CONSTITUTIONAL LAW IN ENGLAND & WALES

(ADVANCED)

Four Lectures delivered in the

Law Faculty of the University of Trier

by Dr Augur Pearce

Cardiff University

Lecture 2

The Courts and the

Queen’s Prerogative

Definition of the Royal Prerogative

• The rights the Queen enjoys as Sovereign, which are – not shared with subjects, and– not created by the advice and consent of Parliament

(= not conferred by statute)

• Borderline issues:– rights as landowner/feudal superior – use of revenues not granted or appropriated by Parliament– ‘immunities’

The prerogative and the separation of powers

• Separation theory is much younger than the prerogative

• In principle most powers of government are united in the Sovereign, though exercised through different channels. The Queen:– legislates, in most cases with the advice and consent of

Parliament - Case of Proclamations, 1611– does justice, by judges appointed to act in her name -

Prohibitions del Roy, 1607– discharges a wide range of other (‘executive’) governmental

roles, usually through Ministers - Great Seal Act 1884

The prerogative and responsible government

• Prerogative acts are, by convention, carried out on the advice of Ministers who are held accountable to Parliament through– the need for the confidence of the Commons– questions in each House and in Committee– parliamentary control over the budget, maintenance of the

armed forces &c. - Bill of Rights 1688

• Convention regulates the appointment of the Prime Minister and requires other Ministers to be appointed or removed on his/her advice

The prerogative and an independent judiciary

• Judicial competence and independence are secured by statute regulating – advice to the Queen on appointments– judicial salaries– removal of judges from office

• Courts Act 1971 s.17• Supreme Court Act 1981 ss.11 (from Act of Settlement

1701) and 12• Constitutional Reform Act 2005 ss.25-33, 61-94, 108

Examples of the ‘executive’ prerogative

Defence of the realm; direction of the armed forces

Annexation and administration of colonies

Foreign affairs (including treaty-making and the issue of passports)

Parens patriae role (wardship of children, oversight of charitable funds)

Halting prosecutions; the power of pardon

Supreme oversight of the national religious establishment

Conferment of honours, elevation to the peerage

Appointment of advisers and officers; regulation of Crown servants

Keeping the peace (within the realm)

Control of the prerogative

• Political control of prerogative powers operates through the conventions of ministerial advice and general ministerial accountability to Parliament– Parliament’s appproval of specific prerogative acts is not

essential for their validity

• Judicial control of prerogative powers was classically confined to determining whether a specific power existed– Judges did not rule on the exercise of an acknowledged

prerogative power

‘The GCHQ case’

• Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374

Overlap of prerogative and statutory powers

• An Act of Parliament can expressly abolish a royal prerogative power, with permanent effect– example: Welsh Church Act 1914 (appointment of bishops for

Wales)

– If an Act merely makes a parallel provision, without expressly abolishing the prerogative power, this creates an ‘overlap’

• Quaere: Is the prerogative power in the area of overlap impliedly abolished? or merely ‘suspended’? or does it remain an available alternative basis for action?– see cases below

Exercise of the prerogative

• The Sovereign’s will in prerogative matters is expressed in various ways:– by formal documents (Letters Patent,

Proclamations, Royal Warrants)– informally (in instructions from Ministers

acting on Her Majesty’s behalf)– by Orders in Council (made at meetings of the

Privy Council, the Sovereign presiding)

Control over exercise of the prerogative

• There are two ways in which the exercise of the royal prerogative is controlled:– POLITICAL: The Ministers who advise the Sovereign

or exercise prerogative powers in her name are politically accountable to Parliament

– JUDICIAL: The courts can decide whether a prerogative power exists, and if it does they control its exercise in certain circumstances only. The remainder of this lecture relates to judicial control.

The ‘executive prerogative’ and the courts – (1) extent

• The courts can decide – whether a prerogative asserted by the Sovereign or by

Ministers exists (since there is no blanket power to do ‘whatever the business of government requires’)

• Entick v. Carrington (1765) 19 St Tr 1029

– whether that prerogative has been abolished, suspended or restricted by Act of Parliament

• They can declare actions taken under a falsely-claimed prerogative to be null or unlawful

The ‘executive prerogative’ and the courts – (1) extent

• Implied suspension by parallel provision in statute– A.-G. v. De Keyser’s Royal Hotel [1920] AC 508:

Prerogative power to requisition (seize) property for the defence of the realm, subject to compensation in the royal discretion. Statutory power to requisition property, subject to a set scale of compensation. Held, because the statute operated for the benefit of subjects, its more generous compensation provisions could not be avoided by relying on prerogative powers instead. The prerogative was suspended so long as the Act was in force.

The ‘executive prerogative’ and the courts – (1) extent

• Implied suspension by parallel provision in statute– Laker Airways Ltd. v. Department of Trade [1977] QB 643:

Prerogative power to make, and act under, treaties with foreign powers (here, a treaty with the USA providing for UK government designation before airlines could operate in American airspace). Statutory power for Civil Aviation Authority to license British airlines, with duty to encourage competition. Held, once a licence had been granted, the statute operated for the licensees’ benefit and its effect could not be frustrated by Ministers using prerogative power to cancel the treaty designation. In effect, the prerogative in foreign affairs was suspended so far as its use would be inconsistent with the statutory goal.

