Prerogative powers

To what extent are prerogative powers compatible with democracy?

What's your thesis for prerogative powers essay?

P Powers structurally incompatible with democracy - bypass representative consent. Compatibility improved via judicial protection BUT defensive not affirmative. RoL = legal procedure not democratic deliberation. Democratic deficits remain where p powers thrive. Contested/evolving - courts mediate without fully resolving.

What is Blackstone's definition of prerogative powers?

"That special pre-eminence which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity"

What are examples of foreign relations prerogative powers?

Military deployment, treaties, dealing with foreigners in the country

What are examples of domestic prerogative powers?

Appoint ministers, issue passports, withdraw prosecutions, pardon offenders

Why are prerogative powers incompatible with democracy?

"Out of ordinary course of common law" - executive action outside normal legal democratic processes. Vast scope, no parliamentary vote, genuine impact on country - erodes democratic expression

What is the abeyance principle from De Keyser's Royal Hotel [1920]?

When parliament passes a law about something, the old royal prerogative power about that same thing goes into abeyance (temporary disuse)

Why does De Keyser's matter for democracy?

Statute made by elected MPs can trump prerogative powers - executive derives authority from parliament not royal prerogative

What is the frustration principle from Fire Brigades Union [1995]?

Government cannot use prerogative powers to frustrate (block/undermine) what parliament intended

What happened in Fire Brigades Union [1995]?

Government never activated compensation scheme in CJA 1988 and used prerogative to make cheaper one instead - court said ministers cannot use prerogative to undermine parliament's will

What did Miller I [2017] establish about prerogative and statute?

Article 50 could not be triggered via prerogative - needed parliament to create European Union Withdrawal Act 2018. Only parliament can remove what parliament created.

Counter-argument to "courts protect democracy from prerogative"?

Reactive/defensive not proactive. Prerogative already exercised before court intervenes. Not affirmative democracy - supremacy only protected when challenged.

Point 2 evaluation: Do judicial limits make prerogative compatible?

Structure of democracy somewhat intact (supremacy protected) BUT compatibility incomplete - courts rescue parliament when attacked, don't democratize prerogative itself. Gap remains.

What happened in GCHQ [1985]?

Thatcher banned trade union membership at GCHQ for national security reasons - challenged in court

What did GCHQ establish about prerogative and rule of law?

Courts require executive to justify decisions legally - Diplock test: illegality, irrationality, procedural impropriety. Legal basis must be asserted.

What happened in Miller & Cherry [2019]?

Boris Johnson advised Queen to prorogue parliament for 5 weeks during Brexit constitutional crisis

What did Miller & Cherry establish?

Supreme Court rejected argument that prorogation was political not legal matter. Court can interfere - parliamentary supremacy functions as requirement for democratic structure.

Counter to "RoL makes prerogative compatible with democracy"?

Courts review legality not policy - whether executive CAN act, not whether it SHOULD. Doesn't democratize decisions (e.g., Miller about HOW to conduct foreign relations, not Brexit policy itself).

Point 3 evaluation: Does rule of law create democratic compatibility?

Legal compatibility increased BUT cannot substitute democratic deliberation for unilateral executive judgment. RoL = procedural legitimacy which feeds into but doesn't complete democratic legitimacy. Gap remains.

What happened in Bancoult [2009]?

Chagossian people forcibly removed from Chagos Islands in 1960s/70s - challenged Orders in Council (prerogative legislation) preventing their return

What does Bancoult show about prerogative and democracy?

Foreign policy prerogative shielded from democratic scrutiny. Colonial subjects denied democratic representation. National security exemption removes oversight - blank check. No judicial scrutiny. Areas furthest from accountability = prerogative strongest.

Counter to "foreign affairs prerogative undemocratic"?

Necessity for swift decision-making not slowed by democratic deliberation. Impractical - courts lack expertise.

Point 4 evaluation: Democratic deficit in foreign/colonial affairs?

Does not mandate compatibility - judicial protections inadequate. Structural gap most obvious here - where prerogative strongest, democracy weakest.

What's the key gap in prerogative powers and democracy?

Courts can limit overstepping (defensive) but cannot democratize prerogative itself (affirmative) - policy vs procedure gap

How have courts attempted to make prerogative compatible with democracy?

Three methods: (1) Abeyance principle - statute trumps prerogative (2) Frustration principle - can't undermine parliament (3) JR of prerogative - must justify legally (GCHQ, Miller & Cherry)

What's the difference between legal compatibility and democratic compatibility?

Legal compatibility = courts check legality, ensure procedures followed. Democratic compatibility = decisions made through representative consent and deliberation. Legal ≠ democratic.

Why is prerogative strongest in foreign/colonial affairs?

Furthest from democratic accountability - national security exemptions, swift decision-making arguments, courts lack expertise - creates largest democratic deficit

What principle protects parliamentary supremacy from prerogative?

Courts protect parliament through: abeyance (statute trumps), frustration (can't undermine), and requiring parliamentary authorization for removing statutory rights (Miller I)