Chapter 8: Royal Prerogative Flashcards

Question

2.1.1 Degree of control

Answer 1

However, the most clear-cut developments have occurred since the 1980s following the seminal case of ‘GCHQ’. That case and its aftermath will be explored later in this topic, but it is important firstly to assess the early stages of the courts’ interaction with the executive or ‘Crown’. Remember that the prerogative is a form of power that has legal enforceability because it is recognised and ‘accepted’ by the courts through the common law. It is therefore the judges who should determine how and to what degree they are able to ‘control’ its use

Answer 2

It is probably unwise to draw too many comparisons between later disputes between Government and judiciary and those in the pre-1688 period when a different kind of regime was in place. However, the use of prerogative powers by the early Stuart kings was a major source of tension in the country and one of several factors leading to the Civil Wars in the 1640s, notably Charles I’s imposition of the ‘Ship Money’ taxes.

Answer 3

In this important historical case, the leading jurist of the day, Chief Justice Coke, established the view (later reflected by Dicey) that the royal prerogative represented a finite stock of power. Crown power was legitimated through recognition in the common law. Therefore, a particular form of prerogative power could not be said to exist unless the courts accepted that there was a precedent for it having been used in the pastv

Answer 4

In the case of Entick v Carrington (1765) 19 St Tr 1029 (see the Rule of Law topic), the government of the day claimed to have the legal authority to enter and search Entick’s premises under a ‘general warrant’. He was suspected of association with the radical political leader, John Wilkes. Entick challenged this as a trespass on his property.

Answer 5

The court consulted ‘its books’ but found no precedent for this action in common law (nor in any statute), reinforcing the point made in 1607 by Coke that the executive cannot act under a purported prerogative power that has not been recognised by the common law. Put simply, this power didn’t exist.

Answer 6

In BBC v Johns [1965] Ch 32 Lord Diplock made the celebrated comment that: ‘It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative.’ This neatly sums up the point – evident in the earlier cases and in Dicey’s writings – that prerogative power comprises of a finite stock of executive power that can only be reduced in scope (through statutory incursion) and never expanded. It also reiterates the point that it is the courts that have responsibility for identifying if a prerogative power exists or not (ie is lawful) and what its scope actually is.

Answer 7

As well as being able to determine whether a purported governmental power was legitimately part of the royal prerogative, the courts were historically able to adjudicate upon or ‘review’ what the scope of a prerogative power was – in other words what exactly that power entailed and encompassed. This issue is also part of what can broadly be described as review of the legality of prerogative powers. There are numerous examples of the courts being called upon to adjudicate on this question.

Answer 8

There are two forms of governmental power: the prerogative, as recognised by the common law, and statutory power, as laid down in legislation. What is the relationship between the two and what is the position if a particular executive power or function appears to be governed by both?

Answer 9

This concerned a dispute between the government and the hotel owners about whether compensation should be payable for the requisitioning of the hotel for use by the Army Council during World War One. The Attorney-General claimed that the government could effectively choose to use its historic prerogative power to take emergency action during war for the ‘defence of the realm’, even if Parliament had legislated on the same ground. The law lords decisively rejected this contention and stated that the Crown was bound in this situation by the statutory regime applying under the Defence of the Realm Act and associated Regulations

Answer 10

In doing so, by establishing the ‘De Keyser principle, the court clearly viewed statutory power as a superior form of power than that of prerogative, thereby reflecting the central importance of the sovereignty of Parliament in the UK constitution.

Answer 11

Lord Atkinson explained that the statutory powers had ‘abridged‘ the older prerogative powers and that the prerogative was to be considered ‘in abeyance‘, ie suspended, if not necessarily permanently extinguished. [W]hen a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance.

Answer 12

In the case of Laker Airways v Dept of Trade [1977] QB 643, the government sought to justify a reversal of aviation policy through use of its prerogative power to negotiate international treaties, in this case the Bermuda Agreement which regulated transatlantic flights. As part of its policy to promote B.A. (then the nationalised airline), the Department of Trade cancelled Freddie Laker’s ‘Skytrain’ approval or ‘designation’ under the Bermuda Agreement.

