A more recent version of these Prerogative Power notes – written by Cambridge/Bpp/College Of Law students – is available here.
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Prerogative Power _______________________________________________________
Judicial Control of the Royal Prerogative Pre-1688 The King's innate legal powers: James I: his personal legal powers were the ultimate source of law. The sovereignty of his laws attached to himself. CJ Cook: heartily disagreed - he set out to curb the rising arrogance of the crown & parliament. The common law could & should curtail the powers of both King & parliament.Case of Prohibitions 1608: as his legal authority was a divine right, he felt that he had a right to sit as a judge. Coke saying that the King cannot sit as a judge because he had inadequate legal knowledge.Case of Proclamations 1611: great caution should be exercised when introducing something without legal certainty. "The King cannot change any part of the common law, nor create any offence by his proclamation" /
"The King hath no prerogative, but that which the law of the land allows him". Positioning the King as the third authority in the normative heirarchy.Bates' Case 1610 (Case of Impositions): the King's power to regulate trade - decided to place a tax on the import of currants. Importer refuses the pay the tax, as the King has not got power to levy taxation. King responds that it isn't a tax, but a bona fide exercise of an accepted prerogative power.ShipMoney 1637 (Hampden's Case): the King's shipmoney tax was contested on the basis that it was not a time of military emergency. Who decides when a military emergency is occurring? Hampden said it was a judicial obligation to determine that. However, it was held that the King himself can determine when there is a military emergency.
James II: favoured the view that the King himself was the supreme legal authority:Godden v Hales 1689: Sir Edward Hales, a Catholic & favourite of the King, whom James wanted to appoint to a senior governmental office. Statute requires holders of office to swear Protestant faith. James
contended that he had the power to dispense with statutes when he wanted to. Held: the King has power to dispense, and also to decide when it is necessary to dispense, with statute.The Bill of Rights 1689: States that the power of suspending laws was never there, and that it does not exist. Shipmoney clause - "levying of money...by pretence of prerogative"
The revolution sought to reaffirm old principles that had been bastardised by the Stuart monarchs. Post-revolution presumptions
Prerogative powers of Monarch = as part of common law Thus, they are inferior to statute Thus, they are controlled by the courts It is residual (not endowed with the power to grant new prerogative powers)Blackstone: prerogative as "peculiar and eccentrical to the Monarch" i.e. not the legal character (making contracts etc)Dicey: prerogative power as everything non-statutory than the Crown does - last bastion of arbitrariness
AG v De Keyser Royal Hotel Hotel requisitioned during the war for defence purposes. Owner claimed compensation. AG argued liability for compensation displaced by the prerogative power to requisition property for military use. It did not carry with it a obligation to pay compensation. Defence Act 1914 said nothing about the prerogative power, but included a formula for compensation. Property requisitioned under prerogative powers.De Keyser: if P enacts statutory provision which goes after prerogative powers, then it will repeal it (just liked implied repeal for statutes). Government's argument: there is nothing in defence act 1914 that say prerogative power is being removed. Assumption is that parliament intended for the two powers to lie side by side, with full powers to choose which powers to exercise
Held: normative superiority of statute renders normative common law powers unusable. It could however expressly legislate for the continued co-existence of powers. Laker Airways v Department of Trade Laker set up a budget airline, Skyfare, to provide passage to the US. He needed:
? Licence granted under Civil Aviation Act 1970
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