⇒ Royal prerogative powers are legal powers (not the same as conventions!)
⇒ A V Dicey: ‘Every act which the executive Government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative’
⇒ Prerogative powers tend to be some of the most important government powers
⇒ They are legal powers, so Government has the ability to alter people’s rights and make rules by using the royal prerogative e.g. the power to agree to treaties and have the ability to make legislation (e.g. ‘Orders in Council’ – primary legislation which does not require parliamentary scrutiny)
⇒ Historically the monarch had the royal prerogative powers vested in them i.e. the monarch was the supreme executive power
⇒ Prohibition del roy case (1607):
⇒ The Case of Proclamations [1610]:
⇒ In the Early 1600s, Charles I could not reach an agreement with parliament
⇒ In 2003, a Public Affairs Select Committee was set up to look expressly at the Prerogative powers → they explained how hard it is to draw up a definitive list of prerogative powers, but, they identified 3 main types of prerogative powers:
⇒ Without these powers the Government would have to rely on statutory legislation; in other words, the Government does not need Parliamentary approval when using prerogative powers
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⇒ Rodney Brazier says that the Royal Prerogative is “an elastic concept” which “may be stretched by ministers”
⇒ John Major: "It is for individual Ministers to decide on a particular occasion whether and how to report to Parliament on the exercise of prerogative powers.”
⇒ The prerogative to go to war
⇒ Lord Reid in Burmah Oil v Lord Advocate [1965] said “it is extremely difficult to be precise” when deciding how far the Government’s royal prerogative powers go
⇒ In Chandler v DPP (1964) the court said they could not review the exercise of the prerogative powers unless those powers had been abused!
⇒ In the GCHQ case (1985) the court appeared to move on from the position of Chandler v DPP (1964) where it was said Prerogative powers can only be questioned if abused → the court here said that the prerogative powers are potentially revisable, depending on the subject matter
⇒ In R (On the Application of Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2009], the court also seemed to suggest prerogative powers were reviewable by holding that the prerogative Order in Council (primary legislation) in this case was reviewable
⇒ Gordon Brown & Jack Straw (July 2007): “Government’s power to deploy troops and ratify treaties stems from the royal prerogative. In a modern 21st century parliamentary democracy, the Government considers that basing these powers on the prerogative is out of date.”
⇒ Review of the Royal prerogative (MoJ, Oct 2009):
⇒ Examples of reform of the royal prerogative powers:
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