Public law 1: prerogative powers

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18 Terms

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Why is controversy concerning prerogative powers?

Because prerogative powers are not conferred by Parliament and have not been subject to the same level of parliamentary discussion unlike statute

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What are prerogative powers?

These are residual executive powers, predating the development of parliament in its modern form. No new prerogative powers can be created. They are part of the common law so may be abolished by an Act of Parliament. They are also subject to judicial review unless its non-justiciable

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What are the main prerogative powers? - House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report, Session 2003–04 (HC 422)

1) the queen’s constitutional prerogatives are the personal discretionary powers which remain in the Sovereigns hand - ie the right to advice ministers, appoint the MP, prorogue Parliament. The monarch will accept ministerial advice if using these powers

2) the legal prerogatives of the Crown, which the Queen possesses as the embodiment of the Crown - ie there are many prerogatives which are legal in character such as the Queens right to swans, whales, the right to impress men into the Royal Navy. But 2 of these have more significance = the principle that the Crown can do no wrong and that the Crown is not bound by statute

3) prerogative executive powers - these powers have now been delegated to responsible ministers.

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What are the Monarch’s Constitutional Prerogatives?

The monarch is not involved in making the day to day executive decisions, but as the head of the state, he continues to exercise constitutional prerogatives that are important to the smooth running of the system as a whole ie formally appointing ministers such as the PM, making prerogative legislation in the form of Orders in Council and giving royal assent to bills

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What is Crown Immunity?

The crown enjoys immunities and exemptions from the law. An act of parliament is presumed not to bind the crown unless it expressly says so, ie this is why the Monarch is not liable to pay tax

Prior to the enactment of the Crown Proceedings Act 1947, the Crown was immune from actions in tort

There still is a general common law rule that the Crown and emanations of the Crown are immune from prosecutions for criminal offences

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Can a prerogative be used to change and common law and remove rights?

No an important limiting feature of prerogative power is that it cannot be used to change the law ie can’t remove people’s rights unless an Act of Parliament clearly permits this ie this was seen in Miller 1 where the supreme court stated that an act of parliament would be needed in order to give notice to leave the EU as this could not be left down to prerogative powers as exiting the EU would alter domestic law and remove rights created by EU law

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Can new prerogative powers be created?

No, the executive can only claim to possess prerogative powers if these powers are already recognised by the common law. r

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What is the relationship between prerogative and statutory powers?

Prerogative powers cannot be used to be in conflict with primary legislation. Parliament can limit or abolish prerogative powers. It may also decide that the power should be retained, but placed on a statutory footing. Parliament can also revive a prerogative power ie this happened in relation to the power to dissolve and call a new parliament (Dissolution and Calling of Parliament Act 2022)

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If parliament decides to enact legislation which conflicts with prerogative powers, can the government choose to use the prerogative rather than statutory provisions and the case of Attorney General v De Keyser’s Royal Hotel[1920] AC 508, 526?

The situation is highlighted in this case. Here the issue concerned the requisitioning of a hotel in London in WW1. The government had 2 ways in which it could requisition the hotel: either by prerogative power or exercising powers conferred by a statute. The difference was that under the prerogative, compensation did not have to be paid to the owner, but under statute it did. The court of appeal and house of lords held that the government had to use the statutory powers. Lord Dunedin stated that “it is certain that if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules”

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Case of R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26, 43

This case shows its not clear that the use of prerogative powers would be incompatible with the statute. Here the Home Secretary sent a circular to all chief constables in England explaining that a central store for plastic bullets and CS gas would be set up and the chiefs could buy this crowd control equipment without having to obtain permission of their local police authority (statutory bodies established to subject police forces to local accountability). Many police authorities were dismayed that this equipment could be purchase without their involved and unsuccessfully challenged this. The court of appeal said that the Home secretary had a prerogative power to maintain the peace in the realm ie by allowing chiefs to access crowd-control equipment and this power hadn’t been removed by a statutory provision.

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Case of R v Secretary of State for the Home Department, ex parte the Fire Brigades Union.

The court also had to consider the relationship between prerogative and statutory powers

Here the question was if the executive could use prerogative powers which means that an act of parliament will not be brought into force. The criminal injuries compensation scheme was introduced in 1964 using prerogative powers. In 1988, parliament enacted the criminal justice act 1988 to place the scheme on a statutory footing, the provision was only meant to come into effect, but no such day was appointed, so they didnt come into effect. In march 1994, the home secretary told parliament that the non-statutory scheme would be modified to introduce a lower level of compensation that the act planned and that the criminal justice act would be repealed. This decision was challenged by trade unions. The house of lords held that it was an abuse of power for the home secretary to exercise his prerogative powers to introduce a system which would conflict his continuing duty to bring the statutory scheme into force.

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How is judicial review undertaken of prerogative powers?

