Royal Prerogative Flashcards
What is the ‘royal prerogative’?
What type of power did Tony Blair use to take the UK to war in Iraq in 2003 or Margaret Thatcher to send the ‘task force’ to the Falkland Islands in 1982? Did this power derive from a statute passed by Parliament, or did they use a power that came from another source entirely? The
answer is the latter: the source of the power used to make these decisions came from the prerogative power of the Crown.
Prime Ministers do not as a matter of law need parliamentary consent to commit British troops, though Blair did seek parliamentary approval for this course of action for political reasons. That remains the position. In 2013, the House of Commons voted against possible UK military action against Syrian President, Bashar al-Assad’s government to deter the use of chemical weapons. A vote was not legally required, but it was taken (and respected) for political reasons.
Dicey’s definition
The prerogative: The classic, and often quoted, definition of the prerogative was laid down by Dicey, who stated that the prerogative was:
[T]he residue of discretionary or arbitrary authority, which at 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. AV Dicey, Introduction to the Study of the Law of the Constitution (1885)
Note that the courts (Administrative Court and upwards) are the arbiters of the existence and extent of a claimed prerogative power.
Judicial system – prerogative of mercy
The Home Secretary (on behalf of the Crown) may pardon those convicted of criminal offences prosecuted by the Crown. Historically, the principle of a pardon pre-dates the Act of Settlement 1700, which altered the law so that a pardon could not ‘stop an impeachment […] but there is to be
nothing to prevent the king from pardoning after the impeached person has been convicted and sentenced’.
The prerogative of mercy is an example of a prerogative which the courts have willingly
reviewed. In the case of R v Secretary of State for the Home Department, ex parte Bentley [1993] 4
All ER 442 it was held:
The court had jurisdiction to review the exercise of the royal prerogative of mercy by the Home Secretary in accord with accepted public law principles since the exercise of the prerogative was an important feature of the criminal justice system and a decision by the Home Secretary which was infected with legal errors ought not to be immune from legal challenge merely because it involved an element of policy or was made under the prerogative.
Foreign affairs – prerogative powers
Granting and revoking passports is a Ministerial prerogative power.
* As are the recognition of other sovereign states and their representatives,
* the making and ratification of treaties (treaties are seen as a contract between states, which does not generally require the approval of Parliament: see Attorney General for Canada v Attorney General for Ontario [1937] AC 326), and
* the governance of British Overseas Territories.
Armed forces and emergencies
The taking of measures necessary in times of emergency and/or for the ‘defence of the realm’, including the control of armed forces, is a prerogative power. In Chandler v Director of Public Prosecutions [1964] AC 777, Lord Reid stated: ‘The disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown […]’
In Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, installations owned by the oil company in Burma (then a British colony) had been destroyed during World War Two on the orders of the commander of the British forces, to prevent them falling into the hands of the Japanese army.
By a 3-2 majority the House of Lords held that compensation was payable to the company, there being no general rule that the prerogative could be exercised without compensation. Lord Reid stated: ‘[T]he prerogative certainly covers doing all those things in an emergency which are
necessary for the conduct of war.’
The Monarch’s prerogatives
In addition to Ministerial prerogatives, some ‘personal’ prerogatives which were traditionally exercised by the Monarch still exist. These are now exercised by the Monarch ‘on the advice of the Prime Minister’. (The Monarch could, in theory, refuse to follow the Prime Minister’s advice but has never done so.)
* The appointment and removal of ministers
* The appointment of the Prime Minister
* The right to assent to legislation
* The creation of peers and the granting of other honours
* The right to dissolve and prorogue Parliament
The Crown’s legal prerogatives
The administration of justice was historically the prerogative of the monarch, who was regarded as the ‘fountain of justice’, in the sense of being its distributor rather than its creator. Today, the
structure of the courts and their jurisdiction are almost entirely statute-based. The remaining legal prerogatives of any significance are as follows:
* Crown and statute: There is a presumption that the Crown is not bound by statute, meaning that legislation will not apply to the Crown unless express words have been used or it can inferred (by ‘necessary implication’) that Parliament did intend to bind the Crown. In Province
of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58, the Privy Council reaffirmed and elaborated upon this principle:
’If […] it is manifest from the very terms of the statute, that it was the intention of the
legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named.’
* Immunity from some litigation: The Crown is not directly subject to the contempt jurisdiction (ie contempt of court); and the sovereign has personal immunity from prosecution or being sued for a wrongful act.
Control of prerogative power
In summary, prerogative power can be ‘controlled’ in four ways:
(a) By the application of public law (the judicial review jurisdiction of the courts)
(b) By the over-riding effect of statute (legislation ‘trumps’ the prerogative)
(c) Informally, by political pressure in government and public life (eg the media)
(d) Informally, by changes to convention over time
Control of prerogative powers
As we have seen, prerogative power is a residual form of legal authority which the executive ‘owns’ but which has not been legitimated through the parliamentary process.
The potential for it to be abused is therefore higher than with statutory power, created by Parliament and often hemmed in by certain restrictions and conditions for its use laid down in the legislation.
Certain political mechanisms can be adopted to modify this effect, for instance through constitutional conventions. But it is primarily through the courts that the use of prerogative powers has been controlled.
This tension between this old form of power and the requirements of legality has been in evidence for a long period of history and involved certain long-term trends.
Degree of control
The development of the courts’ ability to ‘check’ or review the executive’s use of its prerogative powers has been evident since the early 17th century. 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.
Legality of prerogative powers
In the post-1688 regime, when it was ultimately Parliament and not an absolute monarch that was supreme, the use of executive power of doubtful origin was even more open to challenge. 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. 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.
350 years and a civil war?
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.
Implied suspension by statute
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.
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.
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?
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.
Legality and prerogative
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.
Judiciary and prerogative powers
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.
