Judicial Control Of The Royal Prerogative Notes

Judicial Control of the Royal Prerogative

• Pre-Revolution Sovereignty:

  • Case of Prohibitions (1607) – James I claimed a divine right to sit as a judge. Rejected by Coke CJ. The king may not be subject to man but he is subject to law: the King hath no prerogative, but that which the law of the land allows him.

  • Bates' Case (1610) - King imposes an import duty on currants in order to regulate their trade. Only Parliament can levy tax, but King can regulate foreign trade. Held in favour of the king that this was a not a tax.

  • ShipMoney (Hampden's Case) (1637) – The King can levy shipmoney in times of military emergency. Charles I levied.

    • Hampton asserted that Shipmoney was recognised to be a contingent power, only available on the factual trigger of an ongoing military emergency. It is for the court, not the King, to decide if there is such an emergency.

    • Finch CJ: Rejected the idea that it was for the judiciary to decide a state of military emergency.

  • Godden v Hales (1686) – statute required government officials to swear protestant oath of loyalty. In appointing Sir Edward Hales (catholic) the James II claimed he could dispense with statutes where he considered it necessary.

    • Court held in King’s favour.

• The Bill of Rights (1689)

  • Early provisions are aimed squarely at Shipmoney and Godden v Hales

    • 1. suspending laws or the execution of laws by Regal Authority without consent of Parliament is illegal

    • 2. levying of money … without grant of Parliament … is illegal.

  • Post Revolution New Presumptions:

    • 1. The personal prerogative powers of the Monarch exist at common law

    • 2. And are thus

      • (a) inferior in normative terms to statute

      • (b) controlled by the courts

    • 3. And are residual (fixed) in nature. They include: declaring war, conducting foreign policy, regulation of trade, appointing ministers and bishops etc.

      • Diplock LJ observed in the 1965 case of BBC v Johns : [it was] 350 years and a civil war too late for the Queen’s courts to broaden the prerogative.

• The Scope of the Perogative:

  • Blackstone’s perspective

    • Prerogative powers are those ‘peculiar and eccentrical to the Monarch’; things which only the King could do.

    • So, for example the power to enter into contracts, to lend money, to employ people, should not be considered as part of the prerogative

  • Dicey’s perspective (accepted today)

    • Everything that government can lawfully do that does not have its roots in a statute, but which could be enforced in the courts was a prerogative power.

• The Relationship of Statute, Prerogative Power and the Rule of Law

  • A-G v DeKayser Royal Hotel (1920) – compulsory purchase of a hotel for the Royal Flying Corps using in 1916. Under 1914 Defence Act DeKayser was owed a greater level of compensation. Governement tried to argue it was using prerogative not statute.

    • HoL rejected governments argument: Statue is superior to prerogative, therefore prerogative cannot be used while statutory power exists.

    • Though parliament could expressly provide for co-existence.

  • Laker Airways v Department of Transport [1976] – Laker was granted a licence from Civil Aviation Authority for cheap transatlantic service. 1974 Labour government ordered CAA to revoke licence, and withdrew permission under Bermuda agreement that allowed Laker to land in USA.

    • Held that per the Civil Aviation Act (1970) the DoT could give ‘guidance’ (s.3(2)) to CAA, thus could not order CAA to revoke licence.

    • Lord Denning extended DeKayser: as there was a statutory means of stopping Laker (s.4 allowed him to direct CAA in interests of international relations) prerogative power could not be used to do so.

    • Protecting Parliamentary Sovereignty? Only they could appeal/amend act.

  • R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] – Criminal Injuries Compensation Board established in 1964, by prerogative. Criminal Justice Act 1988 s.171 empowered the Home Secretary to place CICB on statutory basis “on such day as he may appoint.”

    • 1993 Gov concluded scheme was too expensive. Home sec intended to use prerogative powers to amend the original scheme.

    • Ruled 3-2 actions were unlawful. progression of the acts and provisions led the general public to have legitimate expectations of the enactment of the new law. Announcing that unrepealed statutory provision would never have effect was an abuse of power.

      • Executive decisions made under prerogative powers in contradiction of legistlation are unlawful.

  • Having lost, Howard promoted a new bill which passed through both houses and successfully signed. A perfect example of Diceyan authority.

Reviewability

• The Limited Reviewability of Prerogative Powers

  • There are many reasons for using prerogative powers (e.g. setting up CICB):

    • Expediency – quick and easy to introduce

    • Flexibility – quick and easy to change

    • Limited judicial oversight without need for ouster clause – if derived from statute it would be subject to full judicial review.

      • Can review statute on illegality, irrationality and procedural impropriety.

      • Cano only review prerogative on grounds of illegality.

  • Why is JR limited on Perogative:

    • Blackstone’s Commentaries (1765): It would be disrespectful to the King to question these powers.

      • A formalist approach: they are the 'Monarch’s’ powers

    • Chitty: the King has unbounded discretion, but goes on to imply that some powers may be subject to review.

    • A functionalist approach: Because these powers are qualitatively different from statutory powers.

      • But by De Kayser, there are statutory powers and prerogative powers that cover the same fact: there is no substantive difference.

• The Nulle Prosequi Power: AG may end any ongoing criminal trial, but would generally consult prosecuting attorneys before doing so.

  • In R v Allen (1862) AG exercises the power without previously consulting prosecuting counsel. Court held there was no procedural oversight for this prerogative power.

    • Echoing Blackstone, Cockburn CJ suggested that...

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