Wednesday, 8 February 2017

Royal Prerogative Powers


The Royal Prerogative is a major source of governmental power. 

As a result of recent litigation in December 2016 concerning leaving the European Union ("Brexit") it came very much to public notice. 

The litigation was concerned with whether the Royal Prerogative power to make and unmake treaties enabled Ministers to give notice to the Council of the European Union that the United Kingdom had decided to leave the EU.  If the prerogative power did not permit the giving of notice then an Act of Parliament was required so that Ministers had the required authority.  The Supreme Court held, by 8 to 3, that an Act of Parliament was required to give the authority – R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] UKSC 5.


Royal Prerogative powers are particular powers of the Crown which have survived into modern times and which are, in practice, powers exercisable by Ministers who are, ultimately, accountable to Parliament.  Some of the powers are highly important and necessary to the efficient workings of government.

A brief note about Treaties:

The government has entered into around 14000 treaties with other nations and recognised international bodies.  Treaties bind the UK in international law and they operate on the international plane.  As a basic rule, because the UK operates a "dualist" as opposed to "monist" system, a Treaty will not affect domestic law unless Parliament has legislated for it to do so

The UK is a signatory to the European Convention on Human Rights (ECHR) which operates under the aegis of the Council of Europe.  The European Court of Human Rights (ECtHR) is a Council of Europe body.  The ECHR binds the UK internationally with regard to the protection of those rights set out in the ECHR.  Domestically, the Human Rights Act 1998 has woven into national law certain of the rights in the ECHR.


: Royal Prerogative:


1. General - The law recognises certain special powers often referred to as Royal Prerogative powers or (less pompously) prerogative powers and, where such powers apply, they can be of immense importance.  They include powers to conduct foreign affairs (including Treaty-making and, conversely, unmaking) and the power to control the Disposition of the Armed Forces of the Crown.

This section considers the general nature of the prerogative powers.

2. Some of the history and cases -

2.1  The struggles of the 17th century between the King and Parliament were notable in legal history for a number of cases of importance such as The Case of Proclamations 1610 where it was decided that the King could not create offences by proclamation but it was permissible to warn subjects that they must obey the law.  The case also made it clear that "that the King hath no prerogative, but that which the law of the land allows him."

2.2  The 17th century constitutional and political turmoil eventually culminated in the Glorious Revolution of 1688/89.    Parliament resolved that the Throne should pass from James II to William and Mary - see Parliament - The Convention and Bill of Rights - where the Declaration of Rights 1689 is  noted.  The declaration was " ..... a statement of the rights of the subject and, particularly, the liberties of Parliament (such as frequent Parliaments and freedom of speech) which it was claimed the last Stuart monarchs had infringed.  Contrary to common belief, Parliament did not present the Declaration to William and Mary as a condition which they had to accept to be made King and Queen. The rights affirmed in the Declaration did, however, take statutory effect in December 1689 when the Convention, with William and Mary's royal assent, passed the Declaration as an Act of Parliament, now known as the Bill of Rights."

2.3  The original Bill of Rights 1689 contains certain provisions relating to the prerogative.  The Bill has not been immune from some it being repealed.  The up to date version - Bill of Rights - contains articles preventing the Crown dispensing with or suspending laws, levying money without the consent of Parliament and maintaining a standing army 'in time of peace' without consent of parliament.  A further important provision is Article 9 - "That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament."

2.4  A notable study of the prerogative is that of Joseph Chitty (1775-1841) who, in 1820, wrote "A Treatise on the Law and Prerogative of the Crown"   For historical interest only, an extract from Chitty is included below.  It can be properly read today only if account is taken of numerous changes to the law since 1820.

