1
Q
Definition of the prerogative?
A
- Those powers exercised solely by the executive.
- Discretionary, residual, unique, necessary
2
Q
Definition of convention?
A
-Constitutional practices which are obligatory, but not enforceable by law
3
Q
Constitutional Conventions help do what?
A
- Regulate the exercise of power (Dicey)
- Particularly the prerogative (conventions are not prerogative powers)
4
Q
Examples of Prerogative Powers
A
- Going to War
- Foreign Relations
- Appointing ministers and the government
- Crown Immunities
- Monarch’s reserve (personal) powers
- Internal “executive” powers
- External “executive” powers
5
Q
Examples of Constitutional Conventions
A
- Monarch ‘always’ gives royal assent
- Selection of the ministry by PM/DPM
- Salisbury addison convention (HoL will not oppose the 2nd or 3rd reading of any gov’t legislation promised in its election manifesto)
6
Q
Arguments for Codification of prerogative powers
Principle
A
- Democratic
- Accountability
- SOP- rebalances order
7
Q
Arguments against Codification of prerogative powers
pragmatism
A
- Difficulty in Defining
- Loss of flexibility
- Necessity
8
Q
The Constitutional Reform And Governance Act (CRAG) 2010 did what?
A
- Modified 2 key prerogative powers
1) Control of the civil service
2) Treaty making (constrained this use for 21 days)
9
Q
How did the CRAG 2010 affect treaty making?
A
- s. 20-24: Treaties are to be laid before Parliament for 21 sitting days + Explanatory memoranda
- s.20: Vote by HoC (not HoL) against it precludes ratification (can resubmit)
- s.22: Ratification in exceptional cases
- s. 23: Expressly excluded Treaties (i.e. EU treaties)
10
Q
What is the significance of The Fixed Parliaments Act 2011 on prerogative powers?
A
Before the Act:
- PM could determine when Parliament was dissolved (used for political advantage)
After the Act:
- Set parliamentary term to 5 years
- Abolished the power of the PM to determine the next election
11
Q
What are the key principle of Public Law?
A
- Parliamentary Sovereignty
- Separation of Powers
- the Rule of Law
- Accountability
- Political v Legal Constitutionalism
12
Q
Attorney General v De Keyser’s Royal Hotel Ltd (1920) (Facts)
A
- D claimed compensation under a a 1842 statute for occupation by the armed forces during war time
- The Gov’t relied on a prerogative power under which ‘less compensation would be payable’
Held:
-HoL rejected the gov’t’s use of the prerogative
-Once a statute has been enacted, the prerogative power can no longer be used while the statute is still active
13
Q
R v Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989) (Facts)
A
- Following riots in the early 80’s, the home office created stores of CS spray gas that could be provided to police forces in situations of public disorder
- Chief constables could purchase this equipment without having to obtain permission
- Statutory bodies established made police forces subject to local accountability
- N unsuccessfully challenged challenged the legality of the gov’ts scheme
- The Police Act 1964 permitted the establishment of the central store
- The Home Secretary has a prerogative power “to maintain peace in the realm”, which includes the power to take precautionary steps to ensure that the chiefs have access to supply to crowd-control equipment.
14
Q
R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995)
A
- the Criminal Justice Act 1988 introduce a statutory scheme for criminal injuries compensation
- Several sections were to be brought into law on the date of the Home Secretary’s choosing (commencement)
-Rather than bring it into force, the government sought to amend the current tariff based scheme - The amended scheme would save the government more money by awarding less compensation to victims
- Trade Union sought judicial review of the decision not to bring the new compensation scheme scheme under the 1988 Act into force.
