The royal prerogative
Dictionary definition of ‘prerogative’: power, privilege or immunity restricted to a sovereign or government.
The royal prerogative is a collection of powers which are wide-ranging in scope and which in terms of strict law belong to the Crown alone. As we shall see, however, in practice the majority of these powers are nowadays exercised by the government of the day or the judiciary in the name of the Crown.
Historically the Sovereign was vested with special powers and privileges . As chief feudal Lord in medieval times, the King could not be sued in his own courts. He enjoyed a wide variety of powers which could be used in protecting the State from external and hostile forces. The King was the fountain of justice and could adjudicate in legal disputes. Through his council he had the power to decide other matters, such as the pardoning of criminals, the granting of peerages and the taking of measures to deal with emergencies. These were known as the Royal prerogative powers.
According to Tony Benn MP, ‘To understand how we’re governed, and hence the power of the Prime Minister, you have to understand the power of the Crown. It’s like the Trinity: God the Father is the Queen – she’s just there and nobody knows very much about her; God the son is the Prime Minister – who exercises all the patronage and has all the real power; and God the Holy Ghost is the Crown – the Royal Prerogative – and the Crown is a State-within-a-State, surrounded by barbed (unkind) wire and covered in secrecy.’ What does mean by this statement?
The influence of the monarch is great and in legal theory, as Bagehot said,Not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the General Commander-in-Chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every parish in the United Kingdom a ‘university; she could dismiss most of the civil servants; she could pardon all offenders. In a word, the Queen could by prerogative upset all the action of civil government within the Government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenseless against foreign nations.”
Two principal authoritative definitions are relied on by the courts today: those of Sir William Blackstone and those of Professor A V Dicey. In his Commentaries on the Laws of England (176569), Blackstone defined the prerogative as: that special pre-eminence which the King hath over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity.
In his Introduction to the Study of the Law of the Constitution, Dicey defines the prerogative more broadly, as being:the residue of discretionary or arbitrary authority, which at any 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 (Dicey, 1885). Since the 20th century has witnessed the diminishing influence of prerogative powers, Dicey’s description would today appear to be more accurate.
From this we can see that:
(a) the prerogative is inherent in and peculiar to the Crown
(b) prerogatives are common law powers: i.e. they are recognized by the courts
(c) the rights and powers are residual: they cover areas over which Parliament has not enacted statutes and they can be limited by Parliament. firs* because the prerogative is residual, it may be taken away by Parliament. This was done, for example, in the Crown Proceedings Act 1947. In outline, what did this do?
(d) the prerogative legitimizes executive actions without the need for an Act of Parliament.
the prerogative is arbitrary or discretionary in the sense that its exercise cannot be questioned by the courts. This immunity is now considerably less than it used to be.
This definition was given judicial approval in AG v De Keyser’s Royal Hotel 1920. As a result of the struggle for power between the Crown and Parliament in the 17th century, the Bill of Rights 1688 rationalized the use of these prerogative powers. It provided that statutes could expressly abolish or restrict the existence and exercise of the Crown’s prerogative powers Over the years statutes have gradually whittled away these powers. For example, the Crown Proceedings Act 1947 abolished the immunity of the Crown in respect of actions in tort and contract, although it retained the personal immunity of the Sovereign.
The powers of the Crown may be exercised in three ways:
(a) at the personal discretion of the Sovereign;
(b) by the Sovereign on the advice of Ministers;
(c) by Ministers alone, through statutory powers conferred on them, but exercised on behalf of the Crown.
The extent of the prerogative
Barnett agrees with Wade & Bradley but suggests the following list of prerogative powers which are in existence today: To make an analysis of prerogative powers manageable, they may be separated into two categories: those relating to foreign affairs and those relating to domestic affairs. Under foreign affairs can be subsumed:the power to make declarations of war and peace, power to enter into Treaties, the recognition of foreign States, diplomatic relations, disposition of the armed forces overseas.
