Prerogative Powers Flashcards
What is the royal prerogative?
Area of government power that has not been created and regulated by Parliament. It is a ‘left-over’ source of power from a previous age which is still recognised by the courts as part of the common law and a legitimate source of power.
Can new prerogative powers be created?
No, prerogative power comprises a finite stock of executive power that can only be reduced in scope and never expanded.
Who exercises prerogative power?
The central government with the PM at its head - the monarch is left to perform the ceremonial exercise of that power but the political decision making is carried out by elected politicians in government.
What are the three types of prerogative power?
- Ministerial or ‘executive’ prerogative powers
- The monarch’s constitutional prerogatives - these are exercised by the King but this is done on the advice of the Prime Minister (convention)
- The Crown’s legal prerogatives
Prerogative power: foreign affairs
- Recognition of other sovereign states and their representatives
- The making and ratification of treaties
- The conduct of diplomacy
- Granting and revoking passports
- Governance of British Overseas Territories
Treaties are seen as a contract between states which does not generally require the approval of Parliament.
Prerogative power: armed forces and emergencies
Taking of measures necessary in ‘defence of the realm’ including the mobilisation and control of the armed forces.
Power to take action at times of emergency, notably to seize control of neutral property or to requisition ships at time of war.
Prerogative power: Judicial prerogative of mercy
The Home Secretary may pardon those convicted of criminal offences prosecuted by the Crown.
Controversial
Monarch’s constitutional prerogatives
Now exercised by the monarch on the advice of the PM.
- Appointment of the Prime Minister
- Right to assent to legislation
- Right to prorogue Parliament
Crown’s legal prerogatives
Crown and statute: there is a presumption that the Crown is not bound by statute meaning that legislation will not apply to the Crown unless express words have been used or it can be inferred that Parliament did intend to bind the Crown.
Immunity from some litigation: the Crown is not directly subject to the contempt jurisdiction and the sovereign has personal immunity from prosecution or being sued for a wrongful act.
How can prerogative powers be controlled?
- By the application of public law: the control of the courts
- By the over-riding effect of statue
- Informally by political pressure
- Informally by changes to convention over time
How Parliament controls Prerogative powers
- Parliament can legislate to modify, abolish or simply put on statutory footing any particular prerogative power, e.g. prerogative power to dissolve parliament was replaced by the Fixed-term Parliaments Act 2011
- Ministers are accountable to Parliament for all their actions including those under prerogative powers
- Constitutional conventions can be adopted to modify the strict legal effect of prerogative power.
Historically Prime Ministers have been able to mobilise the armed forces on their own authority alone, but in 2003 Tony Blair sought prior approval before taking the UK into the war in Iraq.
Created a war powers convention - David Cameron in 2013 respected Commons’ vote to oppose intervention in Syria.
Control of Prerogative powers by the courts
Courts have the ability to review the executive’s use of its prerogative powers going back to 1600s.
The prerogative is a form of power that has legal enforceability because it is recognised and ‘accepted’ by the courts through the common law. It is therefore the judges who should determine how and to what degree they are able to ‘control’ its use.
Case of Proclamations
Royal prerogative represented a finite stock of power. Crown power was legitimated through recognition in the common law. Therefore, a particular form of prerogative power could not be said to exist unless the courts accepted that there was a precedent for it having been used in the past.
What is the De Keyser principle?
Statutory power is a superior form of power than that of the prerogative (Parliamentary sovereignty).
If a statute is passed, these power abridge the older prerogative powers and the Crown can only do the particular thing under and in accordance with the statutory provisions.
If there are overlapping statutory and prerogative powers the courts will follow parliamentary intention (even if a statutory scheme has not yet been implemented (but is legislated for)).
E.g. Theresa May using prerogative power to trigger Article 50 (in relation to treaty making) - this was held to be constitutionally inappropriate to trigger art 50 using prerogative powers when a step of such magnitude could only be sanctioned by Parliament.
Therefore it confirmed that significant changes to statutory rights and, on a higher plane, to the UK’s constitutional arrangements could not be brought about solely by use of prerogative power.
Are prerogative powers reviewable?
Yes - used to not be but is post GCHQ.
Courts will review not just whether they have the powers but how they were exercised. The manner of the exercise of prerogative power should be just as reviewable by the courts as the way in which statutory powers are exercised.
Although there are still some areas of ‘high policy’ that are not susceptible to be reviewed by the courts.
