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Public Law > Parliamentary sovereignty > Flashcards

Parliamentary sovereignty Flashcards

1
Q

What type of power did Tony Blair use to take the UK to war in Iraq in 2003 or Margaret Thatcher sending the task force to the Falkland Islands?

A

Prerogative power of the crown

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2
Q

Do PMs need parliamentary consent to commit British troops as a matter of law?

A

No

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3
Q

What is the Dicey definition of prerogative power?

A
  • Discretionary/arbitrary authority left in the crown
  • Every act the executive government can lawfully do without requiring authority of an act of parliament
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4
Q

Which courts are the arbiters of the existence and extent of a claimed prerogative power?

A

Administrative Court and upwards

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5
Q

Have all of the old monarchical powers eroded?

A

No, some significant ones remain

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6
Q

Who exercises powers of the monarch?

A

Government on behalf of the monarch

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7
Q

What lead to the Miller case?

A

Government’s attempts to trigger Article 50 without parliamentary approval

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8
Q

What was the effect of the HoL decision in GCHQ?

A

extended reviewability of prerogative powers

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9
Q

What is a constitutional monarchy?

A

Where monarch is head of state but not political head of government and whose powers to govern are limited

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10
Q

What powers is most government business conducted under?

A

Statute

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11
Q

In areas where royal prerogative still retains significance, how is the power usually governed?

A

By convention

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12
Q

What are the ministerial prerogative powers relating to?

A
  • Judicial system
  • Foreign affairs
  • Defence of the realm
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13
Q

What is the home secretary’s judicial prerogative power?

A

To pardon those convicted of criminal offences prosecuted by the crown (prerogative of mercy)

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14
Q

What are the foreign affairs prerogative powers?

A
  • Grant/revoke passports
  • Recognition of other soveriegn states/representatives
  • Making/ratifying treaties
  • Governance of British Overseas Territories
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15
Q

What is defence of the realm?

A

Armed forces, war and times of emergency

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16
Q

What are the monarch’s prerogative powers on the advice of the PM?

A
  • Appointing/removing ministers
  • Appointing PM
  • Assent
  • Creating peers/granting honours
  • Dissolve + prorogue parliament
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17
Q

What are the crown’s legal prerogatives?

A
  • Not bound by statute unless express/inferred
  • Not subject to contempt
  • personal immunity from prosecution or being sued for a wrongful act
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18
Q

How can prerogative power be controlled?

A
  • Public law (judicial review)
  • overriding effect of statute
  • political pressure
  • changes to convention over time
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19
Q

Is prerogative power legitimised by parliament?

A

No

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20
Q

How is the use of prerogative power primarily controlled?

A

Through the courts

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21
Q

Why does prerogative power have legal enforceability?

A

Because it is recognised and accepted by courts through the common law.

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22
Q

Who determines how and to what degree courts can control use of prerogative power?

A

Judges

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23
Q

What was the effect of the case of proclamations (1611)?

A
  • royal prerogative = finite stock of power
  • crown power legitimated through common law
  • prerogative power couldn’t exist unless there was precedent
24
Q

What did Entick v Carrington confirm?

A

There must be precendent in common law for a prerogative power to exist

25
Q

What is the review of the legality of prerogative power?

A

Courts determining the scope of prerogative power

26
Q

What was the effect of the De Keyser case?

A

Statutory power is superior to prerogative power

27
Q

What was the effect of the Fire Brigades Union case?

A

Statutory takes primacy over prerogative powers even where statutory scheme hadn’t been implemented yet

28
Q

Why was the governmnet’s triggering of article 50 in Miller illegal?

A

Because the effects were so significant, leading to notable change in the law of the land and individual rights

29
Q

What were the courts restricted in doing before GCHQ?

A

Only adjudicate on whether government had a prerogative power/scope and limits not how they were exercised.

30
Q

What was the issue in GCHQ?

A

Thatcher banning trade union membership at a government listening base

31
Q

What was the basis of the claim in GCHQ?

A

legitimate expectation of being consutled before any notable changes in working conditions as had been the case for the past 4 decades

32
Q

What was the effect of GCHQ?

A

All executive powers are reviewable, not just statutory

33
Q

What was the result of GCHQ for Thatcher?

A

Use of power was lawful

34
Q

What are the areas of policy that would not be amenable to judicial process in the obiter of GCHQ?

A
  • Treaties
  • Defence of the realm
  • Mercy
  • Honours
  • Disollution of Parliament
  • Appointing ministers
35
Q

What approach do judges apply where they are considering the substance of a prerogative power?

A

Contextual

36
Q

What was the issue in Bentley and was it suitable for JR?

A

Granting posthumous pardon (failure to consider different types of pardons), yes

36
Q

If the prerogative power is of higher policy, what will the degree of intensity of review be?

A

Low

37
Q

What was the issue in Everett and was it suitable for JR?

A

Refusal to grant passport, yes

38
Q

Are diplomatic relations a matter of low or high policy?

A

High

39
Q

What was the outcome in Abassi?

A

Unsuccessful however Court said if there had been no consideration of represenations, they would have ordered Foreign Office to make them.

40
Q

Is military action a matter of low or high policy?

A

High

41
Q

What did the court decide in Smith, Ellis and Albutt?

A

Doctrine of combat immunity should be construed narrowly

42
Q

What was the issue in Smith?

A

Homosexuals being dismissed from military

43
Q

Was Smith justiciable?

A

Yes

44
Q

What did the CoA say in Bancoult?

A

The prerogative power of colonial governance enjoys no generic immunity from JR

45
Q

What was the outcome in Bancoult?

A

Majority narrowly deferred to government

46
Q

What enshrined parliamentary sovereignty?

A

Bill of Rights 1689
Acts of Settlement 1701

47
Q

Did monarchs still have political power after the 17/18th century?

A

Yes, the country remained an oligarchy

48
Q

What are the three key concepts of Dicey’s theory of parliamentary sovereignty?

A
  • Supreme lawmaking body
  • Can’t be bound by previous/bind future
  • no person may question validity of enactment of parliament
49
Q

What did the Canon Selwyn case shown about being the supreme lawmaking body?

A

Parliament can pass legislation that laters part of the constitution

50
Q

Can Parliament pass legislation contrary to fundamental rights?

A

Yes, subject to consequences

51
Q

Can Parliament pass legislation contrary to international law?

A

Yes

52
Q

Can Parliament pass retrospective legislation?

A

Yes

53
Q

What did Dicey mean by Parliament can’t be bound?

A

No entrenchment

54
Q

What types of repeal are there?

A

Express, implied

55
Q

What is express repeal?

A

Legislation expressly states an intention that an earlier act should be replaced

56
Q

What is implied repeal?

A

A new act is wholly/partially inconsistent with a previous act

Public Law (8 decks)

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