Royal Prerogative Flashcards

Question

Implied suspension by statute

Answer 1

In the case of Laker Airways v Dept of Trade [1977] QB 643, the government sought to justify a reversal of aviation policy through use of its prerogative power to negotiate international treaties, in this case the Bermuda Agreement which regulated transatlantic flights. As part of its policy to promote B.A., (then the nationalised airline), the Department of Trade cancelled Freddie Laker's "Skytrain" approval or 'designation' under the Bermuda Agreement. This was sharply criticised by Lord Denning in the Court of Appeal, who saw the purpose of the action taken under the prerogative to be sharply at odds with the statutory requirements in the Civil Aviation Act 1971 for revoking airline designations.

Answer 2

"Seeing that these statutory means were available for stopping Skytrain if there was a proper case for it, the question is whether the Secretary of State can stop it by other means. Can he do it by withdrawing the designation? Can he do indirectly that which he cannot do directly? Can he displace the statute by invoking a prerogative? If he could do this, it would mean by a side wind, Laker Airways Ltd would be deprived of the protection that statute affords them. There would be no hearing, no safeguard against injustice … To my mind such a procedure was never contemplated by the statute."

Answer 3

This case accentuated the importance to the courts of following parliamentary intention if there are any forms of over-lapping statutory and prerogative powers in operation. The then Home Secretary, Michael Howard, decided to use prerogative powers to introduce a new 'tariff-based' criminal injuries compensation scheme. This was even though Parliament had legislated earlier for a statutory scheme in the Criminal Justice Act 1988. Howard claimed to be able to introduce his scheme, as the statutory scheme had not yet been implemented. His actions were challenged by the FBU. The law lords found against the Home Secretary on the main issue, again underlining the primacy of statutory law over other forms of common law.

Answer 4

‘My Lords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute ... The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body. The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them. But under the principle in_… De Keyser …_ if Parliament has conferred on the executive statutory powers to do a particular act, that act can only thereafter be done under the statutory powers so conferred: any pre-existing prerogative power to do the same act is [to that extent] excluded.’ R v S o S for the Home Department, ex parte Fire Brigades Union [1995] 2 All ER 244

Answer 5

Following the EU referendum in 2016, the new Prime Minister, Theresa May, sought to trigger the two-year Article 50 process of negotiation required before the UK left the EU. Her intention was to use her prerogative power in relation to treaty-making and variation to bring this about. Her power to do so was challenged in court by Gina Miller, amongst other parties, and the case, which the government lost at first instance, was accelerated for a hearing in the Supreme Court. In one of the most important constitutional cases in recent times – R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 – the UK Supreme Court ('UKSC') found against the government on an 8-3 majority basis. Miller (1) can be seen as a 'legality' case, as the challengers' argument was that the PM simply did not have the power to trigger Art 50 using the prerogative. The Admin Court and the majority in the UKSC ultimately agreed. The majority decision centered around the conviction that it was constitutionally inappropriate for the process of leaving the EU to be triggered by use of the prerogative when the effects and consequences of this process would be so significant for the UK. It was felt that a step of such magnitude, leading to a notable change in the law of the land and in individual rights, could only be sanctioned by Parliament through primary legislation. (This is what ultimately happened through the European Union (Notification of Withdrawal) Act 2017.) '… withdrawal [from the EU] is fundamentally different from variations in the content of EU law arising from further EU Treaties or legislation. A complete withdrawal represents a change which is different not just in degree but in kind from the abrogation of particular rights, duties or rules derived from EU law. … It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone'. Per Lord Neuberger (President of UKSC)

Answer 6

The trend in case law following De Keyser appears to be relatively clear-cut. However, one controversial case suggests a limit in certain situations involving over-lapping statutory and prerogative powers. In R v S o S for the Home Department ex p Northumbria Police Authority [1989] QB 26, the issue arose after the Home Secretary sought to establish a central store for providing plastic baton rounds and other riot-control equipment to the various national police forces. Northumbria P.A. argued that the Police Act 1964 gave it a monopoly over the supply of equipment to the police force in its area. The Court of Appeal held that the P.A.'s power to supply equipment under the Act did not give it a monopoly and that the Act did not override the Home Secretary’s prerogative power to keep the peace within the realm. The rationalisation behind this varied to an extent between the judges. Croom-Johnson LJ held that the Home Secretary’s use of the prerogative was not incompatible with the police authority’s powers under the Act. Purchas LJ took the view that a prerogative power may still apply if it is directed to the benefit or protection of the individual – as opposed to restricting the rights of the individual (as could be argued was the case in De Keyser or_Fire Brigades_, for instance) – and if the statute does not unequivocally deprive individuals of that benefit or protection. The issue of whether use of a prerogative power had been excluded by a statutory power was revisited by the Court of Appeal in the case of R (XH and AI) v Secretary of State for the Home Department [2017] EWCA Civ 41. Here the appellants argued that the Home Secretary’s use of the prerogative to cancel their British passports, in order to prevent them from travelling abroad because of concerns over their possible involvement in terrorism-related activities, was unlawful. Their argument that this power had been excluded or limited, because of the statutory powers given to the Home Secretary under the Terrorism Prevention and Investigation Measures (‘TPIM’) Act 2011, was unsuccessful, however. The Court of Appeal held that the prerogative power continued to exist and had not been expressly or by necessary implication put into abeyance by the statutory power in the TPIM Act. Effectively, both powers were seen to co-exist but were viewed as having different scopes, the Act having a narrower and more specific application.

