The Royal Prerogative

Question 1

What is the royal prerogative? Example of this from 2003?

Answer 1

The prerogative power of the Crown for the executive to take a decision without Parliamentary consent.
2003 Blair used the royal prerogative to take Britain to war in Iraq.

Question 2

What’s Dicey’s quote re. the royal prerogative?

Answer 2

Every act which the executive government can lawfully do without the authority of an Act of Parliament.

Question 3

What case was the royal prerogative at the heart at re. Brexit?

Answer 3

R (Miller) v SoS for Exiting the EU

Question 4

Are prerogative powers reviewable at all?

Answer 4

Yes - the courts’ control of it has become increasingly important in a modern democracy - note GCHQ

Question 5

What’s the position of the Crown in law?

Answer 5

In a gradual process from 1688 power to govern the UK has effectively passed from the monarch to the executive, i.e. the central government, with the Prime Minister at its head. However, the monarch still performs the formal or ceremonial exercise of that power.

Question 6

What areas do exercise of ministerial prerogative powers apply to?

Answer 6

• the judicial system
• foreign affairs
• armed forces, war and times of emergency - ‘defence of the realm’

Question 7

What are prerogative powers in the context of the judicial system?

Answer 7

The Home Secretary (on behalf of the Crown) may pardon those convicted of criminal offences prosecuted by the Crown.
The prerogative of mercy is an example of a prerogative which the courts have willingly reviewed - see of R v Secretary of State for the Home Department, ex parte Bentley [1993] in which it was held that the court had jurisdiction to review the exercise of the royal prerogative of mercy.

Question 8

Prerogative powers re. foreign affairs?

Answer 8

• Passports
• as is the recognition of other sovereign states and their representatives …
• Making/ratification of treaties (Attorney General for Canada v Attorney General for Ontario [1937])
• Governance of British Overseas Territories.

Question 9

Can the executive take measure in times of an emergency?

Answer 9

Yes - this is a prerogative power, ‘defence of the realm’. See Chandler v Director of Public Prosecutions [1964].
However; in Burmah Oil Company Ltd v Lord Advocate [1965] Court ruled compensation was payable - no general rule that the prerogative could be exercised without compensation

Question 10

What are ‘personal’ prerogatives? (5)

Answer 10

Exercised by the Monarch ‘on the advice of PM’ (has never refused the advice). Includes:

1. The appointment and removal of ministers.
2. The appointment of the Prime Minister.
3. The right to assent to legislation.
4. The creation of peers and the granting of other honours.
5. The right to prorogue Parliament.

Question 11

In what four ways can prerogative power be ‘controlled’?

Answer 11

1. application of public law (JR)
2. informally; political pressure
3. over-riding effect of statute (legislation ‘trumps’ prerogative)
4. informally; changes to convention over time

Question 12

What’s the case that marked clear-cut developments of the courts ability to check the royal prerogative?

Answer 12

GCHQ

Question 13

Relevance of the case of proclamations?

Answer 13

Chief Justice Coke said ‘The King hath no prerogative but that which the law of the land allows him.’ (1611); i.e. the royal prerogative represented a finite stock of power

Question 14

Legality of prerogative power relevance in Entick?

Answer 14

Court consulted ‘its books’ re. royal prerogative power to enter and search Entick’s premises - courts found no precedent for this action in common law nor in any statute.

Question 15

Relevance of BBC v Johns [1965]? Famous quote

Answer 15

‘it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative’ - i.e. it is the courts that have responsibility for identifying if a prerogative power exists or not (i.e. is lawful)

Question 16

What is the ‘review of the legality of prerogative powers?’

Answer 16

Courts reviewing the scope of the powers - several key cases:
De Keyser
Laker Airways
Fire Brigades Union
Miller

Question 17

Relevance of Attorney-General v De Keyser’s Hotel Ltd [1920]? And what’s the principle to come out of this case?

Answer 17

• Concerned dispute between the government and the hotel owners about whether compensation should be payable for the requisitioning of the hotel for use by the Army Council during World War One.
• De Keyser principle: court rejected contention re. defence of the realm due to existence of statutory regime: therefore, statutory power is superior form of power than that of prerogative - reflecting sovereignty of Parliament in UK constitution.

Question 18

What did Lord Atkinson say in De Keyser?

Answer 18

Statutory powers had ‘abridged’ older prerogative powers.

Question 19

Relevance of Laker Airways v Dept of Trade [1977]?

Answer 19

Gov. sought to justify a reversal of aviation policy through use of its prerogative power to negotiate international treaties.
Lord Denning criticised: prerogative at odds with statutory requirements under Civil Aviation Act 1971 - i.e. statutory means available.

Question 20

Relevance of R v S o S for the Home Department, ex parte Fire Brigades Union [1995]?

