Royal Prerogative LGS 6 Flashcards
Prerogative Definition
Blackstone
Dicey
the “special pre-eminence which the King hath over and above all other persons, and out of the ordinary course of the common law in right of his legal dignity”
“the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown”
“Every act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative”
“The Crown”
has separate legal personality (can own property and take legal proceedings against others). Includes Monarch and the government of today.
The “residual” nature of the Royal Prerogative
No new prerogative powers
BBC v Johns [1965]
Bill of Rights 1688 enabled parliament to restrict the Crown’s prerogative powers by statute.
Dicey: “what is legally left in the hands of the Crown…”
“It is 350 years and a civil war too late for the Queen’s courts to broaden the Prerogative…..
The limits within which the executive government may impose obligations or restraints on citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension……” (Lord Diplock).
Government Review of Executive Royal Prerogative Powers reported in October 2009:
“Scope of Royal Prerogative power is notoriously difficult to determine. Clear that the existence and extent of power is matter of common law, making courts the final arbiter of whether or not a prerogative power exists. Difficulty is that there are many prerogative powers with no recent judicial authority if at all. Government, Parliament, public left relying on statements of previous Government practice and textbooks.
R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989]
House of Commons Public Administratin Committee published list of powers available obtained from senior civil servant - then department for Contitutional Affairs, Ministry of Justice.
Domestic Affairs
• The appointment and dismissal of ministers;
• The summoning, prorogation and dissolution of Parliament;
Note: Fixed Term Parliament Act 2011
• Royal assent to bills;
• The appointment and regulation of the civil service;
Note: the Constitutional Reform & Governance Act 2011
• The commissioning of officers in the armed forces;
• Directing the disposition of the armed forces in the UK;
• Appointment of Queen’s Counsel;
- Issue and withdrawal of passports; 2005 governement withdrew passports of of two men released from Guantanamo, 13th time power used since 1947.
- Granting honours;
- Creation of corporations by Charter.
Foreign Affairs
Powers
Excercise & Privy Council.
Abscence of scrutiny.
The making of treaties;
• Declaration of war;
• Deployment of armed forces overseas;
• Recognition of foreign states;
• Accreditation and reception of diplomats.
Those powers falling to government ministers exercised either directly by ministers by ‘prerogative orders in council’ which require a meeting of the Privy Council (quorum of 4) in presence of monarch.
** Parliament not required to legislate for or approve actions under the prerogative. Decisions taken under prerogative are essentially executive decrees no legal accountability. * why did PM seek vote from parliament on the war in Iraq
Royal assent to Bills of Parliament
Nothing to stop Queen refusing – may be morally unconstitutional, power could be removed by an act of parliament or the power suspended - think Denmark …
The appointment and dismissal of ministers including PM
Think point: in the event of ‘hung’ Parliament and where the political parties cannot reach agreement can the Queen have the final say as to the appointment of the Prime Minister? Contrast 1974 with 2010…
2) REFORM OF THE PREROGATIVE
3 Failed attempts at reform.
Lord Lester of Herne Hill introduced the “Minister of the Crown (Executive Powers) Bill” to the House of Lords in 2003. House of Commons Select Committe rejected application to put all on a statutory footing, then re drafted but was rejected by governement.
In July 2007 Gordon Brown, newly appointed as Prime Minister, announced in the House of Commons proposals for constitutional reform including – but going wider than - reform of the Prerogative.
March 2008 the Government published a White Paper and Draft Bill entitled “The Governance of Britain – Constitutional Renewal”. Did not progress.
3) PARLIAMENTARY CONTROL OF THE PREROGATIVE
Conflicts between Statute and the Prerogative
Legislative supremacy
AG v De Keyser’s Royal Hotel Ltd [1920]
R v Sec of State for the Home Dept ex parte Fire Brigades Union [1995]
Parliament can abolish or restrict the operation of prerogative powers –
Statute Over rules prerogative (prevails).
Prerogative power went into abeyance as a result of the reglations.
Clashed with Old Statutory compensation scheme. Was not for the Home Sec. to repeal scheme previously set up.
Laker Airways Ltd v Department of Trade [1977]
. By excercising prerog power, they were going aginst the aims of the 1970 act. Cannot allow prerog to be used to cut across purpose and aim of the statute. Act of parliament had superior status. Early form of Judicial review of the prerogative.
4) JUDICIAL CONTROL OVER THE PREROGATIVE
Blackburn v Attorney-General [1971]
McWhirter v AG [1972]:
BUT
Chandler v DPP [1964]
The courts would not intervene in the process of making treaties. Executive accountable to Parliament for its actions - Parliament can demand that the government account for any action taken under prerogative power.
McWhirter sought declaration that membership of the EEC (now EU) would be contrary to Bill of Rights. court held that the prerogative power to make treaties cannot be called into question either before or after the treaty is signed.
Lord Devlin said courts would intervene to correct excess or abusesive use of prerogative powers; and
R v Criminal Injuries Compensation Board ex parte Lain [1967]
Gouriet v Post Office Workers [1977]
Lord Denning, in the minority stated:
Held that the High Court had power to review activities of Criminal Injuries Compensation Board. CICB set up under the Prerogative to administer benefits for the victims of criminal injury. Lord Parker – A body set up under prerogative can be scrutinised.
(‘relator proceedings’, Attorney General can take action in public interest. Court of Appeal held there was no power to review Attorney General’s exercise of his discretion which is a prerogative power.
The Attorney General’s refusal could be reviewed by the courts, and that refusal to give reasons for withholding his consent was against the rule of law.
The House of Lords, Lord Wilberforce
concluded that when the Attorney General gives his consent to a relator action, he is enabling an action to be brought which an individual alone could not bring. Only the Attorney General can sue on behalf of the public for the purpose of preventing public wrongs. In the exercise of his discretion in this context, the Attorney General was responsible to Parliament and not to the courts.
5) THE TURNING POINT: THE GCHQ CASE…..
Council of Civil Service Unions v Minister for the Civil Service [1985]
Lord Roskill - 6 Examples of prerogative power which are non justiciable, not appropriate to review.
In the GCHQ case
The GCHQ case - landmark decision which to a degree clarified the power of the courts to intervene in actions of the executive taken under the Prerogative.
6 Non justiciables.
i) Making of treaties
ii) Defence of the Realm
iii) The prerogative of mercy
iv) The granting of honours
v) Dissolution of Parliament
House of Lords said that a failure to consult, where consultation has been an established pattern, would allow judicial review on the grounds of procedural impropriety.
