Prerogative Power

Question 1

What is meant by residue of prerogative power

Answer 1

Prerogative power used to be personally exercised by the monarch as Britain was absolutist
Governmental powers been put on a statutory basis in last century
Therefore powers leftover still not covered by Acts is residual

Question 2

Lord Diplock on prerogative power

Answer 2

It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative (it’s finite and can only be reduced nor expanded)

Question 3

What is prerogative power

Answer 3

The residue of discretionary authority which at any given time is legally left in the hands of the Crown. Every act which executive government can lawfully do without authority of an Act of P is done in virtue of prerogative

Question 4

How has prerogative powers developed

Answer 4

Developed from being used by the monarch in absolutist monarchies to being used by executive in more diplomatic society (central Gov & PM)
Monarch’s use is now only really ceremonial

Question 5

3 types of prerogative power

Answer 5

• executive prerogative powers (now exercised by ministers without need for royal authority)
• monarch’s constitutional prerogative (carried out by monarch on advice of PM)
• Crown’s legal prerogative

Question 6

3 areas of executive’s prerogative power

Answer 6

Foreign affairs
Armed forces/emergencies
Judicial ‘mercy’

Question 7

Prerogative powers in foreign affairs

Answer 7

• recognition of other sovereign states and their representatives
• Ratification of treaties (seem as contract between states and does not generally require P approval)
• Conduct of diplomacy
• Granting/revoking passports
• Governance of British overseas territories

Question 8

Prerogative powers in armed forces/emergencies

Answer 8

Arguably most significant
Long recognised as courts as most central prerogative power
Chandler v Director of Public prosecutions- Lord Reid states armed forces are and for centuries have been within the exclusive discretion of the crown’
- power to take action at times of emergency (seize control of neutral property/requisition ships at war)

Question 9

Prerogative powers of Mercy

Answer 9

Home Secretary (on behalf of crown) may pardon those convicted of offences prosecuted by the crown
Secretary of State for home department ex parte bentley leading case

Question 10

Monarch’s constitutional prerogative

Answer 10

• appoint PM
• Right to assent to legislation
• Right to prorogue or end session of P (second case of Miller)

Question 11

Crown’s legal prerogatives

Answer 11

Courts now almost entirely statute based
Only 2 royal prerogatives left
- presumption the Crown is not bound by statute unless express words used or it can be inferred P did not intend to bind the Crown
- Crown is not directly subject to contempt jurisdiction (contempt of court) sovereign has personal immunity from prosecution or being sued for a wrongful act

Question 12

Ways to control prerogative power

Answer 12

• application of public law (judicial review)
• Informally through political pressure eg. Media
• Overriding effect of statute (legislation trumps prerogative)
• Informally by changes to convention over time

Question 13

How can P control prerogative power

Answer 13

• Legislate to modify, abolish or put a statutory footing on any prerogative power eg. Fixed Term Parliamemts Act 2011 on dissolving P
• Constitutional conventions
  Eg. Tony Blair sought P approval before war in Iraq, arguably starting a ‘war powers convention’ followed by David Cameron

Question 14

How can Courts control prerogative power

Answer 14

Courts has ability to check or review executive use of prerogative power since 17th century
GCHQ developed this
Prerogative power form of power that has legal enforceability because it is recognised and accepted by courts through common law . It is judges who should determine how and to what degree they are able to control its use

Question 15

Case of Proclomations

Answer 15

“The king hath no prerogative but that which the law of the land allows him’ shows finite stock of power and is legitimated through recognition in common law (particular form of power could not exist unless courts accepted there was a precedent for or having been used in past)

Question 16

Attorney General v De Keyser’s Hotel Ltd

Answer 16

Prerogative power is bound by statute
- stature overrides prerogative power and does not get rid of it, but can ‘suspend’ it
Principle confirmed in Home Secretary v Fire Brigades Union

Question 17

Miller case- scope

Answer 17

PM Theresa May sought to use prerogative power to trigger article 50 process of negotiation before UK left EU courts majority found PM did not have this prerogative power
- triggering such a notable change like leaving EU when it effects everyone in UK should not be used under prerogative power

Question 18

GCHQ story behind

Answer 18

Margaret Thatcher tried to ban trade union membership at Gov’s listening base in Cheltenham (authority came from PM power to regulate the working terms and conditions of civil service)
- tried to challenge fact that there was no prior consultation before the ban which was unfair

Question 19

What did Gov/PM/Maragaret Thatcher argue in GCHQ

Answer 19

Argued courts could review if executive was granted this power but not HOW it was used

Question 20

GCHQ result of case

Answer 20

PM/Gov won the case as lack of prior consultation had public benefit like protecting national security as there could otherwise have been strikes
- overall principle was not in favour of Gov, Judge ruled executive powers are reviewable doesn’t matter if from a Parent Act or from prerogative. Courts can also decide on how Gov used powers

Question 21

What did Judge caution with after deciding GCHQ case (obiter)

Answer 21

Certain matters of high policy should not be reviewable
- The areas that should not be susceptible to review are: treaties, mercy, dissolution of P, defence of the realm, granting of honours, appointment of ministers (and others)