Friday, June 17, 2016

Public Law - Royal Prerogative

PrincipleCase Name / Definition
Royal PrerogativeRP is the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown. Every act which the govenment can lawfully do without the authority of an Act of Parliament is done in virtue of this Prerogative

AV Dicey
... formulated the modern doctrine of the Separation of PowersMontesquieu
... popularised the term elective dictatorshipLord Hailsham
Definition of Convention1. Rules of constitutional behaviour
2. Considered binding by thouse who operate the constitution
3. Not enforced by Courts or Parliament

Marshall & Moodie
Sir Ivor Jenning's 3 stage test for existance of conventions1. What are the precedents?

2. Did the actors in the precedents believe that they were bound by a rule?

3. Whether there is a good reason for the rule?
Freedom of SpeechArticle 9 of the Bill of Rights 1689
Executive might exercise a power which appears to exist under the RP and is controlled by a statute, the executive must use the statutory power. The RP power is not available to the executive any more if a statute covers the same area.

RP goes into abeyance
AG v De Keyser's Royal Hotel
Where a statutory power and a prerogative power cover the same area, the executive may use the prerogative power alongside the statutory power, if in the opinion of the court, the RP power convers an additional benefitR v Home Secretary exp Northumbria Police Authority
Where a statute and a prerogative power exist in the same area, the executive may not use prerogative powers that confer and additional benefit if the statute clearly forbids what the executive wants to doR v Home Secretary exp Fire Brigade Union
It is 350 years and a civil war too late for the queen's courts to broaden the prerogativeBBC v Johns
Traditional position - no right to review the exercise of powerBlackburn v AG
HL changed the law bout the power of the court to oversee the RP - designate all RP as either justiciable or non-justiciable. Court could interfere with the way the executive used "justiciable" prerogatives if the use of the prerogative was "Wednesbury unreasonable"GCHQ - Lord Roskill
Non-justiciable prerogative could become justiciable, the court has the power to change itR v Home Secretary exp Bentley case
The Wednesbury testSo unreasonable that no reasonable person could come to it
Management of civil service put on a statutory footingConstitutional Reform and Governance Act 2010 (CRGA 2010)
Dicey's Rule of Law1. the predominance of regular law over arbitrary power
2. no man is above the law
3. the existence of civil rights protected by the common law
Separation of powers - 3 branchesExecutive, Legislature, Judiciary
The Crown can only exercise a royal prerogative that the common law has recognisedCase of Proclamations (1611), Entick v Carrington (1765)
Old prerogative can be adapted to new circumstances - Crown's ancient power to preserve the peace used to arm the policeR v Secretary of State for the Home Department, ex p Northumbria Police Ahtuority [1989]

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