From cases such as Darnel’s Case (where the king’s warrant for detention of a prisoner, although giving no reasons, was accepted as conclusive) and the Case of Ship Money (when the king’s judgment as to the existence of an emergency was held to be unchallengeable), was derived a view that courts lacked jurisdiction to review the manner of exercise of prerogative powers, or the adequacy of the grounds on which they had been exercised.
This principle was affirmed more recently in Chandler v DPP 1964
Supporters of the Campaign for Nuclear Disarmament had been convicted of conspiracy to commit a breach of section I of the Official Secrets Act 1911 by entering a prohibited place ‘for any purpose prejudicial to the safety or interests of the state’. They had undoubtedly plotted to enter Wethersfield airbase in rural Essex and immobilize it by sitting down on the runways. But was their purpose prejudicial to the interests of the state? The trial judge had not allowed them to call evidence to argue otherwise, and the House of Lords held that this was right.
Armed forces were dispatched to remove them and Lord Devlin commented: ‘The courts will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse.’ Thus, the courts could determine the limits of the prerogative powers, but would not review their ~ exercise, unless there was some suggestion of abuse or misuse.
Lord Reid said:
it is clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongfully exercised.
The last thirty years, however, have seen a significant change in the attitude of the courts to the royal prerogative. The first case in which this was apparent, albeit not overtly so, was
Burmah Oil v Lord Advocate 1965
In 1942 British troops had destroyed oil installations in Rangoon, with the intention of preventing them from falling into the hands of the Japanese. The British Government made an ex gratia payment of some £4 million to the company. Burmah Oil sued the government for some £31 million compensation. A The House of Lords held that compensation was payable by the Crown for the destruction of property caused by the exercise of the prerogative power in relation to war.
The government immediately introduced into Parliament the War Damage Bill to nullify the effect of the decision; this legislation was retrospective and so Burmah Oil did not receive its compensation.
However, the case is still good law in terms of the exercise of prerogative powers in situations other than war and is important in that the House of Lords could have decided that, since the exercise of a prerogative power was in question, they could go no further. In fact that was not the case and the House spent some considerable time deciding whether the particular power could be exercised only on payment of compensation.
In essence, the House decided that the destruction was done under the prerogative of emergency and defense (Burma was at the time a Crown Colony). Three types of ‘damage’ could be identified; damage done in the course of battle – this had never carried with it a duty to compensate; damage done the course of war – which this was and which did carry a duty to compensate (now overridden by the War Damage Act); and damage done in the course of an emergency – which also carried a duty to compensate. This last category is still in existence’.
This trend continued with Lord Denning’s minority judgment in Laker Airways v Department of Trade 1977.In October 1972 the plaintiffs were granted an air transport license by the Civil Aviation Authority (‘the CAA’) under the Civil Aviation Act 1971 to provide a low cost passenger air service, known as ‘Sky train’, between London and New York. Relying on the grant the plaintiffs purchased several wide-bodied aircraft and trained crews with a view to operating Sky train. In February1973 the British government served a formal notice on the United States government designating the plaintiffs as a scheduled carrier in accordance with a treaty between the two countries, the Bermuda Agreement 1946. Under the provisions of that treaty the designation would enable the plaintiffs to obtain a foreign air carrier permit from the United States Civil Aeronautical Board (‘the CAB’), I without undue delay’. In March 1974 the CAB granted the plaintiffs such a permit subject to the signature of the President of the United States. In February 1975 the British Airways Board asked the CAA to revoke the license granted to the plaintiffs on the ground that since 1972 there had been a substantial decrease in the volume of air traffic coupled with a large increase in costs. The CAA refused. In July 1975, following a change in aviation policy, the Secretary of State reversed the decision to allow Sky train to come into operation. That decision was communicated to the CAB which then withdrew its permit before it had received the President’s signature, in 1976, in purported exercise of the power conferred by s 3(2)a of the 1971 Act, the Secretary of State for Trade published a White Paper setting out new policy ‘guidance’ to be followed by the CAA in performing its functions under the Act. The White Paper stated, inter alia, that the plaintiffs’ designation as a scheduled service operator under the Bermuda Agreement should be cancelled and that, unless British Airways consented, ‘in the case of long-haul scheduled services … the CAA should not… license more than one British airline to service the same route…’ The new policy guidance was approved by Parliament, in accordance with s 3(3) of the 1971 Act, although the House of Lords requested the Secretary of State to withdraw the instruction to the CAA to revoke the plaintiffs’ license. The plaintiffs brought an action for a declaration that the new policy guidance was ultra vires the powers conferred on the Secretary of State on the ground that it conflicted with the general objectives of the 1971 Act, that the license granted to the plaintiffs to operate Sky train remained in force and that the Secretary of State was not entitled to revoke the plaintiffs’ designation.
