4. Judicial control of prerogative powers Flashcards
Attorney General v De Keyser’s Royal Hotel (1920)
The Crown, as supreme potestas, is endowed with the right and duty of protecting the realm and for that purpose is entitled to take any man’s property. Where, however, Parliament has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations contained in the statute so that the whole ground of something which could be done by the prerogative is covered by the statute, the statute rules, the prerogative is rendered unnecessary and is superseded by the statute, and the powers can only be exercised by the Crown subject to those limitations, for, inasmuch as the Crown is a party to every Act of Parliament, when a statute deals with something which before the Act could be effected by the prerogative and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to the prerogative being curtailed. The principles of construction to be applied in deciding whether the royal prerogative has been taken away or abridged are well ascertained. It may be taken away or abridged by express words, by necessary implication, or where an Act of Parliament is made for the public good, the advancement of religion or justice, and to prevent injury or wrong. Statutes which provide rent or compensation as a condition to the right of the executive to take over possession of land or buildings on the occasion of public exigency come within the category of statutes made for the advancement of justice and to prevent injury and wrong.
Where a building was requisitioned by the military authorities expressly under statutory powers:
Held: the Defence Act, 1842, and the regulations made under the Defence of the Realm Consolidation Act, 1914, gave the Crown powers to requisition property which were wider than those exercisable under the prerogative and bound the Crown; under the Act of 1842 compensation was given to the owner of property which was taken; and, therefore, the owners of the building in question were entitled to the compensation provided by that Act.
Decision of the Court of Appeal, [1919] 2 Ch 197, affirmed.
Per LORD PARMOOR: The royal prerogative connotes a discretionary authority or privilege exercisable by the Crown or the executive which is not derived from Parliament and is not subject to statutory control. This authority or privilege is in itself a part of the common law, not to be exercised arbitrarily, but per legem and sub modo legis. The royal prerogative has been considerably curtailed as a statutory rule of law has taken the place of the uncertain and arbitrary administrative discretion.
BBC v Johns (1965)
The British Broadcasting Corporation was established by royal charter originally granted in 1926, and operated under a licence laying down conditions for providing broadcasting services which was granted by the Postmaster-General. It was a body corporate whose objects were to provide broadcasting services by sound and television in the United Kingdom and abroad, and it had power to publish periodicals conducive to its objects, to organise concerts and entertainment, to collect news and information, to acquire copyrights and also patents serving its objects, and to acquire films and gramophone records. Its services were subject to a certain measure of control by the Postmaster-General, including an obligation to broadcast daily from such stations and during such hours as the Postmaster-General might direct and to send programmes to such countries abroad in such languages and at such times as might be prescribed by such government departments as he might specify. In the event of an emergency possession of its broadcasting stations might be taken in the name of the Queen at the direction of the Postmaster-General. In practice, however, the corporation enjoyed complete editorial control in both its home and external broadcasting services.
The corporation was prohibited from receiving money or any valuable consideration from any person in respect of its broadcasting services, and for the purpose of financing its home services it received from the Postmaster-General out of aids and supplies appropriated by Parliament a sum representing a percentage of the revenue received by him from the issue of wireless and television licences. It was required to apply the whole of these receipts solely in promoting its objects and was not allowed to distribute any sum among its members (the governors). In the event of its dissolution its property and assets were to be disposed of as directed by the Postmaster-General. In conjunction with the Rank Organisation Ltd, and Canadian and Australian broadcasting corporations it set up a company for the purpose of providing a service of world news recorded on films which was found to be ‘a vital part in the development of its news programmes,’ but it was called on to pay an ‘additional subscription’ to that company under a separate agreement with Rank Organisation Limited, under which each had agreed to find half of any deficit resulting from the insufficiency of the subscriptions of the members of the company. The corporation was assessed to income tax on the surplus of its receipts from the Postmaster-General over its expenses of operation attributable thereto in a tax year, which would normally be carried forward to the following year but would be taken into account in the Treasury’s triennial review of the percentage licence revenue to be paid to the corporation and no deduction was allowed in respect of its additional subscription to the company: Held (1) the corporation was not entitled to the Crown’s exemption from taxation, because broadcasting was not a province of government and the corporation was an independent body corporate which was not exercising functions required and created by the Government; (2) nevertheless the corporation had no taxable profits or gains (for the purposes of Case I or Case VI of Schedule D) from its broadcasting activities because its surplus (viz, the surplus of receipts from the Postmaster-General over expenses of operation) ought to be severed for tax purposes from other profits and the person ultimately entitled to it (the Postmaster-General) was the person who provided the fund out of which the surplus arose; (3) if the surplus had been taxable, the additional subscription paid to the company would have been deductible as a sum ‘wholly and exclusively laid out or expended for the purpose of the trade’ of the corporation having regard to the finding that it was a vital part of the development of the news programmes.
