Solicitors Qualifying Examination

The Royal Prerogative | Public Law – SQE1 & SQE2 Exam

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The Royal Prerogativ

• Prerogative powers = powers of the ‘Crown’ = common law, not statutory
power
• Constitutional convention that executive exercises prerogative powers on
behalf of monarch
o 1688 – today: monarch => executive
• ‘[T]he residue of discretionary or arbitrary authority, which at any given
time is legally left in the hands of the Crown … Every act which the
executive government can lawfully do without the authority of an
Act of Parliament is done in virtue of this prerogative.’
AV Dicey, Introduction to the Study of the Law of the Constitution (1885)
• Arguably ought to cover only powers unique to the Crown (Blackstone,
Commentaries on the Laws of England, 1765-69), e.g. not power to enter
into contracts
• Historical (17C) distinction between ‘absolute’ (akin to royal prerogative)
and ‘ordinary’ (now statutory) powers
• Even absolute powers limited: ‘the King hath no prerogative but that
which the law of the land allows him’ (Case of Proclamations Kirk CJ) –
Parliament can take away any power of the Crown
o Art 9 Bill of Rights 1689 – gives rights to Parliament
© Liam Porritt 2020 2
Prerogative Powers
Review of the Executive Royal Prerogative Powers (2009) = first attempt to chart
all prerogative powers available to the Crown
Ministerial Prerogative Powers
Justice System and Law and Order
1. Prerogative of mercy – Home Secretary may pardon offences of public
nature (Hanratty v Lord Butler – courts have no jurisdiction to enquire
whether HS negligent)
2. Power to appoint Queen’s Counsel
Foreign Affairs
3. Power to acquire and cede territories
4. Governance of British Overseas Territories
5. Making and ratifying treaties (AG for Canada v AG for Ontario)
Ø But, R (Miller) v Secretary of State for Exiting the EU – triggering
‘Article 50’ debate
6. Recognition of foreign states / governments
Ø Recognition of Mr Guaidó as interim president of Venezuela
7. Grant and revocation of passports (R v Brailsford)
Ø JR over decision to refuse to issue passport – R v Secretary of State
for Foreign and Commonwealth Affairs,ex p. Everett
Ø Ongoing questions over ability to revoke nationality of UK citizens
going to Syria / ISIS
Armed forces, war and emergency
8. Right to make war or peace
9. Measures in times of emergency/defence of the realm, inc. armed forces
(Burmah Oil v Lord Advocate – can be exercised, but not without
compensation)
Constitutional/Personal Prerogatives
Powers of the monarch, usually on ‘advice’ of ministers
1. Appointment / removal of ministers + PM
2. Royal assent to legislation
3. Creation of peers / other honours
4. Prorogue or dissolve Parliament – no longer prerogative power
(conventionally of PM), following Fixed-term Parliaments Act 2011 –
elections are called on a pre-set date every 5 years
Ø But, PM can persuade Parliament to agree to its own dissolution –
s 2(1) of PA 2011
© Liam Porritt 2020 3
Legal Prerogatives of the Crown
1. Crown not bound by statute unless express words or necessary
implication (where the purpose of the statute would be wholly frustrated
were the Crown not bound) (Province of Bombay v Municipal Corporation
of the City of Bombay)
Ø Immunity of Crown from income tax
Ø Lord Advocate v Dumbarton District Council – MOD cordoned off
road, contrary to statutory necessity to have permission of local
authority; HELD: Crown not bound, as no express words /
necessary implication.
Ø R (Black) v Secretary of State for Justice – statutory prohibition on
smoking in enclosed public spaces binds Crown (in prisons)? No –
Lady Hale stuck with Bombay test.
2. Crown immunities from litigation
Ø Crown not directly subject to contempt litigation
Ø Sovereign has personal immunity from prosecution or being sued
for a wrongful act
o M v Home Office – Home Office undertaking not to deport an
asylum seeker before his case had been heard, but deported
anyway; JR v Ministers – court could grant interim
injunctions + finding of contempt
3. Time does not run against the Crown at common law, but Crown
Proceedings Act 1947 – Crown must observe statutory time limitations
© Liam Porritt 2020 4
Control of the prerogative
Parliamentary Control of Prerogative
Review of the Executive Royal Prerogative Powers (2009)
• Parliament can legislate to modify / abolish prerogative power – Fixedterm Parliaments Act 2011
• Scrutiny of Ministers’ decisions by Select Committees
• Parliamentary approval required for expenditure
• Parliamentary scrutiny of treaties before they are entered into by
executive (Constitutional Reform and Governance Act, 2010)
• New convention of Parliamentary approval before war – Tony Blair, 2003;
David Cameron w/ Syria airstrikes in 2013; BUT Theresa May, military
action w/out approval in response to use of chemical weapons in Syria,
2018
Statute and prerogative
• AG v De Keyser’s Hotel Ltd – Army took possession of hotel during WWI
o Claimed it did this under prerogative (depriving owner of rights to
compensation), rather than via statute (Defence of the Realm
Regulations, giving right to full compensation)
o HELD: Statute renders Royal prerogative in abeyance, i.e.