Answer 13

This was sharply criticised by Lord Denning in the Court of Appeal, who saw the purpose of the action taken under the prerogative to be sharply at odds with the statutory requirements in the Civil Aviation Act 1971 for revoking airline designations.

Answer 14

Seeing that these statutory means were available for stopping Skytrain if there was a proper case for it, the question is whether the Secretary of State can stop it by other means. Can he do it by withdrawing the designation? Can he do indirectly that which he cannot do directly? Can he displace the statute by invoking a prerogative?

Answer 15

If he could do this, it would mean by a side wind, Laker Airways Ltd would be deprived of the protection that statute affords them. There would be no hearing, no safeguard against injustice […]. To my mind such a procedure was never contemplated by the statute.

Answer 16

The following case accentuated the importance to the courts of following parliamentary intention if there are any forms of over-lapping statutory and prerogative powers in operation

Answer 17

The then Home Secretary, Michael Howard, decided to use prerogative powers to introduce a new ‘tariff-based’ criminal injuries compensation scheme. This was even though Parliament had legislated earlier for a statutory scheme in the Criminal Justice Act 1988. Howard claimed to be able to introduce his scheme, as the statutory scheme had not yet been implemented. His actions were challenged by the FBU.

Answer 18

My Lords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute […]. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.

Answer 19

The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them. But under the principle in […] De Keyser […] if Parliament has conferred on the executive statutory powers to do a particular act, that act can only thereafter be done under the statutory powers so conferred: any pre-existing prerogative power to do the same act is [to that extent] excluded.

Answer 20

Following the EU referendum in 2016, the new Prime Minister, Theresa May, sought to trigger the two-year Article 50 process of negotiation required before the UK left the EU. Her intention was to use her prerogative power in relation to treaty-making and variation to bring this about. Her power to do so was challenged in court by Gina Miller, amongst other parties, and the case, which the government lost at first instance, was accelerated for a hearing in the Supreme Court.

Answer 21

Miller (1) can be seen as a ‘legality’ case, as the challengers’ argument was that the PM simply did not have the power to trigger Art 50 using the prerogative. The Admin Court and the majority in the UKSC ultimately agreed. The majority decision centered around the conviction that it was constitutionally inappropriate for the process of leaving the EU to be triggered by use of the prerogative when the effects and consequences of this process would be so significant for the UK.

Answer 22

It was felt that a step of such magnitude, leading to a notable change in the law of the land and in individual rights, could only be sanctioned by Parliament through primary legislation.

Answer 23

[…] withdrawal [from the EU] is fundamentally different from variations in the content of EU law arising from further EU Treaties or legislation. A complete withdrawal represents a change which is different not just in degree but in kind from the abrogation of particular rights, duties or rules derived from EU law. […] It would be inconsistent with long-standing and fundamental principle for such a farreaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone.

Answer 24

The trend in case law following De Keyser appears to be relatively clear-cut. However, one controversial case suggests a limit in certain situations involving over-lapping statutory and prerogative powers.

Answer 25

In R v SoS for the Home Department ex p Northumbria Police Authority [1998] 1 All ER 556, the issue arose after the Home Secretary sought to establish a central store for providing plastic baton rounds and other riot-control equipment to the various national police forces

Answer 26

Northumbria P.A. argued that the Police Act 1964 gave it a monopoly over the supply of equipment to the police force in its area. The Court of Appeal held that the P.A.’s power to supply equipment under the Act did not give it a monopoly and that the Act did not override the Home Secretary’s prerogative power to keep the peace within the realm. Croom-Johnson LJ held that the Home Secretary’s use of the prerogative was not incompatible with the police authority’s powers under the Act.

Answer 27

Purchas LJ took the view that a prerogative power may still apply if it is directed to the benefit or protection of the individual – as opposed to restricting the rights of the individual (as could be argued was the case in De Keyser or Fire Brigades, for instance) – and if the statute does not unequivocally deprive individuals of that benefit or protection.

