Public 1.8 - Royal Prerogative Flashcards
What is the Royal Prerogative
- source of the power used to make these decisions came from the
prerogative power of the Crown.
Do PMs need Parl mandate for mobilising troops
No
* Blair did seek this however
* 2013 vote on interventon in Syria
Dicey’s Definition of The Prerogative
- [T]he 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
Administrative Court and upwards
Are the arbiters of the existence and
extent of a claimed prerogative power.
remnants of the old ‘monarchical’ powers
- prerogative powers
- Eroded since 1688
*
Eg of exercise of prerogative powers
- commit troops to war,
- enters into a treaty, or * an appointment is made to the House of Lords.
GCHQ
- courts’ control of the exercise of prerogative power has become increasingly important.
- GCHQ extended reviewability of prerogative powers
Constitutional Reform and Governance Act,
provision for treaties to
be ratified only after Parliament has had the opportunity to raise opposing resolutions
Application of constitutional power can also be modified through ….
constitutional conventions which condition how executive, legal powers are actually used.
Since 1688
power to govern the UK has effectively passed from the monarch
to the executive,
Monarch still performs…
the formal or ceremonial exercise of that power.
Ministerial prerogative powers are those which can be exercised by government ministers, relating to:
- The judicial system
- Foreign affairs
- Armed forces, war and times of emergency - ‘defence of the realm’
Judicial System - Prerogative of Mercy
- Home Secretary (on behalf of the Crown) may pardon those convicted of criminal offences prosecuted by the Crown
Courts have Reviewed the Prerogative of Mercy
- R v Secretary of State for the Home Department, ex parte Bentley [1993] 4
All ER 442 i
Foreign affairs – prerogative powers
- Granting/revoking passports
- Recognising sovereign states
- Making/ratifying Treaties
- governance of British Overseas Territories.
Attorney General for Canada v Attorney General for Ontario [1937]
Armed forces and emergencies
taking of measures necessary in times of emergency and/or for the ‘defence of the realm’, including the control of armed forces, is a prerogative power
Chandler v Director of Public Prosecutions [1964] AC 777,
Lord Reid stated: ‘The disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown […]’
Burmah Oil Company Ltd v Lord Advocate [1965] AC
By a 3-2 majority the House of Lords held that compensation was payable to the company, there being no general rule that the prerogative could be exercised without compensation
Monarch’s prerogatives
Exercised “on the advice of the PM”
* The appointment and removal of ministers
* The appointment of the Prime Minister
* The right to assent to legislation
* The creation of peers and the granting of other honours
* The right to dissolve and prorogue Parliament
Admin of Justice
historically the prerogative of the monarch, who was regarded as the ‘fountain of justice’
Crown and statute:
- presumption that the Crown is not bound by statute
- legislation will not apply to the Crown unless express words have been used or it can
inferred (by ‘necessary implication’) that Parliament did intend to bind the Crown
Province of Bombay v Municipal Corporation of the City of Bombay [1947]
Province of Bombay v Municipal Corporation of the City of Bombay [1947]
If […] it is manifest from the very terms of the statute, that it was the intention of the
legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named.’
Crown Immunity from some litigation
Crown is not directly subject to the contempt jurisdiction (ie contempt of court); and the sovereign has personal immunity from prosecution or being
sued for a wrongful act.
Control of prerogative power
(a) By the application of public law (the judicial review jurisdiction of the courts)
(b) By the over-riding effect of statute (legislation ‘trumps’ the prerogative)
(c) Informally, by political pressure in government and public life (eg the media)
(d) Informally, by changes to convention over time
Control of prerogative powers
- Primarily through the courts
- Tension between old form of power, and requirements of legality
Degree of control
- Courts ability to review and check since 17th C
- Developed further since 1980s following GCHQ
Prerogative power is a form of power that has legal enforceability because….
Prerogative is a form of power that has legal enforceability because it is recognised and ‘accepted’ by the courts through the common law.
Judges who should determine how and to what degree they are able to ‘control’ its use.
Case of Proclamations (1611) 12 Co Rep 74
- The King hath no prerogative but that which the law of the land allows him.
- Finite stock of power
Cause of Civil Wars
- in the 1640s,
- Charles I’s
imposition of the ‘Ship Money’ taxes
Finite stocl of power
the royal prerogative represented a finite stock of power.
Chief Justice Coke,
post-1688 regime,
it was ultimately Parliament and not an absolute monarch that was supreme
Entick v Carrington (1765)
- gov claimed to have the legal authority to enter and search Entick’s premises under a ‘general warrant’.
- suspected of association with the radical political leader, John Wilkes.
- Entick challenged as trespass on his property
no precedent for this action in common law
1607 by Coke
the executive cannot act under a purported prerogative power that has not been recognised by the common law.
BBC v Johns [1965]
‘It is 350 years and
a civil war too late for the Queen’s courts to broaden the prerogative.’
