#14673 - Prerogative Power - GDL Constitutional and Administrative Law

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Judicial Control of the Royal Prerogative

Pre-1688

The King’s innate legal powers:

James I: his personal legal powers were the ultimate source of law. The sovereignty of his laws attached to himself.

CJ Cook: heartily disagreed - he set out to curb the rising arrogance of the crown & parliament. The common law could & should curtail the powers of both King & parliament.

• Case of Prohibitions 1608: as his legal authority was a divine right, he felt that he had a right to sit as a judge. Coke saying that the King cannot sit as a judge because he had inadequate legal knowledge.

• Case of Proclamations 1611: great caution should be exercised when introducing something without legal certainty. “The King cannot change any part of the common law, nor create any offence by his proclamation” / “The King hath no prerogative, but that which the law of the land allows him”. Positioning the King as the third authority in the normative heirarchy.

• Bates’ Case 1610 (Case of Impositions): the King’s power to regulate trade - decided to place a tax on the import of currants. Importer refuses the pay the tax, as the King has not got power to levy taxation. King responds that it isn’t a tax, but a bona fide exercise of an accepted prerogative power.

• ShipMoney 1637 (Hampden’s Case): the King’s shipmoney tax was contested on the basis that it was not a time of military emergency. Who decides when a military emergency is occurring? Hampden said it was a judicial obligation to determine that. However, it was held that the King himself can determine when there is a military emergency.

James II: favoured the view that the King himself was the supreme legal authority:

• Godden v Hales 1689: Sir Edward Hales, a Catholic & favourite of the King, whom James wanted to appoint to a senior governmental office. Statute requires holders of office to swear Protestant faith. James contended that he had the power to dispense with statutes when he wanted to. Held: the King has power to dispense, and also to decide when it is necessary to dispense, with statute.

• The Bill of Rights 1689: States that the power of suspending laws was never there, and that it does not exist. Shipmoney clause - “levying of money...by pretence of prerogative”

The revolution sought to reaffirm old principles that had been bastardised by the Stuart monarchs.

Post-revolution presumptions

1. Prerogative powers of Monarch = as part of common law

2. Thus, they are inferior to statute

3. Thus, they are controlled by the courts

4. It is residual (not endowed with the power to grant new prerogative powers)

• Blackstone: prerogative as “peculiar and eccentrical to the Monarch” i.e. not the legal character (making contracts etc)

• Dicey: prerogative power as everything non-statutory than the Crown does – last bastion of arbitrariness

AG v De Keyser Royal Hotel

Hotel requisitioned during the war for defence purposes. Owner claimed compensation. AG argued liability for compensation displaced by the prerogative power to requisition property for military use. It did not carry with it a obligation to pay compensation. Defence Act 1914 said nothing about the prerogative power, but included a formula for compensation. Property requisitioned under prerogative powers.

• De Keyser: if P enacts statutory provision which goes after prerogative powers, then it will repeal it (just liked implied repeal for statutes).

• Government’s argument: there is nothing in defence act 1914 that say prerogative power is being removed. Assumption is that parliament intended for the two powers to lie side by side, with full powers to choose which powers to exercise

Held: normative superiority of statute renders normative common law powers unusable. It could however expressly legislate for the continued co-existence of powers.

Laker Airways v Department of Trade

Laker set up a budget airline, Skyfare, to provide passage to the US. He needed:

• Licence granted under Civil Aviation Act 1970

• Permission from the Crown per the Bermuda Agreement

Initially granted permission while conservative government in power. Before flying however, Labour came into power who wanted to protect British Airways as it was a nationalised company at the time. Told the Aviation authority to retract licence, and retracted permission.

Statutory interpretation (can the Civil Aviation retract licence?)

• Gave DoT power to give guidance on licensing function

• DoT power to give directions concerning matters of national security/diplomatic relations

The linguistic differences between ‘guidance’ & ‘directions’. DoT’s guidance would go counter to the CAA’s purpose to increase competition.

Held: (CA) accepted the distinction, and the licence couldn’t have been revoked. The policy guidance was against the objectives of the statute. However, the 2nd necessary permission was still retracted.

• De Keyser principles were not applicable as the statute & prerogatives were “interlocking” per Lord Denning – covering different competences - but the prerogative power could be reviewed as any statutory power

NB: Protects parliament sovereignty: this case shows the necessity of change going to parliament - Shure couldn’t just affect his political agenda without parliament behind it.

Ex p Firebrigades Union

1988 Act provided for Criminal Compensation (CCIB). Home Secretary, instead, drew up non-statutory prerogative power based scheme as by 1993 Howard thought CI too expensive.

This case differs from the past three; there is NO statutory power, only a suggestion of a future statute.

Held: Home Secretary had no such power – they could not compel him to bring the Act into effect but prerogative scheme was unlawful. This was also an example of fettering discretion in failing to implement. However legitimate expectation could not be extended to the public at large

• Lord Browne-Wilkinson: it would be to frustrate the will of parliament to enact prerogative powers.

• Lord Lloyd: the statute creates no enforceable rights, though it has stated parliament’s intention.

Why did the Wilson government put the CICB under a prerogative rather than a statute?

• Speed: no need for parliamentary persuasion, with immediate effect & repeal.

• If it were a statute, and a future government doesn’t like it, then you have to go back and push through another statute to repeal it

• Limited judicial review

Scope of Judicial Review of Prerogative

Orthodoxy

Statute can be reviewed on grounds:

• Illegality

• Irrationality

• Procedural unfairness

Prerogative’s only ground of review:

• Illegality – ultra vires the only ground as without it prerogative powers would be limitless

• Blackstone’s Commentaries, “the King is irresistible and absolute”

• Chitty’s Prerogatives of the Crown

Why is there a limited power of review?

• Monarch’s powers. Disrespectful to judge the Monarch irrational or unfair

• Nulle prosequi power (AG intervention with criminal proceedings)

  • R v Allen 1862, purely political power, that of Parliament. Authority that prerogative powers are only subject to review on grounds of illegality.

Changing Tides

R v CICB, ex parte Lain 1967

Soldier killed himself due to PTSD. C claiming ex gratia compensation under Crown prerogative

Held: (HL) if you are dealing with a body acting in judicial capacity, and making a decision about the rights of individuals (compensation), then all three grounds of judicial review must apply. The scheme underneath the prerogative was justiciable

Reactions to Lain:

• Wrong decision

• Modest revolution in admin. Law

• Niche judgement based on individual facts of the case

• Movement towards more comprehensive review of prerogative powers

NB: Lord Denning in Laker - no logical distinction between prerogative & statutory powers

GCHQ Case (Council for Civil Service Unions v Minister for the Civil Service 1985)

At the time workers at GCHQ were employed under prerogative. Minister for Civil Service (Maggie Thatcher at the time) considered the members to be in a trade union...