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Prerogative Power Notes

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Prerogative Power Revision

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Con & Ad : Prerogative Powers Intro
PP = a form of state power originally deriving from the personal powers exercised by the absolutist monarchs in period before expulsion of James I in 1688 ('Glorious Rev').
PP = the Remnants of (pre-1688) absolutist monarchical powers.
Most powers now exercised by members of central Exec (PM &
Ministers) in the 'name of the Crown'.
Historical gradual erosion of range of prerog powers, by statutory incursion:
1688 constitutional turning-point. No new prerog powers added since that point.
But prerog power still relevant o Governs key areas of political life o eg foreign policy & treaties; mobilisation of armed forces; national defence o and political powers, eg appointment of Ministers
Has been eroded over time by statutory powers over last century or more; but some very significant areas still governed by PP: eg power to mobilise armed services (PP of 'defence of the realm'); power to enter international treaties.
Their continued significance/place in question discussed and challenged in the Article 50 Brexit case, R (Miller) (SC, 2017).
Thrust of case law: increasing determination by Courts to control the use of PP exec power; even before Glorious Rev—Coke LJ, Case of Proclamations (1611)
Definition, Prof A.V. Dicey (1885): '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 do without authority of [an] Act of Parliament'. o Though note, arguably definition should only cover powers unique to the Crown (as Blackstone pointed out): o Blackstone (1765-69): 'those rights and capabilities which the King enjoys alone' o Because you wouldn't include any conduct of Crown not taken under statutory power, eg those powers enjoyed in common with crown's subjects such as power to enter contracts.
Place in constitution: prerog power = controversial and idiosyncratic feature of UK constitutional arrangements.
RoL significance: governmental power needs to be controlled and subject to legal scrutiny.
   Place of JR in UK: o (1) to ensure the gov is acting lawfully o (2) as a practical manifestation of the RoL 1

o (3) as a key component of SoP.

Crown's legal prerogatives

(1) Presumption of immunity: o Crown not bound by statute except by express words or by necessary implication (i.e. purpose of statute would be 'wholly frustrated': Bombay v Bombay, PC; Lord Advocate v Dumbarton. o CF Australian High Court, Bropho: since exec gov has commercial dealings on same basis as private enterprise; ask whether Parliament intended the statute to bind the Crown.
(2) Crown immunities from litigation o Sovereign has personal immunity from prosecution. o Crown Proceedings Act 1947: reduction in crown legal immunity; civil actions against Crown allowed; s28 power to order disclosure. o Injunctions against Crown: o Previously, No -Factortame. o Now, Yes—M v Home Office:
 distinction between Crown as Monarch (legal immunity) and Crown as Executive/gov;
 can grant injunctions & make finding of contempt against Ministers acting in official capacity.
(3) time does not run against Crown at common law

Personal powers of monarch

Royal assent; appointment of PM & ministers; royal assent to legislation; right to dissolve parliament (until FPTA 2011); creation of peers.
Shaped by conventions; ceremonial.

Parliamentary control of Prerog

(1) through legislation/statutory control--see below: De Keyser, etc.
(2) Ministers accountable to Parl: eg scrutiny by Select Committees.
(3) re prerog to declare war—new convention developing, post Iraq and Cameron over Syria 2013.

Statutory control of prerog
 De Keyser principle, AG v De Keyser's Hotel: statute >
prerogative, parliamentary law > common law, re hotel taken over by British troops; compensation governed by statute. Lord Atkinson: statute 'abridges' the Royal Prerog, which is held 'in abeyance'. o Gov had argued: can't sue because was done under a PP (defence of the realm). o Prerog in question = defence of the realm

