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The Crown And Prerogative Notes
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Con & Ad: The Crown and the Prerogative
- Crown: position in law. UK constitutional monarchy: formal exercise of power by monarch, but power to govern exercised by Executive. 'royal prerogative': common law powers of Executive - distinct from statute.
- Definition of prerogative powers.
[Dicey]: 'residue of discretionary/arbitrary authority, at which any given 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'.
approved in GCHQ. problem: conflict with Rule of Law concept. too wide?: includes powers enjoyed in common with subjects, e.g. power to enter into contracts should only cover powers unique to Crown?
[Blackstone]: 'special pre-eminence' monarch has over others - only applies to powers unique to Crown.
- Historical background. Bate's Case : distinction between 'absolute' vs 'ordinary' powers of monarch. absolute powers: almost entirely discretionary + unregulated - e.g. conduct of foreign policy, mercy. ordinary powers: exercised in accordance with established principle + practice - e.g. powers concerning administration of justice. not part of prerogative: lack of flexibility (+ now largely gov. by statute). absolute powers inseparable from Crown: Case of King's Prerogative in Saltpetre . but: Bill of Rights 1689 - no longer true: Crown's powers can be taken away by Parliament. BUT: still limited by common law - Case of Proclamations : \the King hath no prerogative but that which the law of the land allows him'.
- Categorisation of prerogative powers: Select Committee on Public Administrations 4th Report (2004).
1. Prerogative Executive powers: exercised by government.
2. Legal Prerogatives: e.g. immunity from prosecution.
3. Queen's Constitutional Powers (personal prerogatives): e.g. Royal Assent, opening Parliament.
- Executive prerogatives: most important - exercised by government since 1688. appointment/dismissal of ministers etc. administration of dependencies (and formally colonies). treaties: approval of Parliament not generally required. but: judicial review possible? (R v SoS for Foreign and Commonwealth Affairs ex p Rees-Moog ). recognition of foreign states: once recognised, immunities + privileges - State Immunity Act 1978, Diplomatic Privileges Act 1964 (giving effect to 1964 Vienna Convention) + Consular Relations Act 1968. revenues ecclesiastical prerogatives peerages and honours prerogative of mercy: Home Sec. may pardon offences - previously non-justiciable. Hanratty v Lord Butler of Saffron Walden : CoA - no jurisdiction to inquire whether Home Sec negligent in exercise of prerogative. De Freitas v Benny : [Ld Diplock]: 'Mercy is not the subject of legal rights. It begins where legal rights end.' but: new trend for judicial review?
R v SoS for the Home Dept ex parte Bentley 
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