Public Law - Prerogative Powers Flashcards
What powers are considered to be part of the Royal Prerogative?
Any actions/powers that the Government (“Executive”) can take without relying on the authority of an Act of Parliament is done via the prerogative.
- A.V. Dicey’s definition accepted in the GCHQ case.
What are 3 common forms of prerogative powers and which arms of the State use them?
Monarch’s constitutional prerogative (e.g. giving Royal Assent to Acts of Parliament);
The Gov/Executive’s prerogative powers;
The Crown’s legal prerogative.
What are common areas in which the Government uses their executive prerogative powers?
Foreign affairs: treaties and diplomacy; revoking and issuing passports;
Armed Forces/emergencies (“defence of the realm”);
Mercy - giving pardons for past crimes.
What are political and legal methods of controlling the use of prerogative powers?
Judicial Review;
Political checks, e.g. Parliamentary debates and Prime Minister’s Questions;
Statute (legislation beats prerogative);
Informal changes over time to political conventions.
Is the Crown bound by Acts of Parliament / legislation?
Yes, but only if the statutory provision EXPLICITLY states this or it is deemed to be “necessary by implication”.
Are prerogative powers subject to Judicial Review?
Yes, this was decided in the GCHQ case. It is not the “source”/form of powers (e.g. statute vs prerogative), but the SUBSTANCE of the powers which are reviewed in Judicial Review.
(On the facts, it was permissible to ban employees to join any trade unions on the basis of “national security”).
What is the significance of the Case of Proclamations (1611)?
The prerogative powers are NOT unlimited: a prerogative power must be accepted by the courts as having its basis in past precedence.
If touching on the same point of law, will prerogative override statute?
No - statute beats prerogative powers (De Keyser case).
Where the prerogative power is used by a member of the Executive (e.g. Secretary of State), will the intention of Parliament be considered in deciding whether the use of a prerogative power was properly exercised?
Yes, P’s intention is considered (Fire Brigades Union case).
(On the facts, the Secretary of State was wrong to use the prerogative - and overlook an Act of Parliament which was in process of being made SPECIFICALLY for dealing with the pensions of the firefighters).
“It would be most surprising if [the prerogative powers] could be validly exercised by the Executive so as to frustrate the will of Parliament” - Lord B-W.
What recent case has recently affirmed the importance of the De Keyser / Fire Brigades Union case law?
Miller v SoS (2017)
- In this case, the Supreme Court agreed that the Government could not use prerogative powers to trigger the Article 50 process of leaving the EU. This is because, chiefly, the consequences of this would be far-reaching for the whole of the UK.
- Consider, for example, that an Act of Parliament is subject to the checks and balances of debates in Parliament and often goes through scrutiny in the House of Commons and House of Lords. The prerogative is not given the same level of scrutiny.
What is meant by “non-justiciable matters” and give some examples of these.
Non-justiciable matters are matters of “high policy”, i.e. sensitive, often political or moral matters, which the court cannot address.
For example: the making of treaties, international diplomacy, mercy (politicians giving pardons), granting of honours (e.g. Sir, CBE, OBE, MBE), defence of the realm, appointing ministers, etc…
Have the courts become more interventionist when the executive exercise their prerogative?
Yes, since GCHQ:
- Everett (the granting/revoking of passports was subject to judicial review - the Gov failed to argue it was non-justiciable).
- Bentley (conditional pardons were justiciable because they were less substantial remedies but full criminal pardons were issues of “high policy”, i.e. non-justiciable).