2

extended in Laker Airways (re impliedly suspending prerog because it frustrates purpose of Act, re Civil Aviation Act, licence for Laker)
 extended in ex p Fire Brigades Union (to even where the relevant statutory provisions are not yet in force but covers same area as prerog, re statutory criminal compensation scheme not yet in force, Home Sec refusing to consider introducing.
   + Miller, re ECA 1972 and treaty prerog and Art 50  prerog power cannot be used where conflicts with statutory rights granted by Parliament (through ECA 1972). o SC affirmed De Keyser principle, and Laker and Fire Brigades extensions. o Miller: 'it is inherent in its residual nature' that a prerog power 'will be displaced' in a field which becomes occupied by a corresponding statutory power'.
   NOTE, R v SSHD, Ex p Northumbria Police Authority: o Re Home Sec supplying police officers with riot gear including CS gas; under prerog power; but also s4 Police Act 1964. o (1) CA found 'lost' prerog power of 'keeping the peace'. No mention on books. Seems to undermine RoL o [claimed they weren't creating a prerog, only 'finding' one, but Robert Ward: 'constitutional solecism']. o (2) Statute and prerog power can co-exist, where the statutory power is not exclusive + is exercised for the public good: CF, cannot co-exist if 'exclusive power' given (De Kayers).

Judicial Review/judicial control of prerog power (1) Existence and scope traditionally subject to review:
Case of Proclamations, Chief Justice Coke, 1611: 'The King hath no prerogative but that which the law of the land allows him'. HELD: Re attempted use of royal proclamations to make law, king could not legislate domestically in his own right through proclamations [[context, James I trying to make new laws/offences not sanctioned by Parliament through royal proclamations]].
Entick v Carrington (1765): Crown argued a prerog power existed to issue warrants for search & seizure of seditious material; HELD: there was no such prerogative, 'If it is law, it will be found in our books. If it is not to be found there [in our books], it is not law' (Lord Camden). (2) NO new prerogs (BBC v Johns: Diplock: '350 years and a civil war too late')
NO new prerogative can be created (BBC v Johns)

3

o BBC v Johns: re BBC claiming exemption from income tax; Lord Diplock: 'it is 350 years and a civil war too late for the Queen's court to broaden the prerogative'.
Though note Ex p Northumbria Police: CA 'found' lost prerog of 'keeping the peace' [claimed they weren't creating a prerog, only 'finding' one, but Robert Ward: 'constitutional solecism']. (3) move towards reviewing exercise of prerog, obiter comments:
R v CICB, ex p Lain (1967), CA: prerog body (Criminal Injuries Compensation Board) could be subject to review, Lord Parker CJ—
shouldn't be immune just because source is prerog power.
Lord Denning MR, Gouriet v Union of Post Office Workers (4) GCHQ (1985), HL
Re: Thatcher, using prerog powers to regulate terms of civil service, banning trade unions.
Gov argued: (1) PP different to statutory power; courts couldn't review it. (2) even if reviewable, can't review here because national security.
Trade Union argument (JR on grounds of legit expectation): (1) PP was reviewable; (2) they had a legit expectation to be consulted, had been unfairly frustrated.
(1) can review prerog, based on nature NOT source: o Lord Roskill: '[there is no] logical reason why the fact that the source of power is the prerogative and not statute should today deprive the citizen of the right to challenge the manner of its exercise which he would possess were the source of the power statutory'.
 In 'either case the act in question is the act of the executive'. 'To talk of that act as the act of the sovereign savours of the archaism of past centuries'.
 The prerog re civil service was reviewable; not on excluded 'list'. o Lord Diplock: 'I see no reason why simply because a decision-making power is derived from a common law and not a statutory one, it should for that reason only be immune from JR'. o Lord Scarman, the limitation on reviewing exercise of prerog 'has now gone, overwhelmed by the developing modern law of judicial review'. o HL promoting importance of JR mechanism to uphold RoL: It is vital for RoL that state power, whatever its source (statute or prerog), should be reviewable, that Exec is legally accountable.
 a legit expectation had arisen for civil service
(2) On the facts, the LE could be lawfully frustrated, grounds of national security, courts won't interfere 4

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