Answer 28

This remains a much-disputed decision but arguably it is less functionally significant in the modern day, now that in principle (following the GCHQ case) the courts do not distinguish between judicial review of statutory and prerogative powers.

Answer 29

* Tension between the Crown, and Parliament, and the courts has foundations going back to the Stuart period (1603 - 1714). * The courts will only accept that a purported prerogative power exists if there is a precedent for it. * There is a finite stock of prerogative power in law – new prerogative powers cannot be created. * The relationship between statutory and prerogative power is governed by the De Keyser principle. * Statutory duties or obligations on government cannot be indirectly or impliedly by-passed through use of prerogative power. * The important recent case of Miller (1) represents a continuation of the principles in earlier ‘legality’ based cases.

Answer 30

Until the mid-80s the senior UK courts had not reached a point where they were prepared to review how the government used its prerogative powers. Some traces of future developments can be detected in earlier cases decided at a lower level, notably R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, but these were not conclusive.

Answer 31

They had not reached the point where it was accepted that there could be a review or scrutiny of how these ancient powers were exercised – in other words the substance of the governmental action taken.

Answer 32

The case of GCHQ was prompted by a decision by the then Minister (and Prime Minister), Margaret Thatcher, to ban trade union membership at the government’s listening base in Cheltenham. Her authority to do this came from the PM’s prerogative power to regulate the working terms and conditions of the Civil Service. The issue therefore was not whether the PM had the authority to do this – that was not disputed by the CCSU. Instead, it was the manner in which she had used her prerogative power. The allegation was that she had done so in an unfair way.

Answer 33

This basis or ‘ground’ for judicial review will be covered in more detail in separate materials. For now, it’s important to note that this is a form of legal interest that can be protected by the courts. In short, it means that the government made a promise, or acted consistently in the past, in a way which the claimant relied on. In GCHQ the unions claimed successfully that they had a legitimate expectation of being consulted before any notable changes were made in working conditions. This was because they had consistently been consulted in such situations over the previous four decades. Therefore, they were claiming that the PM had acted unfairly by frustrating their LE by announcing the ban on union membership without any prior consultation.

Answer 34

The first and most fundamental line of argument in defence was that the courts were simply not permitted to review how the PM used her prerogative powers. If it was accepted (as it was) that the PM had the power in question, judicial review should go no further. This was the key issue of principle in the case and the House of Lords’ ruling against the PM on this point set the tone for a notable development of the law in this area. The essence of the law lords’ ruling was that it made no constitutional sense for prerogative powers to be seen as having a special status just because of their historic origins and association with the Crown. Both prerogative powers and statutory powers were forms of executive power; the latter had for many decades been reviewable. So, why the differentiation?

Answer 35

Therefore, the traditional distinction between power given by Parliament and that bequeathed by the prerogative should no longer determine if government actions were reviewable or not. Put another way, the government could no longer shelter behind the fact that a power came from the prerogative – in principle all executive powers should be reviewable in order that the rule of law be promoted effectively.

Answer 36

The law lords accepted that the unions had a LE of being consulted and acknowledged that this had been ‘frustrated’ by the PM. However, they did not find this ultimately to be unlawful as they accepted the PM’s argument that there was a justifiable public interest factor in not consulting, as advance notice may have triggered strike action and that may have jeopardised the country’s national security (given the highly sensitive work carried on at GCHQ). In other words, the court had reviewed how the PM used her prerogative power, but they ultimately considered this has been done lawfully.

Answer 37

The judges’ bold main line on reviewability came with a notable word of caution, however. They pointed out that, even though there should be no future differentiation between prerogative and statutory powers, a number of notable prerogative powers governed areas that broadly involved matters of high policy

Answer 38

Have assumed considerable subsequent influence on the development of the law, though it’s important to note that they were obiter rather than being part of the main ratio in GCHQ (Government Communications Headquarters. The prerogative powers itemised by Lord Roskill, in a non-exhaustive list, were in his view ‘[…] not […] susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.’

