Thursday, 17 November 2016

Governmental Powers and Duties - Sources

Governmental Powers and Duties arise from (1) the General Law; (2) Statute Law and (3) Royal Prerogative.  This post briefly examines the first two of those sources.  

The Royal Prerogative is a major source of governmental power and is examined in a later post - Governmental Powers and Duties - Royal Prerogative Powers.

I.  General law:

The law permits the Crown (basically the government) to do many things such as own property and make contracts.   These are sometimes referred to as "third source" powers.  At  common law the Crown, as a corporation possessing legal personality, has the capacities of a natural person and thus the same liberties as the individual - see the Court of Appeal's judgment in R v Secretary of State for Health ex parte C [2000] 1 FLR 627 and the further discussion in Shrewsbury and Atcham Borough Councils v Secretary of State for Communities and Local Government [2008] EWCA Civ 148.

See also the Supreme Court judgment in R (New College London) v Secretary of State for the Home Department [2013] UKSC 51 at para 28

II.  Statute Law:

A further, and major, source of governmental power is statute law.  The powers granted to government by way of Acts of Parliament are far too numerous to set out here.  Suffice to say, at this stage, that the rule of law requires that government operates within the boundaries of any such statutory powers.  Also, statute law frequently imposes duties on Ministers ("the Secretary of State") to do specified things.

III.  Prerogative Powers:

These powers are the subject of a later post - Governmental Powers and Duties - Royal Prerogative Powers

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