Prerogative power - Consolidation MCQs Flashcards
Which one of the following statements best describes the broad historical processes at work in the development of prerogative power in the period since the Glorious Revolution in 1688?
Prerogative power is not as broad a source of governmental power as it was, given the increase in the number of statutes over the last century in particular. Its constitutional significance is now purely a matter of historical interest.
Prerogative power is not as broad a source of governmental power as it was, given the increase in the number of statutes over the last century in particular. The prerogative remains significant constitutionally, but it cannot be seen as a special form of power anymore, as it is no longer immune from the legal controls exercised over other governmental powers.
Prerogative power remains a very significant form of governmental power. Although it is not seen to have the same degree of status as statutory power, it can only be controlled legally to a certain extent, because of the presumption that the Crown is not bound by statute in the absence of express words to the contrary.
Prerogative power remains the predominant form of governmental power and, though legal controls over it have been enhanced over the last century, it can still be seen as a special form of power resting in the hands of the Prime Minister and Cabinet with only limited legal controls over it.
Prerogative power remains a very significant form of governmental power and, although political controls over it have been enhanced over the last century, it can still be seen as a special and unique form of power resting in the hands of the Prime Minister and Cabinet with only limited legal controls over it.
Prerogative power is not as broad a source of governmental power as it was, given the increase in the number of statutes over the last century in particular. The prerogative remains significant constitutionally, but it cannot be seen as a special form of power anymore, as it is no longer immune from the legal controls exercised over other governmental powers.
Correct. This briefly describes both the narrowing in scope of the prerogative and the change that has happened over time in the degree to which this form of power is reviewable by the courts.
The Home Secretary recently decided to use the prerogative to apply an intrusive search power for terrorism suspects detained at airports on entry into the UK. This was justified as a measure to maintain national security and was introduced even though a statutory power had been given to the Home Secretary over a year ago to implement a provision allowing similar but less intrusive searches to take place. After the prerogative search power was used for the first time, the affected party challenged the use of this power through judicial review.
Which one of the following statements best describes the likely approach to be taken by the court?
The Court will decide that statute and prerogative powers can co-exist and can be applied interchangeably on a case by case scenario.
The Court will decide that the prerogative power will prevail through implied repeal.
The Court will decide that the statute should prevail over the prerogative power, even if the statutory provision has not yet been put into implementation.
The Court will decide that prerogative power can legitimately be used because the statutory power has not yet been implemented.
The Court will decide that the prerogative power has been used lawfully because it represents the will of the Home Secretary as a key member of the elected government.
The Court will decide that the statute should prevail over the prerogative power, even if the statutory provision has not yet been put into implementation.
This is correct because the courts have clearly held that prerogative powers cannot frustrate the will of Parliament – most notably in the case of R v Home Secretary ex p Fire Brigades Union.
A company director, born and brought up in the UK, though now living abroad, has recently fallen foul of strict UK regulations about selling security and riot control equipment to a hostile foreign government. The UK government is seeking to extradite him back to the UK on criminal charges. It has now also rejected his application to renew his UK passport, which he made shortly before the charges were issued.
Which one of the following statements best describes the likely approach that the court will take if the director challenges the UK Foreign Office in court over its refusal to issue a new passport?
The court will not accept jurisdiction for this matter because it involves legal and diplomatic relations with another state, from which the UK is attempting to extradite the director.
The court will not accept jurisdiction for the case because the power to issue passports falls under the broad diplomatic relations and foreign affairs prerogative and this was signposted as a non-justiciable matter by Lord Roskill in the GCHQ case.
The court will accept jurisdiction for the case because Lord Roskill specifically stated in the GCHQ case that the issue of passports was a matter that could be seen as administrative in nature and was therefore a justiciable matter.
The court will accept jurisdiction for the case but, because the power to issue passports falls under the broad foreign affairs prerogative, it will only apply the least intense or lightest touch degree of review.
