#3126 - The Crown And Prerogative - GDL Constitutional and Administrative Law

- Crown: position in law.

• UK constitutional monarchy: formal exercise of power by monarch, but power to govern exercised by Executive.

• ‘royal prerogative’: common law powers of Executive – distinct from statute.

- Definition of prerogative powers.

• [Dicey]: ‘residue of discretionary/arbitrary authority, at which any given time is legally left in the hands of the Crown … Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative’.

  • approved in GCHQ.

  • problem: conflict with Rule of Law concept.

  • too wide?: includes powers enjoyed in common with subjects, e.g. power to enter into contracts should only cover powers unique to Crown?

• [Blackstone]: ‘special pre-eminence’ monarch has over others – only applies to powers unique to Crown.

- Historical background.

• Bate’s Case [1606]: distinction between ‘absolute’ vs ‘ordinary’ powers of monarch.

  • absolute powers: almost entirely discretionary + unregulated – e.g. conduct of foreign policy, mercy.

  • ordinary powers: exercised in accordance with established principle + practice – e.g. powers concerning administration of justice.

    • not part of prerogative: lack of flexibility (+ now largely gov. by statute).

• absolute powers inseparable from Crown: Case of King’s Prerogative in Saltpetre [1607].

  • but: Bill of Rights 1689 – no longer true: Crown’s powers can be taken away by Parliament.

• BUT: still limited by common law – Case of Proclamations [1611]: \the King hath no prerogative but that which the law of the land allows him’.

- Categorisation of prerogative powers: Select Committee on Public Administrations 4th Report (2004).

• 1. Prerogative Executive powers: exercised by government.

• 2. Legal Prerogatives: e.g. immunity from prosecution.

• 3. Queen’s Constitutional Powers (personal prerogatives): e.g. Royal Assent, opening Parliament.

- Executive prerogatives: most important – exercised by government since 1688.

• appointment/dismissal of ministers etc.

• administration of dependencies (and formally colonies).

• treaties: approval of Parliament not generally required.

  • but: judicial review possible? (R v SoS for Foreign and Commonwealth Affairs ex p Rees-Moog [1994]).

• recognition of foreign states: once recognised, immunities + privileges – State Immunity Act 1978, Diplomatic Privileges Act 1964 (giving effect to 1964 Vienna Convention) + Consular Relations Act 1968.

• revenues

• ecclesiastical prerogatives

• peerages and honours

• prerogative of mercy: Home Sec. may pardon offences –

  • previously non-justiciable.

    • Hanratty v Lord Butler of Saffron Walden [1971]: CoA – no jurisdiction to inquire whether Home Sec negligent in exercise of prerogative.

    • De Freitas v Benny [1976]: [Ld Diplock]: ‘Mercy is not the subject of legal rights. It begins where legal rights end.’

  • but: new trend for judicial review?

    • R v SoS for the Home Dept ex parte Bentley [1994]

• passports issuance

  • R v Brailsford [1905]: ‘document issued in the name of the Sovereign on the responsibility of a Minister of the Crown’.

  • but judicial review: R v SoS for Foreign and Commonwealth Affairs ex p Everett [1989].

• defence of the realm/emergency: courts generally do not interfere.

  • Case of Ship Money [1637]: Crown alone judges how DotR effected – prerogative to declare war + peace.

  • Chandler v DPP [1964]: [Ld Reid]: armed forces ‘within exclusive discretion of the Crown’.

  • Burmah Oil v Lord Advocate [1965]: [Ld Reid]: prerogative ‘covers doing all those things in an emergency which are necessary’ (but not necc. without compensation).

  • R (on app of Campaign for Nuclear Disarmament) v PM of UK [2002]: [Simon Brown LJ]: ‘DotR’ decisions within exclusive ambit of Executive political, rather than legal consequences.

  • Iraq:

    • R v Jones (Margaret) & Others [2004]: mil. intervention in Iraq lawful exercise of prerogative power.

    • R v Shayler [2001]: courts maintaining distance.

  • but: certain actions reviewable – R (on app. of Bancoult) v SoS for Foreign and Commonwealth Affairs [2008].

- Legal prerogatives of the Crown.

• Crown can do no wrong: but qualified.

  • Crown Proceedings Act 1947: state can be sued on contract + tort.

  • Factortame [1989]: CoA decided court cannot issue injunction to stop an Act instead [Ld Bridge]: disapplied to EU nationals; but: ECJ did review Act.

  • M v The Home Office [1993]: UK courts can grant interim injunctions vs. ministers; govt. in contempt of court.

• Crown not bound by statute (unless explicit).

  • Province of Bombay v Municipal Corp of City of Bombay [1947]: [Ld du Parcq]: Crown only bound by explicit provision (Royal Assent: agreeing to be bound).

