This is an extract of our The Crown And Prerogative document, which we sell as part of our GDL Constitutional and Administrative Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.
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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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