Public Law - Royal Prerogative

Principle	Case Name / Definition
Royal Prerogative	RP 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 Powers	Montesquieu
... popularised the term elective dictatorship	Lord Hailsham
Definition of Convention	1. 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 conventions	1. 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 Speech	Article 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 benefit	R 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 do	R 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 prerogative	BBC v Johns
Traditional position - no right to review the exercise of power	Blackburn 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 it	R v Home Secretary exp Bentley case
The Wednesbury test	So unreasonable that no reasonable person could come to it
Management of civil service put on a statutory footing	Constitutional Reform and Governance Act 2010 (CRGA 2010)
Dicey's Rule of Law	1. 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 branches	Executive, Legislature, Judiciary
The Crown can only exercise a royal prerogative that the common law has recognised	Case 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 police	R v Secretary of State for the Home Department, ex p Northumbria Police Ahtuority [1989]