The Royal Prerogative & Constitutional Conventions

Question 1

What are prerogative powers? - against diceys rule of law

Answer 1

Special powers, rights, immunities and privileges
May be used without informing or asking Parliament
May be limited, replaced or abolished by Act of Parliament
Privilege, Immunity and right to something

Question 2

What are the types of prerogative powers?

Answer 2

Political prerogatives
Executive prerogatives
Legislative prerogatives
Personal prerogatives - monarch

Question 3

Why is there an argument to limit prerogative powers?

Answer 3

The government over exercises which it were not granted to by a written constitution nor Parliament but ancient prerogatives of the Crown.

• don’t come with safeguards

Question 4

What limits do these powers have?

Answer 4

Constitutional conventions

Judicial review of the existence and use of prerogative powers

Question 5

What are domestic affairs? - (Home)

Answer 5

This is in relation to what the queen can do - The appointment and dismissal of ministers
Royal assent to bills
Prorogue Parliament
Issue and withdrawal of passports
Mercy (pardon for offenders)
Honours

Question 6

What do prerogative powers allow in terms of International relations

Answer 6

Declaring War
Recognizing foreign states
Accrediting and receiving diplomats

Question 7

What is an important thing to note with prerogative powers?

Answer 7

They can be replaced with statutory powers

- Constitutional Reform and Governance Act 2010.

Question 8

What is stated in the Fixed-Term Parliaments Act 2011? S.3

Answer 8

Duty to dissolve parliament - The Queen will not be able to dissolve Parliament in exercise of the prerogative

Question 9

Can can the government choose which power to use (statute or prerogative)?

Answer 9

Attorney-General v De Keyser’s Hotel [1920] AC 508 - gov didn’t pay for taking over hotel. It is a prerogative power to seize a public building under a state of danger.

Question 10

What was the general rule established from Attorney-General v De Keyser’s Hotel [1920] AC 508?

Answer 10

after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute” Lord Atkinson

Question 11

Why was this? Attorney-General v De Keyser’s Hotel [1920] AC 508

Answer 11

it would be useless and meaningless for the Legislature to impose restrictions … [to] the exercise by the Crown of the powers conferred by statute, if the Crown were free at its pleasure to disregard those provisions

Question 12

What are the exceptions to the general rule?

Answer 12

• When the statute is not in force: Fire Brigades Union [1995] 2 AC 513 - gov had duty to bring compensation forward to firefighter
• When the statute preserves the prerogative power
• When the statute provides individual benefit/protection: Northumbria Police Authority [1989] QB 26

Question 13

What will happen to prerogative powers when no statutory provisions have been implemented?

Answer 13

The prerogative powers will remain.

Question 14

What will happen when the statue preserves the prerogative power?

Answer 14

Fixed-Term Parliaments Act 2011, s6(1)
“This Act does not affect Her Majesty’s power to prorogue Parliament.” - remove monarchs ability to end an annual session.

Question 15

What was held in Northumbria Police Authority 1989?

Answer 15

Whether the home office could issue the police with controversial not control equipment.

Question 16

Can a prerogative power remove a statutory right?

Answer 16

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 - trigger article 50 - treaty of lisbon

Question 17

Judicial review of prerogative powers - GCHQ case?

Answer 17

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Scarman:
“if it is a matter on which the courts can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the exercise of statutory power

Question 18

What matters are not susceptible to judicial review?

Answer 18

Prerogative powers such as those relating to the making of treaties, the defence of the realm, … mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers

Question 19

What was held in the case of Ruddock 1987?

Answer 19

I do not accept that the court should never inquire into a complaint against a minister if he says his policy is to maintain silence in the interests of national security

Question 20

What was held in the case of Everett 1989?

Answer 20

The majority of their Lordships indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular upon whether it is justiciable. … matters of high policy … are not justiciable - GCHQ

Question 21

Judicial review of the prerogative power of mercy - Bentley 1994

Answer 21

there is no good reason for refusing to entertain a judicial review of a decision in relation to a free pardon, especially where the challenge raises a question of law” Watkins LJ

Question 22

What are constitutional conventions?

Answer 22

rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution, but which are not enforced by the courts

Question 23

What are the importance of conventions?

Answer 23

Many conventions indirectly protect rights in the UK by systemically regulating political and legal processes, ensuring that government power rests on democratic foundations.”

Question 24

What are the examples of conventions?

Answer 24

Hiring and firing of ministers
Individual ministerial responsibility
Collective ministerial responsibility
Vote of confidence
Relationship between the House of Lords and House of Commons

Question 25

What are the three rules to establish if a convention exists?

Answer 25

1. Is there a precedent for the rule?
2. Did people believe that they were bound by the rule?
3. Is there a reason for the rule?

Question 26

Why apply/obey conventions?

Answer 26

Deemed as binding to those whom in which apply them - our courts apply them so in which are binding. (Constitutional Values)

Question 27

What happened in the case of A-G v Jonathan Cape Ltd [1976] QB 752 ?

Answer 27

Convention prevented the publishing of diary of a cabinet minister.

Question 28

What was held in the case of Madzimbamuto v Lardner-Burke [1969] 1 AC 645?

Answer 28

It is often said that it would be unconstitutional for … Parliament to do certain things, meaning that the moral, political or other reasons against doing them are so strong that most people would regard it as highly improper … Their Lordships in declaring the law are not concerned with these matters

Question 29

Could conventions become statutory rules?

Answer 29

“the Ponsonby rule … is based on constitutional convention rather than law and, formally, Parliament has no ability to veto a ratification