Two principal matters were established in the GCHQ case:
• first it was shown that the courts had the jurisdiction to review (through judicial review proceedings) prerogative acts in the same manner as acts under an Act of Parliament
• second, the House of Lords ruled that while there was equal power to review, the courts would only review prerogative acts which did not involve matters of high policy best determined by the executive.
R v Secretary of State for the Home Department ex parte Northumbria Police Authority 1988
Barnett writes-
The issue involved in this case was the relationship between statute and the prerogative. The Police Act 1964 set out the respective powers of the Home Secretary, the Police Authorities and the Chief Constables of police with regard to, inter alia, the supply of equipment to police forces.
The Secretary of State, by way of a Circular, advised that the Secretary of State would be making available supplies of riot-control equipment to police forces, irrespective of approval by the police authorities. The Northumbria Police Authority sought judicial review of the legality of the Circular.’
The Home Secretary argued first that as a matter of statutory interpretation he had power to issue the equipment, and that independent of the statutory power which he claimed, he had the power under the prerogative to issue the weapons. On the point of statutory interpretation the Court of Appeal held that no monopoly was reserved to the police authority and that accordingly the Secretary of State had not acted ultra vires.
On the prerogative aspect, the court’s reasoning was both surprising and interesting. First, the Court of Appeal accepted that the Police Act 1964 left unaffected the prerogative powers to keep the peace. Little evidence was adduced as to the existence of such a prerogative but nevertheless Croom-Johnson LJ felt able to hold that he had no doubt that the Crown had such a prerogative. Nourse LJ stated that there was no historical or other basis for denying, that a prerogative to keep the peace could be viewed as a ‘sister’ prerogative to the power to declare war, without making any reference to Blackstone’s division of prerogatives into ‘foreign’ and ‘domestic’ categories. Recalling that it had never been possible to identify all the prerogatives of the Crown and that their existence could. be ascertained only by means of piecemeal decisions, Nourse LJ declared that there had never been ‘a comparable occasion for investigating a prerogative of keeping the peace within the realm.’
Purchas LJ was clear that:
… the prerogative powers to take all reasonable steps to preserve the Queen’s peace remains unaffected by the Act and these include the supply of equipment to police forces which is reasonably required for the more efficient discharge of their duties.
There was thus in this case no real review of the exercise of the prerogative.
A more thorough review took place in R v Secretary of State for the Home Department ex parte Bentley 1993
In 1952 the applicant’s brother, then aged 19, and a youth aged 16 were convicted of the murder of a police officer. The fatal shot had been fired by the brother’s accomplice but, being too young to be subject to the death penalty, he was sentenced to life imprisonment. The applicant’s brother, on the other hand, was sentenced to death by the trial judge. The then Home Secretary decided not to exercise the royal prerogative of mercy despite a recommendation for mercy by the jury and the advice of Home Office officials that it would not seem right to exact the extreme penalty from the accomplice when the principal offender was escaping with his life. The applicant’s brother was executed on 28 January 1953. On 1 October 1992 the Home Secretary refused to recommend a posthumous free pardon for the applicant’s brother, on the grounds that although he personally agreed with the view that the applicant’s brother should not have been hanged, it had been the long-established.-policy of successive Home Secretaries that a free pardon should be granted only if the person concerned was both morally and technically innocent of any crime and that his review of the applicant’s brother’s case had not established his innocence. The applicant applied for judicial review of the Home Secretary’s decision contending, inter alia, that he had erred in law in his approach to the issue in that he considered that the grant of a free pardon was dependent on establishing that the applicant’s brother was morally and technically innocent whereas he should have asked himself whether in all the circumstances the applicant’s brother should have suffered the punishment which had been imposed.
Held –
(1) 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.
