The scope of the Royal Prerogative.
This section outlines three key considerations that apply when determining whether a prerogative power exists. These are, first, whether a prerogative power has been said to previously exist, second, if so, whether it has been abolished or restricted by statute, and finally that the Crown is not bound by a statute unless expressly so, or by necessary implication.
Nourse LJ in R v Secretary of State for the Home Department ex p Northumbria Police Authority: 'it has not at any stage in our history been practicable to identify all the prerogative powers of the Crown. It is only by piecemeal decisions over a period of centuries that particular powers are seen to exist or not to exist." This means that we have to consider the case law in order to understand the prerogative.
Lord Reid, (Burmah Oil) "It is not easy to discover and decide the law regarding the royal prerogative and the consequences of its exercise.. we must try to see what the position was after it had become clear that sovereignty resided in the King in Parliament. Any rights thereafter exercised by the King (or the executive) alone must be regarded as a part of sovereignty which Parliament chose to leave in his hands." This means that the court has to determine if this power existed pre-1688.
Lord Diplock, (BBC v Johns) "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." > no new prerogative can be created.
All 3 principles are seen in Miller.