PUBLIC LAW L4 - Prerogative Power - CONTROL OF THE PREROGATIVE Flashcards
How is prerogative power controlled? (3)
Mainly legally by the judiciary but there are political mechanisms too notably through constitutional conventions modifying the strict legal powers in the prerogative.
What can parliament do in terms of prerogative? (1)
They can legislate to modify, abolish or simply put on a statutory footing on any particular prerogative power.
Are ministers accountable for prerogative powers? (1)
Ministers are accountable to Parliament for all of their actions, including those taken under prerogative powers.
When may constitutional conventions be adapted and give an example? (2)
To modify strict legal effect of prerogative power, e.g. historically PMs were able to mobilise armed forces on own authority but in 2003 Blair sough prior parliamentary approval before taking the UK to war with Iraq, arguably creating a war powers convention.
What responsibility do the courts have in terms of prerogative powers? (2)
For determining if a prerogative power exists and what its scope is - what exactly the power entails and encompasses.
What does the Case of Proclamations 1611 state? (1)
The King hath no prerogative but that which the law of the land follows.
Describe the case and importance of Attorney General V De Keyser 1920. (4)
During WW1 army council too compulsory possession of De Keyser’s hotel under defence of realm regulations.
These regulations gave the hotel owners the rights to full compensation.
However, army council argued that the government could instead effectively choose to use its prerogative power to take emergency action during war for the defence of the realm, under which there was no right to full compensation.
This contention was rejected and it was decided the crown was bound by the statutory regime applying under the defence of realm act, statutory power is a superior form of power than that of the prerogative.
Describe the relationship between statutory and prerogative power. (5)
It is governed by the De Keyser principle. When a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the royal prerogative while it is in force to this extent: that the crown can only do the particular thing under and in accordance with the statutory provisions and that its prerogative power to do that thing is in abeyance.
What does the important recent case of Miller (1) represent? (1)
A continuation of principle in earlier legality based cases.
Describe the case of R Miller V Secretary of State for exiting the eu 2017. (4)
Following the EU referendum 2016, PM Theresa May sought to trigger article 50 and use her prerogative power in relation to treaty-making and variation to bring this about.
This was challenged in court by Gina Miller and was said that the PM did not have the power to trigger article 50 using the prerogative.
The majority decision centered around the conviction that it was constitutionally inappropriate for the process of leaving the EU to be triggered by the use of prerogative power when the effects and consequences of this process would be so significant for the UK.