Answer 39

They included: * The making of treaties * Defence of the realm * Mercy * Granting of honours * Dissolution of Parliament * Appointment of ministers (‘and others’)

Answer 40

When Roskill referred to the ‘amenability‘ of such matters to the process of JR, he demonstrated how the judiciary regulate the extent of their own involvement in the more political areas of public law. Reflecting back on the earlier part of the course, we have seen that there are no formal lines of responsibility laid out in the UK’s uncodified constitution. Instead, the judiciary attempts to respect appropriate informal lines of responsibility in the UK’s constitution delicate ‘separation of powers’ balance. It does so by assessing the differing competencies of the three bodies of state – their varied stores of experience and knowledge, and differing sources of authority. The judiciary, of course, have no electoral mandate.

Answer 41

This is an area in which the phrasing used by the judiciary is perhaps not always that precise or helpful. Some viewpoints, following on from Lord Roskill’s sentiments, have used phrases such as ‘forbidden areas’ or ‘excluded categories’. It is debatable in the modern day whether the issue is as binary as this. Certainly, some of the powers exercised under the prerogative involve matters which are not suitable for court adjudication, as they are essentially political judgement-calls.

Answer 42

Aside from those latter prerogative powers – which essentially govern political patronage – most of the powers listed by Lord Roskill and other similar ones contain within their remit a number of different elements. Some of these involve considerations of high policy but a number of others do not – they could be described as falling at a more administrative or operational end of the spectrum of governmental powers. In the years following GCHQ, the courts have increasingly taken an approach – and tailored the degree of their interventionism – based on the nature of the power that the government has used rather than its form.

Answer 43

* Prior to the decision of the House of Lords in GCHQ, the courts had not intervened in or reviewed the manner in which prerogative powers were exercised by the government. * The Prime Minister tried to ban union membership at the British Intelligence headquarters (GCHQ), without consulting civil servants. * Civil servants argued that they had always been consulted about significant changes to their working conditions, and so should be consulted on this restriction because they had a legitimate expectation based on the government’s past conduct. * The government argued that the court was not able to interfere in how it had used its prerogative power to regulate the working conditions and terms of the Civil Service. The House of Lords disagreed, (though the government eventually won the case on a different point). * Lord Roskill’s obiter statement helpfully summarises the areas of prerogative power. * The judgment shows that the courts have power to review whether the exercise of the prerogative has been carried out lawfully.

Answer 44

As a matter of principle, the manner of its exercise should be just as reviewable by the courts as the way in which statutory powers were exercised. However, concerns persisted over the nature of some prerogative powers which were seen to involve matters engaging issues of higher policy. The question therefore was to what extent the judiciary as an unelected body should be able to intervene in such areas.

Answer 45

Judicial review over the last half century has been towards greater promotion of a substantive conception of the rule of law. One of the key elements of this has been the drive towards greater accountability in government. As we have seen, judicial review is the main mechanism whereby this vital aspect of public law protection can be achieved. However, the context in which the judges operate is also conditioned by the delicate (and at times tense) separation of powers relationship between the courts and the executive.

Answer 46

Following the concerns raised by Lord Roskill in the GCHQ case, the subsequent pattern of development can be categorised as a further expansion of the remit of judicial review, though one in which the judiciary still display some caution about their constitutional role. In matters involving substantive issues - as opposed to those of pure legality – the approach applied by the judiciary is contextual. This applies equally, in principle, to situations in which they are asked to review the exercise of prerogative or statutory power. If the matter is one of higher policy, the degree or ‘intensity’ of review is light or ‘low’; in contrast – at the other end of the spectrum of issues the intensity of review is higher.