Lord Diplock
Prerogative powers can only
Only be reduced in
scope (through statutory incursion) and never expanded.
finite stock of executive power
Scope of prerogative powers
- what exactly that power entailed and
encompassed. - review of the legality of prerogative
powers.
Two forms of governmental power:
- The prerogative = recognised by the common law,
- Statutory power = laid down in legislation.
Attorney-General v De Keyser’s Hotel Ltd [1920] AC 508
- Compensation for req of Hotel for use during WW1
- Crown bound by Defence of the Realm Act and associated
Regulations - Rather than Prerogative Power
De Keyser principle
- court clearly statutory power as a
superior form of power than that of prerogative - Reflecting central importance of the
sovereignty of Parliament in the UK constitution
De Keyser Effect of Prerogative
- Lord Atkinson
- statutory powers had ‘abridged‘ older prerogative powers an
- prerogative was to be considered ‘in abeyance
Laker Airways v Dept of Trade [1977] QB 643
- gov sought to justify a reversal of aviation policy through use of its prerogative power to negotiate international treaties
- Bermuda Agreement which regulated transatlantic flights.
- Cancelled Freddie Laker’s ‘Skytrain’ approval or ‘designation’ under the Bermuda Agreement.
- At odds with the statutory requirements in the Civil Aviation Act 1971 for revoking airline designations
Primacy of Statutory Law
Importance to the courts of following parliamentary intention
if there are any forms of over-lapping statutory and prerogative powers in operation
R v S oS for the Home Department, ex parte Fire Brigades Union [1995] 2 All ER 244
- Home Secretary, Michael Howard, decided to use prerogative powers to introduce a new
‘tariff-based’ criminal injuries compensation scheme - Parliament had legislated earlier for a statutory scheme in the Criminal Justice Act 1988.
Found against Home Secretary
(Miller) v Secretary of State for Exiting the European Union [2017]
UKSC 5
Miller 1
- Supreme Court
(UKSC) found against the government on an 8-3 majority basis. - PM simply
did not have the power to trigger Art 50 using the prerogative. - The Admin Court and the majority in the UKSC ultimately agreed
Could only be sanctioned by Parliament through primary legislation.
Miller 1- Magnitude
[…] It would be inconsistent with long-standing and fundamental principle for such a farreaching
change to the UK constitutional arrangements to be brought about by ministerial
decision or ministerial action alone.
Lord Neuberger
Limit to De Keyser Principle
- limit in certain situations involving over-lapping statutory and prerogative powers.
v SoS for the Home Department ex p Northumbria Police Authority [1998] 1 All ER 556
v SoS for the Home Department ex p Northumbria Police Authority [1998] 1 All ER 556,
- Home Secretary sought to establish a central store for providing plastic
baton rounds and other riot-control equipment to the various national police forces. - Northumbria P.A. argued Police Act 1964 gave it a monopoly over the supply of equip in its area.
- Act did not override the Home
Secretary’s prerogative power to keep the peace within the realm.
Croom-Johnson LJ
Home Secretary’s use of the prerogative was not incompatible
with the police authority’s powers under the Act.
Purchas LJ
erogative power may still apply
* if it is directed to the benefit or protection of the individual – as opposed to restricting the rights of the individual
- and if the statute does not unequivocally deprive individuals of that benefit or protection.
Before GCHQ
Until the mid-80s the senior UK courts had not reached a point where they were prepared to
review how the government used its prerogative powers.
R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864,
traces of future developments - not conclusive
Issue in GCHQ
- PM used prerogative power to regualate working terms of Civ Service
- Issue not about authority - but **the manner* prerogative power was used.
Council for the Civil Service Unions v Minister for the Civil Service
[1985] AC 374
GCHQ - legitimate expectation
- legitimate expectation of being consulted before any notable changes were made in working conditions
- had consistently been consulted in such situations over the previous four decades.
GCHQ - Gov Defence
- courts were simply not
permitted to review how the PM used her prerogative powers
HoL ruling on Prerogative Powers
It made no constitutional sense for prerogative
powers to be seen as having a special status just because of their historic origins and association
Source of power no longer relevant
- traditional distinction between power given by Parliament and from prerogative no longer determine if gov actions were reviewable or not
GCHQ - Second line of defence
- there was a justifiable public interest factor in not consulting,
- Advance notice may have triggered strike action - risking national security
Caution re: Reviewability
L Roskill - obiter
- The making of treaties
- Defence of the realm
- Mercy
- Granting of honours
- Dissolution of Parliament
- Appointment of ministers (‘and others’)
Judiciary attempt to respect informal lines
Delicate ‘separation of powers’ balance
Non-justiciability
Not as binary as exclded category.
Political judgment calls are not suitable for court review - eg appointment of ministers/honours
Matters engaging issues of higher policy.
- To what extent the
judiciary as an unelected body should be able to intervene in such areas of prerogative power
Trend in the last century
- Towards greater promotion of a substantive conception of the rule of law.
