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Prerogative Power - Coggle Diagram
Prerogative Power
Controls on prerogative
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Parliament's Controls
Legislate to modify, abolish or put statutory footing on prerogative eg. prerorgative power to dissolve P replaced by Fixed-term Parliament Act 2011
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Conventions can be adopted eg. Tony Blair sought P approval before war in Iraq, arguably creating 'war powers convention'
General
Definition: 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 do without authority of an Act is done in virtue of this prerogative power.
Residual: Powers exercised by the Government, which are not covered by statute. In absolutist monarchy, prerogative used to be by monarch personally. Now, it is increasingly exercised by the executive, on a statutory basis.
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GCHQ
Story: Thatcher tried to ban trade union membership at Gov's listening base. This was challenged on the fact there was no prior consultation. The Gov argued the courts could review if they had the power but not HOW it was used.
Result: Gov won the case as the lack of prior consultation had benefits such as protecting national security as it led to less strikes. Overall principle was not in favour of Gov, Judge ruled Courts can also decide on HOW prerogative power is used, and it does not matter if it comes from a Parent Act or from Prerogative.
Exception in Obiter: There are some matters of high policy where prerogative power should not be reviewed by the Courts. eg. Treaties, Mercy, Dissolution of P, Defence of the Realm, granting of honours & Appointment of Ministers (and others)
SoS for Foreign and Commonwealth Affairs ex parte Everett: Everett applied for new passport despite having an arrest warrant. This was Refused. Everett challenged. Gov argued this was non-justiciable Court found against Everett on the facts but agreed it was suitable for Judicial Review as it effects the rights of individuals and is more administrative.
Ex parte Bentley: mercy was justiciable. Court distinguished full pardons were high policy but believed the Gov didn't take into account the availability of a conditional pardon- which is justiciable. Low level for Gov but high importance for individual.
Foreign Policy: Abbasi: UK National in USA put in Guantanamo Bay during USA 'war on terror' and UK Gov challenged that they didn't intervene. Abbasi was said to have standing, the courts took the case. The level of scrutiny was low, and the courts decided in favour of Gov. However, courts said if Gov had no consideration at all of representations, they would order them to consider.
Defence of the realm: Campaign for Nuclear Disarmament v PM: decision to take military action is non-justiciable
Defence of the Realm: Smith v MoD: combat immunity (excluding liability for negligence in military combat) should be construed narrowly. Decisions made by commanders during military engagement should not be subject to JR for fear of 'judicialising warfare', but this does not apply to failings remote from battlefield.
Defence of the Realm: Smith & Grady v UK: Dismissed for sexuality. High policy but had to be justiciable as matter of fundamental rights & affect livelihood and career prospects of individuals. Decided in favour of individuals as the MoD were 'irrational'