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Chapter

Cover Constitutional and Administrative Law

12. The royal prerogative  

This chapter begins by discussing the origins and meaning of the term ‘royal prerogative’. It identifies some examples of prerogative powers and considers how certain personal or reserve powers of the monarch might be exercised in practice. The chapter also explores the relationship between prerogative power and statutes and focuses on how the courts have dealt with the prerogative. The chapter also discusses the adaptation of prerogative powers, the relationship between the prerogative and the courts, and the courts’ recent willingness to review the exercise of certain prerogative powers. The chapter concludes by looking at several ways in which the prerogative could be reformed.

Chapter

Cover The Changing Constitution

7. The Executive in Public Law  

Thomas Poole

This chapter focuses on the executive, the branch of government responsible for initiating and implementing the laws and for acting where necessary to secure the interests of the state. We trace its development out of a medieval model of government structured around the king and his court, to a modern world of offices exercising executive functions, grouped under the legacy term ‘the Crown’. The resulting institutions display a complicated pattern of law and custom, and legal concepts and principles relate to them often in convoluted ways. Our analysis focuses on how executive power is normally understood from the legal point of view—deriving from an authorizing statute via rules made within a government department to eventual application by subordinate officials or agents—and traces some of the ways the courts monitor that process. But we also examine the executive’s non-statutory or ‘prerogative’ powers, the two main compartments of which are treated separately, as the general executive powers and the general administrative powers of the Crown respectively.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

4. The Royal Prerogative  

This chapter considers the evolving constitutional status of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and the rejection of that traditional perspective in the House of Lords’ judgment in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). The chapter continues by analysing the ways in which the new organising principle of ‘justiciability’ which emerged in the GCHQ judgment in the 1980s has since been applied in several leading cases, and suggests that in recent years the courts have adopted an increasingly rigorous approach to the supervision of governmental actions claimed to be taken under prerogative powers.

Chapter

Cover Concentrate Questions and Answers Public Law

4. The royal prerogative  

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter considers the royal prerogative. The questions deal with issues such as the continued existence of prerogative power; the Queen’s formal legal power; the UK government’s exercise of royal prerogative powers; the use of the prerogative in foreign affairs; and judicial review of the prerogative. Many of the prerogative powers are now exercised by the Prime Minister in the name of the Queen.

Chapter

Cover Public Law

10. Prerogative Powers  

This chapter examines the meaning and the continuing significance of prerogative powers. Prerogative powers are those that were originally exercised by the Monarch before the modern parliamentary system was established. While most prerogative powers have now been replaced by statutory powers, prerogative powers remain important in some contexts, especially in relation to the conduct of the United Kingdom’s foreign affairs. In this context the decision of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union is of particular importance. The chapter is organized as follows. Section 2 considers the various legal foundations on which central government ministers may base their actions and compares prerogative and statutory powers. Section 3 examines prerogative power—a source of power possessed only by ministers in UK government and the monarch—in more detail. Section 4 considers the progress towards the reform of ministerial prerogatives.

Chapter

Cover Complete Public Law

6. The Crown and Royal Prerogative  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The royal prerogative is a special form of common law that may be exercised by the Crown, either through the Queen as monarch (her personal prerogative) or through the executive as Her Majesty’s government (the political prerogative). This chapter begins by tracing the history and development of the royal prerogative and the role of the Crown in the exercise of these powers, and then addresses the division between prerogative powers that are personally exercised by the Queen and those that are exercised on her behalf by the political executive. Next, it turns to the respective roles of Parliament and the courts in the operation and development of prerogative powers, considering the relevance of those powers today and proposals for reform, in part, in the context of the case study on the use of the royal prerogative to trigger article 50 to begin the process of withdrawal from the European Union (EU), as well as the government’s advice to the monarch to prorogue Parliament in the run up to the UK’s exit from the EU.