Answer 7

- Tension between the Crown, and Parliament, and the courts has foundations going back to the Stuart period (1603 - 1714). The courts will only accept that a purported prerogative power exists if there is a precedent for it. There is a finite stock of prerogative power in law – new prerogative powers cannot be created. The relationship between statutory and prerogative power is governed by the De Keyser principle. Statutory duties or obligations on government cannot be indirectly or impliedly by-passed through use of prerogative power. The important recent case of Miller (1) represents a continuation of the principles in earlier 'legality' based cases.

Answer 8

Until the mid-80s the senior UK courts had not reached a point where they were prepared to review how the government used its prerogative powers. Some traces of future developments can be detected in earlier cases decided at a lower level, notably R v Criminal Injuries Compensation Board, ex parte Lain[1967] 2 QB 864, but these were not conclusive. So, until this time all the courts felt able to do was to adjudicate on whether the government had a particular prerogative power and on what the exact scope or limits of that power were. They had not reached the point where it was accepted that there could be a review or scrutiny of how these ancient powers were exercised – in other words the substance of the governmental action taken.

Answer 9

The case of Council for the Civil Service Unions v Minister for the Civil Service [1985] AC 374, known as 'GCHQ', was prompted by a decision by the then Minister (and Prime Minister), Margaret Thatcher, to ban trade union membership at the government's listening base in Cheltenham. Her authority to do this came from the PM's prerogative power to regulate the working terms and conditions of the Civil Service. The issue therefore was not whether the PM had the authority to do this – that was not disputed by the CCSU. Instead, it was the manner in which she had used her prerogative power. The allegation was that she had done so in an unfair way.

Answer 10

This basis or 'ground' for judicial review will be covered in more detail in separate materials. For now, it's important to note that this is a form of legal interest that can be protected by the courts. In short, it means that the government made a promise, or acted consistently in the past, in a way which the claimant relied on. In GCHQ the unions claimed successfully that they had a legitimate expectation of being consulted before any notable changes were made in working conditions. This was because they had consistently been consulted in such situations over the previous four decades. Therefore, they were claiming that the PM had acted unfairly by frustrating their legitimate expectation ('LE') by announcing the ban on union membership without any prior consultation.

Answer 11

The first and most fundamental line of argument in defence was that the courts were simply not permitted to review how the PM used her prerogative powers. If it was accepted (as it was) that the PM had the power in question, judicial review should go no further... This was the key issue of principle in the case and the House of Lords' ruling against the PM on this point set the tone for a notable development of the law in this area. The essence of the law lords' ruling was that it made no constitutional sense for prerogative powers to be seen as having a special status just because of their historic origins and association with the Crown. Both prerogative powers and statutory powers were forms of executive power; the latter had for many decades been reviewable. So, why the differentiation...?

Answer 12

Therefore, the traditional distinction between power given by Parliament and that bequeathed by the prerogative should no longer determine if government actions were reviewable or not. Put another way, the government could no longer shelter behind the fact that a power came from the prerogative – in principle all executive powers should be reviewable in order that the rule of law be promoted effectively. “[there is no] logical reason why the fact that the source of power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise… In either case the act in question is the act of the executive. To talk of that act as the act of the sovereign savours of the archaism of past centuries.” Per Lord Roskill

Answer 13

Though the PM lost on the key issue of principle, she did manage ultimately to defend the case. The law lords accepted that the unions had a LE of being consulted and acknowledged that this had been 'frustrated' by the PM. However, they did not find this ultimately to be unlawful as they accepted the PM's argument that there was a justifiable public interest factor in not consulting, as advance notice may have triggered strike action and that may have jeopardised the country's national security, (given the highly sensitive work carried on at GCHQ). In other words, the court had reviewed how the PM used her prerogative power, but they ultimately considered this has been done lawfully.