Answer 20

Home Sec (Michael Howard) used prerog powers to introduce 'tariff-based' criminal injuries compensation scheme. Parl had legislated earlier for statutory scheme in Criminal Justice Act 1988. Howard claimed to be able to introduce his scheme, as the statutory scheme had not yet been implemented.
HoL found against - underlining primacy of statutory law.

Question 21

Relevance of Miller?

Answer 21

Legality case (EU Art 50)
Constitutionally inappropriate to use prerog when effects and consequences would be so significant. Could only be sanctioned by Parliament through primary legislation (see Withdrawal Act 2017)

Question 22

Is there a limit to the De Keyser principle? What’s the case?

Answer 22

Suggested by R v S o S for the Home Department ex p Northumbria Police Authority [1998]:
Police equipment. Northumbria PA argued Police Act 1964 gave monopoly over equipment; court argued did not: Home Secretary had prerog power to keep peace within the realm. Much disputed decision.

Question 23

What was the GCHQ (Council for the Civil Service Unions v Minister for the Civil Service [1985]) case about?

Answer 23

Prompted by a decision by the then Minister (and Prime Minister), Margaret Thatcher, to ban trade union membership at the government’s listening base in Cheltenham.
Authority to do this came from the PM’s prerogative power. Issue was not authority, but was manner…
Was based on legal interest/legitimate expectation.

Question 24

What was the gov’s defence in GCHQ?

Answer 24

Courts were simply not permitted to review how the PM used her prerogative powers.
HELD: essence was: made no constitutional sense for prerogative powers to be seen as having a special status just because of their historic origins and association with the Crown. Statutory power reviewable so why not prerogative?

Question 25

Key idea to come out of GCHQ?

Answer 25

Gov could no longer shelter behind the fact that a power came from the prerogative – in principle all executive powers should be reviewable in order that the rule of law be promoted effectively.

Question 26

Outcome of GCHQ?

Answer 26

Though the PM lost on the key issue of principle, she did manage ultimately to defend the case.
Though unions had LE of being consulted, HoL did not find PM’s frustration of this to be unlawful - accepted that it was justifiable public interest in not consulting re. strikes.

Question 27

What is meant by High Policy? Was this noted in GCHQ?

Answer 27

The making of treaties Mercy
Dissolution of Parliament* (now gov by statute)
Defence of the realm Granting of honours
Appointment of ministers (‘and others..’)

Noted in GCHQ by Lord Roskill BUT AS OBITER

Question 28

Are the matters of high policy strict?

Answer 28

When Roskill referred to the ‘amenability’ of such matters to the process of JR, he demonstrated how the judiciary regulate the extent of their own involvement in the more political areas of public law - no formal lines - delicate ‘sep of powers’ balance

Question 29

What is meant by ‘forbidden areas’?

Answer 29

Some powers of prerog which concern political judgement-calls i.e. appointment of ministers

Question 30

What is meant by substance and not form?

Answer 30

In the years following GCHQ, the courts have increasingly taken an approach – and tailored the degree of their interventionism – based on the nature of the power that the government has used rather than its form.

Question 31

What is the main mechanism in which public law protection re. accountability in government can be achieved?

Answer 31

Judicial Review

Question 32

What is meant by the contextual approach of the courts in the remit of JR in matters involving substantive issues?

Answer 32

If the matter is one of higher policy, the degree or ‘intensity’ of review is light or ‘low’; in contrast – at the other end of the spectrum of issues the intensity of review is higher.

Question 33

Relevance of R v SoS for Foreign and Commonwealth Affairs, ex parte Everett [1989]?

Answer 33

Early indication of contextual trend: passport from UK national residing in Spain for whom arrest warrant had been issued.
Although CoA found against Everett, key case as court acknowledged matter was suitable for JR

Question 34

Relevance of R v SoS for the Home Department, ex parte Bentley [1993]?

Answer 34

‘Mercy’ pardons: hanged for murder in 1953 but later miscarriage of justice.
Court dismissed argument that it was non-justiciable.
Court distinguished between full pardons and conditional pardons.

Question 35

Are matters on diplomatic relationships low policy or high policy?

Answer 35

High policy - however, challenges have been accepted by the Administrative courts - but intensity of review has been at the low end of the spectrum

Question 36

R (Abbasi) v Foreign Secretary [2002] relevance?

Answer 36

Feroz Abbasi - US put in Guantanamo Bay. Family sought to challenge Foreign Office re. efforts to extradite.
Court accepted case, but found for foreign office - demonstrates competing considerations in this area. Court felt important for right of challenge, however courts had minimal competence - executive primary decision-makers.

Question 37

Example of a defence of the realm case?

Answer 37

R (Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002): courts very likely to see cases such as these non-justiciable, and Simon Brown LJ stated that it was: ‘accept[ed] that the decision to take military action is beyond the court’s purview’.

Question 38

Relevance of Smith, Ellis and Allbutt v Ministry of Defence [2013]?

Answer 38

Court recognised military decisions should not be subject to JR; danger of judicialising warfare’