Prerogative Powers and Conventions

Question 1

What are prerogative powers?

Answer 1

Prerogative powers are a set of specific legal powers that are accepted by the courts as a part of the common law.

New Prerogative powers cannot be created!

Question 2

Blackstone definition

Answer 2

The powers of the Crown that have not been abolished by Parliament or placed on a statutory footing and are exclusive to the Crown.

Question 3

Queen’s Constitutional Prerogatives

Answer 3

Personal discretionary powers which remain in the Sovereign’s hands. They have the rights to:
Appoint the Prime Minister, Royal Assent
Power to be counselled and Advised by the PM
Crown Immunities

Question 4

Prerogative Executive Powers

Answer 4

Prerogative powers delegated to responsible Ministers, with Parliament not directly involved in that transfer of power. Ministers are accountable to Parliament for the use of prerogative powers after the exercising powers.

Question 5

Statutory power vs Prerogative Power

Answer 5

If Legislation conflicts with a prerogative power; and the prerogative power has not been expressly repealed; the Primary Legislation takes Precedent.

Question 6

De Keyser’s Royal Hotel v A.G

Answer 6

Under the prerogative, the compensation did not have to be paid to the owner, whereas under statute, it did. Court of Appeal and House of Lords held that the government had to use the statutory powers.

Question 7

parte Northumbria Police Authority

Answer 7

Court of Appeal held that statute permitted the establishment of central store and the direct supply of this equipment to chief constables. Home Secretary had the prerogative power to maintain peace in the realm, and this power had not been removed by statutory provisions.

Question 8

the Fire Brigades Union

Answer 8

an abuse of power for the Home Secretary to exercise his purported prerogative powers to introduce a system that would conflict with his continuing duty to bring the statutory scheme into force.

Question 9

Judicial Review of Prerogative Powers

Answer 9

Prerogative powers can only be reviewed by the courts if they are justiciable. When powers are non-justiciable, courts not allowed to intervene as the issue isn’t suitable for Judicial determination

Question 10

GCHQ

Answer 10

The exercise of a certain Minister should have been subject to the same scrutiny and control as others.
The Court held that the area was not Justiciable because the issue dealt with matters of National Security

Question 11

Bacoult Case

Answer 11

• Removed from their home
• right of abode was so fundamental it could not be removed by the Crown
• House of Lords ruled that the courts could review the legality of Orders in Council, but refused to accept that the Orders in Council were unlawful because the rights of abodes weren’t fundamental

Question 12

Prerogative Powers and PS

Answer 12

Whilst Parliament not involved, they can limit the executive’s powers by putting some prerogatives on a statutory footing.
-ministers still have a very wide scope to act without Parliamentary approval

Question 13

Arguments for Reform: LeSuer

Answer 13

No place in modern western democracy, as it’s used by Ministers to make use of unclear powers for which they are unaccountable for.

Question 14

Arguments for Reform: Brazier

Answer 14

Parliament should have a right to know what powers are being exercised, and that Ministers should not have imprecise powers.

Question 15

Recent Reform: Fixed Term Parliament Act 2011

Answer 15

reduces executive power by ending royal prerogative power to dissolve Parliament, providing instead that dates of parliamentary general elections will be fixed at five-year intervals

Question 16

Constitutional Reform and Governance Act 2010

Answer 16

putting the civil service on a statutory footing and putting the Ponsonby Rule on Parliament approval for ratification of treaties on a statutory footing.

Question 17

Dicey Definition

Answer 17

All are rules for determining the mode in which the discretionary powers of the Crown ought to be exercised

Regulate the conduct of several members of the sovereign powers

Question 18

Jennings 3 part Test

Answer 18

1) What are precedents
2) Did the actors in the precedent believe they were bound
3) Is there a good reason for the rule?

Question 19

Enforcing constitutional conventions: Dicey

Answer 19

courts would not enforce compliance with a convention directly but that the violation of conventions would lead inexorably to breach of the law, which courts can enforce.

Question 20

Enforcing constitutional conventions: Jennings

Answer 20

Critical of Dicey analysis

-There are instances where a breach of a convention would not lead to a breach of law

Question 21

Vienna Convention on the Law of Treaties

Answer 21

Treaty is an international agreement concluded between States in written form and governed by international law

Question 22

Treaty-making Prerogative Power

Answer 22

Power to make treaties is a prerogative power vested in the Crown and exercised on the advice of the Foreign Minister in consultation with other Ministers.

Question 23

The Ponsonby Rule

Answer 23

to lay before both Houses of Parliament every treaty, when signed, for a period of 21 days, after which the treaty will be ratified.
-Main purpose is to inform the House of all ‘agreements, commitments and understandings’ binding the nation

Question 24

Constitutional Reform and Governance Act 2010

Answer 24

S. 20: Treaties to be laid before Parliament for 21 sitting days, putting Ponsonby rule into statutory footing for entrenchment. A vote against by the Commons precludes ratification.