Held – The plaintiffs were entitled to the relief sought because although s 3(2) of the 1971 Act empowered the Secretary of State to give guidance to the CAA with respect to the functions conferred on it by s 3(1) that could not be construed as conferring on the Secretary of State power to give the CAA directions which, by granting a monopoly to British Airways, overrode the objectives set out in s 3(1 )(b), to secure that at least one major British airline not controlled by the British Airways Board had an opportunity to provide air transport services. Since the policy guidance issued in 1976 to the CAA amounted to a reversal of at least one of the objectives set out in s 3(1), it was, so far as it affected the plaintiffs, ultra vires.
Another breakthrough came in Laker Airways Ltd v Department of Trade [ 1977] QB 643. The Court of Appeal decided that the Labour government’s decision to revoke a license providing for the low-cost Laker transatlantic ‘Sky train’ service was unlawful. The Crown had a prerogative right to designate airlines for specified routes under the Bermuda Agreement 1946, a treaty between the United Kingdom and the United States. However, this had been superseded by the Civil Aviation Act 1971. The government claimed that, despite this Act (which created a statutory scheme for licensing scheduled air services), the designation had been authorised using the prerogative and could not be reviewed by the courts. The Court of Appeal rejected this claim. Rather controversially Lord Denning MR declared (obiter) that the use of a prerogative power was justiciable, and might be examined by the courts just like any other discretionary power which was vested in the executive.
In coming to this conclusion, the Court of Appeal reaffirmed the principle from AG v De Keyser’s Royal Hotel Ltd that where statute and prerogative cover the same ground, the prerogative is held in abeyance. Therefore, here, the Secretary of State could not use his powers under the prerogative but was limited to the statutory powers.
Lord Denning, however, examined also what the position would have been had the powers been exercised under the prerogative – here the treaty making power of the Crown. Would this have rendered them immune from review by a court? Relying partly on the decision in Burmah Oil, and on the normal principles of judicial review of statutory powers, Lord Denning concluded that the exercise of the powers would nonetheless have been amenable to review. He said;
Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. At several times in our history, the executive have claimed that a discretion given by the prerogative is unfettered: just as they have claimed that a discretion given by statute or by regulation is unfettered. On some occasions the judges have upheld these claims of the executive, notably in R v Hampden, Ship Money Case, and in one or two cases during the Second World War, and soon after it, but the judges have not done so of late. The two outstanding cases are Padfield v Minister of Agriculture, Fisheries and Food, and Secretary of State for Education and Science v Metropolitan Borough of Tameside, where the House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers, so as to see that they are used properly, and not improperly or mistakenly. By mistakenly, I mean under the influence of a misdirection in fact or in law.
Likewise, it seems to me that, when discretionary powers are entrusted to the executive by the prerogative-in pursuance of the treaty-making power-the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly.
At the time, Lord Denning’s judgment was not particularly convincing. , Prerogative and statutory powers were not analogous and it was difficult to see how a jurisdiction of the courts to confine a statutory power within its limits could simply be applied to prerogative powers whose limits were unclear.
