PUBLIC LAW L4 - Prerogative Power - CONTROL OF PREROGATIVE POWER POST GCHQ Flashcards
What has been the trend post GCHQ? (2)
For a further expansion of judicial review into areas governed by prerogative power. However, the courts continue to be cautious about expanding reviews into areas of high policy in which the executive has greater ‘competence’.
In what way should the exercise of prerogative power be reviewed? (1)
As a matter of principle it should be just as reviewable by the courts by judicial review as the way in which statutory powers were exercised.
When will the court apply varying degrees of intensity of review? (1)
Where the claimant alleges unlawful exercise of the prerogative.
What is the relationship between the level of policy and the intensity of the review? (3)
The higher the level of policy the lower the intensity of the review. Matters touching on diplomatic relationships between the UK and other states are matters of higher policy and the intensity of the review of these carried out by courts have been at the low end of the spectrum e.g. the case of Abassi.
In what matters have the courts become more interventionist? (1)
In less policy-based and more administrative matters, such as Bentley and Everett cases.
Describe the case of Everett. (4)
It concerned an application for a new passport from a UK national, residing in Spain, for whom an arrest warrant has been issued.
Everett wished to challenge the refusal by FCO to approve his application.
Court of Appeal found against this was non-justiciable on the basis that the power to grant passports fell under the broad umbrella of the prerogative relating to diplomatic relations.
The courts looed to the nature of the power concerned rather than where it came from.
What can cases such as Everett and Bentley be seen as examples of? (1)
Examples of issues coming before the court in which the nature of powers used by executive were relatively low-level or administrative.
What does the defence of realm encompass? (4)
A wide array of differing governmental functions such as taking military actions and how to conduct such operations. The courts are likely to see these types of decisions as non-justiciable. This approach can be seen in cases relating to the legality of the War in Iraq, in R v R 2002 it was stated that the decisions to take military action is beyond the court’s purview.
