The Royal Prerogative

Judicial Review of RP

• Can Prerogative power be judicially reviewed??
• COUNCIL OF CIVIL SERVICE UNIONS V MINISTER FOR THE CIVIL SERVICE [1985] AC 374 (General Communications Headquarters (GCHQ) case) Prerogative powers could only be reviewed if they were justiciable, i.e. on a subject where it was constitutionally appropriate for the courts to intervene.

Judicial Review of RP

• The inability of the courts to review decisions to sign international treaties is well established – case Blackburn v Attorney General [1971]- Lord Denning said, ‘The Treaty-making power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting on the advice of her ministers . . . this cannot be challenged or questioned in the courts

Judicial Review of RP

• R v Foreign Secretary, ex parte Everett [1989] (passport case) - Appeal found that ‘whether judicial review of the prerogative power is open depends upon the subject matter’. Matters of ‘high policy’, such as agreeing international treaties, would remain beyond the review of the courts, but ‘the grant or refusal of a passport is in a quite different category. It is a matter of an administrative decision affecting the right of individuals and their freedom of travel.’ So the more that a prerogative decision is like an ordinary administrative decision and less a question of high politics, the more likely it is that it will be subject to judicial review.

Issues and reforms

• The powers often lack precision
• RP might be exercised without scrutiny from parliament or control or judicial review (Chagossian case)
• wide replacement of prerogative powers with statutory powers and Parliamentary control and scrutiny ??
• What about rule of law and constitution ?
• Gina Miller and the Brexit legal battle or Brexit judgement: Supreme Court statement (youtube)