Describe, citing and discussing relevant case-law, the manner in which the judiciary controls the exercise of the Royal Prerogative. Your answer should at the outset include a brief definition of the Royal Prerogative and provide examples of prerogatives.

by levisunnerhotmailcouk (student)

Royal prerogative in the words of A.V. Dicey is “the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown”. William Blackstone however, speaks of the royal prerogative as powers that “the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects”. Both Dicey’s and Blackstone’s definition have been contradistinctively followed. Examining the prerogative is “set about with difficulties with prerogatives disused, with prerogatives of doubtful existence, with prerogatives which exist by sufferance, merely because no one has thought it worthwhile to abolish them.” Furthermore, “it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative”.

Currently, royal prerogative mainly concerns foreign affairs, defense and national security. Examples of royal prerogatives concerning foreign affairs are: the power to declare war, diplomatic relations, sending armed forces and the issuing of passports. Domestic royal prerogatives include: summoning/dissolving Parliament, royal assent and appointment of the Prime Minister - these still reside with the Queen but are governed by convention as the Monarch bows to the will of the people. However, royal prerogative is now generally operated by the Crown in the name of the residing Monarch, giving weight to Dicey’s definition as opposed to Blackstone’s.

Thomas Poole observed that “In its monarchical form, in the disjunction between its past and present use, and in the thinness of the legal norms that apply to it, the prerogative might even be said to represent the very essence of the British Constitution.” Contrary to Poole’s view of there being a “thinness of legal norms that apply” to royal prerogative, the courts have adopted the reviewability test which analyses the nature of the function rather than strict identification when reviewing the royal prerogative. Despite royal prerogative being held by the executive, it can be subject to judicial review as held in Council of Civil Service Unions v Minister for the Civil Service (GCHQ). Previously in The Case of Proclamations, Sir Edward Coke held that the King “cannot by proclamation create a new criminal offence and that the King only enjoyed the prerogatives that the law of the land permitted him” holding that the courts may review the scope and type of prerogative thus limiting the scope of royal prerogative powers. Lord Parker had previously commented in The Zamora that “The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country Is out of harmony with the principles of our Constitution” affirming Re Petition of Right. In the aforementioned GCHQ case, the Thatcher administration prevented GCHQ employees from joining trade unions under the pretext of national security. Lord Roskill affirmed the decision in The Case of Proclamations whilst adding that the royal prerogative was subject to judicial review dependent on subject matter, if unwarranted – making a distinction between justiciable and non-justiciable.

The case of R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No2) saw a claim seeking a writ of certiorari upheld. In this case, the claimant Oliver Bancoult sought a judicial review over the forcible removal of the Chagossian people from the Chagos Islands. This was the first case to directly state that where there is a legitimate expectation; the information must have been relied upon, of which led to a detriment. Previously, this had merely been an additional element and not essential.

Lord Denning found in Blackburn v Attorney General that treaty ...