If the government claims to exercise a prerogative power and its action is challenged in judicial review proceedings, the courts will examine if the claimed prerogative power exists, it it is found not to exist it will invalidate any action taken. There may be occasions where the courts will not intervene because the subject matter of the power is regarded by the courts as non-judiciable

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Case of Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case)
[1984] IRLR 309, 310


Here the civil service unions challenged a decision taken by the minister for civil service that workers at the GCHQ could no longer be part of a trade union. The decision was taken under powers conferred on the minister by the civil service order in council 1982 (this is a legislative instrument enacted by the queen in council by prerogative powers). The union claimed that the claimed that the courts could review the decision. They said the decision was unlawful s the govs failure to consult before the decision breached the workers legitimate expectation of consultation so was procedurally unfair. The government argued that prerogative powers could not be judicially reviewed. Judge Glidewell decided that they could be judicially reviewed. He found that the minister acted unlawfully. The government appealed to the court of appeal but under a different argument ie that the failure to consult was justified by the interests of national security = courts should not interfer as decision had been taken on grounds of national security

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Case of R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2)

The case concerned the Chagos Islands in the Indian Ocean which until 1965 were part of the British colony of Mauritius. The islands were made a separate colony ie the British Indian Ocean Territory (BIOT). In the 1960s, the UK gov entered into negiotations with the USA over the establishment of a US based on the main island on BIOT. This required the removal of the population there and in 1971, the UK gov through the queen in council made a prerogative legislation which gave power to exile the population. In 2000 (Bancoult 1) the court allowed the challenge of one of the affected islanders of the legality of their removal. After the decision the gov accepted the rulling and stated they wouldnt appeal. The gov then decided they wanted the territory for defence purposes. 2 further orders were made which prevented the islanders from returing to the island. The islander then challenged the orders (different from the GCHQ case where they challenged the executives actions taken under the orders in council rather than the orders in council themselves). He argued that the right to abode could not be removed by the crown in any circumstances and that the law had to be for the benefit of the inhabitants. He was successful in both the divisonal court and court of appeal. On the appeal to the house of lords, the government argued that the court had no power to review the validity of an order in council legislating for a colony as it was primary legislation comparable to an act of parliament and the islanders didnt have the fundamental rights they claimed. The house of lords accepted the courts can review the legality of orders in council and so it developed the law pass the GCHQ case. The majority refused to accept that the orders in council were unlawful ie the right to abode was a creature of the law, not a constitutional right, so couldnt claim that it was fundamental so the crown couldn’t touch it

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Case of R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44


This is an example where the court would not review the exercise of prerogative powers on the same grounds as they will statutory powers. The case was brought by a british national who was in prison in Indonesia awaiting execution by firing squad following a drug conviction. She admitted to it but claimed she had been coerced by threats to her sons life. Now her only legal options to avoid execution was an application to the indonesian supreme court to reopen the case and an application to the president for clemency (mercy). She needed legal help to prepare the case and asked the UK gov to pay, they provided assistence etc but refused to pay for legal help, central issue in the case was if this was lawful. Its an established principle of judicial review that public bodies can’t fetter their discretion by treating their policies as if they are rules in a manner that prevents them from considering the particular circumstances of individual cases. The claimant claimed that this principle applied in this case so the UK gov had unlawfully fettered their discretion. The gov claimed that since the power to provide help is dervived from the prerogative rather than statute, they could apply the rigid policy. They dismissed the appeal and lord carnwath and lord mance agreed that the prerogative powers have to be approached on a different basis from statutory powers and there is no implication that a blanket policy is inappropriate.

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Why is it hard to reform prerogative powers?

It is a complex matter as they are used across a broad and diverse range of situations including decisions to go to war, decisions relating to passports etc.

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What are the two approaches to reform of prerogative powers?

The pragmatic approach continues the long standing practice of subjecting individual prerogative powers to parliamentary control on a case by case basis. Whereas reform based on principle calls for comprehensive legislation to subject prerogative powers in general to parliamentary control.

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What are the benefits and drawbacks of parliamentary involvement in decisions on armed conflict - House of Lords Constitution Committee, Waging War: Parliament’s Role and Responsibility, Fifteenth Report, Session 2005–06

Pros

  • increase legitimacy: a key concern is that parliament should be the source of the governments power, not the crown

  • increased accountability: it could be said that the ability of the UK governments to use the royal prerogative power to engage in conflict is less democratic than when the monarch exercised this power personally

  • improve decision making - as the prerogative power is exercised by the PM alone this can lead to decisions being made in a vacuum so a requirement for parliamentary scrutiny would lead to better decision

  • improve morale: more legitimate decision making would have greater public support

cons

  • undermine operational effectiveness: operational effectiveness is a key benefit of the present deployment arrangements so more parliament involvement may undermine this

  • shift responsibility from the executive: evidence shows this responsibility should rest with the executive and not be dictated by the immediate reactions of parliament

  • lead to litigation: may lead to the legality of any deployment being challenged in UK courts.

  • undermine morale: may introduce a damaging level of uncertainty