2.5  In Attorney-General v De Keyser's Royal Hotel [1920] AC 508, Lord Parmoor said of the prerogative:


"The Royal Prerogative connotes a discretionary authority or privilege, exercisable by the Crown, or the Executive, which is not derived from Parliament, and is not subject to statutory control. This authority or privilege is in itself a part of the common law, not to be exercised arbitrarily, but “per legem” and “sub modo legis.”



and later,

"The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments. The result is that, whereas at one time the Royal Prerogative gave legal sanction to a large majority of the executive functions of the Government, it is now restricted within comparatively narrow limits. The Royal Prerogative has of necessity been gradually curtailed, as a settled rule of law has taken the place of an uncertain and arbitrary administrative discretion."

 
2.6  In the Burmah Oil case  decided by the House of Lords in 1964, Lord Reid commented that there was practically no authority on the prerogative from the Revolution Settlement of 1688-9 until In re A Petition of Right 1915 and the De Keyser's Royal Hotel case decided by the House of Lords in 1920.  He said:

"It is not easy to discover and decide the law regarding the royal prerogative and the consequences of its exercise. Apart from In re A Petition of Right and Attorney-General v. De Keyser's Royal Hotel [1920] AC 508  there have been no cases directly raising the matter for some centuries, and obiter dicta and the views of institutional writers and text-writers are not always very helpful. The definition of Dicey always quoted with approval—"the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown"—does not take us very far. It is extremely difficult to be precise, because in former times there was seldom a clear-cut view of the constitutional position. I think we should beware of looking at older authorities through modern spectacles. We ought not to ignore the many changes in constitutional law and theory which culminated in the Revolution Settlement of 1688–9 and there is practically no authority between that date and 1915."

A further case in 1964 was heard in the Court of Appeal - BBC v Johns [1964] EWCA Civ 2 - where Diplock LJ said - " ....it is 350 years and a civil war too late for the Queen's Courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints upon citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension."


2.7  In Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, the House of Lords held that, in principle, judicial review applied to prerogative powers subject to the subject matter being “justiciable.”  Lord Scarman said:

"My Lords, I would wish to add a few, very few, words on the reviewability of the exercise of the royal prerogative. Like my noble and learned friend Lord Diplock, I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power. Without usurping the role of legal historian, for which I claim no special qualification, I would observe that the royal prerogative has always been regarded as part of the common law, and that Sir Edward Coke had no doubt that it was subject to the common law: Prohibitions del Roy(1608) 12 Co. Rep. 63 and the Proclamations Case(1611) 12 Co Rep 74. In the latter case he declared, at p. 76, that “the King hath no prerogative, but that which the law of the land allows him.” It is, of course, beyond doubt that in Coke's time and thereafter judicial review of the exercise of prerogative power was limited to inquiring into whether a particular power existed and, if it did, into its extent: Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] AC 508. But this limitation has now gone, overwhelmed by the developing modern law of judicial review: Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864 (a landmark case comparable in its generation with the Proclamations Case, 12 Co Rep. 74) and Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766. Just as ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act, so also has the modern law, a vivid sketch of which my noble and learned friend Lord Diplock has included in his speech, extended the range of judicial review in respect of the exercise of prerogative power. Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter."


2.8  The law has recognised that there is sometimes scope for the courts to identify prerogative powers which had little previous recognition.  In R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26 (CA), the Court of Appeal examined the interaction between known prerogative powers and prerogative powers that might exist. The facts concerned the Home Secretary’s power to issue baton rounds to a chief constable without the consent of the police authority. The Court held that the 1964 Police Act gave the Home Secretary the power to do this but went on to hold that in any event the Crown had a prerogative power to keep the peace within the realm, which was not displaced by the 1964 Act, and the Home Secretary could therefore have acted even if the Act had not provided him with one. Nourse LJ commented that “the scarcity of references in the books to the prerogative of keeping the peace within the realm does not disprove

that it exists. Rather it may point to an unspoken assumption that it does”. 



