Prerogative powers - Definition and scope of prerogative powers

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Overview

Prerogative powers play an essential role in the UK's constitutional system, linking historical royal authority with contemporary democratic governance. For SQE1 FLK1 candidates, understanding these powers is necessary, as they reveal complex relationships between executive authority, parliamentary sovereignty, and judicial oversight. This article examines prerogative powers, their definition, scope, and constitutional relevance, equipping candidates with the detailed knowledge needed for exam success.

Definition and Legal Basis

Prerogative powers are discretionary powers rooted in common law, originally exercised by the monarch but now largely managed by government ministers. These powers exist where Parliament has not legislated, creating an interaction between executive authority and statutory law.

Key characteristics of prerogative powers include:

  1. Common Law Origin: They arise from tradition, not statutes.
  2. Residual Nature: They function in areas where statutory law is absent.
  3. Executive Discretion: Though rooted in royal authority, they provide the executive branch with considerable latitude.

The important case of Attorney General v De Keyser's Royal Hotel Ltd [1920] established that prerogative powers can be overridden by statute, either directly or by implication. This case highlights the supremacy of statutory law over prerogative powers, a key concept for exam preparation.

Scope and Categories

The reach of prerogative powers is broad, covering various aspects of governance. For exam purposes, it's critical to understand the main categories:

1. Foreign Affairs and Defense

  • Treaty-making and diplomatic relations
  • Deployment of armed forces
  • Declaration of war and peace

2. Domestic Governance

  • Summoning and dissolving Parliament
  • Appointing ministers and civil servants
  • Granting honors and peerages

3. Administration of Justice

  • Prerogative of mercy (pardoning power)
  • Appointment of judges (now mostly governed by statute)

4. Miscellaneous Powers

  • Issuing passports
  • Granting and revoking citizenship
  • Incorporation by Royal Charter

It's worth noting that the extent of prerogative powers can change. The Council of Civil Service Unions v Minister for the Civil Service [1985] (GCHQ case) marked a significant change, establishing that the exercise of prerogative powers could be subject to judicial review.

Constitutional Significance and Limitations

Prerogative powers hold a unique place in the UK's unwritten constitution, balancing executive efficiency with democratic accountability. Their importance and limitations are central to understanding the UK's constitutional structure:

Constitutional Principles

  1. Parliamentary Sovereignty: Prerogative powers are ultimately governed by parliamentary supremacy.
  2. Rule of Law: The exercise of these powers must follow legal principles and is open to judicial scrutiny.
  3. Separation of Powers: Prerogative powers are where executive authority intersects with legislative and judicial oversight.

Limitations

  1. Statutory Restrictions: Statutes can limit or replace prerogative powers.
  2. Judicial Review: Courts can examine the use of most prerogative powers, with exceptions in areas of high policy.
  3. Parliamentary Conventions: Conventions, such as seeking parliamentary approval for military action, can limit the use of certain prerogative powers.

Judicial Review of Prerogative Powers

The development of judicial review concerning prerogative powers is a critical area for SQE1 FLK1 candidates:

Historical Reluctance

Courts traditionally hesitated to review prerogative powers, considering them outside judicial scrutiny.

Modern Approach

The GCHQ case in 1985 marked a turning point, making certain prerogative powers reviewable, while others remained beyond judicial reach due to their political nature.

Key Principles

  1. Justiciability: Courts now consider the subject matter of the power to determine reviewability.
  2. Grounds for Review: Powers can be reviewed for illegality, irrationality, and procedural errors.
  3. Limits of Review: Courts are cautious about intervening in high policy or national security matters.

Case Studies

R (Miller) v Prime Minister [2019]

This landmark case involved the prorogation of Parliament. The Supreme Court ruled the action unlawful, demonstrating the judiciary's willingness to act when prerogative powers threaten key constitutional principles.

Fire Brigades Union Case [1995]

The House of Lords found the Home Secretary's use of prerogative power for compensation schemes inconsistent with statutory provisions. This decision highlights the supremacy of statutory law over prerogative powers.

Contemporary Debates and Future Directions

The role of prerogative powers in modern governance continues to shift, presenting several areas of debate:

  1. Democratic Accountability: Discussions about improving parliamentary oversight of prerogative powers, especially in treaty-making and military deployment.
  2. Codification: Arguments for a detailed codification of prerogative powers to improve clarity and democratic control.
  3. Royal Prerogatives: Debates about which prerogatives should remain with the monarch.
  4. Brexit Implications: Renewed discussions about the scope of prerogative powers in international relations and domestic law-making post-Brexit.

Conclusion

Prerogative powers are a complex aspect of UK constitutional law, blending historical traditions with modern governance needs. For SQE1 FLK1 candidates, a thorough understanding of their definition, scope, limitations, and the role of judicial review is essential. These powers illustrate the delicate balance between executive efficiency and constitutional checks and balances. As the UK's constitutional context continues to change, the interaction between prerogative powers, parliamentary sovereignty, and judicial oversight remains a critical area of study and debate.

Key points to remember:

  • Prerogative powers are residual, common-law-based powers used by the executive.
  • They are subject to parliamentary supremacy and can be limited or replaced by statute.
  • Judicial review of these powers has expanded significantly since the GCHQ case.
  • The reach of these powers includes foreign affairs, defense, domestic governance, and administration of justice.
  • Contemporary debates focus on democratic accountability, codification, and the impact of constitutional changes like Brexit.