The Royal Prerogative

Question 1

What is prerogative power?

Answer 1

• Residual discretionary power
• left in the hands of the Crown
• Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.’
• royal prerogative powers are the remnants of old ‘monarchical’ powers

Question 2

Who arbitrates the existence and extent of a claimed prerogative power?

Answer 2

The courts

Question 3

How are royal prerogative powers exercised?

Answer 3

Exercised by the government on the behalf of the monarchy.

Question 4

What is an example of a prerogative power?

Answer 4

• The government deciding to commit troops to war,
• The Government entering into a treaty,
• An appointment to the House of Lords.

Question 5

What are 4 main controls over prerogative power?

Answer 5

1. Courts and JR
2. Acts of Parliament -> CRA 2005, Constitutional Reform and Governance Act 2010

(Treaties can be ratified only after Parliament has had the opportunity to raise opposing resolutions.)

3. Constitutional convention
4. Informal political pressures

Question 6

Is the extent of royal prerogative significant today?

Answer 6

• Still holds some importance; power largely governed by convention
• government business largely conducted through statute

Question 7

How is taking of measures necessary in times of emergency and/or for the ‘defence of the realm’, including the control of armed forces usually exercised?

Answer 7

Prerogative power

Question 8

What are 2 remaining legal prerogatives afforded to the Crown?

Answer 8

1) The Crown is not bound by statute -> Legislation will not apply to the Crown unless express words have been used /inference that Parliament did intend to bind the Crown. (Province of Bombay v Municipal Corporation of the City of Bombay)

2) Immunity from some litigation -> The Crown is not directly subject to the contempt jurisdiction (i.e. contempt of court); and the sovereign has personal immunity from prosecution or being sued for a wrongful act.

Question 9

Are prerogative powers legally enforceable?

Answer 9

yes -> powers are recognised by the courts through common law

(note: subsequent tensions between prerogative power and the requirements of legality where the government must act within the bounds of the law)

Question 10

What is the difference between the requirement and principle of legality?

Answer 10

Requirement of legality:

The government must act in accordance with the law. Thus Governmental power can only be exercised on identifiable authority and in a lawful manner.

vs

Principle of legality:

If parliament wishes to take away a constitutional right it must do so by using clear words.

Question 11

What is the De Keyser principle?

Answer 11

Statutory power is a superior form of power than that of prerogative. This reflects the central importance of the sovereignty of Parliament in the UK constitution.

Fire Brigades Union case -> accentuated the importance to the courts of following parliamentary intention if there are any forms of over-lapping statutory and prerogative powers in operation

Exception:

Northumbria case outlines a limit of the de Keyser principle (i.e. that statutory power should always prevail over prerogative power) in certain situations.

In this case it was held that the Act of Parliament (Police Act 1964) did not override the Home Secretary’s prerogative power to keep the peace within the realm.

A prerogative power may still apply if it is directed to the benefit or protection of the individual – as opposed to restricting the rights of the individual.

Question 12

What happens if a particular executive function appears to be governed by both prerogative power and statutory power?

Answer 12

apply De Keyser principle -> statutory > prerogative

Question 13

Can courts review prerogative power? What case was this established in?

Answer 13

Yes, per GCHQ

Key Principle Established  All executive powers should be reviewable in order that the rule of law be promoted effectively.

Question 14

Are there some prerogative powers that the court cannot review?

Answer 14

Yes, where the nature is purely political and a matter of higher policy.

E.g:

• The making of treaties Defence of the realm
• Mercy Granting of honours
• Dissolution of Parliament Appointment of ministers (‘and others..’)

Question 15

When will ‘intensity’ of review be light/ low versus high?

Answer 15

Light/ low intensity:

• matters of high policy/ very political
• e.g: making treaties, war, dissolving parliament, full pardons

Higher intensity:

• lower policy matters
• e.g. matters of administrative decision, affecting the rights of individuals, conditional pardons…

Question 16

In the Abbasi case, the issue was:

“To what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or public international law where fundamental human rights are engaged?”

Could the courts rule on this?

Answer 16

Matter of high policy + high foreign policy -> low degree of scrutiny afforded to English courts.

Executive is the primary decision maker.

Question 17

Is it justiciable for the court to scrutinise the decision for military operations such as in the case of In R (Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002)?

Answer 17

No -> high policy matter

Question 18

Can the court review the prerogative power of colonial governance?

Answer 18

no generic immunity from JR

Question 19

What is meant by the courts apply a ‘sliding scale approach’ to JR?

Answer 19

Varying intensities of review dependent upon the subject matter of the case.

(high-> low intensity review)