    • (+ inferred in statute whose beneficial interest dep. on Crown bound).

    • consequence of principle: immunity from income tax + rates.

  • Lord Advocate v Dumbarton DC [1989]: HoL: govt. does not need planning permission (but Court of Session: had held that Crown only immune where pre-existing rights + interests of Crown prejudiced by application of statute).

  • Bropho v State of W Australia: in Australia, Crown bound by statute unless explicitly excluded.

    • rationale: immunity inappropriate to modern state operations.

• Time does not run against the Crown at common law.

  • but: must observe statutory time limitations – Crown Proceedings Act 1947.

• Attorney General may discontinue criminal proceedings on indictment (nolle prosequi): able to grant immunity from prosecution in exchange for information.

- Queen’s constitutional prerogatives / personal prerogatives – all conventional.

• advise ministers

• appoint PM + other ministers.

• Royal Assent

• summon + dissolve Parliament: but N.B. coalition proposals – fixed-term parliaments + MPs power to dissolve Parliament with 2/3 majority.

- Parliamentary control of the prerogative.

• parliamentary control: may abolish, suspend, restrict or curtain any prerogative power.

  • principle: Parliamentary Sovereignty + statute overruling common law.

  • problem: rare – in effect, dep. on govt. curtailing own powers (Parliament dominated by executive).

• De Keyser Principle: statute overrides prerogative in same area – in abeyance.

  • AG v De Keysers Hotel [1920]: courts applied DOTRR 1914 over prerogative.

    • [Ld Parmoor]: courts of law cannot disregard protective restrictions imposed by statute.

    • [Ld Atkinson]: RP abridged by statute – can only be exercised in accordance with statutory provisions.

  • De Morgan v Director of Social Welfare [1982]: Parliament can abolish or modify prerogative by express words or ‘necessary inducement’.

• prerogative can be impliedly suspended by statute.

  • Laker Airways Ltd v Dept of Trade [1977]: 1946 Bermuda Treaty allowing UK-US air travel overridden by Civil Aviation Act 1971: Civil Aviation Board takes over authority of Dept of Trade to grant licences SoS cannot cancel licence.

  • [Ld Denning]: must apply statute over prerogative if not: would remove protection afforded by statute.

  • clash between statute + prerogative: prerogative suspended.

    • if statute repealed: common law prerogative back in play.

• BUT: prerogative may continue to be used for public good unless expressly overruled by statute.

  • R v SoS for Home Dept ex p Northumbria Police Authority [1988]: NPA question Home Secretary’s authority to issue riot gear to police force vs. Police Act 1964 but prerogative allowed.

    • [Croom-Johnson LJ]: prerogative power to keep the peace (equated with defence of the realm).

    • earlier cases distinguished: prerogative not explicitly taken away – Act + residual powers not on exactly same subject matter.

• extension of De Keyser: R v SoS for Home Dept ex p Fire Brigades Union [1995].

  • Criminal Injuries Compensation Scheme passed, but implementation at discretion of Home Secretary govt. tried to amend a non-statutory tariff scheme based on prerogative.

  • prerogative cannot be used to defeat intention of Parliament (even where statutory provision has not been brought into force).

  • [Barendt]: absurd to conclude that Parliament had enacted a detailed compensation scheme and at same time granted govt. unfettered legislative power.

- Judicial control: no review of use of prerogative before GCHQ – only police existence.

• no new prerogatives: residual common law powers of absolute monarchy – none created after death of Charles I.

  • BBC v Johns: BBC claiming exemption from tax on basis of royal charter.

    • [Ld Diplock]: ‘350 years and a civil war too late for the Queen’s courts to broaden the prerogative’.

  • but extension might be allowed: ex p Northumbria Police Authority.

• existence/scope of prerogative: open to review since 1688.

  • Entick v Carrington [1765]: no power ‘in the books’ for search + seizure of seditious materials.

  • prima facie: no review of exercise of prerogative powers by the court.

• judicial review of exercise of prerogative power: more recent trend.

  • R v Criminal Injuries Compensation Board ex p Lain [1968]: court willing to review compensation given by CICB (set up by prerogative body) – but obiter.

  • Laker Airways [1977]: a power impliedly fettered by statute.

    • [Ld Denning] obiter: prerogative can be examined by courts ‘just as any other discretionary power … vested in the executive’.

  • GCHQ [1984]: use of prerogative reviewable – minister banning union membership not immune from judicial review.

    • [Ld Diplock]: no reason why common law powers as opposed to statutory powers should be immune from judicial review.

    • [Ld Roskill]: depends on subject matter – not every power can be challenged.

      • non-justiciable prerogative powers: appointment of ministers; dissolution of Parliament; grants of...