Prerogative Power

Question 1

Bate’s Case

Answer 1

Ratio: Court distinguished between ‘absolute’ and ‘ordinary’ powers of the monarch. Absolute powers were those that were almost entirely discretionary and largely unregulated by binding principle.

Question 2

Case of King’s Prerogative in Saltpetre

Answer 2

Absolute powers are inseparable from the Crown.

Question 3

Case of Proclamations

Answer 3

The King hath no prerogative but that which the law of the land allows him’.

Question 4

Hanratty v Lord Butler of Saffrom Walden

Answer 4

Courts have no jurisdiction to inquire whether or not the Home Secretary had been negligent in the exercise of the prerogative of mercy.

Question 5

De Freitas v Benny

Answer 5

Mercy is not the subject of legal rights.

Question 6

Attorney General for Canada v Attorney General for Ontario

Answer 6

The making and ratification of treaties is a contract between states which does not generally require the approval of Parliament.

Question 7

Chandler v Director of Public Prosecutions

Answer 7

Control of the armed forces has traditionally been a matter that cannot be challenged in court.

Question 8

Burmah Oil Company Ltd v Lord Advocate

Answer 8

Ratio: The taking of measures necessary in times of emergency and/or for the defence of the realm, including the control of the armed forces is a royal prerogative. However, there is no rule that it can be exercised without compensation.

Facts: Installations owned by the oil company in Burma had been destroyed during WW2 on the orders of the commander of the British armed forces to prevent them falling into the hands of the Japanese. HoL held that compensation was payable as there was no rule that prerogative could be exercised without compensation.

Question 9

Bombay v Municipal Corporation of the City Bombay

Answer 9

The Crown is not bound by statute except by express words or necessary implication.

Question 10

Lord Advocate v Dumbarton District Council

Answer 10

Ratio: The Crown is not bound by statute except by express words or necessary implication.

Facts: MOD wanted to make improvements to the perimeter fence of the Faslane nuclear submarine base and consequently cordoned off a stretch of road adjacent to the base. Under statute, this could not be done without the permission of the roads authority and the planning authority. Ministry had not sought permission and so was ordered to remove the cordon. MOD sought judicial review against the notices, arguing that they were inapplicable to and unenforceable against the Crown. At first instance, the Scottish Court held that the Crown was bound by the statutes and rejected the application for judicial review. HoL rejected this approach and said that the Crown was either bound generally or not at all.

Question 11

Bropho v State of Western Australia

Answer 11

Ratio: Australian case: Court held that the Crown should be bound by statute unless a contrary intention can be discerned from all the relevant circumstances.

Facts: High Court of Australia departed from the strict adherence previously shown by the Australian courts to the principle of the Crown’s immunity from Statute on the basis that the rigid approach to immunity was wholly inappropriate to the scale and complexity of modern state operations. High Court of Australia decided the Crown was bound by statute and said the principle of immunity should be re-evaluated.

Question 12

M v Home Office

Answer 12

Ratio: The Crown is not directly subject to the contempt jurisdiction.

Facts: Home Office had given an undertaking to the court that an asylum seeker would not be deported before his case had been fully heard, but failed to honour its assurance. HoL held that, in judicial review proceedings against ministers of the Crown acting in their official capacity, the court could grant interim injunctions against ministers. Traditionally, injunctions were not available against the Crown.

Question 13

Attorney-General v De Keyser’s Hotel Ltd

Answer 13

Ratio: Where statute and prerogative power govern the same area, the prerogative power is in abeyance.

Facts: De Keyser’s Hotel was required for use by the War Office during WW1. The Army Council took control compulsorily under the Defence of the Realm Regulations which gave the right to full compensation. Later, it was argued by the Army Council that the seizure was authorised by prerogative, under which there was no right to compensation. HoL held that the defence of the realm regulations must be observed. The Crown cannot choose whether to act under prerogative power or statutory authority in a situation where both are relevant.

Question 14

De Morgan v Director of Social Welfare

Answer 14

Ratio: Parliament may abolish or modify a prerogative by express words or necessary inducement.

Question 15

R (Alvi) v Secretary of State for the Home Department

Answer 15

Ratio: Where statute and prerogative power govern the same area, the prerogative power is in abeyance.

Facts: Home Secretary sought to argue that she had a residual common law right using prerogative powers to amend the rules applying to immigration controls, in this case those that governed work permits for those in skilled occupations. The Supreme Court rejected this argument on the basis that following the Immigration Act 1971, matters pertaining to immigration control, previously governed by prerogative power, had been subject to statutory control alone.