Within the domestic category falls the summoning and dissolution of Parliament, appointment of Ministers, Royal assent to Bills, the granting of -honours, defence of the realm, the keeping of the peace, the power to stop criminal prosecutions -‘nolle prosequi’, the prerogative of mercy, reduction of sentences, pardoning of offenders, regulation of the terms and conditions of the Civil Service, the right to treasure trove, and to royal fish and swans.
It can be seen from this list, which is by no means exhaustive, that the powers are wide and diverse. In terms of government, the following prerogative powers are significant today:
[ 1 ] The appointment of a Prime Minister.
In practice, the exercise of this power is strictly controlled. In what ways?
 The dissolution of Parliament.
How much freedom does the Queen have in this area?
 The Royal Assent.
To what extent is the Queen able to refuse the Royal Assent? What would be the consequences of such a refusal?
 The dismissal of ministers.
 Appointments and honours.
The monarch is the ‘fountain of honour’ and makes appointments such as the Order of Merit, Orders of the Garter and Thistle.
 The Queen is the head of the Armed Forces.
The movement and disposition of the armed forces is entirely under the control of the Crown.
Chandler v DPP 1964 (see below)
 Judicial prerogatives.
These are exercised by ministers on behalf of the Crown e.g. nolle prosequi -exercised by the Attorney General; the prerogative of mercy – exercised by the Home Secretary.
 Prerogative of emergency and defence, (see below)  Acts of State.
This describes the exercise of the prerogative in external affairs e.g. recognition of a country as an independent sovereign state (Mighell v Sultan of Johore 1894 1 QB 149).
Before we proceed any further it would be useful to be aware of the sorts of issues governed by prerogative powers. We will now look at some of the main powers by dividing them under the following headings: personal prerogatives of the sovereign; political or ministerial prerogatives; judicial prerogatives; prerogatives relevant to the defence of the realm; and finally, prerogatives in the area of foreign affairs.
PERSONAL PREROGATIVES OF THE SOVEREIGN:
Some prerogatives remain personal to the Sovereign. For example there is the constitutional maxim that ‘the Sovereign never dies’, signifying that the succession to the Crown is automatic: the officeholder may die, but the office remains unchanged. Second, the Sovereign is inviolate: it is treason to assault or attempt to assassinate the Sovereign. This crime is punishable by death. Third, the Sovereign can do no wrong. This is based on the fact that all justice is dispensed in the name of the Crown and therefore the Sovereign cannot be tried in his or her own courts: In addition, there are certain honours which are within the Sovereign’s personal gift. Prior to 1947 and the enactment of the Crown Proceedings Act, individuals could rarely sue the Crown.
Historically, the Crown also claimed inter alia the power to:
• raise taxes
• dispense justice
• establish courts of law
• proclaim law and dispense with laws
• raise and maintain an army
• control trade and the ports
• and the right to treasure trove. Treasure trove: any valuable found hidden and of unknown ownership
Over the centuries – and most particularly through the Bill of Rights 1689 – these rights were abolished (see Barnett, pp. 160-168).
in addition to the personal prerogatives of the Sovereign, there exist a number of ‘political prerogatives’, exercisable in theory by the Sovereign but in practice (by convention) through government Ministers. As we saw in Chapter 2, two of the most important prerogatives that the Sovereign may exercise are the appointment of Ministers (including the Prime Minister) and the summoning and dissolution of Parliament. These are exercised by convention, as are prerogative powers relating to the dismissal of Ministers and the Royal Assent.
The dissolution of parliament
As we have already seen this prerogative lies with the Crown but, by convention, is exercised at the request of the Prime Minister – a practice that has been adhered to for over 100 years. If a government is defeated on a vote of confidence, and refuses to leave office, the Sovereign retains the prerogative power to dismiss that government. This has not happened since 1783 and the Queen would need first to call a meeting of the Privy Council.
