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Judicial Control Of The Royal Prerogative Notes

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JUDICIAL CONTROL OF THE ROYAL PREROGATIVE

Pre-Revolution Sovereignty:
o 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.
o 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.
o 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.
o 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)
o 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.
o 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:
o 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 coexistence.
o 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.
o 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.

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