The Royal Prerogative Flashcards
What is the royal prerogative? Example of this from 2003?
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.
What’s Dicey’s quote re. the royal prerogative?
Every act which the executive government can lawfully do without the authority of an Act of Parliament.
What case was the royal prerogative at the heart at re. Brexit?
R (Miller) v SoS for Exiting the EU
Are prerogative powers reviewable at all?
Yes - the courts’ control of it has become increasingly important in a modern democracy - note GCHQ
What’s the position of the Crown in law?
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.
What areas do exercise of ministerial prerogative powers apply to?
- the judicial system
- foreign affairs
- armed forces, war and times of emergency - ‘defence of the realm’
What are prerogative powers in the context of the judicial system?
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.
Prerogative powers re. foreign affairs?
- 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.
Can the executive take measure in times of an emergency?
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
What are ‘personal’ prerogatives? (5)
Exercised by the Monarch ‘on the advice of PM’ (has never refused the advice). Includes:
- The appointment and removal of ministers.
- The appointment of the Prime Minister.
- The right to assent to legislation.
- The creation of peers and the granting of other honours.
- The right to prorogue Parliament.
In what four ways can prerogative power be ‘controlled’?
- application of public law (JR)
- informally; political pressure
- over-riding effect of statute (legislation ‘trumps’ prerogative)
- informally; changes to convention over time
What’s the case that marked clear-cut developments of the courts ability to check the royal prerogative?
GCHQ
Relevance of the case of proclamations?
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
Legality of prerogative power relevance in Entick?
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.
Relevance of BBC v Johns [1965]? Famous quote
‘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)
What is the ‘review of the legality of prerogative powers?’
Courts reviewing the scope of the powers - several key cases: De Keyser Laker Airways Fire Brigades Union Miller
Relevance of Attorney-General v De Keyser’s Hotel Ltd [1920]? And what’s the principle to come out of this case?
- 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.
What did Lord Atkinson say in De Keyser?
Statutory powers had ‘abridged’ older prerogative powers.
Relevance of Laker Airways v Dept of Trade [1977]?
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.
Relevance of R v S o S for the Home Department, ex parte Fire Brigades Union [1995]?
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.
Relevance of Miller?
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)
Is there a limit to the De Keyser principle? What’s the case?
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.
What was the GCHQ (Council for the Civil Service Unions v Minister for the Civil Service [1985]) case about?
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.
What was the gov’s defence in GCHQ?
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?