The appointment of the prime minister and dismissal of ministers
By convention the leader of the majority party should be invited to form a government. However, if there is no outright victor, there may be a hung Parliament. In such circumstances the Queen could exercise her personal choice. Yet problems may arise if none of the parties has a majority and an agreement cannot be reached between them on the formation of a coalition government. For example, in 1931 Prime Minister MacDonald, following a disagreement within his own Cabinet, resigned. He was immediately invited by the King to form a national government. This action was criticised because MacDonald had lost the support of his own party and it was claimed that the King was appointing an individual who did not have the support of the Commons as Prime Minister.
The Crown may no longer use prerogative powers to establish new courts, (Re Lord Bishop of Natal (1864) 3 Moo PC), since this is now governed by statute. However, the Crown can stop a prosecution through the Attorney-General, who can enter the seldom used nolle prosequi, while some prosecutions may only be initiated by the Attorney-General (e.g. certain offences under the Official Secrets Acts 1911 and 1989). The appointment of judges by the Crown (on the advice of the Lord Chancellor) is by virtue of the Royal prerogative while the source of the Home Secretary’s power to grant pardons is the prerogative of mercy.
Pardons may be granted to convicted criminals by the Home Secretary under the prerogative of mercy. Until 19b5-this included the power to commute the death penalty to life imprisonment. Whilst Lord Roski’ll included this as one of his six exceptions in the GCHQ case, this prerogative has more recently been reviewed by the courts.
In R v Secretary of State for the Home Department, ex parte Bentley  QB 349, Iris Bentley sought judicial review of the Home Secretary’s decision not to recommend a posthumous pardon for her brother Derek Bentley. The Divisional Court held that the Royal prerogative of mercy was a flexible power capable of being exercised in many different ways. Thus the court would ‘invite’ the Home Secretary to re-examine the matter and consider whether it would be just to exercise the prerogative of mercy and give recognition to the commonly held belief that Bentley should have been reprieved. In November 1997, it was announced that the case of ex parte Bentley would be referred to the Court of Appeal following a recommendation of the Criminal Cases Review Commission which had been set up to investigate alleged miscarriages of justice, and in July 1998 Derek Bentley’s conviction for murder was finally overturned by the Court of Appeal.
However, a different approach was adopted by the Privy Council in Reckley v Minister of Public Safety and Immigration (No. 2)  AC 527. Reckley had been sentenced to death but challenged this on the ground that he had a right to make representations to a Bahamian Advisory Committee on the Prerogative of Mercy, which advised on whether the final execution warrant should be issued. He sought to rely on R v Secretary of State for the Home Department, ex parte Doody [1994} 1 AC 531, where it had been held that a Minister had a duty to provide a prisoner with reasons for the term of his life sentence, but the Privy Council distinguished Doody from Reckley’s case on the ground that only the latter concerned mercy. Thus, it was held that the prerogative of mercy was not reviewable and Reckley was subsequently executed.
DEFENCE OF THE REALM
The Sovereign is Commander-in-Chief of the armed forces. (The Navy is the only force maintained without direct statutory authority. though its recruitment and discipline are now governed by statute since it did not come within the prohibition of a standing army in peacetime as required by the Bill of Rights 1688.) Officers in the armed forces hold their commission from the Sovereign and, since the control of troops comes within the prerogative, it cannot be legally challenged (Chandler v DPP  AC 763). Whilst declarations of war and peace are at the will of the Sovereign, the disposition of troops requires the agreement of the Commons, because only Parliament can supply the necessary finance.
Obviously, in times of emergency, there is a need for decisions to be taken quickly without having to go through lengthy Parliamentary procedures. Thus, while it is impossible to define the extent of the prerogative in times of emergency, it would appear that:the Crown is responsible for the defence of the realm and is the only judge of how that defence should be effected (R v Hampden (1637) 3 St Tr 826 (the Ship Money case)).
The land of any individual may be entered to erect fortifications for the nation’s defence (Case of the King’s Prerogative in Saltpetre (1607) 12 Co Rep 12) subject to the safeguard that they must be removed when the danger is past.