Answer 14

The judges' bold main line on reviewability came with a notable word of caution, however. They pointed out that, even though there should be no future differentiation between prerogative and statutory powers, a number of notable prerogative powers governed areas that broadly involved matters of high policy. These comments, expressed most clearly by Lord Roskill, have assumed considerable subsequent influence on the development of the law, though it's important to note that they were obiter rather than being part of the main ratio in GCHQ.

Answer 15

The prerogative powers that Lord Roskill listed were, in his view: "… not … susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process." They included: The making of treaties Defence of the realm Mercy Granting of honours Dissolution of Parliament Appointment of ministers ('and others..')

Answer 16

When Roskill referred to the 'amenability' of such matters to the process of JR, he demonstrated how the judiciary regulate the extent of their own involvement in the more political areas of public law. Reflecting back on the earlier part of the course, we have seen that there are no formal lines of responsibility laid out in the UK's uncodified constitution. Instead, the judiciary attempts to respect appropriate informal lines of responsibility in the UK's constitution delicate 'separation of powers' balance. It does so by assessing the differing competencies of the three bodies of state – their varied stores of experience and knowledge, and differing sources of authority. The judiciary, of course, have no electoral mandate.

Answer 17

This is an area in which the phrasing used by the judiciary is perhaps not always that precise or helpful. Some viewpoints, following on from Lord Roskill's sentiments, have used phrases such as "forbidden areas" or "excluded categories". It is debatable in the modern day whether the issue is as binary as this. Certainly, some of the powers exercised under the prerogative involve matters which are not suitable for court adjudication, as they are essentially political judgement-calls. Notable examples would be the appointment of ministers (by the PM) and the granting of honours – it is difficult to see how these assessments could be adjudicated upon in court, other than in relation to the pure legality of these powers.

Answer 18

Aside from those latter prerogative powers – which essentially govern political patronage – most of the powers listed by Lord Roskill and other similar ones contain within their remit a number of different elements. Some of these involve considerations of high policy but a number of others do not – they could be described as falling at a more administrative or operational end of the spectrum of governmental powers. In the years following GCHQ, the courts have increasingly taken an approach – and tailored the degree of their interventionism – based on the nature of the power that the government has used rather than its form.

Answer 19

- Prior to the decision of the House of Lords in GCHQ, the courts had not intervened in or reviewed the manner in which prerogative powers were exercised by the government. The Prime Minister tried to ban union membership at the British Intelligence headquarters (GCHQ), without consulting civil servants. Civil servants argued that they had always been consulted about significant changes to their working conditions, and so should be consulted on this restriction because they had a legitimate expectation based on the government's past conduct. The government argued that the court was not able to interfere in how it had used its prerogative power to regulate the working conditions and terms of the Civil Service. The House of Lords disagreed, (though the government eventually won the case on a different point). Lord Roskill's obiter statement helpfully summarises the areas of prerogative power. - The judgment shows that the courts have power to review whether the exercise of the prerogative has been carried out lawfully.

Answer 20

By the mid-1980s, following the case of GCHQ, the higher courts had confirmed that there was nothing inherently special about prerogative power. As a matter of principle, the manner of its exercise should be just as reviewable by the courts as the way in which statutory powers were exercised. However, concerns persisted over the nature of some prerogative powers which were seen to involve matters engaging issues of higher policy. The question therefore was to what extent the judiciary as an unelected body should be able to intervene in such areas.

Answer 21

In broad and not necessarily always in smoothly evolving terms, the pattern of development in judicial review over the last half century has been towards greater promotion of a substantive conception of the rule of law. One of the key elements of this has been the drive towards greater accountability in government. As we have seen, judicial review is the main mechanism whereby this vital aspect of public law protection can be achieved. However, the context in which the judges operate is also conditioned by the delicate (and at times tense) separation of powers relationship between the courts and the executive.

Answer 22

Following the concerns raised by Lord Roskill in the_GCHQ_ case, the subsequent pattern of development can be categorised as a further expansion of the remit of judicial review, though one in which the judiciary still display some caution about their constitutional role. In matters involving substantive issues - as opposed to those of pure legality – the approach applied by the judiciary is contextual. This applies equally, in principle, to situations in which they are asked to review the exercise of prerogative or statutory power. If the matter is one of higher policy, the degree or 'intensity' of review is light or 'low'; in contrast – at the other end of the spectrum of issues the intensity of review is higher.