Question 16

Laker Airways v Department of Trade

Answer 16

Ratio: Prerogative can be impliedly suspended by statute.

Facts: In order for an air carrier to operate on the transatlantic route, it had to be a ‘designated’ air carried under the Bermuda Agreement of 1946. The Bermuda Agreement was a treaty, made between the UK and the USA, which entitled each government to ‘designate’ one or more air carriers for a specified route from one country to the other. The other government was then bound to accept that carrier, as long as it came up to operational standard. For a UK airline to operate it also had to obtain a licence from the Civil Aviation Authority. Skytrain applied for designation under the Bermuda agreement, having been granted a licence under the Civil Aviation Act 1971 to operate on the transatlantic route. There was a delay in obtaining approval from the PotUS. In this time, the Secretary of State made an announcement that effectively allowed British Airways a monopoly on the route. He then issued guidance to the CAA stating that he had decided to cancel Skytrain’s designation and that the CAA should withdraw Skytrain’s licence in accordance with this new policy. In an application for judicial review, it was argued that the Secretary of State’s guidance was ultra vires. The court agreed. The govt argued that the power of the Secretary of State to withdraw the designation was a prerogative power arising from the Bermuda Agreement and so could not be examined in the courts. The court held that there was a power under the CAA 1971 which allowed for the designation of airlines to be changed, but it was only to be used in carefully defined circumstances.

Question 17

R v Secretary of State for the Home Department, ex parte Northumbria Police Authority

Answer 17

Ratio: A prerogative power may still apply in an area covered generally by statute (but not specifically), if exercised for the public good.

Question 18

R v Secretary of State ex Parte Fire Brigades Union

Answer 18

Ratio: 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.

Facts: Home Secretary introduced a tariff secretary for compensating victims of criminal incidents using prerogative power while refusing to implement a similar scheme which had been enacted as part of the Criminal Justice Act 1988. This was held to be unlawful.

Question 19

Miller v SoS Exiting the EU

Answer 19

Ratio: 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.

Facts: Theresa May wanted to trigger the two year Article 50 process using her prerogative power as PM to make an unmake international treaties. High Court held that Parliament cannot have intended the rights conferred by the ECA would be subject to removal by use of prerogative power without Parliamentary approval. Supreme Court placed greater emphasis on the status of EU law as a distinct source of UK law.

Question 20

BBC v Johns

Answer 20

Ratio: No new prerogatives can come into existence.

Facts: ‘It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative’. BBC claimed that the Crown had a monopoly of broadcasting, exercised through the BBC, which was therefore entitled to Crown exemption from income tax.

Question 21

Entick v Carrington

Answer 21

Ratio: Existence and scope of prerogative powers has been subject to judicial review.

Facts: Crown argued that a prerogative power existed to issue warrants for search and seizure of seditious material. However, the Court ruled that such a prerogative did not exist and went on to declare that the search was unlawful because the warrant had no other legal basis either.

Question 22

R v Criminal Injuries Compensation Board, ex parte Lain

Answer 22

Ratio: Exercise of the prerogative is subject to judicial review.

Facts: Widow of a police officer who had been shot by a suspect, applied for judicial review of the decision of the Criminal Injuries Compensation Board not to award her any compensation. The Board had been established under prerogative power and so it argued that it was not subject to review. Court disagreed and said supervision by the courts was not inappropriate in cases of this type.

Question 23

GCHQ Case

Answer 23

Ratio: Exercise of the prerogative is subject to judicial review.

Facts: Court held that the action of the Prime Minister, in banning trade union membership at GCHQ without prior consultation, was not immune from judicial review. The PM had implemented this policy using her prerogative power to regulate the terms and working conditions of civil servants. Court concluded that this could be challenged in court. However, Lord Roskill noted that there were still certain prerogative powers that were not ‘susceptible’ to review by the courts, particularly those involving issues of high policy.

Question 24

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett

Answer 24

Ratio: Issuing of passports is a judicially reviewable prerogative power.

Facts: A British citizen residing in Spain, whose passport as about to expire was unable to be issued with a new passport because a warrant for his arrest had been issued in the UK. It was the policy of the Secretary of State not to issue passports in such circumstances. Court accepted that the issuing of a passport is carried out under a prerogative power. However, following GCHQ, the court said that the reviewability of a prerogative power depended on the subject matter of the power. On the facts, issuing of passports was held to be judicially reviewable. Ultimately, on review, the Secretary of State’s power was found to be lawful.

Question 25

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg

Answer 25

Ratio: Creating treaties is a judicially reviewable prerogative.

