The Crown And Prerogative Notes

• - Crown: position in law.

  • UK constitutional monarchy: formal exercise of power by monarch, but power to govern exercised by Executive.

  • ‘royal prerogative’: common law powers of Executive – distinct from statute.

  - Definition of prerogative powers.

  • [Dicey]: ‘residue of discretionary/arbitrary authority, at which 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’.

    • approved in GCHQ.

    • problem: conflict with Rule of Law concept.

    • too wide?: includes powers enjoyed in common with subjects, e.g. power to enter into contracts should only cover powers unique to Crown?

  • [Blackstone]: ‘special pre-eminence’ monarch has over others – only applies to powers unique to Crown.

  - Historical background.

  • Bate’s Case [1606]: distinction between ‘absolute’ vs ‘ordinary’ powers of monarch.

    • absolute powers: almost entirely discretionary + unregulated – e.g. conduct of foreign policy, mercy.

    • ordinary powers: exercised in accordance with established principle + practice – e.g. powers concerning administration of justice.

      • not part of prerogative: lack of flexibility (+ now largely gov. by statute).

  • absolute powers inseparable from Crown: Case of King’s Prerogative in Saltpetre [1607].

    • but: Bill of Rights 1689 – no longer true: Crown’s powers can be taken away by Parliament.

  • BUT: still limited by common law – Case of Proclamations [1611]: \the King hath no prerogative but that which the law of the land allows him’.

  - Categorisation of prerogative powers: Select Committee on Public Administrations 4th Report (2004).

  • 1. Prerogative Executive powers: exercised by government.

  • 2. Legal Prerogatives: e.g. immunity from prosecution.

  • 3. Queen’s Constitutional Powers (personal prerogatives): e.g. Royal Assent, opening Parliament.

  - Executive prerogatives: most important – exercised by government since 1688.

  • appointment/dismissal of ministers etc.

  • administration of dependencies (and formally colonies).

  • treaties: approval of Parliament not generally required.

    • but: judicial review possible? (R v SoS for Foreign and Commonwealth Affairs ex p Rees-Moog [1994]).

  • recognition of foreign states: once recognised, immunities + privileges – State Immunity Act 1978, Diplomatic Privileges Act 1964 (giving effect to 1964 Vienna Convention) + Consular Relations Act 1968.

  • revenues

  • ecclesiastical prerogatives

  • peerages and honours

  • prerogative of mercy: Home Sec. may pardon offences –

    • previously non-justiciable.

      • Hanratty v Lord Butler of Saffron Walden [1971]: CoA – no jurisdiction to inquire whether Home Sec negligent in exercise of prerogative.

      • De Freitas v Benny [1976]: [Ld Diplock]: ‘Mercy is not the subject of legal rights. It begins where legal rights end.’

    • but: new trend for judicial review?

      • R v SoS for the Home Dept ex parte Bentley [1994]

  • passports issuance

    • R v Brailsford [1905]: ‘document issued in the name of the Sovereign on the responsibility of a Minister of the Crown’.

    • but judicial review: R v SoS for Foreign and Commonwealth Affairs ex p Everett [1989].

  • defence of the realm/emergency: courts generally do not interfere.

    • Case of Ship Money [1637]: Crown alone judges how DotR effected – prerogative to declare war + peace.

    • Chandler v DPP [1964]: [Ld Reid]: armed forces ‘within exclusive discretion of the Crown’.

    • Burmah Oil v Lord Advocate [1965]: [Ld Reid]: prerogative ‘covers doing all those things in an emergency which are necessary’ (but not necc. without compensation).

    • R (on app of Campaign for Nuclear Disarmament) v PM of UK [2002]: [Simon Brown LJ]: ‘DotR’ decisions within exclusive ambit of Executive political, rather than legal consequences.

    • Iraq:

      • R v Jones (Margaret) & Others [2004]: mil. intervention in Iraq lawful exercise of prerogative power.

      • R v Shayler [2001]: courts maintaining distance.

    • but: certain actions reviewable – R (on app. of Bancoult) v SoS for Foreign and Commonwealth Affairs [2008].

  - Legal prerogatives of the Crown.

  • Crown can do no wrong: but qualified.

    • Crown Proceedings Act 1947: state can be sued on contract + tort.

    • Factortame [1989]: CoA decided court cannot issue injunction to stop an Act instead [Ld Bridge]: disapplied to EU nationals; but: ECJ did review Act.

    • M v The Home Office [1993]: UK courts can grant interim injunctions vs. ministers; govt. in contempt of court.

  • Crown not bound by statute (unless explicit).

    • Province of Bombay v Municipal Corp of City of Bombay [1947]: [Ld du Parcq]: Crown only bound by explicit provision (Royal Assent: agreeing to be bound).

      • (+ inferred in statute whose beneficial interest dep. on Crown bound).

      • consequence of principle: immunity from income tax + rates.

    • Lord Advocate v Dumbarton DC [1989]: HoL: govt. does not need planning permission (but Court of Session: had held that Crown only immune where pre-existing rights + interests of Crown prejudiced by application of statute).

    • Bropho v State of W Australia: in Australia, Crown bound by statute unless explicitly excluded.

      • rationale: immunity inappropriate to modern state operations.

  • Time does not run against the Crown at common law.

    • but: must observe statutory time limitations – Crown Proceedings Act 1947.

  • Attorney General may discontinue criminal proceedings on indictment (nolle prosequi): able to grant immunity from prosecution in exchange for information.

  - Queen’s constitutional prerogatives / personal prerogatives – all conventional.

  • advise ministers

  • appoint PM + other ministers.

  • Royal Assent

  • summon + dissolve Parliament: but N.B. coalition proposals – fixed-term parliaments + MPs power to dissolve Parliament with 2/3 majority.

  - Parliamentary control of the prerogative.

  • parliamentary control: may abolish, suspend, restrict or curtain any prerogative power.

    • principle: Parliamentary Sovereignty + statute overruling common law.

    • problem: rare – in effect, dep. on govt....

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