However, the spirit of his judgment was endorsed in the case which changed the law and this was Council of Civil Service Unions v Minister for the civil Service 1984
Government Communications Headquarters (GCHQ) was a branch of the civil service whose main functions were to ensure the security of the United Kingdom military and official communications and to provide signals intelligence for the government. All the staff at GCHQ had a long standing right, originating when GCHQ was formed in 1947, to belong to national trade unions, and most of them did so. The unions represented at GCHQ were all members of an association of civil service unions and there was an. established practice at GCHQ of consultation between the management and the unions about important alterations in the terms and conditions of employment of the staff. On seven occasions between 1979 and 1981 industrial action was taken at GCHQ causing disruption. One such disruption in 1981 had resulted in part of the operations of GCHQ being virtually closed down. Most of the industrial action was associated with disputes between the government and national trade unions about conditions of service applicable to civil servants generally and not about local problems at GCHQ. In particular, the industrial action taken in 1981 was part of a campaign by national trade unions designed to do as much damage as possible to government agencies, including GCHQ. Attempts by the government to dissuade union officials from action which would adversely affect operations at GCHQ failed.
On 22 December 1983 the Minister for the Civil Service issued an oral instruction to the effect that the terms and conditions of civil servants at GCHQ would be revised so as to exclude membership of any trade union other than a departmental staff association approved by the director of GCHQ. That instruction, which was issued without prior consultation with the staff at GCHQ, was issued pursuant to the minister’s power under art 4 of the Civil Service Order in Council 1982 to ‘give instructions for controlling the conduct of the Service, and providing for … the conditions of service’, the order itself being made under the royal prerogative.
The appellants, the association of civil service unions, a union official and five civil servants employed at GCHQ, applied for judicial review of the minister’s instruction seeking, inter alia, a declaration that it was invalid because the minister had acted unfairly in removing their fundamental right to belong to a trade union without consultation. The judge granted the application on the ground that the minister ought to have consulted the staff before issuing the instruction. The minister appealed to the Court of Appeal contending
(i) that prerogative powers, and instructions given under a delegated power emanating from the prerogative, were discretionary and not open to review by the courts, and
(ii) that the requirements of national security overrode any duty which the minister otherwise had to consult the staff. Affidavit evidence was filed on behalf of the minister to the effect that in her view there had been a real risk that prior consultation would occasion the sort of disruption at GCHQ which threatened national security and which was the very thing the instruction was intended to avoid. The Court of Appeal allowed the minister’s appeal on the grounds of national security. The appellants appealed to the House of Lords.
(1) Irrespective of whether a power exercised directly under the prerogative was immune from judicial review, delegated powers emanating from a prerogative power were not necessarily similarly immune, since (per Lord Eraser and Lord Brightman) the scope of such delegated powers would, either expressly or impliedly, be defined, e.g. by reference to their object or the procedure by which they were to be exercised, with the result that such powers were subject to judicial control to ensure that the scope and limits of the power were not exceeded, or (per Lord Scarman, Lord Diplock and Lord Roskill) because the controlling factor in determining whether the exercise of the power was subject to judicial review was the justiciability of its subject matter rather than whether its source was the prerogative .
(2) An aggrieved person was entitled to invoke judicial review if he showed that a decision of a public authority affected him by depriving him of some benefit or advantage which in the past he had been permitted to enjoy and which he could legitimately expect to be permitted to continue to enjoy either until he was given reasons for its withdrawal and the opportunity to comment on those reasons or because he had received an assurance that it would not be withdrawn before he had been given the opportunity of making representations against the withdrawal. The appellants’ legitimate expectation arising from the existence of a regular practice of consultation which the appellants could reasonably expect to continue gave rise to an implied limitation on the minister’s exercise of the power contained in art 4 of the order, namely an obligation to act fairly by consulting the GCHQ staff before withdrawing the benefit of trade union membership. The minister’s failure to consult prima facie entitled the appellants to judicial review of the minister’s instruction
(3) Although where the government sought to rely on reasons of national security to justify a decision or action the courts would not accept a mere assertion to that effect but would require evidence that the decision or action was taken for reasons of national security, the question whether the decision or action was in fact necessitated by the requirements of national security was non justiciable since the executive was the sole judge of what national security required and alone had access to the information that enabled the judgment to be made as to what was required. Once the minister produced evidence that her decision not to consult the staff before withdrawing the right to trade union membership was taken for reasons of national security, that overrode any right to judicial review which the appellants had arising out of the denial of their legitimate expectation of consultation. The appeal would therefore be dismissed.