Answer 23

The case of R v SoS for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 All ER 655 provides an early indication of the trend. The case concerned an application for a new passport from a UK national, residing in Spain, for whom an arrest warrant had been issued. Everett wished to challenge the refusal by the FCO to approve his application, based on its policy relating to those suspected of past criminal activity. The Court of Appeal ultimately found against Everett on the facts. but the important aspect of the case was the court's acknowledgement that this was a matter that was suitable for JR. The FCO failed in its attempts to argue that this was 'non-justiciable', because the power to grant passports fell under the broad umbrella of the prerogative relating to diplomatic relations. The courts again looked to the nature of the power concerned rather than where it came from.

Answer 24

The court's approach in Everett, explained by Taylor LJ below, demonstrates a willingness to consider the substance of the issue rather than being restricted by pre-conceived limitations: 'The majority of their Lordships [in GCHQ] indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament … Clearly those matters … are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom to travel.'

Answer 25

A very similar approach can be seen in another significant case involving a matter that technically fell under the auspices of the prerogative: the ancient power of the 'Crown' to bestow 'mercy' by giving pardons. R v SoS for the Home Department, ex parte Bentley [1994] QB 349 concerned a challenge to the Home Secretary's decision not to grant Derek Bentley a posthumous pardon. He had been hanged for murder in 1953 after a conviction in circumstances which several decades later were viewed as amounting to a serious miscarriage of justice. Again, the court dismissed the government's argument that the matter was entirely non-justiciable, based on Lord Roskill's concerns a decade before. His concerns were classified by the court as having been obiter and therefore non-binding.

Answer 26

The court distinguished between full pardons, which they saw to be an issue of higher policy, (only to be granted if the person concerned was now seen as 'morally and technically innocent'), and other considerations which the Home Secretary could have taken into account. These, including the availability of conditional pardons, were not seen to be beyond the courts' remit and so his failure to consider such an outcome was criticised. '[A]s the argument before us developed, it became clear that the substance of the applicant's case was that the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable.' Per Watkins LJ

Answer 27

Cases such as Everett and Bentley can be seen as examples of issues coming before the court in which the nature of the powers used by the executive were relatively low-level or administrative. Both cases involved matters of great importance to the individual, or (in the Bentley case) his surviving relatives but were essentially about how relatively routine or administrative processes or policies had been implemented. In the following cases, the courts had to respond to challenges made to how the executive had used prerogative powers partly or wholly at a higher policy level. Here the courts' approach has to be more finessed and to take into account the wider separation of powers balance previously alluded to.

Answer 28

Matters touching on the diplomatic relationships between the UK and other states are clearly matters of higher policy. A more traditional outlook – and one maintained in Roskill's obiter speech in GCHQ – would suggest that any attempt to challenge a decision taken using this part of the prerogative should be met with minimal engagement by the courts. Nevertheless, such challenges have been accepted by the Administrative courts – in the sense that the challengers have been allowed "standing" to bring the matter before the court. However, the intensity of review – or depth of scrutiny – carried out by the courts has been at the low end of the spectrum.

Answer 29

Following '9/11' the US administration took draconian action in the so-called 'War on Terror'. One of the key measures taken was the setting-up of a high security detention centre on land owned by the USA at Guantanamo Bay on the Cuban coast. One of the captives exposed to the highly controversial regime in the centre was a UK national, Feroz Abbasi. His family sought to challenge the UK Foreign Office on the basis that it had not done enough to try to extricate him from this predicament, which the US declared was not subject to international law. Lord Phillips MR put it as follows: "To what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or public international law where fundamental human rights are engaged? To what extent, if at all, is a decision of the executive in the field of foreign relations justiciable in the English court?"

Answer 30

The fact that the court accepted the challenge in this case but ultimately found for the Foreign Office demonstrates competing considerations in this area. The court clearly felt it important that the individual should have the right of challenge if there was a recognised legal interest that needed to be considered – here it was his legitimate expectation of diplomatic assistance. However, this was seen to be an area in which the courts had minimal competence and in which the executive were the primary decision-makers. As Lord Diplock had put it in GCHQ: "the kind of evidence that is admissible … and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the Executive discretion is to be wisely exercised, need to be weighed against one another — a balancing exercise which judges by their upbringing and experience are ill-qualified to perform."

