Chapter 5: Royal Prerogative Flashcards

Question

What is the RP of treaty-making powers

Answer 1

The **power to enter treaties under international law** is a feature of the sovereignty of that state and it is generally regarded that such power is an emanation of the prerogative * Being a creature of international law cannot alter national/domestic law without being given effect by an **Act of Parliament** * Because of this, the **European Communities Act 1972** was enacted to provide for entry and application of European Community law into the UK

Answer 2

R v Secretary of State Ex Parte Rees-Mogg [1994] Issue * Issue was whether the gov had the power to ratify the treaty without the approval of the HOC Facts 1. Feb 1991, the Heads of Government of Member States of the European Community signed the Treaty of Union - **Maastricht Treaty** 2. Under constitutional practise in the UK, **a treaty only needs to approved by Parliament if it requires a change in legislation or the grant of public money** * It was clear that there was there was substantial views that opposed to the treaty on all sides of the House * The PM announced that the Treaty would be ratified under the prerogative, thus, avoiding the risk of parliamentary disapproval Held * Queen’s Bench Division refused to grant application for judicial review, as the **matter was within the prerogative of the Crown**

Answer 3

RP are controlled by the Judiciary - by judicial review or judciial prnouncements

Answer 4

Amenable to JR * **R v Secretary of State for Home Department, Ex Parte Fire Brigades Union** * **R v Foreign Secretary Ex Parte Everett [1989]** * **R v Jones (Margaret) [2006]** Non-justiciable * **The Council for Civil Service Unions v Minister of State for the Civil Service [1985]** RP inferior to statute * **A-G v de Keyser’s Royal Hotel [1920]** * **Laker Airways v department of Trade [1977]** Didn't affect RP * **Secretary of State for Home Department Ex Parte Northumbria Police Authority [1998]** * **R (G) v Home Secretary [2012]** * **R (XH) v Secretary of State for the Home Department [2017]**

Answer 5

Facts 1. **The Home Secretary introduced a radical scheme** different from the Criminal Injuries Compensation Scheme obligated by the Criminal Justice Act 1988 Held 1. Claiming to act under RP, held to be **ultra vires** 2. Further he did not have an unfettered discretion as to whether the statutory scheme as he **could not, through the use of prerogative, defeat the purpose of the statute**

Answer 6

Facts 1. The PM, as Minister of the Civil Service, used the prerogative order to **terminate the rights of workers** at the Government Communications Headquarters (‘GCHQ’) to belong to trade unions 2. Union sought judicial review claiming they had legitimate expectation to be consulted prior to their rights to membership being withdrawn 3. HOL accepted the terms and conditions of the employment of civil servants were RP. They accepted that the employees had legitimate expectations to be consulted before their rights were affected Held 1. In the end, it was **overridden by national security** 2. Held that in general prerogative is judiciable, but some are just not (appointment of Ministers, dissolution of Parliament, grant of honours, treaties and matters of national security) as they are matters of **high policy** Takeaway * Some prerogatives exercised are not justiciable and subject to judicial review * This case showed that the some RPs, are not able for the courts to interfere with

Answer 7

Held 1. **Withholding of passports, were justiciable** and were **within the powers of the courts to review** 2. Grounds for judicial review were not made out - especially for **irrationality and procedural impropriety**

Answer 8

Held 1. This case showed that in the case where statutes seeks to regulate a matter previously within the realm or RP, but doesn’t abolish the prerogative# 2. Then **statute will prevail, due to legislative supremacy** 3. Therefore **RP would thereby fall into ‘abeyance’** waiting to be awakened once the statute is repealed

Answer 9

Facts 1. In this case, the statutory right gave the Secretary of State the power to give guidance to the Civil Aviation Authority on the policy to follow in considering licensing applications Held 1. Government **could not defeat statutory right** which regulated specific area by use of RP 2. Secretary of State could not give ‘guidance’ on withdrawing Laker Airways Licence 3. Which was held to be **ultra vires**, as it went beyond giving mere guidance and **fell within the ambit of ‘instructing’ the Authority**

Answer 10

Facts 1. Police Act 1964 set out the respective powers of Home Secretary, the Police Authorities and the Chief Constable of police with regards to, inter alia, the supply of equipment to the police forces 2. The Secretary of State issued a circular that he would be making available supplies of riot control equipment to the police forces, irrespective of the approval of the police authorities 3. Northumbria Police Authority sought judicial review on the legality of the circular Secretary of State argued he had the power under RP to issue weapons Held 1. COA held **no monopoly was reserved to the police authority** and according to the **SoS had not acted ultra vires**. It accepted that the Police Act 1964 had unaffected the RP to keep the peace (they could bypass the police act to supply the equipments) 2. It was also stated that the RP to take all reasonable steps to preserve the Queen’s peace **remained unaffected by the Act**. Which include the supply of equipment to the police forces which is reasonably required for the more efficient discharge of their duties

Answer 11

HOL considered the legality of the Iraq war under international law could be pleaded in defence to various charges for criminal damage and/or aggravated trespass Held 1. Court held it could not 2. **The relevant statutes were domestic, and Parliament could not have intended that international law could affect its operation** 3. Moreover, since foreign affairs and the deployment of armed forces were conducted under RP, the court would not inquire into such areas