Answer 47

This case provides an early indication of the trend. It concerned an application for a new passport from a UK national, residing in Spain, for whom an arrest warrant had been issued. Everett wished to challenge the refusal by the FCO to approve his application, based on its policy relating to those suspected of past criminal activity. The Court of Appeal ultimately found against Everett on the facts. but the important aspect of the case was the court’s acknowledgement that this was a matter that was suitable for JR

Answer 48

The FCO failed in its attempts to argue that this was ‘non-justiciable’, because the power to grant passports fell under the broad umbrella of the prerogative relating to diplomatic relations. The courts again looked to the nature of the power concerned rather than where it came from.

Answer 49

The majority of their Lordships [in GCHQ] indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament […] Clearly those matters […] are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom to travel.

Answer 50

A very similar approach can be seen in another significant case involving a matter that technically fell under the auspices of the prerogative: the ancient power of the ‘Crown’ to bestow ‘mercy’ by giving pardons. R v SoS for the Home Department, ex parte Bentley [1994] QB 349 concerned a challenge to the Home Secretary’s decision not to grant Derek Bentley a posthumous pardon. He had been hanged for murder in 1953 after a conviction in circumstances which several decades later were viewed as amounting to a serious miscarriage of justice.

Answer 51

The court distinguished between full pardons, which they saw to be an issue of higher policy (only to be granted if the person concerned was now seen as ‘morally and technically innocent’) and other considerations which the Home Secretary could have taken into account. These, including the availability of conditional pardons, were not seen to be beyond the courts’ remit and so his failure to consider such an outcome was criticised.

Answer 52

[A]s the argument before us developed, it became clear that the substance of the applicant’s case was that the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable.

Answer 53

Cases such as Everett and Bentley can be seen as examples of issues coming before the court in which the nature of the powers used by the executive were relatively low-level or administrative. Both cases involved matters of great importance to the individual, or (in the Bentley case) his surviving relatives but were essentially about how relatively routine or administrative processes or policies had been implemented

Answer 54

In the following cases, the courts had to respond to challenges made to how the executive had used prerogative powers partly or wholly at a higher policy level. Here the courts’ approach has to be more finessed and to take into account the wider separation of powers balance previously alluded to.

Answer 55

Matters touching on the diplomatic relationships between the UK and other states are clearly matters of higher policy. A more traditional outlook – and one maintained in Roskill’s obiter speech in GCHQ – would suggest that any attempt to challenge a decision taken using this part of the prerogative should be met with minimal engagement by the courts. Nevertheless, such challenges have been accepted by the Administrative courts – in the sense that the challengers have been allowed “standing” to bring the matter before the court. Matters touching on the diplomatic relationships between the UK and other states are clearly matters of higher policy. A more traditional outlook – and one maintained in Roskill’s obiter speech in GCHQ – would suggest that any attempt to challenge a decision taken using this part of the prerogative should be met with minimal engagement by the courts. Nevertheless, such challenges have been accepted by the Administrative courts – in the sense that the challengers have been allowed “standing” to bring the matter before the court.

Answer 56

Following ‘9/11’ the US administration took draconian action in the so-called ‘War on Terror’. One of the key measures taken was the setting-up of a high security detention centre on land owned by the USA at Guantanamo Bay on the Cuban coast. One of the captives exposed to the highly controversial regime in the centre was a UK national, Feroz Abbasi. His family sought to challenge the UK Foreign Office on the basis that it had not done enough to try to extricate him from this predicament, which the US declared was not subject to international law

Answer 57

To what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or public international law where fundamental human rights are engaged? To what extent, if at all, is a decision of the executive in the field of foreign relations justiciable in the English court?

Answer 58

The fact that the court accepted the challenge in this case but ultimately found for the Foreign Office demonstrates competing considerations in this area. The court clearly felt it important that the individual should have the right of challenge if there was a recognised legal interest that needed to be considered – here it was his legitimate expectation of diplomatic assistance

Answer 59

The kind of evidence that is admissible […] and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the Executive discretion is to be wisely exercised, need to be weighed against one another — a balancing exercise which judges by their upbringing and experience are ill-qualified to perform.

