PUBLIC LAW - LECTURE 5 H. Whitaker

Today’s Lecture:Nature of Prerogative Powers

Definition of Prerogative Powers

History of the Prerogative

Prerogative powers personal to the sovereign

Prerogative powers exercised by the executive

The courts and prerogative powers

Judicial review of prerogative powers

Statute and prerogative powers

The Royal Prerogative

Central Government gains power from two sources:

Statutory Power

Prerogative Power

The Royal Prerogative

Prerogative powers = powers the executive can exercise without the passage of legislation

Dicey definitions of the royal prerogative:

“The residue of discretionary and arbitrary power legally left in the hands of the Crown”

“…….every act which the executive government can lawfully do without the authority of an Act of Parliament…..”

History of the Prerogative

Powerful monarchy

Case of Proclamations (1611)

Bill of Rights (1689) and Act of Settlement (1700)

History of the Prerogative

BBC v Johns (1965) 1 All ER 933 per Lord Diplock:

“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 the citizens of the UK without any statutory authority are now well settled and incapable of extension”

Prerogative powers personal to the sovereign

Right to appoint Prime Minister

Right to appoint cabinet ministers

Right to summon, prorogue and formerly to dissolve Parliament – dissolution now governed by the Fixed Term Parliaments Act 2011

Right to assent or dissent to Bills

Also legal prerogatives of the Crown

Prerogative powers exercised by the executive

Declaration of war

Making of international treaties

Disposition of armed forces overseas

Prerogative of mercy

Issuing and revocation of passports

Granting of honours

The courts & the royal prerogative

The Case of Proclamations (1611)

The courts have always stated that they do have the power to make a finding whether a prerogative power exists in law.

BBC v Johns (1965)

The courts will not allow new prerogative powers to be created by the executive.

The courts & the royal prerogative

Malone v Metropolitan Police Commissioner [1979] Ch 344

The courts may be willing to recognise that an old prerogative power can broaden itself to adapt to a new situation.

R v Home Secretary ex p Northumbria Police Authority [1989] QB 26

The courts may define a prerogative power widely and find that a specific course of action falls within that power.

Judicial Review of the prerogativeTraditional approach

Burmah Oil v Lord Advocate (1965)

R v Criminal Injuries Compensation Board ex p Lain (1967)

CCSU v Minister for Civil Service (1985)

R (Bancoult) v Secretary of State for Foreign and Commonwealth Office (2001)

R v MOD ex p Smith (1995)

R v Secretary of State for Foreign and Commonwealth Affairs ex p Everett (1989)

R V Secretary of State for Home Department ex p (Bentley)

Relationship between statute & the prerogative

Attorney General v De Keysers Hotel (1920)

The prerogative will be held in abeyance whenever legislation overlaps with it.

R v Secretary of State for the Home Department ex p Fire Brigades Union (1995)

The HOL held that it was an abuse of the Home Secretary’s power to use the prerogative to set up a scheme which in effect was clearly inconsistent with a statutory scheme.

Should prerogative powers be put on a statutory footing?

Discontinued Prime Minister (Office, Role and Functions) Bill 2001

Fourth Report from the Public Administration Select Committee 2003-04

2007 Green Paper (The Governance of Britain, Cm 7170(2007)

Constitutional Reform and Governance Act 2010:

Organisation of the civil service

Foreign treaties must be laid before Parliament before ratification

Political and Constitutional Reform Committee Report “ Role and Powers of the Prime Minister” First Report of session 2014-15 HC351

ReviewUnderstand definition of Royal Prerogative

Understand the nature of Prerogative powers

Appreciate which prerogative powers are exercised by the Monarch on the advice of the government and which powers are exercised by the executive in the name of the Crown

Knowledge of key cases demonstrating the approach of the courts to prerogative powers

Relationship between prerogative powers and

Statute

Awareness of calls for reform