public law 6; royal prerogative

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royal prerogative

royal prerogative is the constitutional inheritance from the centuries prior to Parliament (finally) establishing its sovereignty over the Crown in 1689. It is a collection of powers that are wide-ranging in scope and which in terms of strict law belong to the Crown alone. in practice the majority of these powers are nowadays exercised by the government of the day or the judiciary in the name of the Crown. the residue of discretionary or arbitrary authority, which at any time is legally left in the hands of the Crown...Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative the prerogative is inherent in and peculiar to the Crown b. prerogatives are common law powers: i.e. they are recognised by the courts c. the rights and powers are residual: they cover areas over which Parliament has not enacted statutes and they can be limited by Parliament d. the prerogative legitimises executive actions without the need for an Act of Parliament. The summoning and dissolution of Parliament The appointment of Prime Minister and all ministers of the Crown The Royal Assent to Bills The granting of honours Defence of the realm, including national security and keeping the peace The protective jurisdiction - parens patriae - over children The power to stop criminal prosecutions: The prerogative of mercy and reduction of sentences and pardoning of offenders Regulation of the terms and conditions of the Civil Service Treaty-making powers Declarations of war and peace The recognition of foreign states Diplomatic relations Control of the armed forces overseas 1. succession to the Crown is automatic: 2. inviolate (assault=> treason) 3. can do no wrong raise takes dispense justice establish courts of law proclaim law and dispense with laws raise and maintain an army control trade and the ports and the right to treasure trove. The Case of Prohibitions (1607): court ruled that king could not settle disputes over land Case of Ship Money (R v Hampden) (1637) King allowed to raise taxes for defence however BOR 1689 requires approval of Par for taxes The Case of Proclamations (1611): King wants to limit building of new homes and ensure wheat preserved for consumption makes proclamations, but denied by court as not being law. 1. abolish certain powers by statutes (Bill of Rights 1689, Treasure Act 1996, abolished treasure trove). 2. call govt to account

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Dicey royal prerogative

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4 points of prerogative

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Blackstone prerogative for domestic affairs

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RP foreign affairs

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Sovereign's personal prerogatives prerogative powers abolished in Bill of Rights 1689

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RP prevention of abuse: controlled by courts and Parliament

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Parliamentary control of the prerogative

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2. Parliamentary scrutiny of exercises of the prerogative

Parliament has ample powers to scrutinise exercises of the prerogative through such procedures as question time, debates and Select Committee enquiries. In practice, however, the extent of scrutiny is more problematic. By convention there are a number of matters that are immune from parliamentary questions. These include: matters relating to the appointment of ministers, dissolution of Parliament, judicial appointments, government contracts, national security, diplomatic relations, and issues governed by confidentiality, military, advice given by Law Officers and decision to prosecute of DPP BBC v Johns [1965]: no new prerogatives Attorney General v de Keyser's Royal Hotel Ltd [1920] Acts take precedence Laker Airways v Department of Trade [1977]: treaty making power could not be used to defeat Act. R v SOS for the Home Department ep Fire Brigades' Union [1995] HL ruled that the Home Secretary had no power under the prerogative to amend the Criminal Injuries Compensation Scheme itself set up under the prerogative - where an Act of Parliament provided for its amendment (even though the relevant provisions had not been brought into force) The De Keyser case represents the correct constitutional relationship between an Act of Parliament and the prerogative. The Northumbria case by contrast contradicts this position. It may be that policy reasons underlay the decision: namely that it would be disadvantageous if the Home Secretary did not have the power to keep the peace. Court of Appeal ruled that the Home Secretary had the power to issue weaponry to police forces under the prerogative. This applied even though no direct authority could be found for there being a prerogative 'to keep the peace' as the Home Secretary claimed. govt lost in High Court won in CA , HL holds that courts have no jurisdiction in security matters.

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Judicial control: cases

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R v SOS for the Home Department ep Fire Brigades' Union [1995]

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Explain the difference between De Keyser's case and the Northumbria Police Authority case. Give reasons that you think might explain why the Northumbria Police Authority case was decided in the way it was.

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R v Secretary of State for the Home Department ex parte Northumbria Police Authority

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Council for Civil Service Unions v Minister for the Civil Service [1985] GCHQ PM tries banning continued membership of trade unions at GCHQ, the government's communications headquarters - an 'intelligence' facility which collects signals intelligence from around the world.

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Two principal matters were established in the GCHQ case

First it was shown that the courts had the jurisdiction to review (through judicial review proceedings) prerogative acts in the same manner as acts under an Act of Parliament. Second, the House of Lords ruled that while there was equal power to review, the courts would only review prerogative acts that did not involve matters of high policy, which were best left to be determined by the executive. the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers', and the disposition of the armed forces. very great overlap between these two categories. The important matter to reflect on is whether there are sound reasons for such large areas of governance to be exempt from scrutiny. It would appear that the exemptions are contrary to the rule of law, but that the judicial exemptions are clearly designed to protect the separation of powers. Where matters are exempt from parliamentary scrutiny, the only sanction against the misuse of power is through the ballot box.

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what are non justiciable matters Compare the categories of matters on which by convention ministers will decline to answer questions in Parliament with the categories of issues that are considered non-justiciable. What conclusions do you think can be drawn from this comparison in relation to (a) the rule of law and (b) the separation of powers? Reform of the prerogative: issues

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1.any state needs reserve emergency powers which are entrusted to the executive. Especially in relation to state security and international relations 2. if they are subjected to adequate scrutiny and control - whether by Parliament or the judiciary - they may be regarded as compatible with the welfare of the state and justifiable 3. How under uncodified constitution can powers be implemented The existence and scope of prerogative power is not clear-cut. It is clear that no new prerogatives can be created and that to exist today they must have been in existence from before 1689. Some of course are very clear and well defined - for example the Royal Assent. Others, however, although clear on the surface give rise to a number of questions about their scope and meaning. It is important to be able to discuss these uncertainties. On the judges and the prerogative, discuss the case law - particularly from the De Keyser case onwards - in order to illustrate how the judges view the prerogative, and note in particular those areas which the judges regard as 'non-justiciable'. The GCHQ case is important in so far as it makes it clear that the courts will review the prerogative, but also in that the House of Lords offered an illustrative list of matters which would be regarded as non-justiciable.

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To what extent is it possible to assess the existence and scope of prerogative power? What is the judicial attitude towards the exercise of the prerogative? Does the GCHQ case represent a change in judicial attitude? If so, to what extent? What reforms, if any, would you make to prerogative powers?