Per Danckwerts, LJ: ‘The corporation does not carry on a trade because it is forbidden to take money in respect of the operations concerned [the broadcasting operations], and this is really conclusive of the question whether there is liability to income tax on surplus moneys left after expenditure is deducted from money paid to it by the Postmaster-General.’
Per Diplock, LJ: ‘I hope that no one will ever again in a court of law use so imprecise a metaphor as ‘emanation of the Crown.’
‘It is 350 years and a civil war too late for the Queen’s court to broaden the prerogative. The limits within which the executive government may impose obligations or restrictions on citizens of the UK without any statutory authority are now well settled and incapable of extension.’
Laker Airways v DoT (1977)
The Secretary of State for Trade cannot lawfully formulate new policy, or issue a mandatory direction by the procedure of “guidance” to the Civil Aviation Authority under the Civil Aviation Act 1971 s.3(2).
The Civil Aviation Authority granted Laker Airways a licence for 10 years from 1973 for a cheap passenger service between the UK and the USA called “Skytrain.” Laker Airways was then designated as an airline under the Bermuda Agreement 1946. In 1976 the Secretary of State for Trade announced by a White Paper (Cmnd. 6400) that future policy would be to license only one UK airline on any given long route. Paras. 7 and 8 contained an instruction to the Civil Aviation Authority to revoke the licence for Skytrain. Laker Airways claimed in a quia timet action for declarations that paras.7 and 8 were ultra vires and that the Secretary of State was not entitled to withdraw their designation. Mocatta, J. granted the declarations sought, holding that Act fettered the Crown’s prerogative to withdraw the designation, and that in any event the Secretary of State was estopped by his previous conduct from doing so. On appeal by the Department of Trade, held, dismissing the appeal, (1) that the plaintiffs could not invoke the doctrine of estoppel, but (2) the plaintiffs were entitled to the declarations sought, since the Secretary of State could not lawfully use the procedure of “guidance” for the formulation of policy, or the issuing of mandatory directions. (Dicta in De Keyser’s Royal Hotel Ltd, Re [1920] A.C. 508 considered).
R v Secretary of State for the Home Department ex p Northumbria Police Authority (1988)
A Home Office circular issued to chief officers of police concerning the provision of plastic baton rounds and CS gas stated that the Secretary of State could supply that equipment to a chief constable, without the approval of the local police authority, from a central store maintained by the Secretary of State. In proceedings brought by the applicant police authority challenging the validity of that part of the circular, the Secretary of State contended that he had power to issue the circular either under the statutory power to maintain a central store given by s 41 of the Police Act 1964 or by virtue of the prerogative power to maintain the peace exercisable by him. The police authority contended that the power of equipping the police force was given exclusively to the police authority by s 4(4) of the 1964 Act, that the Secretary of State had no such power under that Act and that the prerogative power was inconsistent with the authority’s own statutory power under s 4(4) and was limited to situations of grave emergency. The Divisional Court refused the application, holding that although the Secretary of State had no power under s 41 to supply equipment without the consent of the police authority he could do so in exercise of the prerogative power, since s 4(4) did not confer a monopoly power on the police authority. The police authority appealed. Held, s 41 of the 1964 Act authorised the Secretary of State to supply equipment to a chief constable from a central store if he considered it necessary or expedient for promoting the efficiency of the police and his right to do so was not restricted to an emergency. However, even if the necessary power had not been available under s 41 of the 1964 Act, the Secretary of State would still have been entitled to supply the equipment, without the consent of the police authority, under the prerogative power to keep the peace if the equipment was necessary to deal with either an actual or apprehended outbreak of riot or serious public disorder. The prerogative power to keep the peace was not curtailed by the power conferred on a police authority by s 4(4) of the 1964 Act since that subsection did not grant a monopoly power. It followed therefore that the appeal would be dismissed.
R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995)
Summary: Judicial review; introduction of new scheme by Secretary of State for the Home Department; scheme inconsistent with statutory provisions; abuse of perogative power; criminal injuries compensation
Abstract: When the Secretary of State for the Home Department announced his intention not to bring into force ss.108-117 of the Criminal Justice Act 1988 , which contained statutory provisions for a criminal injuries compensation scheme similar to the scheme which had been in force since 1964, and decided instead to introduce a new tariff scheme to replace the existing scheme, F and other bodies applied for judicial review of his decision. The Court of Appeal allowed in part F’s appeal against the dismissal of its application, holding that, while under s.171(1) of the Act it was for the Secretary of State for the Home Department to decide when to bring into force the relevant statutory provisions and he could not be said to have acted unlawfully by not implementing the statutory scheme, his decision to introduce a new scheme which was radically different from the scheme which Parliament had approved was unlawful as long as the statutory provisions remained unrepealed. The Secretary of State for the Home Department appealed and F cross appealed.
