10. Prerogative Powers

Public Law ◽  
2019 ◽  
pp. 300-332
Author(s):  
Andrew Le Sueur ◽  
Maurice Sunkin ◽  
Jo Eric Khushal Murkens
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Central Government ◽  
Foreign Affairs ◽  
The European Union ◽  
Parliamentary System ◽  
Secretary Of State ◽  
Legal Foundations ◽  
Uk Supreme Court ◽  
The Uk

This chapter examines the meaning and the continuing significance of prerogative powers. Prerogative powers are those that were originally exercised by the Monarch before the modern parliamentary system was established. While most prerogative powers have now been replaced by statutory powers, prerogative powers remain important in some contexts, especially in relation to the conduct of the United Kingdom’s foreign affairs. In this context the decision of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union is of particular importance. The chapter is organized as follows. Section 2 considers the various legal foundations on which central government ministers may base their actions and compares prerogative and statutory powers. Section 3 examines prerogative power—a source of power possessed only by ministers in UK government and the monarch—in more detail. Section 4 considers the progress towards the reform of ministerial prerogatives.

Introduction: The Supreme Court’s Place in UK Politics

2020 ◽  
pp. 1-30
Author(s):  
Chris Hanretty
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Organizational Factors ◽  
Public Access ◽  
The European Union ◽  
Political Influences ◽  
Political Role ◽  
Uk Supreme Court ◽  
The Uk

This chapter introduces readers to the UK Supreme Court by describing two cases heard by the court: one case that almost no readers will have heard of, and that involved public access to land; and one case that was hugely controversial and that profoundly affected the process of the UK’s exit from the European Union. After describing the structure and operation of the court, the chapter steps back in time to explore the reasons for the court’s creation, and makes a case for the importance of understanding the court’s political role—and, as a consequence, for modeling the judges’ behaviors in ways that allow for subtle political influences alongside more consequential legal and organizational factors.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Attorney General ◽  
Public Law ◽  
The European Union ◽  
Advocate General ◽  
Scottish Parliament ◽  
The Uk

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court. This case is concerned with the competencies of the Scottish Parliament, and the nature of devolution in the UK more generally. The document also includes supporting commentary from author Thomas Webb.

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Public Law ◽  
Case Note ◽  
The European Union ◽  
Secretary Of State ◽  
The Government ◽  
Article 50

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court. This case concerned whether the government could rely on the prerogative power to issue a notification of the United Kingdom’s intention to secede from the European Union under Article 50 of the Treaty of the European Union, or whether parliamentary authorization was required. There is also a brief discussion of the Sewel Convention. The document also includes supporting commentary from author Thomas Webb.

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court

2019 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Public Law ◽  
The European Union ◽  
Secretary Of State ◽  
The Government ◽  
Article 50

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court. This case concerned whether the government could rely on the prerogative power to issue a notification of the UK’s intention to secede from the European Union under Article 50 of the Treaty of the European Union, or whether parliamentary authorization was required. The document also includes supporting commentary from author Thomas Webb.

PULLING A TRIGGER OR STARTING A JOURNEY? BREXIT IN THE SUPREME COURT

2017 ◽  
Vol 76 (2) ◽  
pp. 217-223
Author(s):  
David Feldman
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Foreign Relations ◽  
The European Union ◽  
The Supreme Court ◽  
Legal Challenges ◽  
The Government ◽  
Article 50 ◽  
The Uk ◽  
The Eu

FOLLOWING a referendum on 23 June 2016 in which 52% of voters (38% of the total electorate) had expressed a preference for the UK to leave the EU, the Government announced that it would start the process of withdrawal, in accordance with Article 50 of the Treaty on European Union (“TEU”), by notifying the European Council of the UK's decision, exercising the Government's prerogative power to conduct foreign relations. A number of legal challenges were fast-tracked to the Supreme Court. In R. (Miller) v Secretary of State for Exiting the European Union (Birnie and others intervening) [2017] UKSC 5; [2017] 2 W.L.R. 583 after an expedited hearing, the Court decided two issues: (1) whether the Government could exercise its power under the royal prerogative to give notice, or needed an Act of Parliament to authorise the giving of notice; and (2) whether the Government required the consent of devolved legislatures in Northern Ireland, Scotland and Wales before giving notice or introducing to Parliament a Bill authorising the giving of notice. The Court sat unprecedentedly with all 11 serving members. On issue (1), the Court, by an 8–3 majority, held that an Act of Parliament would be required in order to authorise the giving of notice. On issue (2), the Court unanimously held that there was no legal requirement for consent by the devolved institutions.

scholarly journals Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments

2010 ◽  
Vol 12 ◽  
pp. 455-490 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Supreme Court ◽  
Economic Sanctions ◽  
Case Law ◽  
Third Parties ◽  
The European Union ◽  
Court Of Justice ◽  
Uk Supreme Court ◽  
Judicial Scrutiny ◽  
The Uk ◽  
The Eu

AbstractThe judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.

scholarly journals THE SUPREME COURT'S JUDGMENT IN MILLER: IN SEARCH OF CONSTITUTIONAL PRINCIPLE

2017 ◽  
Vol 76 (2) ◽  
pp. 257-288 ◽  
Author(s):  
Mark Elliott
Keyword(s):  
European Union ◽  
Supreme Court ◽  
The European Union ◽  
Formal Process ◽  
Constitutional Principle ◽  
The Supreme Court ◽  
The Government ◽  
The Uk ◽  
Constitutional Adjudication ◽  
The Eu

AbstractIn R. (Miller) v Secretary of State for Exiting the European Union, the Supreme Court of the UK (1) held that the UK Government had no prerogative power to initiate the formal process whereby the UK will withdraw from the EU and (2) declined to recognise any requirement that the devolved legislatures’ consent be obtained in respect of legislation authorising the Government to commence the withdrawal process. This article critically examines Miller, arguing that the majority's analysis veers between unwarranted muscularity in relation to the prerogative issue and unnecessary conservatism as regards the devolution issue. The article goes on to argue that while the majority judgment's restrictive approach to the prerogative may be viewed as a progressive victory for constitutional principle, such an evaluation can be sustained only if a set of relatively traditional constitutional premises are adopted to begin with. The article also contends that the general approach adopted by the majority is problematic, given its willingness to invoke arguments of constitutional principle without adequately engaging with questions about what the pertinent principles are, and argues that such an intellectually lackadaisical mode of constitutional adjudication is to be deprecated.

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Public Law ◽  
Case Note ◽  
The European Union ◽  
Secretary Of State ◽  
The Government ◽  
Article 50

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court. This case concerned whether the government could rely on the prerogative power to issue a notification of the United Kingdom’s intention to secede from the European Union under Article 50 of the Treaty of the European Union, or whether parliamentary authorization was required. There is also a brief discussion of the Sewel Convention. The document also includes supporting commentary from author Thomas Webb.

scholarly journals Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments

2010 ◽  
Vol 12 ◽  
pp. 455-490 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Supreme Court ◽  
Economic Sanctions ◽  
Case Law ◽  
Third Parties ◽  
The European Union ◽  
Court Of Justice ◽  
Uk Supreme Court ◽  
Judicial Scrutiny ◽  
The Uk ◽  
The Eu

Abstract The judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court

2017 ◽  
Author(s):  
Thomas Webb
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Public Law ◽  
The European Union ◽  
Secretary Of State

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court. The document also includes supporting commentary from author Thomas Webb.

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