Royal Perogatory

THE ROYAL PREROGATIVE / DELEGATED LEGISLATION

Aims of lecture

1. The Royal Prerogative

* What is it?

* What are its characteristics?

* Examples..

* Control of the prerogative

* Reform

2. Delegated legislation

The Royal Prerogative

In the modern British state most governmental power (power to enable government to do things) comes from statute i.e. it is delegated to government by Parliament.

BUT some governmental powers do not have their origins in statute i.e. they are not delegated to government by Parliament.

Rather they are derived from something called the Royal Prerogative:

What is the Royal Prerogative?

The ancient common law powers of the Monarch.

Dicey: everything government can lawfully that does not have its roots in statute, but which could be enforced in the courts

Lord Diplock in GCHQ case: The ultimate source of the decision making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision, the source of the decision making power may still be the common law itself………that part of the common law…is given by lawyers the label of “the prerogative’.

Ministry of Justice’s Final Report on the Review of the Executive Royal Prerogative in 2009: - look in powerpoint to find quote

What are its characteristics?

Legal – common law

Residual – i.e. – what’s left over after the struggles between King and Parliament in the seventeenth century – so no new prerogatives can be created

“It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints on citizens of the UK without any statutory authority are now well settled and incapable of extension” (Lord Diplock, BBC v Johns [1965])

Personal prerogatives of the Monarch

We have come across some...