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