Public Law I - Sources of Power PDF

PUBLIC LAW I – SOURCES OF POWER Powers of the Executive Dr Tarik Olcay University of Dundee Week 7  LEARNING OBJECTIVES Describe what types of power the UK executive branch has Explain the nature and scope of prerogative powers  POWERS OF THE EXE...

PUBLIC LAW I – SOURCES OF POWER Powers of the Executive Dr Tarik Olcay University of Dundee Week 7  LEARNING OBJECTIVES Describe what types of power the UK executive branch has Explain the nature and scope of prerogative powers  POWERS OF THE EXECUTIVE IN THE UK Three sources of legal authority on which the executive branch can act: Statutory powers Prerogative powers (accepted by courts as part of the common law) ‘Third source’ powers (neither statutory nor prerogative but can act as no law prevents them to do so) Uncontroversial as long as a Minister uses this to do things any individual could do, but controversial if used for things private individuals cannot do  THE ROYAL PREROGATIVE The Monarch History (cont’d) used to be the source of all power and 17th Century law Ordinary v absolute prerogative Led to execution of one king and expulsion of another the residual power: the royal prerogative Ultimately the issues resolved by courts and History parliament Bill of Rights 1689; growth of responsible government; Medieval times establishment of constitutional monarchy King had powers to protect the realm and Today also those for the ‘public good’ Exercised by or on behalf of government of the day King still not above the law, and royal Prior authority of Parliament not needed for many functions exercised appropriately prerogative powers; with limits King’s courts used for land title, felonies, Constitutional Reform and Governance Act 2010 etc; Council used for other issues  THE ROYAL PREROGATIVE TODAY Powers relating to legislature Powers relating to treaties Summoning and proroguing But Parliament now has the right to veto the Parliament UK’s entering into treaty obligations Powers relating to war and armed forces Hereditary peers Government may declare war Orders in Council power to legislate Patronage, appointments and honours Powers relating to the judiciary Immunities and privileges No longer creates courts – only Statutes do not bind the Crown except by Parliament can do express statement or necessary implication Some function relating to criminal Tax not payable on income received by justice (stop prosecutions; pardons) monarch Powers relating to foreign affairs Crown Proceedings Act 1947  THE ROYAL PREROGATIVE AND THE COURTS The existence and extent of prerogative power Courts will not recognise existence of new prerogative powers Difficulties arise on when old powers should apply to new situations Council of Civil Service Unions v Minister for the Civil Service AC 374 (GCHQ case)  royal prerogative is subject to judicial review The effect of statutes upon prerogative powers The ‘executive cannot exercise the prerogative in a way which would derogate from the due fulfilment of a statutory duty’ Fire Brigades Union The manner of exercise of a prerogative power In theory, courts determine existence, but cannot regulate manner of exercise  or can they? “every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie” – Miller II