Royal Perogrative Flashcards
LECTURE-what is royal perog also known as?
prerogative powers
LECTURE-what does rp date back to?
dates back to reign of King Henry VIII (1509-1547), when monarch still had real power & individs didnt question him.
LECTURE-what did henry believe?
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.
LECTURE-what happened in 1649?
But, by 1649 100yrs after henrys death, powers of monarch had decreases as unpopular taxes to raise money to fight foregin wars .
LECTURE-what happened by 1688?
By 1688, with King James II fleeing to France, powers of monarch had become more theoretical than actual
LECTURE-what did Rule ix of Bill of Rights 1689 establish?
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).
LECTURE-how does most pp remain today?
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
LECTURE-what can no pp be?
But no new PP can be created, nor existing PP widened / extended:
LECTURE-what case supports But no new PP can be created, nor existing PP widened / extended?
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’
what does the case of proclamations establish?
(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
what did bbc v johns say about this?
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
LECTURE-who supported bbc v johns?
lord diplock
LECTURE-modern defintion of rp?
those powers, once enjoyed by monarch, which are now, legally, left in the hands of the Crown
LECTURE-what relationship could you consider with rp?
ps
LECTURE-Which prevails when the Royal Prerogative conflicts with statute?
Statute prevails due to Parliamentary Supremacy
Examples include both the passing of statute:
Crown Proceedings Act 1947
LECTURE-case law for prevails?
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)
LECTURE-How did the cpa act help?
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
LECTURE-principle of A-G v De Keyser’s Royal Hotel 1920)
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
LECTURE-principle of Laker Airways v Dept of Trade (1977)
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
LECTURE-principle of R v SoS Home Dept (ex parte Fire Brigades Union) (1995)
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?
LECTURE-outcome of cases?
(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
LECTURE-The two principal means of controlling the exercise of the RP are:
(i) parliamentary control and
(ii) judicial control
LECTURE-Methods of parliamentary control?
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
LECTURE-what about those issues?
These are the same issues which the courts decided in CCSU (1984) are non-justiciable