Held, dismissing the Secretary of State for the Home Department’s appeal, and F’s cross appeal that under s.171(1) of the Act the Secretary of State for the Home Department had some discretion as to when to introduce the statutory scheme and was not under a legal duty to appoint a commencement date, merely to keep the question of time of implementation under consideration. However, by announcing that the provisions in the Act would not now be implemented, the Secretary of State for the Home Department had acted unlawfully. His decision to introduce a new scheme, which was inconsistent with the statutory scheme, when the statutory provisions remained unrepealed was an abuse of the prerogative power.
CCSU v Minister for the Civil Service (GCHQ) (1985)
Summary: Minister’s decision; civil service; trade union membership; judicial review
Abstract: The court will not intervene to review the decision of a minister where the requirements of national security outweigh other matters. Since 1947 staff employed at GCHQ had been permitted to be members of trade unions. In December 1983 the Minister, with no prior consultation, peremptorily altered the conditions of service, forbidding membership of a union. The applicants sought judicial review on the ground of unfairness due to failure to consult. Glidewell, J. granted the application and declared the instruction to be invalid. The Court of Appeal allowed the Minister’s appeal.
Held, dismissing the appeal that (1) executive action based on common law or the use of a prerogative power was not therefore immune from review; but (2) the requirements of national security outweighed those of fairness, which was a matter for the executive to weigh and decide.
R v Foreign Secretary, ex parte Everett (1989)
Summary: Judicial review; Crown; prerogative power; Secretary of State refusing passport under prerogative; whether open to review
Abstract: The Secretary of State is entitled to adopt and act upon a policy to refuse passports to those persons for whose arrest a warrant is extant in the UK provided that details of the warrant are communicated and representations by the applicant are considered. The applicant, a British citizen residing in Spain, applied for a new British passport. The application was refused because, he was told, there was a warrant for his arrest in the UK and the Secretary of State would not issue a passport in these circumstances. The applicant sought judicial review of that decision. Before the hearing he received details of date and place of issue of the warrant on the alleged offence in respect of which it had been issued. The judge held that the Secretary of State should have inquired into the circumstances of the warrant of arrest before refusing the application and quashed the decision. The Secretary of State appealed.
Held, allowing the appeal, that judicial review was appropriate for a decision taken under the Royal Prerogative where it was an administrative decision which affected the rights of the individual and was unlikely to have foreign policy implications. The Secretary of State was entitled to adopt a policy of refusing passports to those for whose arrest a warrant was extant and he was entitled to act on that policy provided he communicated the reason for his refusal and the details of the warrant and considered any representations as to circumstances that may justify making an exception to the policy. Although the Secretary of State had failed to communicate the details of the warrant to the applicant by the time of the hearing, the applicant had obtained those details. There was nothing exceptional in the case to make him an exception to the policy and so he had suffered no injustice. The judge should have exercised his discretion against granting relief Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 applied.
Ex parte Molyneaux (1986)
Summary: Prerogative; treaty making power; Anglo Irish Agreement; whether invalid or justiciable
Abstract: Union with Ireland Act 1800 Art.6; Ireland Act 1949 s.2. The Anglo-Irish Agreement of November 15, 1985 is not invalid, and it is not the function of the court to inquire into the exercise of the Crown prerogative in either entering into or implementing the agreement. By an agreement of November 15, 1985 the Governments of the UK and Ireland agreed to establish an Intergovernmental Conference concerned with Northern Ireland and relations between the two parts of Ireland to deal with political and legal matters, security, and the promotion of cross-border co-operation. It was accepted that the Irish Government Could put its views on certain matters in Northern Ireland but it was stated that there was no derogation from the sovereignty of either government which retained responsibility for its own decisions and administration. The applicants were members of the Ulster Unionist Council opposed to the agreement who claimed that the agreement was invalid as fettering the statutory duties and powers of the Secretary of State for Northern Ireland, in diminishing the rights of subjects of Northern Ireland contrary to the Union with Ireland Act 1800, and that the establishment of a new standing body was unlawful. Leave to apply for judicial review was refused on a renewed application.
Held, that section 2 of the Ireland Act 1949 expressly stated that the Ireland was not to be regarded as a foreign power and the agreement did not deprive the people of Northern Ireland of any privileges or place them on a different footing from others in the U.K., and so the agreement did not conflict with Art.6 of the Union with Ireland Act 1800. As the Intergovernmental Conference had no legislative or executive power its establishment did not contravene any statute or rule of common law or constitutional convention, nor fetter the discretion of the Secretary of State. It was of an international nature, and as the agreement concerned relations with another sovereign state it was akin to a treaty, and accordingly it was not the function of the court to inquire into the exercise of the prerogative in either entering into or implementing the agreement.
