Prerogative Power: Significance And Controversy

Significance and Controversy

Controversially, Sir Robert Megarry VC implemented that the Police possessed prerogative powers under the Post Office Act 1969 , although the defendant has not itself claimed to have prerogative powers. It raised the assumptions that an Act of Parliament replaced most of the prerogative powers, as they are more clear and up to date. However, prerogative powers still exist, albeit there are no new prerogative powers. This case does not only accentuate on the existence of the prerogative powers but also approves Parliament's sovereignty. Alhtough Sir Robert Megarry has found that the interception is accordance to the law, the judge has urged Parliament to legislate the matter and has been aware of his limited power. He solely could not make a new law because Parliamentary sovereignty limits the courts to have such a discretion. Nevertheless, it was evident in the case that the court did not want to make a declaration on the thesis that the executive has acted unlawfully, as the prerogative powers were non – justiciable at that timeframe. However in Council of Civil

As Dicey stated, the rule of law ''excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the government'' . In the Malone case however, it was held that the Police was immune and ignored therefore the rule of law, as there was no law covering the telephone tapping. Sir Robert Megarry VC stated that the action pursued by the Police was lawful by interpreting the constitutional principle, ''England is not a country where everything is forbidden except what is expressly permitted'' . The court in Somerset County Council, ex p Fewings (1995) disagreed with his interpretation. It was held that the rule of law states that executive actions must not breach positive law, which excludes the wide discretion of executive powers