The ‘executive prerogative’ and the courts – (1) extent

• No suspension by parallel provision in statute• R. v. Home Secretary, ex parte Northumbria Police

Authority [1989] QB 26: Prerogative power to act to keep the peace and protect life and property (which might include issuing equipment for this task). Statutory power to issue equipment to police forces at the request of a regionally-elected police authority. Held, since the prerogative here existed for the benefit of subjects, it was not suspended by the parallel statute. Equipment could be issued without the police authority’s request and against its wishes.

The ‘executive prerogative’ and the courts – (1) extent

• Implied suspension by parallel provision in statute• R. v. Home Secretary, ex p. Fire Brigades Union [1995] 2

All ER 244: Prerogative power to allocate revenue in the Crown’s discretion, where not earmarked by Parliament for specific purposes. Statutory provision (in an Act already passed but not yet in force) for a generous criminal injury compensation scheme. Held, although the Act was not in force, it obliged Ministers continually to consider whether the time was right to bring it into force. It therefore suspended the prerogative power to use unallocated revenue to create a less generous criminal injury compensation scheme.

The ‘executive prerogative’ and the courts – (2) exercise

• Once it is clear that a claimed prerogative power (still) exists, the courts’ control over its exercise becomes a more complex issue

• Two principles are in tension:– The notion of some modern judges that ‘the courts

control the executive’ in all cases

– The long-standing rule that judges are not appointed to judge the Sovereign

The ‘executive prerogative’ and the courts – (2) exercise

• By the judicial review procedure, the High Court reviews, and in appropriate cases directs, halts or quashes administrative action, on the basis that a decision-maker has exceeded or abused the power entrusted to him

• This procedure has been used:– where an exercise of the royal prerogative has been delegated to

Ministers– where a Minister advised the Sovereign on an exercise of the

prerogative, but his advice was based on an error of law– where the Sovereign has exercised the prerogative on Ministerial

advice but the advice was itself open to challenge on ordinary judicial review principles

The ‘executive prerogative’ and the courts – (2) exercise

• Exercise of the prerogative is reviewable when delegated to a Minister

• Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374: Prerogative power to regulate crown servants, delegated to a Minister by Order in Council. Held, the Minister’s exercise of the prerogative was reviewable by the courts and would normally be quashed if (as here) it violated a legitimate expectation of a prior consultation process and thus the duty of fairness

The ‘executive prerogative’ and the courts – (2) exercise

• Ministerial advice to the Sovereign on exercise of the prerogative is reviewable when based on an error of law

• R. v. Home Secretary, ex p. Bentley [1994] QB 349: Prerogative power to grant a pardon remitting criminal penalties consequent on a conviction. Held, Ministerial advice to the Sovereign against exercise of the prerogative in the instant case flowed from his understanding that there was no power to grant a pardon to an offender already sentenced to death and hanged. Since this belief was legally erroneous, his advice was reviewable by the courts and he would be invited to reconsider it on a correct understanding.

The ‘executive prerogative’ and the courts – (2) exercise

• An actual exercise of the prerogative by the Sovereign in Council has been reviewed where the exercise was on Ministerial advice and that advice was open to challenge on ordinary judicial review principles

• R. (on the application of Bancoult) v. Foreign & Commonwealth Secretary (2006) Times 23 May: Prerogative power to legislate for a colony without its own representative assembly (such as the British Indian Ocean Territory, in effect the Chagos Islands). Held, an Order in Council made on Ministerial advice could be reviewed and quashed where the Minister’s advice had been irrational (given with no thought for the interests of the colony or its inhabitants).

Limits to review of prerogative exercise

• Even where the courts can review an exercise of the prerogative, or advice to exercise it, they will not do so if they feel that the issues raised are beyond their ability to adjudicate (‘non-justiciable’)

• This occurs typically when the issues are ones of– economic policy– general policy (e.g. when to bring legislation into effect, as in the

Fire Brigades Union case, above)– relations with foreign powers (see below)– military strategy– national security (see below)

Limits to review of prerogative exercise

• Relations with foreign powers:• R. (on the application of Abbasi) v. Foreign &

Commonwealth Secretary [2002] EWCA Civ 1598: Prerogative power to express views to foreign states/rulers, including diplomatic pressure in the interests of British nationals detained by such states/rulers. Held, court would not review a failure to bring diplomatic pressure where the Minister’s decision was taken on grounds of foreign relations policy – even though the decision could contribute to lengthening a foreign state’s breach of international human rights law

Limits to review of prerogative exercise

• National security:• Council of Civil Service Unions case, above (‘the GCHQ

case’): Held, even though fairness required that a legitimate expectation of consultation (before changing Civil Service rules) be honoured, national security considerations might weigh against consultation and take priority. The courts could not assess whether such considerations outweighed fairness and would therefore not intervene in a Ministerial decision.

Concluding points

• Prerogative powers have a long history and are seen by some as antiquated

• Most now follow the convention of the Sovereign acting on ministerial advice: whether this is desirable must depend on whether one trusts politicians more or less than the divine right of hereditary rulers

• The lack of direct and detailed parliamentary or judicial control is often criticised, but usually justified by the need for rapid governmental action, based on information that should not be made widely-known

• Governments have generally resisted increased scrutiny of the prerogative but the Brown government has proposed minor reforms in a 2007 ‘Green Paper’ The Governance of Britain, Cm 7170