Answer 60

Whether to make any representations in a particular case, and if so in what form, is left entirely to the discretion of the Secretary of State. That gives free play to the “balance” to which Lord Diplock referred in GCHQ. The Secretary of State must be free to give full weight to foreign policy considerations, which are not justiciable. However, that does not mean the whole process is immune from judicial scrutiny. The citizen’s legitimate expectation is that his request will be “considered”, and that in that consideration all relevant factors will be thrown into the balance.

Answer 61

The outcome, therefore, in Abbasi was that the challenge was unsuccessful. However, the court did make a significant point that, if there had been no ‘consideration’ of making representations, the court would have ordered the Foreign Office to make them.

Answer 62

As with diplomatic relations, this area of prerogative power encompasses a wide array of differing governmental functions. At one end there are decisions to take military action and how to conduct such operations – these are clearly matters of higher policy, in which the executive effectively have sole competence. The courts remain very likely to see these types of decisions or actions as non-justiciable. This approach can be seen in a number of cases relating to the legality of the war in Iraq. In R (Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002) EWHC 2759 QB Simon Brown LJ stated that it was: ‘accept[ed] that the decision to take military action is beyond the court’s purview‘.

Answer 63

The Supreme Court held that the doctrine of combat immunity (which excludes liability for negligence in relation to military combat) should be construed narrowly. The claimants, who represented UK soldiers killed on active service in Iraq, claimed that the Ministry of Defence had been negligent in the provision of equipment and training.

Answer 64

The court recognised that decisions taken by military commanders in relation to military engagements should not be subject to JR, because of the danger of ‘judicialising warfare‘. It did not, however, accept the Ministry’s arguments that immunity should apply in relation to failings that were remote from the pressures and uncertainties of the battlefield.

Answer 65

The most notable case relating to this area of the prerogative has been R v Ministry of Defence, ex parte Smith [1996] QB 517. (Note that this case was later heard in Strasbourg as Smith & Grady v UK.) This was a challenge to the MoD’s policy at that time of not allowing homosexuals to be employed in the armed forces. Smith and three others had been summarily dismissed from the armed services for no other reason than their sexuality. They claimed that the decision to do so was unreasonable/irrational (which, as you will see in Public Law II, is a ground of JR which presents a particularly high threshold for challengers). In the Court of Appeal, Sir Thomas Bingham MR acknowledged the well-trodden competence concerns but clearly considered that the court had a role to play in a matter that had a profound effect on the livelihood and employment rights of the four individuals who had been dismissed.

Answer 66

The present cases […] concern innate qualities of a very personal kind and the decisions of which the appellants complain have had a profound effect on their careers and prospects. The appellants’ rights as human beings are very much in issue. It is now accepted that this issue is justiciable. This does not of course mean that the court is thrust into the position of the primary decision-maker. It is not the constitutional role of the court to regulate the conditions of service in the armed forces of the Crown, nor has it the expertise to do so. While the court must properly defer to the expertise of responsible decisionmakers, it must not shrink from its fundamental duty to “do right to all manner of people […]”

Answer 67

One of the more esoteric areas of policy in which prerogative power is still relevant is that of the governance of the few remaining ‘British Overseas Territories’. The case of R (Bancoult) v SoS for Foreign and Commonwealth Affairs [2008] UKHL 61 concerned the Chagossian people, the indigenous inhabitants of the British Indian Ocean Territory (BIOT), who had been removed from their home islands in the 1960s and 1970s, so that the main island, Diego Garcia, could be used as a United States military base. In the Court of Appeal, which found for Bancoult, Sedley LJ stated that: ’the prerogative power of colonial governance enjoys no generic immunity from judicial review’.

Answer 68

This issue has been the subject of protracted litigation and considerable criticism academically, as well as disagreement within the judiciary – it is notable that there was only a 3-2 majority judgment in the end in favour of the Foreign Secretary in the House of Lords, with Lord Bingham finding against the government. The majority effectively deferred to the government in stressing that it was a matter of executive competence as to what was conducive to the ‘peace, order, and good government of the BIOT’, as required in the original Order in Council which established the Territory in 1965.

Chapter 8: Royal Prerogative Flashcards

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