-British ships in territorial waters may be requisitioned in times of national crisis (as occurred during the Falklands conflict with the Requisitioning of Ships Order 1982).
-The Crown, when necessary in time of war, may appropriate property within the realm, which belongs to a neutral person (Commercial and Estates Co. of Egypt v Board of Trade  1 KB 71).
Compensation may be payable at common law following the requisition or destruction of property through the exercise of prerogative powers. In Burmah Oil Co. Ltd v Lord Advocate  AC 75, the House of Lords considered this issue. Following the Japanese invasion of Burma in 1942, a number of oil installations in that territory were destroyed by British soldiers, in order to prevent them later being of use to the enemy. Burmah Oil claimed compensation and argued that the State was responsible for these actions, as the demolitions had been ordered under a prerogative power. The House of Lords held that a subject could receive compensation where a prerogative power has been used in order to deprive them of property in a time of war. However, following this decision of the House of Lords to award compensation, Parliament overturned it by passing the War Damage Act 1965. This legislation prevented compensation from being paid, retrospectively, for damage to, or destruction of, property by lawful acts of the Crown ‘during or in contemplation of the outbreak of a war in which the Sovereign is or was engaged’.
As in the GCHQ case, this is another area where the courts have been reluctant to assert their jurisdiction. In R v Secretary of State for the Home Department, ex parte Ruddock  1 WLR 1482, members of CND (Campaign for Nuclear Disarmament) alleged that their telephones had been tapped contrary to published guidelines. The Minister refused to comment on the grounds of national security. Taylor J held that, despite the issues relating to national security, he was prepared to exercise his jurisdiction. However, having declared himself competent to decide the issue, he found that the Home Secretary had not acted unreasonably, nor had he broken any guidelines with regard to the warrant which authorised the phone tapping.
The Ruddock decision is perhaps unusual, since the courts tend to show much greater deference where issues involve national security. Remember that in the GCHQ case, the House of Lords had, on the facts, agreed that the Order in Council, which had been issued, was justifiable on the grounds of national security. Also, in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett  QB 811, the Court of Appeal had qualified its judgment by adding that a decision to issue or withdraw a passport may be unreviewable where national security is involved. Thus, the courts are particularly loath to review decisions taken on the ground of national security, particularly in times of war or public emergency (e.g., see R v Secretary of State for the Home Department, ex parte Cheblak  1 WLR 890 discussed in Chapter 12).
THE PREROGATIVE IN FOREIGN AFFAIRS
The making of treaties is a prerogative power of the Crown. Once a treaty has been signed by the United Kingdom, international law regards the UK as being bound by that-treaty. However, the United Kingdom’s courts will not enforce a treaty unless incorporated into British law by legislation (The Parliament Belge (1879) 4 PD 129).
Although the signing of a treaty is a prerogative act, and Parliamentary approval is not always necessary, in some cases Parliamentary confirmation is required. This is necessary for:
- treaties expressly made subject to confirmation by Parliament (e.g., the European Communities Act 1972);
- treaties involving an alteration of English law on taxation; and
- treaties affecting private rights.
It would seem that this is perhaps an area that the courts would prefer to leave to the government and politicians. In Ex parte Molyneaux  1 WLR 331, the Hillsborough Agreement negotiated by the governments of the United Kingdom and the Irish Republic, relating to the future of Northern Ireland, was challenged by four Ulster Unionist MPs. It was claimed that the Agreement would fetter the statutory functions of the Secretary of State for Northern Ireland and threaten the rights of Northern Ireland’s citizens. The application was dismissed because the agreement fell within the field of international relations and was therefore ‘akin to a treaty’. Similarly, in Re International Tin Council Ch 419, the court decided that it had no jurisdiction to deal with treaty obligations arising from the creation of an international organization, the International Tin Council.
