ROYAL PEROGATIVES

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GRADUATE DIPLOMA IN LAW

CONSTITUTIONAL LAW & ADMINISTRATIVE LAW

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Lord Frazer in the GCHQ case explained the past position of the courts in relation to the prerogative as follows – ‘‘As De Keyser’s case shows, the courts will inquire into whether a particular prerogative power exists or not and if it does exist, into its extent. But once the existence and extent of a power are established to the satisfaction of the court, the court cannot inquire into the propriety of its exercise.’’ (Lord Frazer – Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374)

Discuss the reasons for this limited judicial control of the prerogative in the past and critically assess the approach finally adopted in the GCHQ case and subsequently.

                                                                                                

Royal Prerogative derives from common law and they are not from statutes. By origin, royal prerogatives are attributes which of necessity inherent in the kings as the governors of the realm. The royal prerogative consists of those common law powers and immunities which are peculiar to the crown and go beyond the powers of a private individual.

The history of the royal prerogatives was created by James 1 between 1603-1625. James 1 was the king of England and Scotland, and when he became king, he appointed himself head of parliament, courts and statutes.

Powers of the King were legally based on the royal prerogatives. Between 1625-1700 various events occurred which lead to the reduction of the king’s powers under the royal prerogative and the emergence of parliamentary supremacy. Crown’s powers were reduced due to political parties and the principle of ministerial responsibility to parliament. Royal prerogatives are discretionary powers, they are crown’s powers.

Today title to the crown derives from the Act of Settlement 1700, due to the act, the crown shall ‘‘be remain and continue to the said most excellent Princess Sophia’’ (the Electress of Hanover, granddaughter of James I) ‘‘and the heirs of her body being Protestant.’’ 1 

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The crown today cannot claim that a new prerogative has come into existence or invent new prerogative powers. This is consistent with the residual nature of the prerogative. However, because the prerogative is not codified or frozen at a particular point of time, it can still to some extent adapt to changed circumstances. In R v Secretary of state for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26 (CA), the courts found scope to identify prerogative powers which had little previous recognition.

By virtue of Bill of Rights Act 1689, prerogative powers can only be ...

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A frankly baffling approach to the question set, which makes no reference to the GCHQ case or judicial control of royal prerogative more generally. A good approach to this essay would consider the attitude of the courts to the prerogative, and the extent of judicial review of prerogative power. Reference the GCHQ judgment itself, and relevant academic articles (e.g. "Review, Justiceability and the Prerogative of Mercy