2.9  In J.H. Rayner (Mincing Lane) Ltd v Department of Trade [1990] 2 AC 418 – sometimes referred to as the Tin Council case - Lord Oliver said:

" On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: see Blackburn v. Attorney-General [1971] 1 W.L.R. 1037. The Sovereign acts  throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts:" Rustomjee v. The Queen (1876) 2 Q.B.D. 69, 74, per Lord Coleridge C.J.


That is the first of the underlying principles. The second is that, as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."  

Hence, the general rule is that Parliament must legislate in order to alter domestic law.

2.10  It may be useful to include at this point the case of ex parte Rees-Mogg [1993] EWHC Admin 4 which concerned a challenge to the government's plans to ratify the Treaty on European Union (Maastricht 7th February 1992).  The challenge failed on all three of the arguments put forward.  The case is of interest in relation to the use of the prerogative in the European Union context.



2.11  In R v Homes Secretary ex parte Fire Brigades Union [1995] UKHL 3, Lord Browne-Wilkinson said:



"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 Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] AC 508, 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 pro tanto excluded."

2.12  An interesting issue is what happens to prerogative powers if Parliament enacts legislation covering ground previously covered by those prerogative powers.  The matter would be clear if Parliament addressed the question when enacting the legislation.  Parliament could expressly preserve the prerogative or abolish it but what if the statute is silent on the point?   In the De Keyser case (link above), Lord Atkinson referred to the prerogative being in "abeyance."  See also the Laker Airways case - judgment of Roskill LJ.

This question may yet arise in connection with the Fixed-term Parliaments Act 2011 and it is discussed further in this article by Alexander Horne and Richard Kelly - UK Constitutional Law Association - Prerogative powers and the Fixed-term Parliaments Act.

An example of Parliament preserving a prerogative power is the Immigration Act 1971 s.33(5).

"This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative."

Section 33(5) was considered by the Supreme Court in R (Munir) v Secretary of State for the Home Department  [2012] UKSC 32 paras 23-26 and also see the further discussion in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33.

Note also the Alvi case at para 28 where Lord Hope said:

"The exercise of a prerogative power may however be suspended, or abrogated, by an Act of Parliament: Attorney-General v De Keyser's Royal Hotel [1920] AC 508, per Lord Atkinson at pp 539-540. So a statute which operates in the field of prerogative may exclude the possibility of exercising prerogative powers. Where a complete and exhaustive code is to be found in the statute, any powers under the prerogative which would otherwise have applied are excluded entirely: see, eg, Re Mitchell [1954] Ch 525. Any exercise of a prerogative power in a manner, or for a purpose, which is inconsistent with the statute will be an abuse of power: R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, per Lord Nicholls of Birkenhead at p 576."

2.13  In R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, Lord Bingham observed:

It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E). As an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When the existence or effect of the royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. “If it is law, it will be found in our books. If it is not to be found there, it is not law”: Entick v Carrington (1765) 19 St Tr 1030, 1066. 



2.14  The principles established by the various cases referred to in paras. 2.1 to 2.13 remain firmly in place after the Supreme Court’s decision in Miller 2017.



3. Descriptions -

Various writers have attempted to define (or describe) the prerogative.

3.1  The definition (if that is the right word) of the prerogative by A V Dicey referred to by Lord Reid in the Burmah Oil case was that the Royal prerogative is ‘The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’ [A. V. Dicey, Introduction to the Study of the Law of the Constitution,10th edn, 1959, p424].  As Lord Reid clearly thought, this definition offers us nothing as to what the prerogative powers actually are let alone what limitations apply to the powers.

3.2  William Blackstone - Commentaries on the Laws of England first published 1765-89 - described the prerogative as those powers that 'the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’

Again, that description does not offer us any great degree of detail but does make the point that the powers are special to the Crown.   In modern times, very few powers are exercisable by the Monarch alone.  They are exercisable on the advice of Ministers.

