Con & Ad - Prerogative Power
Common Law recognition - legal power that doesn't come from statute
Blackstone: "that special pre-eminence which the King hath over and above all other persons... those rights and capabilities which the King enjoys alone"
Dicey: "the residue of discretionary or arbitrary authority, which at any time is legally left in the hands of the Crown... every act which the executive government can do without the authority of an Act of Parliament" - narrower definition than Blackstone's
Post 1688 - gradual move away from royal prerogrative
BBC v Johns (1965): "it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative" - if doesn't exist now, can't create new powers
Types of prerogative power
Crown's legal prerogatives
Crown Proceedings Act 1947
Lord Advocate v Dumbarton (1989)
Monarch's personal constitutional powers
Heavily modified by conventions
Executive powers
Appointment of Ministers
Mercy
Honours
Collection of revenues
Passports
Treaties
Defence of the realm
Restraints on the prerogative
Separation of powers
Rule of law
Parliamentary sovereignty - statute
Interrelationship of statute and prerogative power?
A-G v De Keyser's Royal Hotel (1920)
Hierarchy of statute and prerogative power (defence of realm) - statute won - statute "abridged" prerogative (Lord Atkinson) - prerogative "in abeyance"
Buried prerogative for length of time statute was in force - not abolished
Greater legitimacy of parliamentary authority?
Laker Airways v Department of Trade (1977)
Bermuda Agreement
Civil Aviation Act 1971
Parliament and the prerogative
R v Home Secretary ex parte Fire Brigades Union (1995)
Criminal injuries compensation scheme
By-passing Parliament?
R (Miller) v SoS for Exiting EU (2017) - per Lord Neuberger: "It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone. All the more so when the source was brought into existence by Parliament through primary legislation, which gave that source an overriding supremacy in the hierarchy of domestic law sources"
Judicial review of the prerogative
Regarding existence and scope
Case of Proclamations (1611)
De Keyser's Hotel (1920)
Burmah Oil v Lord Advocate (1965)
Trend towards closer review
R v CICB ex parte Lain (1967)
Gouriet v Union of Post Office Workers (1978)
Judicial review of exercise of prerogative power
GCHQ - landmark case - Council of Civil Service Unions v Minister for the Civil Service (1985)
1) Exercise of prerogative power is non justiciable - beyond judicial review unless...
2) The legitimate expectation could lawfully be frustrated for national security reasons
Review is determined by the type of power and not its source
Lord Roskill: "there is no logical reason why the fact that the source of power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise... In either case the act in question is the act of the executive. To talk of that act as the act of the sovereign savours the archaism of past centuries."
a) Ultimately not unlawful to have frustrated the legitimate expectation
b) Exercise of prerogative power had involved national security considerations
c) "Political" issues - i.e. matters for the Executive
"Non-justiciable" powers - Lord Roskill obiter
Defence of the realm
Treaties
Mercy
Appointment of Ministers
Dissolution of Parliament (FTPA 2011)
Honours
Post GCHQ - extension of review? #
Mercy/pardons - R v SoS Home Dept, ex parte Bentley (1993)
Passports - R v SoS Foreign Affairs, ex parte Everett (1989)
Intensity of review
R v SoS Foreign Affairs ex parte Abbasi (2002)
Legitimate expectation of representations from the FCO?
Pure foreign policy?
R v SoS Foreign Affairs, ex partre Rees-Mogg (1994) - Maastricht Treaty
R (Bancoult) v SoS Foreign Affairs (2008) - Diego Garcia
Reform?
Political opposition to royal prerogative - e.g. Tony Benn MP
Constitutional Reform and Governance Act 2010
Civil Service - on statutory footing and ratification of treaties
Fixed-Term Parliaments Act 2011
Removal of prerogative power to call early elections
Foreign policy