The court will accept jurisdiction for the case, even though the power to issue passports falls under the broad foreign affairs prerogative, because it is seen as falling at the administrative end of the spectrum and there is therefore no doubt nowadays that is a ‘justiciable’ matter.
The court will accept jurisdiction for the case, even though the power to issue passports falls under the broad foreign affairs prerogative, because it is seen as falling at the administrative end of the spectrum and there is therefore no doubt nowadays that is a ‘justiciable’ matter.
Correct. Note that this was very much the approach taken by the court in the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett.
A British citizen was detained by the security services in an authoritarian country three months ago and has since been held in an unspecified location without any legal process. He has been accused of spying by the government of that country. His family has now issued proceedings in the Administrative Court against the UK Foreign Office for what they regard as its failure to represent his interests in trying to secure his immediate release.
Which one of the following statements best describes the likely approach to be taken by the court?
It would consider the matter justiciable and review the policy and actions of the Foreign Office using the universal standard of review.
It would not consider that this was a justiciable matter, given the international relations context of the case.
It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively light intensity of review.
It would only consider the matter justiciable if the claimant family could rebut the initial presumption that this case fell within the “forbidden area” of international relations.
It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively high intensity of review.
It would consider the matter justiciable and review the policy and actions of the Foreign Office using a relatively light intensity of review.
Correct. It is very likely that the modern courts would accept jurisdiction for such a case, as long as a clear basis for legal challenge could be established, but that the intensity of review would be light, given that the subject matter of the dispute relates to diplomatic policy.
Which one of the following statements best describes the current position with regard to the reviewability of prerogative powers by the courts?
The courts will accept applications to review the manner in which the government exercises all of its prerogative powers, except those which are simply not appropriate for judicial deliberation, such as appointing ministers or granting honours or taking military action against an enemy state or organisation. However, if justiciable, the courts will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
The courts will accept applications to review the manner of exercise of all types of prerogative powers. However, they will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
The courts have in theory accepted applications to review the manner in which the government exercises all of its prerogative powers since the GCHQ case. However, jurisdiction is not accepted in practice if the case falls within the excluded areas which Lord Roskill deemed not amenable to judicial review.
The courts will accept applications to review the existence and scope of prerogative powers, except in situations where the matter is simply not appropriate for judicial deliberation, such as the appointment of ministers or granting of honours. However, they will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
The courts will accept applications to review the existence, scope and manner of exercise of all prerogative powers, as long as the nature of the power in question is administrative rather than political.
The courts will accept applications to review the manner in which the government exercises all of its prerogative powers, except those which are simply not appropriate for judicial deliberation, such as appointing ministers or granting honours or taking military action against an enemy state or organisation. However, if justiciable, the courts will apply a sliding-scale approach of varying intensity of review dependent upon the subject matter of the case before them.
Correct. This statement captures the current development of this area of judicial review of prerogative power.
Question 16
Following a series of terrorist explosions in central London, the government invoked emergency prerogative powers. These powers enabled the government to take control over commercial buildings damaged in the explosions. The powers also enabled the government to deny the occupiers access to those buildings while forensic teams undertook the lengthy process of gathering evidence.
Recognising the impact on the occupiers of such buildings, Parliament passed legislation creating a compensation scheme allowing those affected to claim for any costs and losses incurred while those buildings are under the government’s control.
Notwithstanding this new legislation, the government is continuing to use the prerogative powers in order to avoid paying any such compensation under the statutory scheme.
Which of the following statements best summarises the legal position?
A. Where there is overlap between a prerogative power and a statute, neither prevails; the courts look to the common law for guidance.
B. Where there is overlap between a prerogative power and a statute, the statute prevails.
C. Where there is overlap between a prerogative power and a statute, the prerogative power prevails.
D. Where there is overlap between a prerogative power and a statute, the judge hearing the matter may refer to proceedings in Parliament for guidance.
E. Where there is overlap between a prerogative power and a statute, the judge hearing the matter may refer to a higher court for guidance.
B - Where there is overlap between a prerogative power and a statute, the statute prevails.
