Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

CON & AD > Royal Perogrative > Flashcards

Royal Perogrative Flashcards

1
Q

LECTURE-what is royal perog also known as?

A

prerogative powers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

LECTURE-what does rp date back to?

A

dates back to reign of King Henry VIII (1509-1547), when monarch still had real power & individs didnt question him.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

LECTURE-what did henry believe?

A

Henry believed it was his divine right, as monarch, to add a third source of law to statute and case law.It was his ‘prerogative’ as king to award himself further powers.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

LECTURE-what happened in 1649?

A

But, by 1649 100yrs after henrys death, powers of monarch had decreases as unpopular taxes to raise money to fight foregin wars .

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

LECTURE-what happened by 1688?

A

By 1688, with King James II fleeing to France, powers of monarch had become more theoretical than actual

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

LECTURE-what did Rule ix of Bill of Rights 1689 establish?

A

Rule ix of Bill of Rights 1689 established Parliament as supreme element of UK Constitution.Over ensuing centuries, most PP were replaced by Acts of Parliament, but some PP still here today.One or two PP remain personal to monarch, but these tend to be inconsequential PP (eg right to keep royal swans).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

LECTURE-how does most pp remain today?

A

Most pp today not enjoyed by monarch but by ministers. e.g pm acting in crowns name as power of elected politicians have increased to fill void left by the decline of the monarchy.So RP is now exercised almost exclusively by Executive rather than monarch, a situation heavily influenced by constitutional conventions.

Consequently, those surviving PP are probably here to stay, as PM is unlikely to go to time and effort of putting through Parliament bill to reduce own powers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

LECTURE-what can no pp be?

A

But no new PP can be created, nor existing PP widened / extended:

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

LECTURE-what case supports But no new PP can be created, nor existing PP widened / extended?

A

The Case of Proclamations (1611)

  • Chief Justice Coke- even when monarch had power - to keep king’s legal powers within legal limits
  • Coke’s view was king (James I) only had those prerogative powers which courts had already recognised and he was not able to grant himself new ones:
  • ‘the King hath no prerogative but that which the law of the land allows him’
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

what does the case of proclamations establish?

A

(i) Judiciary qualified to assess existence and scope of PP held by monarch personally - arguably marked starting point in long process towards JR of such powers established in CCSU (1984)
(ii) was for Parliament not monarch to create law - reinforced idea PP have long been seen as residual in nature

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

what did bbc v johns say about this?

A

In BBC v Johns (1965) (next slide), Judiciary reinforced that:
(i) courts are arbiters of whether a PP exists
(iiI) not possible to create new PP nor widen existing PP
BBC argued Crown had PP to regulate broadcasting - which manifested itself in BBC’s Royal Charter - and so BBC was entitled to rely on Crown’s exemption from income tax

CA: Crown cannot extend scope of existing PP

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

LECTURE-who supported bbc v johns?

A

lord diplock

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

LECTURE-modern defintion of rp?

A

those powers, once enjoyed by monarch, which are now, legally, left in the hands of the Crown

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

LECTURE-what relationship could you consider with rp?

A

ps

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

LECTURE-Which prevails when the Royal Prerogative conflicts with statute?

A

Statute prevails due to Parliamentary Supremacy

Examples include both the passing of statute:

Crown Proceedings Act 1947

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

LECTURE-case law for prevails?

A

A-G v De Keyser’s Royal Hotel 1920)
Laker Airways v Dept of Trade (1977)
R v SoS Home Dept (ex parte Fire Brigades Union) (1995)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

LECTURE-How did the cpa act help?

A

The Crown Proceedings Act (CPA) 1947 abolished the Crown’s RP immunity re tort or contract claims

The CPA did also reassert the common law doctrine of Crown privilege but, by making it, for first time, justiciable, the Act paved the way for the development of the modern law of public interest immunity

18
Q

LECTURE-principle of A-G v De Keyser’s Royal Hotel 1920)

A

Allies commandeered De Keyser’s Hotel in Belgium to use it as a military hospital for wounded soldiers
HL: Lord Atkinson: statute prevailed over UK’s RP right - statute abridges RP and places it in abeyance where two conflict

19
Q

LECTURE-principle of Laker Airways v Dept of Trade (1977)

A

airways- any change in designation of airlines should be made not under PP but under statute (1971 Act) as statute prevails over PP

PP could not be used to contradict a statutory provision, and, in situations to which the power and the statute both applied, the power could only be used to further the aim of the statute

20
Q

LECTURE-principle of R v SoS Home Dept (ex parte Fire Brigades Union) (1995)

A

this case concerned public law which protects not only legal rights, but also ‘legitimate expectations’ (CCSU)

Discussion point: Was the HL distinguishing the De Keyser’s principle, as it appears, or - in effect - almost extending it by saying that the exercise of PP could be curtailed even by statutory powers which are only on the statute book and not yet in force?

21
Q

LECTURE-outcome of cases?

A

(ii) PP cannot be used by the Executive to frustrate the will of Parliament

The De Keyser’s principle doesn’t apply: unless and until the statutory powers are brought into force, the PP remains available

22
Q

LECTURE-The two principal means of controlling the exercise of the RP are:

A

(i) parliamentary control and

(ii) judicial control

23
Q

LECTURE-Methods of parliamentary control?

A

control include eg question time, debates and select committees but, in practice, there are certain areas where the Government will chose to decline to answer questions - eg foreign affairs, defence of the realm and national security

24
Q

LECTURE-what about those issues?