3.3  In ex parte C (link above), Hale LJ, with the agreement of the other members of the Court of Appeal (Lord Woolf MR, and Lord Mustill), said:



"The Crown is not a creature of statute ..... The Crown has prerogative powers. But what does this mean? Professor Sir William Wade, in Wade and Forsyth Administrative Law (Clarendon Press, 7th edn, 1994), at pp 248-249, draws a clear distinction between prerogative and other powers:



"Prerogative" power is, properly speaking, legal power which appertains to the Crown but not to its subjects........… Although the courts may use the term "prerogative" in this sense, they have fallen into the habit of describing as "prerogative" every power of the Crown which is not statutory, without distinguishing between powers which are unique to the Crown, such as the power of pardon, from powers which the Crown shares equally with its subjects because of its legal personality, such as the power to make contracts, employ servants and convey land."

3.4  In R (Miller and dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin) the High Court said (from para. 24): 

The extent of the powers of the Crown under its prerogative (often called the royal prerogative) are delineated by UK constitutional law. These prerogative powers constitute the residue of legal authority left in the hands of the Crown. As Lord Reid said in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, at 101: 



"The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute."


and later ...



The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.

and paragraphs 32 and 33 are instructive:

The effect of Treaties on the domestic law of the United Kingdom

  1. The general rule that the conduct of international relations, including the making and unmaking of treaties, is a matter for the Crown in exercise of its prerogative powers arises in the context of the basic constitutional principle to which we have referred at paragraph 25 above, that the Crown cannot change domestic law by any exercise of its prerogative powers. The Crown's prerogative power to conduct international relations is regarded as wide and as being outside the purview of the courts precisely because the Crown cannot, in ordinary circumstances, alter domestic law by using such power to make or unmake a treaty. By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights. 

33.  The general position was explained by Lord Oliver of Aylmerton giving the leading speech in the Tin Council case, J.H. Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, at 499E-500D as follows: 

"It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law. That was firmly established by this House in Cook v. Sprigg [1899] AC 572, 578, and was succinctly and convincingly expressed in the opinion of the Privy Council delivered by Lord Kingsdown in Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 13 Moo. P.C.C. 22, 75:

"The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make."

On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: see Blackburn v. Attorney-General [1971] 1 WLR 1037, The Sovereign acts "throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts:" Rustomjee v. The Queen (1876) 2 Q.B.D. 69, 74, per Lord Coleridge C.J.



That is the first of the underlying principles. The second is that, as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."

We would add that treaties can have certain indirect interpretive effects in relation to domestic law, such as those discussed in R v Lyons [2002] UKHL 447; [2003] 1 AC 976 at [27]-[28]; but this does not affect the basic position that the Crown cannot through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament.”



The above extracts from the High Court’s judgment in the Miller case remain unaffected by the judgment of the Supreme Court.


4. Scope of prerogative - A Parliamentary Research Briefing - Royal Prerogative - noted that the scope of the Royal prerogative power is "notoriously difficult to determine. It is clear that the existence and extent of the power is a matter of common law, making the courts the final arbiter of whether or not a particular type of prerogative power exists.   The difficulty is that there are many prerogative powers for which there is no recent judicial authority and sometimes no judicial authority at all. In such circumstances, the Government, Parliament and the wider public are left relying on statements of previous Government practice and legal textbooks."

5. Summary -

The case law establishes: 

: Prerogative powers – basic points :

  • Powers of the Crown which are recognised by the common law

  • The full extent of the powers is not fully defined

  • The courts decide the existence in law of any claimed prerogative - it is not for the Crown to invent new prerogatives

  • The courts determine, as question of law, the boundaries of the powers

  • Where a matter is covered by statute, the prerogative gives way

  • Where the subject matter of a case is such that the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power – that is, judicial review applies if the subject matter is justiciable

  • The Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament



: Background reading:


House of Commons Public Administration Committee - 4th Report of Session 2003 - 04 Taming the Prerogative: Strengthening Ministerial Accountability to Parliament

The Governance of Britain: Review of the Executive Royal Prerogative Powers: Final Report 

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