Answer 31

"Whether to make any representations in a particular case, and if so in what form, is left entirely to the discretion of the Secretary of State. That gives free play to the “balance” to which Lord Diplock referred in GCHQ. The Secretary of State must be free to give full weight to foreign policy considerations, which are not justiciable. However, that does not mean the whole process is immune from judicial scrutiny. The citizen's legitimate expectation is that his request will be “considered”, and that in that consideration all relevant factors will be thrown into the balance." Per Lord Phillips MR, Abbasi The outcome, therefore, in Abbasi was that the challenge was unsuccessful. However, the court did make a significant point that, if there had been no 'consideration' of making representations, the court would have ordered the Foreign Office to make them.

Answer 32

As with diplomatic relations, this area of prerogative power encompasses a wide array of differing governmental functions. At one end there are decisions to take military action and how to conduct such operations – these are clearly matters of higher policy, in which the executive effectively have sole competence. The courts remain very likely to see these types of decisions or actions as non-justiciable. This approach can be seen in a number of cases relating to the legality of the war in Iraq. In R (Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002) EWHC 2759 QB Simon Brown LJ stated that it was: 'accept[ed] that the decision to take military action is beyond the court's purview'.

Answer 33

As a further example of the more subtle modern differentiation between the nature or character of different types of power, the courts have not been as prescriptive over operational military matters. In Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, the Supreme Court held that the doctrine of combat immunity (which excludes liability for negligence in relation to military combat) should be construed narrowly. The claimants, who represented UK soldiers killed on active service in Iraq, claimed that the Ministry of Defence had been negligent in the provision of equipment and training. The court recognised that decisions taken by military commanders in relation to military engagements should not be subject to JR, because of the danger of 'judicialising warfare'. It did not, however, accept the Ministry's arguments that immunity should apply in relation to failings that were remote from the pressures and uncertainties of the battlefield.

Answer 34

The most notable case relating to this area of the prerogative has been R v Ministry of Defence, ex parte Smith [1996] QB 517. (Note that this case was later heard in Strasbourg as Smith & Grady v UK.) This was a challenge to the MoD's policy at that time of not allowing homosexuals to be employed in the armed forces. Smith and three others had been summarily dismissed from the armed services for no other reason than their sexuality. They claimed that the decision to do so was unreasonable/ irrational, (which, as you will see in Public Law II, is a ground of JR which presents a particularly high threshold for challengers.) In the Court of Appeal, Sir Thomas Bingham MR acknowledged the well-trodden competence concerns but clearly considered that the court had a role to play in a matter that had a profound effect on the livelihood and employment rights of the four individuals who had been dismissed.

Answer 35

The presence of competing interests is clearly seen here in Bingham's speech: ‘The present cases … concern innate qualities of a very personal kind and the decisions of which the appellants complain have had a profound effect on their careers and prospects. The appellants' rights as human beings are very much in issue. It is now accepted that this issue is justiciable. This does not of course mean that the court is thrust into the position of the primary decision-maker. It is not the constitutional role of the court to regulate the conditions of service in the armed forces of the Crown, nor has it the expertise to do so. But it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power. While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to "do right to all manner of people..."’

Answer 36

One of the more esoteric areas of policy in which prerogative power is still relevant is that of the governance of the few remaining 'British Overseas Territories'. The case of_R (Bancoult) v SoS for Foreign and Commonwealth Affairs_ [2008] UKHL 61 concerned the Chagossian people, the indigenous inhabitants of the British Indian Ocean Territory ('BIOT'), who had been removed from their home islands in the 1960s and 1970s, so that the main island, Diego Garcia, could be used as a United States military base. In the Court of Appeal, which found for Bancoult, Sedley LJ stated that: 'the prerogative power of colonial governance enjoys no generic immunity from judicial review'.

Answer 37

This issue has been the subject of protracted litigation and considerable criticism academically, as well as disagreement within the judiciary – it is notable that there was only a 3-2 majority judgment in the end in favour of the Foreign Secretary in the House of Lords, with Lord Bingham finding against the government. The majority effectively deferred to the government in stressing that it was a matter of executive competence as to what was conducive to the 'peace, order, and good government of the BIOT', as required in the original Order in Council which established the Territory in 1965. Nevertheless, it was significant that this highly contentious political decision was seen as justiciable in spite of predictable government arguments to the contrary.

Answer 38

- The courts will apply varying degrees of 'intensity' of review in cases where the claimant alleges unlawful exercise of the prerogative. The higher the level of policy (e.g. in relation to defence of the realm), the lower the intensity of review. The courts may find that the exercise of a particular prerogative power is 'justiciable' i.e. open to their review, but nevertheless that the government is best placed to make policy decisions within that particular area. The judgment in Bancoult exemplifies this.

Royal Prerogative Flashcards

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