PUBLIC LAW L4 - Prerogative Power - CONTROL OF THE PREROGATIVE GCHQ Flashcards
What was the courts position prior to the GCHQ decisions in house of lords? (4)
The courts had not intervened or reviewed in any manner in which prerogative powers were exercised by the government. UK courts only felt able to adjudicate on whether government had a particular prerogative power and wat the exact scope or limits of the powers were but had not reached a point where they were prepared to review hoe the government used its prerogative powers.
What did the judgement in GCHQ show? (1)
That the courts have power to review whether the exercise of the prerogative has been carried out lawfully.
Describe the case of GCHQ 1985. (6)
PM Margaret Thatcher wanted to ban trade union membership and her authority to do so came from the PM’s prerogative power to regulate the working t&cs of the civil service.
The allegation was that she has used her power in an unfair way by announcing the ban on union membership without any prior consultation.
The governments defence was that the courts were not permitted to review how the PM used her prerogative powers.
The law lords found that there was no reason in principle why the use of prerogative powers should be unchallengeable in court as statutory powers as long been subject to judicial control.
Ultimately the PM managed to defend her case as it was said there was a justifiable public interest in not consulting as it may have triggered strike action that could have jeopardised the country’s national security.
What was the result of the GCHQ? (2)
The government could no longer shelter behind the fact a power came from the prerogative - in principle all executive powers should be reviewable in order that the rule of law be promoted effectively.
What did Roskill mention in GCHQ obiter? (6)
Even though prerogative powers should be subject to review such as making of treaties, mercy, dissolution of parliament, defence of the realm, granting of honours and appointment of ministers - and be non-justiciable.
What did Roskill demonstrate by referring to the amenability of such matter to process of judicial review? (3)
How the judiciary regulate to the extent of their own involvement in the more political areas of public laws. The judiciary attempts to respect appropriate informal lines of responsibility in UK constitutions’ delicate SOP balance by assessing the differing competencies of the three bodies of state.
What approach have the courts taken post GCHQ? (2)
They have increasingly taken an approach and tailored the degree of their interventionism based on the nature of power that the government has used rather than its form.