(2) The Home Secretary’s decision not to recommend a posthumous pardon for the applicant’s brother was flawed because, in considering whether to grant a posthumous pardon, he had failed to recognise the fact that the prerogative of mercy was capable of being exercised in many different circumstances and over a wide range and had failed to consider the form of pardon which might be appropriate. Furthermore, there was no objection in principle to the grant of a posthumous conditional pardon where a death sentence had already been carried out, as the grant of such a pardon represented recognition by the state that a mistake had been made and that a reprieve should have been granted. Since the Home Secretary’s failure to consider the grant of a posthumous conditional pardon when the previous Home Secretary’s decision not to grant a repri~4e had been clearly wrong amounted to an error of law, the court, while making no order on the application, would invite the Home Secretary to reconsider his decision
Watkins LJ had to deal first of all with the question of whether the prerogative of mercy was reviewable since it had formed part of Lord Roskill’s list of non justiciable prerogatives in the GCHQ case. He accepted the arguments of counsel for the applicant, David Pannick QC. He said
[Mr. Pannick]… argues that the prerogative of mercy is exercised by the Home Secretary on behalf of us all. It is an important feature of our criminal justice system. It would be surprising and regrettable in our developed state of public law were the decision of the Home Secretary to be immune from legal challenge irrespective of the gravity of the legal errors which infected such a decision. Many types of decisions made by the Home Secretary do involve an element of policy (eg parole) but are subject to review.
‘We Accept these arguments. The CCSU case made it clear that the powers of the court cannot be ousted merely by invoking the word ‘prerogative’. The question is simply whether the-nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill-equipped to do so? Looked at in this way there must be leases in which the exercise of the royal prerogative is reviewable, in our judgment. If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.
We conclude therefore that some aspects of the exercise of the royal prerogative are amenable to the judicial process. We do not think that it is necessary for us to say more than this in the instant case. It will be for other courts to decide on a case by case basis whether the matter in question is reviewable or not.
Thus it is clear that the way is open for further inroads to be made into the immunity of the crown from review. However, it is also clear that each case will be decided on its merits and that there are areas which are still beyond judicial expertise. This is evident from the decision in R v Ministry of Defence ex parte Smith & others 1996 1 All ER 257
The four appellants, a lesbian and three homosexual men, were administratively discharged from the respective armed forces in which they served pursuant to a Ministry of Defence policy dated 18 March 1994. The policy, made jointly by the three armed services in the exercise of prerogative powers, prohibited homosexual men and women from serving in the armed forces and required the discharge of any serviceman or woman found to be of homosexual orientation. Four appellants had exemplary service records and in no case was it suggested that their sexual orientation had affected their ability to carry out their duties or had had any adverse effect on discipline in the units in which they served. The appellants sought judicial review of the policy, contending inter alia that
(i) in restricting as it did the appellants’ fundamental human rights and discriminating against them on the grounds of sexual orientation, the policy was in breach of both the European Convention for the Protection of Human Rights and Fundamental Freedoms and Council Directive (EEC) 76 / 207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions,
(ii) the threshold of reasonableness should be lowered to take account of the human rights dimension, and
(iii) on any test of reasonableness the policy was irrational in the light of changing moral standards and the changing treatment of homosexuals in armed forces and other related services both around the world and in the United Kingdom. The court held that the Ministry of Defence’s policy was lawful and dismissed the applications. The appellants appealed.
Held – The appeals would be dismissed for the following reasons
(1) The court would interfere with the exercise of an administrative discretion where it was satisfied that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision maker. In judging whether the decision-maker had exceeded that margin of appreciation the human rights context was clearly important: the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was reasonable. However, the greater the policy content of a decision and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court would necessarily be in holding a decision to be irrational; and although in such circumstances the test for irrationality had to be applied with even greater caution than normal, the test itself remained the same, being sufficiently flexible to cover all situations. On the facts, although the human rights of the appellants were very much in issue and the court had a constitutional role and duty to ensure that those rights were not abused by the unlawful exercise of executive power it could not be said that, at the time the appellants were discharged, the ministry’s policy was irrational, having regard to the fact
(a) that the policy had been supported by both Houses of Parliament and by the ministry’s professional advisers and
(b) that the changes in policy which-had been [ made in other countries with regard to homosexuals serving in the armed forces had been made too recently to yield much valuable experience. The threshold of irrationality was a high one and it was clear that it had not even been crossed in the instant case
(2) Since the United Kingdom’s obligation to secure compliance with the provisions of the European Convention on Human Rights was not one which was enforceable by the domestic courts, the fact that a decision-maker failed to take account of convention obligations when exercising an administrative discretion was not of itself a ground for impugning that exercise of discretion, and in the circumstances the relevance of the convention was only as background to the complaint of irrationality.
