Flashcards in (2) Prerogative Powers (extra) Deck (20)
What is the primary conflict between the prerogative powers and the rule of law?
The requirement of certainty of legal authority in the rule of law.
What did Munro say about the prerogative powers?
He said that as they were 'derived from common law, not statute' this may make them more uncertain and harder to define.
Who else made significant comments on the nature of the prerogative powers?
The 4th Report of Public Administrative Committee - 'Taming the Prerogative'
What did the Public Administrative Committee say on prerogative powers?
They said 'Parliament does not even have the right to know' the Prerogative Powers and cannot 'produce a precise list of these powers'.
What role do the courts play in relation to prerogative powers?
The courts have the power to determine whether a claimed prerogative power exists.
Can prerogative's be increased in scope?
No, they can only be reduced or abolished.
Which case illustrated the uncertainty surrounding establishing the presence of a prerogative power? (1)
R v Secretary of State for the Home Department, ex party Northumbria Police Authority
What was said in the case of R v Secretary of State for the Home Department, ex party Northumbria Police Authority?
'Scarcity of reference in the books to the prerogative ... does not prove that it doesn't exist. Rather it may point to an unspoken assumption that it does'
Which case should the Northumbria Police Case be contrasted with and why? (1)
Entick v Carrington - here it was said - 'if it is law, it will be found in our books. If it is not to be found there it is not law'.
Are the prerogative powers subject to Judicial Review? (1)
Generally, yes it appears they are - R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs.
What did Lord Hoffman say in the Bancoult case regarding Judicial Review of the Prerogative?
He said 'the prerogative ... is still an exercise of power by the executive alone ... I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action'
What happens where legislation comes into force in the same area as a prerogative?
Generally, the legislation overrides the prerogative and the government cannot continue to rely on the original prerogative instead.
What requirements do the courts impose for the overruling of prerogative powers?
'The courts have required clear evidence of parliamentary intention to abrogate the prerogative in order to hold it extinguished or placed into abeyance' - Phillipson.
Can prerogative powers be used to frustrate the will of parliament as expressed in a statute? (1)
No, even where a statute is not actually in force, the case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union, made it clear prerogative powers cannot be exercised 'so as to frustrate the will of parliament expressed as a statute'.
Can prerogative powers be used to change the law or domestic rights? (1)
No - Miller v Secretary of State for Exiting the European Union.
What was the initial position of the courts regarding their power to exercise judicial review of the prerogative powers?
Initially, courts were empowered merely to identify the presence of prerogative powers but go no further by the way of considering the manner of their application.
Which cases saw a shift in the ability/legal control of the courts in regards to judicial review of the prerogative? (2)
Laker Airways v Department of Trade
Council for Civil Service Unions v the Minister for the Civil Service - GCHQ Case.
What changes arose following Laker Airways and the GCHQ Case?
There was a shift to proper legal control, allowing for judicial review/examination in line with that allowed with other discretionary powers.
What did Lord Roskill significantly note in the GCHQ case?
He did indicate/acknowledge that prerogative powers in certain fields - e.g. making treaties and defence of the realm - were excluded from JR, suggesting a gap in the rule of law.