statute prevails in cases of conflict
• De Keyser principle applied to R (Alvi) v Secretary of State for the Home
Department – prerogative rights to amend immigration controls in
abeyance due to Immigration Act 1971
• R v Secretary of State for the Home Department, ex p. Fire Brigades Union –
policy implemented on basis of prerogative powers, contrary to
legislation, is unlawful
o HS cannot introduce ‘tariff scheme’ for compensating victims of
crime using prerogative power contrary to incoming statutory
scheme of Criminal Justice Act 1988
• Laker Airways v Department of Trade – prerogative can be impliedly
suspended by statute
o Skytrain has licence granted under Civil Aviation Act 1971 (with
Secretary of State giving ‘guidance’ as to policy for considering
applications)
o Applied for designation as transatlantic operator (which would
have meant US had to accept this operator’s flights)
o Secretary of State changed policy: ‘guidance’ given to cancel
Skytrain’s designation + licence
o Act provided for withdrawal of designation only in interests of
national security or good international relations ~ failing this,
designation could not be changed by SoS using prerogative power
© Liam Porritt 2020 5
• R v Secretary of State for the Home Department ex p. Northumbria Police
Authority – prerogative (e.g. to keep the peace) continues for ‘public
good’ unless Statute covers identical ground
o Police Act 1964, s 4(4) – police to provide equipment to local
police forces
o HS decided to provide this equipment to local police force
o Court established there is no conflict as they can work ‘side by
side’ = if for public good, this is okay!
• R (Miller) v Secretary of State for exiting the EU
Government:
o Prerogative power to make + vary treaties = Art 50 of Lisbon
Treaty w/out Parliament
o S 2(1) ECA 1972 gave effect to EU law, but was conditional on UK’s
treaty obligations ~ thus, issuing Art 50 ≠ contradiction of
parliamentary intention in 1972 Act, with intention that EU law
only remained effective as long as UK in EU
High Court:
o Intention of 1972 Parliament ≠ bring rights into UK law by s 2(1)
ECA 1972, but allow such rights to be removed without Parliament
o As Art 50 effectively creates change to law (ECA cannot continue to
have effect following Brexit) + Crown has no power to alter the law
= Art 50 cannot be invoked without Parliament
Supreme Court:
o 1972 Act permits ‘dynamic process’ by which EU law becomes a
source of UK law, taking precedence over all domestic sources of
law – executive cannot override / remove this (supreme) form of
UK law, itself brought into existence by Parliament
o Parliamentary intention – withdrawal is different in degree and
type from the abrogation of particular rights derived from EU law
(permitted by variation of treaties) = far-reaching change to UK
constitution, both in substance (of the rights) and in procedure
(as to the mechanism for making law which is, in effect, UK law),
which would be ‘inconsistent with long-standing and fundamental
principle’ (para 81, Lord Neuberger) if brought about by
ministerial decision alone
© Liam Porritt 2020 6
Judicial Control of the prerogative
• Prerogative must originate from powers possessed by monarch in
1688 (BBC v Johns)
o Crown has monopoly on broadcasting through BBC and BBC thus
entitled to exemption from income tax – dismissed, as scope of
prerogative not to be broadened
• Existence and scope of prerogative powers subject to JR (Entick v
Carrington)
o Crown’s claimed prerogative right to issue general search
warrants denied by Court
• Manner in which prerogative powers used subject to JR (R v Criminal
Injuries Compensation Board, ex p. Lain)
o Includes ruling whether prerogative fettered by statute (Laker
Airways Ltd v Department of Trade)
o Confirmed and furthered in the GCHQ case…
Council for the Civil Service Unions v Minister for the Civil Service (GCHQ
case)
• Can GCHQ employees join trade unions because of national security?