R v Foreign Secretary ex p Rees-Mogg (1994)
Summary: Judicial review; prerogative powers; treaty-making powers; whether ratification of Maastricht Treaty abandonment or transfer of prerogative power
Abstract: There is no basis for allowing an application for judicial review of the Foreign Secretary’s decision to ratify the Treaty on European Union (Maastricht) 1992. A applied for judicial review of the decision of the Foreign Secretary to ratify the Maastricht Treaty on the grounds that it would involve an increase in the powers of the European Parliament without the approval of the English Parliament, the social policy protocol would alter Community and hence domestic law without the approval of Parliament, and the ratification of Title V of the Treaty would transfer the Royal Prerogative in connection with the power to enter into treaties without parliamentary approval.
Held, refusing judicial review, that (1) the European Communities (Amendment) Act 1993 referred to the ratification of all the protocols, and hence there was no ratification without parliamentary approval; (2) because the social policy protocol was specifically excluded by the European Communities (Amendment) Act 1993 from the definition of treaties in the European Communities Act 1972 s.1(2) so that it was not incorporated into domestic law, the Government was not altering the content of domestic law; and (3) the court had no jurisdiction to consider ratification of Title V of the Treaty which established a common foreign and security policy and involved no question of domestic law. In any event ratification to Title V was an exercise of the prerogative power, and not the abandonment thereof.
R v Home Secretary, ex parte Bentley (1993)
Summary: Judicial review; prerogative powers; royal prerogative of mercy; decision not to grant posthumous free pardon; whether reviewable
Abstract: The court has jurisdiction to review the exercise of the royal prerogative of mercy. In 1952 B’s brother (D) was convicted with a co-accused of the murder of a policeman. The co-accused, aged 16, who fired the fatal shot, received life imprisonment, D was hanged. In 1992 the Secretary of State for the Home Department refused a posthumous free pardon, on the grounds that it ought not to be given where the innocence of the deceased had not been established. B applied for judicial review, contending that the Secretary of State for the Home Department had erred in his approach to the issue.
Held, allowing the application and inviting the Secretary of State for the Home Department to reconsider his decision, that (1) the court had jurisdiction to review the exercise of the royal prerogative of mercy; (2) his decision was flawed in that he had failed to recognise that the prerogative could be exercised in many different circumstances, and he had failed to consider the form of the pardon that might be appropriate (Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 applied).
Reckley v Ministry of Public Safety (1996)
Summary: Death penalty; stay of execution
Abstract: R, convicted of murder and sentenced to death under Bahamian law, petitioned for leave to appeal against a refusal by the Court of Appeal of the Bahamas to grant a stay of execution until determination of whether the punishment contravened his constitutional rights. R had brought constitutional proceedings claiming that he had been denied the right to see materials placed before the Advisory Committee on the Prerogative of Mercy, who were required under the Constitution of the Bahamas Art.92 to consider his case prior to the minister in question advising the Governor General as to the course to be followed, and had not been given the right to make representations. R argued that the exercise of the prerogative of mercy was amenable to judicial review and that it was a principle of fairness that he should be able to make representations to the committee and have access to the materials in front of them.
Held, dismissing the petition, that the designated minister had a discretion in death sentence cases on whether to advise the Governor General to grant mercy. Although he must consult with the Advisory Committee he was not bound by their advice and his discretion was purely personal. Any decision to grant mercy, involving a departure from the law, was not justiciable, De Freitas v Benny [1976] A.C. 239 followed. Although it was open to a condemned man to make representations, he had no constitutional right to do so, and the advisory committee was no more than a constitutional safeguard to bolster the minister’s discretion.
R V Ministry of Defence ex p Smith (1996)
Summary: Discrimination; homosexuality; dismissal of service personnel; policy of armed forces; whether irrational and contrary to European law and the European Convention on Human Rights
Abstract: S and three others, a lesbian and three gay men, appealed against the dismissal of their application for judicial review of the MoD policy which stated that homosexuality was incompatible with service in the armed forces. The policy had led to them being discharged. S argued that the policy was irrational and contrary to the Treaty of Rome 1957, Council Directive 76/207 on equal treatment for men and women as regards access to employment and also to the European Convention on Human Rights 1950.
Held, dismissing the appeal, that (1) the court must decide whether the decision was unreasonable in the sense that it was beyond the range of responses available to a reasonable decision maker. When there was a human rights issue involved there had to be greater justification of the reasonableness. The policy could not be regarded as irrational at the time the applicants were discharged. It was supported by both Houses of Parliament; (2) the Treaty of Rome and Council Directive 76/207 did not apply to discrimination on the grounds of sexual orientation and (3) the failure to consider Convention obligations did not impugn the exercise of discretion. The question of whether the policy was contrary to the Convention should be decided by the European Court of Human Rights.
