Define "prerogative power" and describe the impact of the GCHQ case on our understanding of royal prerogative

Albert Venn Dicey describes prerogative power as “every act which the executive government can lawfully do without the authority of an Act of Parliament.” This definition, accepted by the courts in Council of Civil Service Unions v Minister for the Civil Service (the ‘GCHQ case'), suggests that the royal prerogative covers any action taken by the Crown which is not under statutory power; the common law powers of the Crown within its executive role. As expanded by Sir William Blackstone, prerogative power represents “that special pre-eminence which the King hath”; the rights, capacities and powers which the King enjoys alone. This might appear, then, to create a tension with the conceptual rule of law, which emphasises the importance of legal controls to check the arbitrary exercise of power. In Dicey’s Introduction to the Study of the Law of the Constitution (1885), one of three significant principles outlined concerning the rule of law states that there should be “no higher law other than the rights of individuals as determined through the courts”. This suggests that constitutional principles in the UK are derived from judicial decisions; man is ruled by law alone, and the supremacy of regular law is emphasised. In a system of checks and balances, how do these two concepts coexist in practice, and how did the ‘GCHQ’ case promote the rule of law in relation to prerogative power? // The administration of justice was historically the prerogative of the monarch, who represented the ‘fountain of justice.’ Following the separation of powers, the judiciary now constitutes its own entity separate from the executive, though certain legal prerogatives of the Crown remain. However, the judiciary itself is able to exercise a degree of control over prerogative power. For example, the Crown may not broaden prerogative. This was held in BBC v Johns, where the BBC claimed that the Crown, through them, had monopoly of broadcasting and that the BBC was therefore entitled to the Crown exemption on income tax. Furthermore, the existence and scope of prerogative powers has been subject to judicial review, where the court can adjudicate on whether a claimed prerogative exists. In Entick v Carrington the court held that a prerogative power did not exist to issue warrants for the search and seizure of seditious material. The GCHQ case carries particular significance regarding the third method of control that the judiciary has over prerogative; the exercise of the prerogative is subject to judicial review. Where powers are derived from statute, it is difficult for the courts to justify the review of these powers; however, prerogative power is conferred differently, and judicial review does extend to the manner in which it is used. This became clear in R v Criminal Injuries Compensation Board ex parti Lain, which concerned the Criminal Injuries Compensation Board. This board, established under prerogative, argued that as a result of this its decision not to compensate the widow of a policeman shot by a suspect was within the ambit of judicial review. The court held, however, that judicial supervision was not inappropriate in cases concerning the exercise of this type of prerogative power. // The GCHQ case removed any doubts regarding this. This case concerned the action of the Prime Minister in banning trade union membership at GCHQ without prior consultation. The Prime Minster implemented this policy using the prerogative power to regulate the terms and working conditions of civil servants; the court had to decide whether this rendered the action immune from judicial review. Lord Roskill held that though prerogative power as a source of law is not immune from review, certain non-prerogative powers are non-justiciable due to the nature, rather than the origin, of the power itself. It does not depend on the source (statute as opposed to prerogative) but centres on the subject matter and nature of the issue. Issues which are more political in nature may fall outside the ambit of judicial expertise. He concluded that to be justiciable, there has to be a consequence of affecting individual rights and obligations. In this particular case, the actions of the PM were not immune from judicial review.