(3) There was no indication in the EC Treaty or the equal treatment directive to suggest that either was intended to cover discrimination on the grounds of sexual orientation, indeed the directive was directed to banning unacceptable behaviour in the workplace and not to regulating employment policy in relation to sexual orientation. This case is interesting from several aspects. It was yet another affirmation of the view that the ECHR is not directly enforceable in our courts and that failure to take account of Convention rights did not of itself give rise to grounds for review. This part of the judgment, of course, is no longer good law. Secondly, in terms of the prerogative, there was no argument that the prerogative was unreviewable.
Thirdly, the case really hinged on the application of the test for unreasonableness, one of the standard grounds for judicial review. It is clear from the judgment that the test remains the same in all cases, but there are some areas where it has to be applied differently. Sir Thomas Bingham agreed with David Pannick’s formulation of the test – ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’
This submission is in my judgment an accurate distillation of the principles. It was argued for the ministry, that a test more exacting than Wednesbury was appropriate in this case (see Associated Provincial Picture Houses Ltd v Wednesbury Corp 1947 ). The Divisional Court rejected this argument and so do. The greater the policy contents of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense. Where decisions of a policy-laden, esoteric or security-based nature are in issue, even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations.
Thus, although the prerogative may be reviewable on the same grounds as any other discretionary power, the grounds can be applied only where judicial experience is competent to judge the lawfulness of the exercise of the power.
One could be forgiven for thinking that this is simply another way of saying that the prerogative is non justiciable and confirms the view held by many that the decision in GCHQ may have had little practical impact. There is, however, one case, prior to Bentley & to Smith, where the court (at first instance) did decide that the exercise of the prerogative was ultra vires.
R v Secretary of State for Foreign & Commonwealth Affairs ex parte Everett 1989
The applicant, a British passport holder living in Spain, applied to the British Embassy in Madrid for a new passport to be issued on the expiry of his old one. The Foreign and Commonwealth Office refused to issue a new passport because there was a warrant for the applicant’s arrest current in the United Kingdom and it was the Secretary of State’ policy not to issue a passport to persons who were wanted by the police on suspicion of a serious crime. No details of the warrant were given. The applicant applied for judicial review by way of an order of certiorari to quash the refusal on the ground, inter alia, that no particulars of the warrant had been made available to him. Two warrants had been issued for the applicant’s arrest, one for obtaining a false passport by deception and the other for robbery, and by the date of the hearing the applicant had been given details of the date, place of issue and subject matter of the warrants, neither of which he had sought to challenge. The judge granted the applicant the relief sought, holding that before refusing to issue a passport because of an outstanding warrant of arrest the Secretary of State was required to consider whether his policy should not be applied in the particular case. The Secretary of State appealed, contending that the High Court had no jurisdiction to review at decision to refuse to issue a passport since such a decision involved the exercise of prerogative power.
Held – Although a decision by the Secretary of State to , refuse to issue a passport involve the exercise of prerogative power the High Court had jurisdiction to review such decision and to inquire whether a passport had been wrongly refused. Accordingly although the Secretary of State’s policy of not issuing passports abroad to persons against whom there were warrants of arrest outstanding in the United Kingdom was a valid policy, nevertheless when a passport was refused on that ground the Secretary of State was required to give the reason for the refusal, to provide the applicant with the particulars of the warrant and to inform him that if there were exceptional reasons (eg compassionate grounds) why the policy should not be applied they would be taken into account. However, since the applicant had not suffered any injustice because he had known by the date of the hearing everything which he should have been told by the Secretary of State, and since there were no exceptional reasons in his case, there were no grounds for granting relief. The appeal would therefore be allowed. Reform of the prerogative:
However, a number of issues need to be considered before jumping to wholehearted agreement with the sentiment. The first of these is that any state needs reserve emergency powers which are entrusted to the executive. Especially in relation to state security and international relations (whether diplomatic, economic or military), there cannot be full and frank disclosure and discussion of different options before decisions are taken. The well-being of the state would be damaged by too much openness.
