative power is still reviewable by the courts
High policy - degree or intensity of the level at which judiciary will review is low
When will courts be less deferential?
When matters are operational as opposed to high policy, and matter a great deal to the individuals involved.