Answer 12

Facts 1. Claimant was a naturalised British citizen born in Sudan, left the UK while on bail for a public order offence. 2. The Home Secretary decided to **deprive him of his citizenship** on the basis that it was conductive to the public good because he was involved in terrorism-related activities (Under the **British Nationality Act 1981, Section 40(2)**, as substituted by **Section 56(1) of the Immigration Asylum and Nationality Act 2006**) Held 1. Decision to exclude the claimant was taken under RP, and which **did not attract any statutory right of appeal**. Therefore, the C was obliged to challenge the decision by way of judicial review 2. There were 3 grounds of appeal. The 1st of which is of principal interest here. That ground was that Parliament had impliedly extinguished’ the Crown’s common law or prerogative power to exclude a person from the UK pending his appeal against a decision taken under the 1981 Act. 3. On this point **Laws LJ** stated: ‘By definition the prerogative power is not authorised by Parliament. **It is the residue of legal authority remaining in the hands of the Crown which Parliament has not abrogated or modified**. It is common ground that by virtue of its prerogative the Crown has ample power to exclude an alien from the United Kingdom, **unless the power has been abrogated or modified… there is nothing in the statutory provisions… which touches on the Crown’s undoubted common law prerogative power to exclude the appellant once the Section 40(2) order had been made**…’

Answer 13

Facts 1. Claimant argued that the prerogative was invalid because that power had been impliedly abrogated by the **Terrorism Prevention and Investigation Measures Act 2011** (claimed RP inferior to statute) Held 1. Court disagreed. There being **no express restriction in the Act**, to succeed the claimant had to show that the prerogative was abridged or abrogated by ‘necessary implication’. Necessary implication is a strict test and in this case was not established 2. XH also claimed that there had been an interference with his rights under EU law. **But courts held that the Home Secretary had shown clear justification for her action**. There was a ‘genuine, present, and sufficiently serious threat to a vital national interest’. 3. COA held that the executive **retained the prerogative power** to refuse to issue or to **cancel a passport** issued to a person whom the Home Secretary was satisfied been involved in terrorist activities

Answer 14

1. **Abolish the prerogative and place it on a statutory basis**, as with the Bill of Rights and the Treasure Act 2. Through its scrutiny mechanism, **call the government to answer for its use of prerogatives**

Answer 15

1. Dissolution of parliament 2. Disposition of the armed forces 3. Government contracts 4. Judicial appointments 5. Investigations by the Director of Public Prosecutions the grant of honours and broad notions of national security 6. Confidentiality 7. Public interest

Answer 16

1. **Impossible to identify** - It has never been possible to identify all prerogatives of the Crown and that their existence could be ascertained (made certain) only by means of piecemeal decisions (Ex Parte Northumbria Police Authority) 2. **Lacks clarity** - Barnett highlights, given the difficulties lying on the path on the exercise of the Crown’s prerogative power to dissolve Parliament according to its own initiative, Its existence is “**in doubt**”. This can be seen in Ex Parte Northumbria Police, where courts **found the alleged prerogative powers of the Home Secretary existed**. While Lord Camdem’s assertion in Entick v Carrington that **if there existed authority for the lawful exercise of power, it would be found “in the books.”** 3. **Certainty** - The process of putting prerogatives on statutory terms would **clearly define the nature and scope** of prerogatives. Even if the very existence of RP in their present unwritten form could somehow be determined accurately, the matter of their exercise remains questionable. 4. **Constitutional reform and Governance Act 2010** was the recent constitutional reform on RP. The Act established on a **statutory basis** that the appointment and management of the civil service and introduced a **new parliamentary procedure** for the ratification (approval) of treaties

Answer 17

1) In July 2006, **HOL’s Committee** on the Constitution published a report entitled Waging War. Parliament’s Role and Responsibility, examined the nature of the executive’s power in relation to the fundamentals of peace and war, and concluded: * “exercise of the Royal prerogative by the Government to deploy armed forces overseas is **outdated and should not be allowed to continue** as the basis for legitimate war-making in the 21st century. Parliament’s ability to challenge the executive must be protected and strengthened.” * Outcome - Committee **did not favour the proposals** for legislating to place the RP on a statutory basis or to make parliamentary approval a prior legal condition for use of armed forces. They argued that there should be a “**parliamentary convention**” determining the role Parliament in this sphere 2) In 1988, Tony Benn introduced a **Private Member’s Bill** to place RP under statutory authority * In 2005, unhappy with the PM, Tony Blair, which brought the UK into the Iraq War, with the Commons approval forthcoming only on the eve of fighting in March 2003 * This legal situation was concerning, which resulted in Claire Short **bringing another Private Member Bill** to entrench the right of Parliament to approve war. **Both bills fell in parliament**. My analysis * Waging war needs to be fast as passing legislation **would take way too long** to declare war * On grounds that they could have effectively stopped or prevented something drastic from happening if declared on the spot * Waging war is a serious event, which **can’t be delayed**/pondered on, the declaration is what makes the difference

Answer 18

On the withdrawal of EU * UKSC dismissed the Secretary of State’s appeal. In a joint judgement of the majority, the UKSC held that the **Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the EU** On the devolution issues * Court unanimously concluded that neither Section 1 nor Section 75 of the Northern Ireland Act 1998 is of assistance in this case, that the **Sewel Convention does not give rise to legally enforceable obligations** (it is a convention afterall)

Answer 19

* Ruled unanimously that the advice given to prorogue Parliament, and the subsequent prorogation was **unlawful** and **of no effect** * It was ruled that it was **justiciable**. And that courts had been protecting parliament sovereignty by restricting the prerogative for centuries * Judgement was given on the basis of following the 2 foundamental principles of the constitution, being **parliamentary sovereignty** and **parliamentary accountability**. Lady Hale, President of the Supreme Court, stated that parliamentary sovereignty would be undermined if the executive, via the royal prerogative, could prevent Parliament from exercising its legislative authority. On parliamentary accountability, the longer parliament was prorogued the greater the risk that an accountable government would be replaced by an unaccountable government * Therefore, there were legal **limits**, as defined by the courts, on the power to prorogue. Prorogation will be **unlawful** if it would frustrate, ‘without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’.

Chapter 5: Royal Prerogative Flashcards

(43 cards)