Chapter

Cover Administrative Law

4. The Scope of Public Law Principles  

Mark Elliott and Jason Varuhas

This chapter examines the scope of judicial review as it applies to the principles of public law. It first explains why discretionary powers conferred by legislation are not always subject to judicial review before discussing prerogative powers and their amenability to judicial review. It then considers justiciability as the limiting factor in the extent to which the in-principle reviewability of the prerogative is of any practical significance. It also examines issues regarding de facto powers, with particular emphasis on the scope of judicial review, the limits of review and its underlying rationale, and the extent to which contractual arrangements may displace the courts' willingness to review. Finally, it explores which public bodies must respect human rights under Section 6 of the Human Rights Act 1998. A number of relevant cases are cited throughout the chapter, including R v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815.

Chapter

Cover Essential Cases: Public Law

R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, House of Lords  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, House of Lords. In this case, the House of Lords considered whether the Secretary of State could use the prerogative power to set up an alternative compensation scheme to that laid down in statute. It raises questions as regards the limits of the prerogative power, and the separation of powers in the United Kingdom’s constitution. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, Court of Appeal  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, before the Court of Appeal. This case concerned, among other things, whether foreign policy decisions made by the executive under the prerogative power could ever constitute justiciable matters arguable before the courts. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, House of Lords  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, House of Lords. In this case, the House of Lords considered whether the Secretary of State could use the prerogative power to set up an alternative compensation scheme to that laid down in statute. It raises questions as regards the limits of the prerogative power, and the separation of powers in the United Kingdom’s constitution. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, Court of Appeal  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ 1598, before the Court of Appeal. This case concerned, among other things, whether foreign policy decisions made by the executive under the prerogative power could ever constitute justiciable matters arguable before the courts. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Public Law

10. Prerogative Powers  

This chapter examines the continuing significance of prerogative powers (sometimes referred to as the Royal Prerogative). Prerogative powers are those that were originally exercised by the monarch before the modern parliamentary system was established. While most prerogative powers have now been replaced by statutory powers, they remain important in some contexts, for example in relation to the deployment of armed forces abroad, the conduct of the United Kingdom’s foreign affairs, and the prorogation of Parliament. As well as considering these issues the Chapter also looks at reform of the prerogative.

Chapter

Cover Public Law

11. Case Study: Deployment of British Armed Forces Abroad  

This chapter contains a case study: deployment of British armed forces abroad. Theimportant decision to deploy forces abroad is taken by the executive relying on its prerogative power. In the past, such decisions were taken with minimal parliamentary oversight. A constitutional convention may have developed that Parliament should debate and approve deployments, but the scope of this convention is not settled. Parliamentary committees of both houses of Parliament and others have pressed for reforms designed to ensure that Parliament has a greater influence. This chapter explores the issues involved and reasons why reform has proved so difficult to achieve.

Chapter

Cover Constitutional Law, Administrative Law, and Human Rights

22. A Revolution by Due Process of Law?  

Leaving the European Union

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

Book

Cover Public Law Concentrate
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Public Law Concentrate looks at all aspects of constitutional law including sources, rule of law, separation of powers, role of the executive, constitutional monarchy, and the Royal Prerogative. It also discusses parliamentary sovereignty and the changing constitutional relationship between the UK and the EU together with the status of EU retained and converted law under the European Union (Withdrawal) Act 2018 as amended by the 2020 Act, the Agreement on Trade and Cooperation effective from 1 January 2021, and the European Union (Future Relationship) Act 2020. Also covered are: administrative law, judicial review, human rights, police powers, public order, terrorism, the constitutional status of the Sewel Convention, legislative consent motion procedure, use of secondary legislation by the executive to amend law and make regulations creating criminal offences, especially under the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984, the separation of powers implications of Henry VIII Clauses, the constitutional role of the Horuse of Lords in scrutinizing and amending primary legislation, the Speakers’ Ruling in the House of Commons on Points of Order and the Contempt of Parliament Motion, whip system, back bench revolts, confidence and supply agreements in government formation, and current legislative and executive devolution in Northern Ireland. The book additionally examines the continuing impact of the HRA 1998 and the European Court of Human Rights on parliamentary sovereignty and the significance of the 2021 Independent Review of the HRA.