The courts have also been unwilling to consider treaties relating to the UK’s membership of the European Union. In Blackburn v Attorney General  1 WLR 1037, Lord Denning MR considered that it was not an appropriate matter for the courts. Lord Denning noted that when Ministers ‘negotiate and sign a treaty … they act on behalf of the country as a whole. They exercise the prerogative of the Crown’. Therefore, such Ministerial actions ‘cannot be challenged or questioned in these courts’. The matter was also debated more recently in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg  2 WLR 115 (see Cases and Materials (14.4.1)). Lord Rees-Mogg claimed that, by ratifying the provisions of the European Union Treaty which established a common European foreign and security policy, the government would be transferring some of its Royal prerogative powers (e.g., those relating to national security and foreign policy) to European institutions. He also protested that this had been effected without any statutory authority.
However, the Queen’s Bench Divisional Court rejected these submissions. Lloyd LJ held that the part of the European Union Treaty establishing a common foreign and security policy (Title V) was an exercise and not an abandonment or transfer of the Crown’s prerogative powers relating to foreign affairs.
Control of the Prerogative
The unique characteristic of the prerogative – a residual power which can be exercised without parliamentary authority – gives rise to questions about its control. The two institutions which can prevent the abuse of such powers are the courts and Parliament.
There are two principal means by which Parliament may control exercises of the prerogative. First Parliament may decide to abolish the prerogative and place the relevant powers under statutory authority. Second, Parliament – through its scrutiny procedures – will call the government to account for its exercise of the prerogative.
Acts of Parliament and the prerogative
Parliament may – as with the Bill of Rights 1689 – declare certain former prerogative powers to be unlawful and place them firmly within Parliament’s power. A recent example is the Treasure Act 1996 which abolished the prerogative to treasure trove. However, we shall see below that unless the prerogative is expressly abolished, it will remain as a source of power but one which cannot be exercised while a statute regulating the same subject matter is in force.
Parliamentary scrutiny of exercises of the prerogative
Theoretically Parliament has ample powers to scrutinise exercises of the prerogative through such procedures as question time, debates and Select Committee enquiries. In practice, however, the extent of scrutiny is more problematic. By convention there are a number of matters which are immune from parliamentary questions. These include: matters relating to the appointment of ministers, dissolution of Parliament, judicial appointments, government contracts, national security, diplomatic relations, or issues governed by confidentiality. In relation to defence, there are precedents for not answering questions on details of arms sales, operational matters and the giving of military assistance to other states. Advice given by the Law Officers of the Crown is also immune from questioning, as is the decision whether or not to prosecute taken by the Director of Public Prosecutions.
Prerogative and the courts
In view of the many powers exercised under the prerogative, the crucial question is to what extent those powers are controllable by the courts. It has always been the case that the existence of a prerogative power is to be decided by the courts. This has been established since early times and has been reiterated more recently.
The Case of Prohibitions (1607) 12 Co Rep 63
The King decided that he would settle a dispute over land. The Court ruled that the King had no power to act judicially, Coke LCJ stating that ‘the King in his own person cannot adjudge any case, either criminal, as treason, felony, etc., or betwixt party and party, concerning his inheritance, chattels, or goods, etc. but this ought to be determined and adjudged in some court of justice, according to the law and custom of England’.
The Case of Proclamations: (1611) 11 Co Rep 74
The question to be considered by Coke CJ was whether the King, by Proclamation, might prohibit new buildings in London and the making of starch from wheat. It was resolved that the King, by his proclamation, cannot create any offence which was not an offence before; that the law of England is divided into three parts, common law, statute and custom, but the King’s proclamation is none of them. It was also resolved that the ‘King has no prerogative but that which the law of the land allows him’. This principle was applied in BBC v Johns 1965
Diplock LJ said,
“It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative. The limits within which the executive Government may impose obligations or restraints on the citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension.”
Although the courts will determine whether a particular power exists, they were until recently reluctant to question the exercise of an admitted prerogative power and denied that they had the jurisdiction so to do.
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 air `”- base 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 1988
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
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.
(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 alias 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 Fundame