The second issue is that of accountability and control. While prima facie prerogative powers are undemocratic and threaten the rule of law, if they are subjected to adequate scrutiny and control – whether by Parliament or the judiciary – they may be regarded as compatible with the welfare of the state and justifiable. The third issue is how – particularly under an uncodified constitution – such powers could be brought fully within the legal democratic framework without upsetting the balance of power between the three principal institutions – Parliament, the executive and the judiciary. When you are considering reform therefore, keep these issues in mind and adopt a balanced approach, fully mindful of the constitutional implications of any reform proposal.
Developments since the GCHO Case
As a result of the decision in the GCHQ case, the law has become more settled. According to Lord Diplock, the exercise of all prerogative powers is now potentially reviewable by the courts. However, some prerogative powers may still be excluded from judicial review because of the nature of their subject matter. Lord Diplock’s assertion has, therefore, been somewhat circumscribed by Lord Roskill who qualifies such a wide remit on the grounds that certain prerogative powers, because of their subject matter, would not be appropriate for judicial scrutiny.
Since the GCHQ case, the courts have become increasingly willing to review the exercise of prerogative powers. For example, in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] QB 811 (see Cases and Materials (14.4)), it was decided that the prerogative power to issue passports is review able. Everett, a British citizen, was living in Spain. He applied for a British passport, but was refused because a warrant for his arrest had been issued in the United Kingdom. The Court of Appeal accepted that whether there should be judicial review of the prerogative power depends on its subject matter. Non justiciable matters would include the making of treaties, the dissolution of Parliament, and the mobilisation of the armed forces, but the issuing of or refusal to grant a passport was different. It was only an administrative decision and, as such, was reviewable unless it had national security implications.
To test the extent to which the courts have extended the boundaries of judicial review of prerogative powers we shall consider Lord Roskill’s six exceptions.
RECENT DECISIONS
since the GCHQ decision, the courts have been increasingly willing to challenge the exercise of prerogative powers. Perhaps the best example of this is the decision of the House of Lords in R v Secretary of State for the Nome Department, ex parte Fire Brigades Union [199512 All ER 244. The background to this case was that the Criminal Justice Act 1988 had been passed to replace the existing non-statutory criminal injuries compensation scheme for the payment of compensation to the victims of violent crime. Section 171(1) of the 1988 Act provided that, ‘this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint’. However, because of the escalating costs of providing compensation, the Home Secretary announced that the Government had chosen not to implement the provisions of the Criminal Justice Act 1988 which dealt with compensation – that, instead, it intended to introduce a new (and less generous) tariff-based scheme under which compensation, which was to be paid, would not take account of the loss of earnings or other similar expenses. The Fire Brigade’s Union, and a number of other unions whose members were particularly at risk from crimes of violence, complain-ed that they would be unfairly affected by these changes and challenged the Home Secretary’s decision by way of judicial review.
The House of Lords held (3-2) that the Home Secretary had acted unlawfully because he had exceeded his powers in introducing the new tariff-based criminal injuries compensation scheme without reference to Parliament. On the powers of the court, Lord Browne-Wilkinson pointed out that, subject to the non justiciability of certain prerogative powers (and he gave the example of treaty-making powers), ‘judicial review is as applicable to decisions taken under prerogative powers as to decisions taken under statutory powers’. Thus, having asserted this general principle, Lord Browne-Wilkinson suggested that on the facts of the case:
the fact that a scheme approved by Parliament was on the statute book and would come into force as law if and when the Secretary of State so determined … [was] directly relevant to the question whether the Secretary of State could in the lawful exercise of prerogative powers both decide to bring in the tariff scheme and refuse properly to exercise his discretion under s. 171(1) . . .. The Secretary of State could only validly exercise the prerogative power to abandon the old scheme and introduce the tariff scheme if, at the same time, he could validly resolve never to bring the statutory provisions and the inconsistent statutory scheme into effect. Since the Home Secretary was, in practice, seeking to use a prerogative power to repeal provisions in an Act of Parliament, his actions were unlawful and they amounted to ‘an abuse of the prerogative power’ (Lord Browne-Wilkinson).