• Acts of the executive, whether exercising statutory power or prerogative
power, should be subject to JR (Rule of Law)
o Reviewability does not depend on the source of the power (statute
or prerogative) ~ it is only that some types of power will not be
reviewable
o Lord Roskill: ‘the act in question is the act of the executive’, and
thus the source of this power is irrelevant
o Lord Diplock: ‘I see no reason why simply because a decisionmaking power is derived from a common law and not a statutory
source, it should for that reason only be immune from judicial
review’
• Except that certain prerogative powers should be exempt as the courts
are not well placed to adjudicate on them (Lord Roskill), as political and
the courts lack sufficient information:
o Making of treaties
o Defence of the realm
o Prerogative of mercy
o Grant of honours
o Dissolution of Parliament
o Appointment of ministers
o Others…
• List is deemed obiter (R v Home Secretary ex p. Bentley), so some of these
have been deemed justiciable…
© Liam Porritt 2020 7
Expanding the ambit of JR
Foreign Affairs
• Administration of a passport under JR – R v Secretary of State for
Foreign and Commonwealth Affairs, ex p. Everett
o Administration of a passport is within realm of JR, as it affects the
rights of an individual and their freedom to travel
• Signing treaties under JR – R v Secretary of State for Foreign and
Commonwealth Affairs, ex p. Rees-Mogg
o Signing of Masstricht treaty = surrender / transfer of prerogative
powers, which is unlawful without statutory enactment
o Court said signing of Masstricht Treaty was not surrender /
transfer of prerogative powers
• Refusal by Foreign and Comonwealth Office to diplomatically assist
British subject suffering violation of fundamental right as a result of
foreign State (R (Abbasi) v Secretary of State for Foreign and
Commonwealth Affairs)
o FCO decision / inaction reviewable by courts, but not into
‘forbidden areas’ of higher foreign policy!
• Detainment without trial by US of Pakistani national following capture by
UK forces in Iraq (Rahmatullah v Secretary of State for Foreign and
Commonwealth Affairs)
o Writ of habeas corpus requiring government to seek his return
Defence and mobilisation of the armed forces
• Cannot be challenged in court (Chandler v DPP)
o Confirmed to persist in obiter comments in Lord Advocate’s
Reference (No. 1 of 2000) – defence strategy not justiciable (trident
here)
• ‘Defence of the realm’ – declaring war / taking military action not
justiciable – political not legal judgment (R (Campaign for Nuclear
Disarmament) v PM of UK)
o Iraq war = lawful exercise of prerogative power (R v Jones
(Margaret) and Others)
• Distinction increasingly made between policy (excluded) and operation
of or conditions within the armed services (subject to JR)
o JR on rule prohibiting homosexuals serving in armed forces (R v
MOD, ex p. Smith) – high threshold of ‘irrationality’ for JR, so not
unlawful exercise of executive power, but at least justiciable
o Combat immunity from negligence should not apply to failing
remote from the pressures and uncertainties of battle, e.g.
provision of equipment and training (Smith, Ellis and Allbutt v
MOD)
© Liam Porritt 2020 8
Mercy
• Prerogative of mercy justiciable (R v Secretary of State for the Home
Department, ex p. Bentley) (‘Let him have it’ case because Bentley told to
shoot by another)
o Criteria for posthumous pardon (‘morally and technically
innocent’) not justiciable = policy
o Bentley could have been granted a conditional pardon – HS bound
to consider this
o Court made no order, but invited HS to consider again, giving
recognition to general acceptance that man should be reprieved
• Mercy – remission from sentence (reduced time for cooperation of
prisoner): justiciable (R (B) v Home Secretary), but here review of less
time taken off sentence for existing prisoner vs pre-sentencing defendant
= justifiable as different situations
Colonial governance
• Prerogative of colonial governance (via legislation) not justiciable
where deciding on matters with the aim of making for peace, order and
good government of a colony (R (Bancoult) v Foreign Secretary)
o However, there is no general immunity from JR for colonial
governance
o Settlers of British Indian Ocean Territory removed from islands in
1970s, allowed to return in 2000, then decision reversed in 2004
Orders in Council (legislation passed under the prerogative)
o 2004 reversal = because of cost, so not for ‘peace, order and good
governance’ of BIOT, so unlawful
o HoL overturned this (not for courts to substitute their opinion for
that of the SoS as to what was conducive to peace, order and good
government) ; but affirmed justiciability of prerogative power in
colonial governance

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