Prerogative Power Flashcards
Judicial review of the government’s use of prerogative power in matters of higher policy. Why were the cases of Bentley and Everett reviewable?
Because the nature of the powers used by the executive were relatively low level or administrative.
They were of great importance to the individual but were about how administrative processes and policies had been implemented- not really matters of higher policy.
Can judiciary intervene in clearly higher policy cases involving diplomatic relations between UK and other states
- traditional outlook?
A more traditional outlook, and one maintained in Lord Roskill’s obiter comments: courts would not engage with any attempt to challenge the executive’s use of this part of their prerogative power.
However, such challenges have been accepted by the Administrative Courts.
What is the intensity of the review carried out by courts of use of E’s PP for matters touching on diplomatic relations between UK and other states?
At the lower end of the spectrum.
Abbasi Facts
Abbasi, a UK national, was a captive exposed to the highly controversial regime at Guantanamo Bay.
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.
Abbasi Question for the Court
Could the courts review the decision of the executive in the field of foreign relations?
Abbasi- Competing Interests and Response of the Court
· 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.
· However, this was seen to be an area in which the courts had minimal competence and in which the executive were the primary decision-makers.
The outcome, therefore, 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.
Court’s approach towards higher policy defence of the realm areas?
Court approach towards more operational military matters?
One end- decisions to take military action and how to conduct such operations. These are matters of higher policy which the executive effectively have sole competency over. Courts are likely to see these types of decisions/actions as non-justiciable.
Courts have not been as reluctant to intervene in operational military matters.
Eg case of courts viewing PP for defence of the realm as higher policy and therefore non-justiciable
Number of cases relating to the legality of the war in Iraq. In R (Campaign for Nuclear Disarmament) v PM of UK Simon Brown LJ stated that it was: 'accept[ed] that the decision to take military action is beyond the court's purview'.
The court’s subtle modern differentiation between the nature or character of different types of PP
eg. rather than the courts saying that all PP relating to matters of higher policy are non-justiciable, look at the substance of the powers to decide whether they are justiciable.
Eg. of court being willing to review operational military matters
Smith, Ellis and Allbutt v MoD
the Supreme Court held that the doctrine of combat immunity should be construed narrowly.
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.
R v Ministry of Defence, ex parte Smith- FACTS
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.
ex parte Smith- the competing interests of the courts
Competence concerns- that the area of defence of the realm was not within the competence of the court (separation of powers)
- 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 (the rights of the appellants as human beings)
The presence of competing interests is clearly seen here in Bingham’s speech:
‘ 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. But it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power. While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to “do right to all manner of people…”’
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’. eg. case example
Bancoult
Bancoult
COA- found for Bancoult and stated that ‘the prerogative power of colonial governance enjoys no generic immunity from judicial review’
Demonstrates the competing interests of the judiciary in foreign relations cases of their decision to respect the separation of powers and accept that some things are within the sole competence of the executive.
3-2 majority in House of Lords finding for Foreign Secretary
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.
Nevertheless, it was significant that this highly contentious political decision was seen as justiciable in spite of predictable government arguments to the contrary.