Held: - House of Lords: 3-2 held that the Home Secretary acted unlawfully
- It was an abuse of power
15
Q
Council of Civil Service Unions v Minister for the Civil Service (GCHQ) (1985) (facts)
A
-Civil Service Union challenged the decision by the executive that workers at gov’t headquarters could no longer belong to a trade union
- The power was conferred by the Civil Service Order in Council 1982
-The order was enacted by the Queen in Council by virtue of prerogative powers
- Union sought for the action to be judicially reviewed
- Gov’t argued that prerogative powers could not be judicially reviewed
Held:
- It can be judicially reviewed
- The courts can review the exercise of any prerogative powers, provided that it is suitable for judicial determination
16
Q
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (2009)
A
- Concerned the Chagos Islands in the Indian Ocean, was part of the British colony until 1965
- UK entered into negotiations with the US, and allowed them to establish a military base on the main island
- This requires the removal of the population
- In 1971, the UK government made piece of prerogative legislation called Immigration Ordnance 1971 (power to exile the population)
- 2000, Mr. Bancoult challenged the legality of the provisions
- Gov’t accepted the court’s ruling and did not appeal
- Later, the Gov’t decided that resettlement was not feasible
- 2 more Orders were made that prevented the islanders from returning
- Mr. Bancoult challenged the 2 Orders in Council, not the executive actions taken place under the Orders
- B argued that the right of abode was fundamental, could not be removed from the Crown
- In the HoL:
- Gov’t argued that the court had no power to review the validity of the 2 Orders in Council because it was primary legislation
17
Q
Constitutional Reform and Governance Act 2010
A
- Limited the prerogative power of treaty making
18
Q
Fixed Term Parliaments Act 2011
A
- Abolished the prerogative power of the PM dissolving parliament
19
Q
What does Lord Jennings say about Constitutional Conventions?
A
They bring the constitution up to date with modern norms
20
Q
How do Conventions affect Prerogatives?
A
They modify the prerogative to ensure that it is used responsibly
21
Q
Prerogative Powers and the Issue with the Rule of Law
A
Rule of Law: should be easy to point to authority to justify action
- Prerogatives are blurry in this regard
- Difficult to see the limit of these powers
22
Q
Prerogative Powers and the Issue with Accountability
A
Prerogatives are difficult to scrutinise because there is no clear source
23
Q
On what basis does the Executive act? (3)
A
- Common Law
- Statute (mostly)
- Prerogative powers
24
Q
What are Prerogative Powers? (Dicey)
A
- “the residue of discretionary power left at any moment in the hands of the Crown”
- Prerogative= Residual and Discretionary
- New prerogative powers cannot be created
25
What are Prerogative Powers? (Blackstone)
Powers unique or exclusive to the Crown that have not been abolished by Parliament or placed on a statutory footing and are exclusive to the Crown.
26
Monarch's reserve (personal) powers? (3)
- Selecting PM and gov't
- Power to be informed and consulted; advise, encourage, warn
- Royal assent to legislation
- Mostly constrained by conventions
27
Crown Immunities (2)
- Crown can do no wrong
| - Crown is not bound by statute unless by express words
28
Internal 'executive' powers (4)
- Issuing passports
- Granting honours
- Pardons
- Expulsion of Alien
29
External 'executive' powers
- Foreign Relations
- Deploy armed forces and control over the army
- Recognition of Trade Relations
- Making, Ratifying Treaties
- Right to Claim prize
30
'Political' control of Prerogative Powers
- Convention
| - Weakness of Parliament: No clear source, difficult to scrutinise
31
Legal 'control' of prerogatives? (2)
- Statutes
Parliament can abolish/replace prerogative
-Common Law
32
Example of statute control of prerogatives?
- Fixed Term Parliaments Act 2011
| - Constitutional Reform and Governance Act 2010
33
Case law surrounding statute control of prerogatives? (2)
- Attorney-General v De Keyser's Royal Hotel Limited (1920)
| - R v Secretary of State for Home Dept, ex p Northumbria Police authority (1989)
34
Case law surrounding common law control of prerogatives? (2)
- Council of Civil Service Unions v Minister for the Civil Service (1985)
- R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (2008)
35
Problems with common law control of prerogatives? (2)
- the prerogative two-step
| - 'non-justiciability' and 'polycentricity'
36
Parliamentary Sovereignty?
- Parliament is the ultimate legislative body
| - It is democratically elected
37
Separation of Powers?
-Powers are spread evenly between Parliament, the judiciary, and the executive
- they are separate because they do not want to a concentration of power
(check and balances)
- Each body is better at doing what they do
(efficiency)
38
Rule of Law?
- Law should be made as clear as possible
-We are all equal under the law
-Ideal standard
- Measures by how lawyers hold government to
(what basis are you acting on?)
39
Accountability?
- Government having to answer to the other parties
| - Make sure they don't abuse their powers
40
Key Issues with Prerogative Powers
1) Judicial Scrutiny
2) Definition and scope
3) Relationship between statue and prerogative
4) Makes the executive powerful (executive dominance)
- Shifts power away from Parliament
5) Reform of prerogative powers
- Extent to which they can be reformed
6) Convention v Prerogative
41
BBC v Johns (1965) (Facts)
- BBC claimed to be exempt from from income tax
- It claimed crown immunity as an emanation of the crown
Held:
- the Crown's claim to a general right to the monopoly activity was denied and replaced by the statute of Monopolies 1623
- It is not possible to create new prerogative powers.
42
Who are prerogative powers exercised by?
MPs who are members of the executive
43
Difference between Statutes and Prerogative powers? (5)
1) Source
S: Created by Parliament
P: Residual executive Powers, pre-dating the development of Parliament
2) Parliament's role
S: Parliament debates, scrutinises, and approves legislation conferring statutory powers
P: Parliament's role is reactive, calling MPs to account for the way the prerogative was exercised
3) Method of Creating New Powers
S: Created in Parliament
P: No new prerogatives can be create
4) Place in hierarchy of legal rules
S: Other than EU law, Acts of Parliament are the highest form of law (can be expressly amended or repealed by later Acts)
P: Part of Common Law, can be abolished or restricted by Acts
5)Judicial Review
S: may be subject to judicial review, unless the subject matter is 'non-justiciable'
P: since 1984, may be subject to judicial review, unless subject matter is 'non-justiciable'
44
3 Main Groups of Prerogative Powers (Taming the Prerogative)
1) Queen's Constitutional Prerogatives
- Personal discretionary powers which remain in the Sovereign's hands
2) Legal Prerogatives of the Crown
3) Prerogative Executive Powers
- Powers of Government MPs
45
Attorney General v De Keyser's Royal Hotel Ltd (1920) (Principle)
Prerogatives are no longer used once statute law can provide a legal basis for an action (replaced)
Although... ex parte Northumbria Police
46
R v Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989) (Principle)
- Statute did not completely replace the prerogative power
| - prerogative power had not been removed
47
ex parte Northumbria Police Authority v BBC contradiction?
-Contradicts BBC case, restricted citizen's of the UK ability to hold police force accountable
BBC, Lord Diplock stated that the executive may not restrict citizens without statutory authority.
48
ex parte Fire Brigades Union (Principle)
Prerogative powers of the crown remain in existence until Parliament expressly extinguishes them.
49
ex parte Fire Brigades Union v De Keyser's Royal Hotel Contradiction?
- Fire Brigade: Prerogative must be expressly extinguished by Parliament
- De Keyser: Prerogative no longer exist once statutory powers replace it
50
BBC v Johns (1965) (Principle)
- Establishes that it is no longer possible to create new prerogative powers
51
What did Lord Diplock say in BBC v Johns (1965) about the creation of new prerogative powers?
"350 years and a civil war too late for the Queen's courts to broaden John's prerogative"
52
Ex parte Fire Brigades Union (Principle)
- Can the executive use prerogative powers in a manner that effectively means that an Act of Parliament will not be brought into force
- No it cannot, it goes against the will of Parliament
53
Council of Civil Service Unions v Minister for the Civil Service (GCHQ) (1985) (Principle)
- Prerogative powers can be judicially reviewed, provided that the matter is suitable for judicial determination
- When powers are non-justiciable, courts not allowed to intervene as issues are not suitable for judicial determination.
54
Queen’s Constitutional Prerogatives
Personal discretionary powers which remain in the Sovereign’s hands. They have the rights to:
• Appoint the Prime Minister, Royal Assent
55
Legal Prerogatives of the Queen
Crown acting upon the Queen as legal rather than constitutional prerogatives. Rights to:
• Not bound by statute save by express words or necessary implication
56
Prerogative Executive Powers
Prerogative powers delegated to responsible Ministers, with Parliament not directly involved in that transfer of power. Ministers are accountable to Parliament for the use of prerogative powers after the exercising powers. Rights include:
• Set nationality rules for ‘non-aliens’, Appointing Queen’s counsel, Conduct diplomacy
57
R (on the application of Bancoult) (No. 2) [2008] Principle
House of Lords ruled that the courts could review the legality of Orders in Council, but refused to accept that the Orders in Council were unlawful because the rights of abodes weren’t fundamental, but merely symbolic thus no legitimate expectations had been breached.
Prerogative legislation must respect fundamental rights
58
Parliamentary sovereignty & SOP (relationship with Prerogative powers)
* Whilst Parliament not involved, they can limit the executive’s powers by putting some prerogatives on a statutory footing.
* However, ministers still have a very wide scope to act without Parliamentary approval, such as not knowing what their powers specifically are.
* Parliament still has primary law making powers as they can confer new legislation, whilst executive can’t create new prerogative powers.
* Executive given a constitutional power, but slowly their power is dwindling as statutory footing takes precedence and prerogative powers are being replaced by statute
59
Proposals for Reforming ministerial prerogatives?
Arguments for? (3)
Arguments For:
* Le Sueur: No place in modern western democracy, as it’s used by Ministers to make use of unclear powers for which they are unaccountable for.
* Hague: Allowed powers to move from the Monarch to Minsters without Parliament having a say in how they are exercised: should no longer be acceptable.
* Brazier: Parliament should have a right to know what powers are being exercised, and that Ministers should not have imprecise powers.
60
Proposals for Reforming ministerial prerogatives?
Arguments Against? (2)
• Extremely complex to define prerogative powers as it is broad and diverse, including situations like decisions to go to war, treaty making, managing the civil service and granting honours.
Brazier
Two legislative approaches:
• ‘Sunset clause’: Any prerogative powers which were not expressly confirmed by subsequent primary legislation by a date specified in the act would be abolished. Criticised as an extreme opinion, running the risk of leaving Ministers without important powers at times of urgent action.
• Requires government to list the prerogative powers exercised by Ministers within six months of the Act’s passing and the list would be considered by a committee for statutory safeguards to be placed. This ensures that Parliament know what prerogative powers can be used by Ministers.
61
Recent Reforms?
There has been a constitutional trend to replace prerogative powers with statutory regimes.
[Fixed-Term Parliaments Act 2011]
This Act reduces executive power by ending royal prerogative power to dissolve Parliament, providing instead that dates of parliamentary general elections will be fixed at five-year intervals.
[Constitutional Reform and Governance Act 2010]
Reformed the royal prerogative with two significant changes, putting the civil service on a statutory footing and putting the Ponsonby Rule on Parliament approval for ratification of treaties on a statutory footing.
62
Fixed term Parliaments Act 2011 Sections?
s. 1(2): Stipulates polling day for next parliamentary general election as May 7, 2015.
s. 1(5): Power for Prime Minister by SI to delay date of election by up to 2 months.
Early election
If an early election is triggered, the parliamentary term is reset for a further 5 years.
s. 2(1): Early election will be triggered if House of Commons passes motion set in s. 2(2): “That there shall be an early parliamentary general election.” Number of MPs voting in favour must be equal or greater than 2/3 seats in House.
s. 2(3): Gives legal effect to the loss by a Government of a vote of no confidence, stipulates early election will be triggered if Lords passes motion set in s. 2(4): “That this House has no confidence in Her Majesty’s Government”.
s. 2(5): Must pass for 14 days without Commons stating “That this House has confidence in Her Majesty’s Government”.
Dissolution of Parliament
s. 3(1): Parliament dissolves 17 days before polling day
s. 3(2): Parliament cannot otherwise be dissolved, thus removes Executive prerogative power.
63
Arguments for and against FTPA 2011?
Ryan (2011)
Arguments For FTPA
• Reduce Executive power
• Fixed term Parliament results in less political turmoil
• Higher electoral turnouts resulting from fixed election dates
Arguments Against FTPA
• Possible encouragement of coalition governments
• Undermine democratic process because it may be more democratic to call for early election than to continue to the end of a term
• Power of Prime Minister was a non-problem
64
Enforcing constitutional conventions (Dicey)
* If a political actor were to breach a constitutional convention, the courts would not enforce compliance directly but that the violation of conventions would lead inexorably to breach of the law, which courts can enforce.
* Example: If Parliament were not to meet for 2 years, no laws would be broken, but this breach of convention would have several consequences of revenue cease to be legally due, not legally collected, collectors exposed to actions.
65
Prerogative Powers and Parliamentary Sovereignty?
| Bens summary
Parliamentary Sovereignty
• We accept it because P is democratically elected
• Law passed by P is considered legitimate
• Validated by us
oProblem with Prerogatives
• Lacks that democratic legitimacy
o Not subject to any rational discussion
• Ex: Parliamentary process
66
Prerogative Powers and Rule of Law?
| Bens summary
•Need written down authority to look to
* Prerogative is problematic because it is no written down
* Creates a issue
* Law should by clear
* Prerogative is not written down
* Scope of the prerogative is very unclear
67
Constitutional Conventions affect Prerogatives how?
o Convention modifies Prerogative powers
Public Law
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