Week 10 Public: Sources of Executive Power

What is a fundamental principle of constitutionalism and the rule of law regarding executive power?

Executive power must be based on law, not be arbitrary, and be susceptible to judicial review.

What is the ideal source of executive power in the absence of a codified constitution?

Statute, because it is created, amended, or repealed by Parliament and is reviewable by courts.

Where do large areas of UK executive power originate from?

The royal prerogative.

How does AV Dicey define the royal prerogative?

As "the residue of discretionary or arbitrary authority legally left in the Crown’s hands."

What two conditions must an act meet to be considered part of the prerogative?

a) Not abolished or put on statutory footing, and b) exclusive to the Crown.

What was the significance of the 1688-1689 ‘Glorious Revolution’?

It limited royal powers via the Bill of Rights and the Claim of Right.

What are the three types of royal prerogative?

1) The King’s personal prerogatives, (2) The legal prerogatives of the Crown, (3) Executive prerogative powers.

Name some executive prerogative powers.

Declare war and peace, ratify treaties, recognize states, control armed forces, pardon criminals.

What case states that no new prerogative powers can be created?

Case of Proclamations [1610].

What happened in R v Home Secretary, ex parte Northumbria Police Authority (1989)?

Court upheld a broad Crown prerogative to maintain peace despite no prior precedent.

What happens if statute and prerogative conflict?

Statute overrides prerogative (A-G v de Keyser’s Royal Hotel [1920]).

Can prerogative powers be "resurrected"? Example?

Yes; after repeal of the Fixed-term Parliaments Act 2011 by the Dissolution and Calling of Parliament Act 2022.

Can the prerogative change domestic law?

No; only statute can change the law (Miller No 1 [2017]).

How does the prerogative relate to the three government functions?

It spans legislative, executive, and judicial powers.

Why must the prerogative be controlled?

It risks legal uncertainty, rule of law violations, and threatens parliamentary sovereignty.

What is the main method for Parliament to control prerogative powers?

By enacting statutes that restrict or abolish them.

Historically, was the exercise of prerogative powers justiciable?

No; traditionally, courts only determined if the power existed.

What case marked the shift towards judicial review of prerogative powers?

CCSU v Minister for the Civil Service (‘GCHQ’) [1985].

What did GCHQ establish about the source vs. nature of power?

Reviewability depends on the nature, not the source, of power.

What happened in Bancoult No 2?

Court allowed review of Orders in Council, but upheld forced removals citing "national security."

What weakens judicial control over prerogative powers?

Claims of "national security" and vague prerogative limits.

What was the ruling in Miller No 2 (2019)?

Prorogation is unlawful if it frustrates Parliament’s constitutional functions.

How did the judicial approach differ between Miller No 2 and GCHQ/Bancoult?

In Miller No 2, the court prioritized protecting fundamental constitutional principles.

Q: What did the Public Administration Select Committee recommend about the prerogative?

Greater parliamentary oversight and statutory codification of prerogative powers.

Why has fundamental reform of the prerogative not occurred?

Political resistance, complexity, and the executive’s preference for flexibility.