Per Lord Scarman, Lord Diplock and Lord Roskill. (i) Powers exercised directly under the prerogative are not by virtue of their prerogative source automatically immune from judicial review. If the subject matter of a prerogative power is justiciable then the exercise of the power is open to judicial review in the same way as a statutory power. However (per Lord Roskill), prerogative powers such as those relating to the making of treaties, the defense of the realm, the prerogative of mercy, the grant of honors, the dissolution of Parliament and the appointment of ministers are not justiciable or reviewable.
Administrative action is subject to control by judicial review under three heads:
(1) illegality, where the decision-making authority has been guilty of an error of law, eg by purporting to exercise a power it does not possess;
(2.) irrationality, where the decision making authority has acted so unreasonably that no reasonable authority would have made the decision;
(3) procedural impropriety, where the decision-making authority has failed in its duty to act fairly.
The House of Lords began by deciding whether or not the exercise of the prerogative should now be subject to review. Lord Scarman (as part of the majority) thought that it should. He said,
My Lords, I would wish to add a few, very few, words on the reviewability of the exercise of ‘Me royal prerogative. Like my noble and learned friend Lord Diplock, I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power.
Thus, the only criterion was whether the power was justiciable – for further guidance on this, see Lord Roskill judgment below.
His reasons for so deciding were not particularly compelling –
Without usurping the role of legal historian, for which I claim no special qualification, I would observe that the royal prerogative has always been regarded as part of the common law, and that Coke CJ had no doubt that it was subject to the common law: see Prohibitions Del Roy 1607 and Case of Proclamations. In the latter case he declared that ‘the King hath no prerogative, but that which the law of the land allows him’.
It is, of course, beyond doubt that in Coke’s time and thereafter judicial review of the exercise of prerogative power was limited to inquiring into whether a particular power existed and, if it did, into its extent: But this limitation has now gone, overwhelmed by the developing modern law of judicial review: Just as ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act, so also has the modern law, a vivid sketch of which my noble and learned friend Lord Diplock has included in his speech, extended the range of judicial review in respect of the exercise of prerogative power.
Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.
Lord Roskill set out the areas of the prerogative which he felt were not justiciable – he described these as the excluded categories
But I do not think that that right of challenge can be unqualified. It must, I think, depend on the subject matter .of-the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defense of the realm, the prerogative of mercy, the grant of honors, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter is such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.
It is clear from later decisions (see ex parte Bentley below) that this list is not fixed and new categories of justiciable prerogatives may emerge.
Lord Diplock set out the grounds for review of the prerogative. These are the same as the normal grounds for judicial review of a statutory power –
My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
It is worth noting that, at the time of this judgment, the concept of proportionality was foreign to English law. As a result of the Human Rights Act, it is now a concept by which the courts will have to measure violations of Convention rights.
Whether this decision has made any real practical difference in terms of review of the prerogative is doubtful. Many areas would fall into the ‘excluded’ categories. Moreover, on the facts, although the applicants had a legitimate expectation of being consulted and it was therefore a breach of natural justice to make the change without consulting them, their breach was overridden by questions of national security, which will often be the case, given the nature of the powers involved.
The cases following GCHQ have shown a mixed pattern in terms of willingness on the part of the courts to take up this new jurisdiction.
R v Secretary of State for the Home Department ex parte North Umbria Police Authority 198