Facts: Ratification of Maastricht treaty by UK govt was challenged. Challenger claimed that it was an unlawful surrender of the Crown’s duty to protect the realm. Govt argued the power in question was not justiciable. Court held the making of treaties was susceptible to judicial review. However, on the facts, the Maastricht treaty did not involve a surrender or transfer of prerogative powers.

Question 26

R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs

Answer 26

Ratio: FCO decisions are reviewable, but not those which included decisions affecting foreign policy itself.

Facts: Mother of a British Citizen held in Guantanamo Bay brought proceedings to compel the FCO to make representations on her son’s behalf to the US govt. On the facts, court held the FCO had done all that was required of it. They did state that an FCO would be reviewable in future.

Question 27

R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs

Answer 27

Ratio: FCO decisions are reviewable, but not those which included decisions affecting foreign policy itself.

Facts: Case concerned three British residents detained in Guantanamo Bay. They sought to compel the FCO to request their release. Court considered their rights under the ECHR and concluded they had no arguable case.

Question 28

Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs

Answer 28

Ratio: Example of the court boldly reviewing foreign affairs issues.

Facts: Court issued a writ of habeas corpus requiring the government to seek the return of a Pakistani national detained without trial in Afghanistan by the US following his capture from UK forces in Iraq.

Question 29

R v MoD, ex parte Smith

Answer 29

Ratio: Drew a distinction between issues of defence policy and those relating to the operation of or conditions within the armed forces. The latter is susceptible to judicial review.

Facts: Court of Appeal reviewed the rule prohibiting homosexuals from serving in the armed forces. Ultimately the court did not declare the rule unlawful given the high threshold that applied to judicial review challenges based on irrationality. However, they accepted the justiciability of the matter.

Question 30

Lord Advocate’s Reference (No. 1 of 2000)

Answer 30

Ratio: Despite the relaxation, important qualifications still apply to the judicial review of prerogative power.

Facts: Case concerned charges of malicious mischief brought against three persons for damaging a submarine belonging to the MoD which was used in the deployment of Trident nuclear missiles.

Question 31

R (Campaign for Nuclear Disarmament) v Prime Minister of the UK

Answer 31

Ratio: The decision to take military action is not judicially reviewable.

Facts: CND sought a declaration that UN resolution 1441 did not authorise military action against Iraq.

Question 32

R v Jones (Margaret) and Others

Answer 32

Ratio: The decision to take military action is not judicially reviewable.

Facts: UKs intervention in Iraq was held to be a lawful exercise of prerogative power.

Question 33

Smith, Ellis and Allbutt v MoD

Answer 33

Ratio: Defence matters that do not relate directly to battle are judicially reviewable.

Facts: Case related to MoD negligence in provision of equipment and training. Court held that actions and decisions taken by military commanders in relation to military engagement should not be subject to judicial challenge. However, they held that immunity did not apply in relation to failings that were remote from the pressures and uncertainties of the battlefield.

Question 34

R v Secretary of State for the Home Department, ex parte Bentley

Answer 34

Ratio: Court was prepared to review the prerogative of mercy.

Facts: The sister of Derek Bentley, who had been convicted and hanged for murder in 1953, sought judicial review of the Home Secretary’s decision not to grant her brother a posthumous pardon. Bentley had not been found morally and technically innocent. Court held that this decision could be reviewed. However, the policy behind when a posthumous pardon could be granted was not reviewable. Court made no order, but recommended the Home Secretary should reconsider.

Question 35

R (B) v Secretary of State for the Home Department

Answer 35

Ratio: Court was prepared to review the prerogative of mercy.

Facts: Claimant was a serving prisoner who had provided the police and prison authorities with valuable assistance. In return, the Home Secretary awarded him three years’ remission from his sentence. The claimant’s solicitors sought review of this, on the grounds that others had had far longer remissions granted. Court held this issue was amenable to judicial review. On the facts, court said this exercise was lawful.

Question 36

R (Shields) v Secretary of State for Justice

Answer 36

Ratio: Court was prepared to review the prerogative of mercy.

Facts: Related to transfer to a British prison of Michael Shields, a man who was imprisoned in Bulgaria and his request for a free pardon, following the confession of another man.

Question 37

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs

Answer 37

Ratio: Colonial governance can be judicially reviewed.

Facts: Case concerned the fate of the Chagossians, the inhabits of the British Indian Ocean Territory, who had been removed from their home islands in the 1960s and 70s so that the main island could be used as a US military base. Court held the prerogative power of colonial governance is not immune from judicial review.