A

These are the same issues which the courts decided in CCSU (1984) are non-justiciable

25
Q

LECTURE-whats a new relationship with rp?

A

jr

26
Q

LECTURE-case with rels of jr?

A

CCSU v Minister for Civil Service (1984):

27
Q

LECTURE-what happened in CCSU v Minister for Civil Service (1984) ?

A

PM Margaret Thatcher’s use of RP to ban them from joining a trade union - first did judiciary have right to hear in the 1st place- judiciary had to be careful when getting involved as knew could just abolish jr altogether

28
Q

LECTURE-what was said in regards to judiciary CCSU?

A

So, perhaps in an effort to placate Executive - or perhaps simply respecting that the political doctrine Separation of Powers requires the Judiciary to leave political judgement calls to Executive – the HL opted for a compromise answer to the JR/RP question

29
Q

LECTURE-what did the judiciary controversially do CCSU?

A

Controversially, the Judiciary decided it could extend JR to include Executive decisions based on the RP
BUT the Judiciary placated the Executive by clarifying it would only review more minor ‘justiciable’ decisions

30
Q

LECTURE- end result of CCSU?

A

The HL’s actual decision in CCSU was reluctantly to decide for the PM on the grounds it was in the public interest for national security to be given paramount importance

But the HL clarified it would otherwise have found for the CCSU

31
Q

LECTURE-In CCSU, Lord Roskill identified the following PP as being ‘non-justiciable’ areas of high policy?

A 
signing international treaties (eg the ECHR)
deploying UK armed forces abroad 
defence of the realm
dissolution of Parliament
granting public honours
granting pardons of mercy
Appointment of Ministers
32
Q

LECTURE-what has judiciary done with pp?

A

the Judiciary has subsequently extended JR to cover some of the PP Lord Roskill originally identified as non-justiciable

33
Q

LECTURE-what could be argued?

A

Could it therefore be argued that this is evidence of the Judiciary increasingly showing less deference to the Executive?
For example, the Judiciary extended the scope of JR to cover a decision whether to grant a pardon of mercy in:

R v SoS Home Dept, ex p Bentley (1993) (see next slide)

34
Q

LECTURE-principle of R v SoS Home Dept, ex p Bentley (1993)?

A

The key question for the jury was what Bentley had meant by ‘let him have it’ Had Bentley meant ‘hand over the gun’ or ‘shoot him’?

35
Q

LECTURE-summary of rp?

A

We should now be familiar with the key features of RP and its place in the modern UK Constitution

We have some activities to prepare in advance of Seminar 3, in which we’ll explore the RP further

36
Q

STRATEGY: exam q?

A

‘The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them.’

Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others [1995] 2 All ER 244

Explain what you understand by ‘prerogative powers’ and, giving examples, consider the relationship between these powers and statute.

37
Q

STRATEGY: introduction for exam q?

A
  • Place in context of question first concerning pp
  • briefly the origins of the RP (Henry VIII)
  • Definition: prerogative powers
  • State that the RP is one of seven sources of the UK Constitution
  • It’s a good idea to mention the person quoted (here, Lord Browne-Wilkinson) & in conclusion
38
Q

STRATEGY: main body?

A

Main Body:

  • Explain what you understand by ‘prerogative powers’ in more detail
  • king henry etc in depth believed in his divine right etc death and charles etc / bill of rights
  • talk about it being excercised over monarch now etc
  • chief coke & case of proclamations & what it contains
  • bbc v johns
  • Give e.gs considr rels btw powers & statute
39
Q

STRATEGY: major part of main body?

A
  • start by stating that both the Judiciary (through case law) and the Legislature (through statute) have confirmed that PS with the RP, supporting Lord Browne-Wilkinson’s
  • might give e.gs of evolution of both case law and statute if conflict with rp - ps prevails.
    *case law: A-G v De Keyser’s Royal Hotel 1920:
    HL: Statute (the Defence Act 1842) prevailed over the RP (UK paying minimal compensation) so the owners of De Keyser’s Hotel received full compensation
    *statute: Crown Proceedings Act 1947:
    abolished the PP of Crown immunity re tort or contract claims
    -The prevalence of statute over the RP was confirmed again in many cases such as Laker Airways v Dept of Trade (1977) in which Laker Airways should not be deprived of the protection which the Civil Aviation Act 1971 afforded it
    -But the RP was arguably given two small lifelines by:
    (i) the House of Lords in CCSU 1984 and
    (ii) the Court of Appeal in Northumbria Police Authority 1989
    -(i) In CCSU v Minister for Civil Service 1984, the House of Lords established that an exception can be made to statute prevailing over the RP where national security requires it
    -In R v SoS Home Dept ex p Northumbria Police Authority 1989- police relied on statute -although stat overrides rp the two can operate side by side so no conflict exists
    -still remains if conflict ps will prevail rp-In R v SoS Home Dept (ex parte Fire Brigades Union) 1995,
40
Q

STRATEGY: conclusion?

A
  • use Lord Browne-Wilkinson)
  • confirm whether agree with quotation aswell
  • clarify opinions on issues raised by his statement
    e. g For example, we might conclude that, in stating that … ‘The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them.’ … , Lord Browne-Wilkinson is right because case law has established both that no new PP can be created (nor existing PP extended) and that, unless national security is threatened or there is no conflict, statute prevails over the RP
41
Q

exam tip

A

We know that all six of our exam questions will be essay style and we have been told countless times that the way to score high marks in essay style questions is, at every opportunity, to offer our own opinions on each issue we raise and then, crucially, to support those opinions with reasons

CON & AD (5 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions