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Summary of 8 pages for the course Public Law at UoW (royal prerogative)
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IntroductionThe focus is on the executive; the government; The Crown.
A source of their legal power is the royal prerogative.
The issues are
What is the royal prerogative?
What powers does it include?
Who exercises prerogative powers?
How is the exercise controlled by
statute,
convention,
the courts.
“Executive power is the power of governments. It is the legal authority vested in, and exercised by, for example, prime
ministers, presidents, cabinets, and councils. It is the political power that all those who embark on a career in politics
dream of wielding. It is the power to set policy, take action, and to implement the law. In the great theory of the
separation of powers that has hovered over western constitutional thinking since the mid eighteenth century, the
preserve of the executive is to do. While the role of the legislature is to speak and that of the judiciary is to judge,
governments act.
- Craig & Tomkins, ‘Introduction’ The Executive & Public Law (2006)
The Executive in the UK
USA: President and those he appoints to run the executive branch.
UK?
The Queen?
Prime Minister?
Cabinet?
Ministers?
Civil Servants?
Police?
Army?
Executive Agencies - DVLA, Highways Agency etc…
The privacy Council
Membership is for life.
By convention all Cabinet Ministers are members of the Privy Council.
Meets in Secret.
Main business is to pass Orders in Council. Either
a form of primary legislation (similar to Acts of Parliament), or
a form of delegated legislation (passed under an Act of Parliament.
Once of great importance, now superseded by Cabinet.
Three sources of the Government’s Power
Statute Law;
Acts of Parliament; or
Delegated Legislation.
Prerogative Powers - Specific legal powers which are recognised by the courts as part of the Common Law.
“Third Source” Powers (sometimes call the “Ram Doctrine”)
Derive from the idea that there is no law preventing the government from acting in a certain manner.
Odd.
, What is the Royal Prerogative?
‘That special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of the
common law, in right of his Royal dignity … it can only be applied to those rights and capacities which the King enjoys
alone, in contradistinction to others’.
- Sir william Blackstone (1965)
The Monarch used to exercise these powers; but monarchs exercised these powers after seeking the advice of the
“Council” - the Privy Council…
As monarch played less of a role the powers were exercised by Ministers, who were later led by the Prime Minister.
By convention; within the legal concept of the Crown.
Government Departments emerged, and grew ever larger in size…
Minsters now exercise powers which are either (largely) either prerogative or statute.
the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.
- Dicey (1885)
Finding Prerogative powers
it has not at any stage in our history been practicable to identify all the prerogative powers of the Crown. It is only by
piecemeal decisions over a period of centuries that particular powers are seen to exist or not to exist.
- Nourse LJ in R v Secretary of State for the Home Department ex p Northumbria Police Authority [1998] 2 WLR
590.
it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative. The limits within which the
executive government may impose obligations or restrains on citizens of the United Kingdom without any statutory
authority are now well settled and incapable of extension.
- Diplock LJ, BBC v Johns [1965] Ch 32
Determine the scope of the royal prerogative, by considering the situation before 1689 then applying it modern
situations…
R v Secretary of State for the Home Department, ex p Northumbria Police Authority [1989] QB 26
Home Secretary announced that baton rounds and CS gas would be available to police forces. This would be available
directly from the Home Office, even if the local police authority objected to the use of baton rounds and CS gas. Police
authority challenged this.
Held: That the prerogative includes the power to keep the peace, which has ‘never been questioned’.
Very vague.
Abolishing or Restricting the Prerogative by statute
Parliament can abolish, restrict or regulate prerogative powers.
Abolish: remove from the law completely. Usually to replace it with a statutory scheme.
Fixed-term Parliaments Act 2011
Restrict: place restrictions on the prerogative by law.
Regulate: Require the prerogative to be exercised a particular way.
Constitutional Reform and Governance Act 2010
Sections 20-25;
Require that before the government ratifies a treaty, a royal prerogative power, the Treaty is “laid” before Parliament
for 21 days.
If a vote against the treaty is passed, then the government cannot immediately ratify the treaty
Statute Supersedes Prerogative
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