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Workshop 8.2 - Control of the prerogative: legality - Coggle Diagram
Workshop 8.2 - Control of the prerogative: legality
Control of prerogative powers
Prerogative power is a residual form of legal authority which the executive owns but has not been legitimated through the parliamentary process.
The potential for it to be abused is therefore higher than with statutory power.
It is primarily through the courts that the use of prerogative powers has been controlled.
Degree of control
The development of the court's ability to check the executive's use of its prerogative powers has been evident since the 17th century.
Prerogative power had legal enforceability because it is recognised and accepted by the courts through common law. It is therefore the judges who should determine how and to what degree they are able to control its use.
Origins of the tension
The use of prerogative powers by the early Stuart kings was a major source of tension in the country and one of the factors leading to the Civil Wars in the 1640s.
Case of Proclamations [1611] 12 Co Rep 74
Chief Justice Coke established the view that the royal prerogative represented a finite stock of power.
Crown power was legitimated through recognition in the common law. Therefore, a power couldn't be said to exist unless the courts accepted that there was a precedent for it having been used in the past.
"The King hath no prerogative but that which the law of the land allows him"
Legality of prerogative powers
Post-1688 when it was ultimately Parliament that was supreme, the use of executive power of doubtful origin was even more open to challenege.
Entick v Carrington [1765] 19 St Tr 1029
The government claimed to have the legal authority to enter and search Entick's premises under a general warrant.
Entick challenged this as trespass.
The court consulted it's books and found no precedent for this action in common law. Put simply, the power did not exist.
BBC v Johns [1965] Ch 32
Lord Diplock made the comment that "It is 350 years and a civil war too late for the Queen's courts to broaden the prerogative".
This illustrates the point that the prerogative power comprises of a finite stock of executive power that can only be reduced in scope (through statutory incursion) and never expanded.
It also reiterates that it is the courts responsibility for identifying if a prerogative power exists or not and what its scope actually is.
The scope of prerogative powers
Courts have been historically able to adjudicate upon or review the scope of a prerogative power. In other words, what exactly the power entailed and encompassed.
Prerogative and statute
There are two forms of governmental power: the prerogative and statutory power.
What happens if a particular executive power or function is governed by prerogative and statute?
Attorney-General v De Keyser's Hotel Ltd [1920] AC 508
This concerned a dispute between the government and the hotel owners on whether compensation should be paid for the requisitioning of the hotel for use by the Army Council during WW1.
The AG argued that the government could use its prerogative power to take emergency during war for the defence of the realm, even if Parliament had legislated on the same matter.
The law lords rejected his and stated that the Crown was bound in this situation by the statutory regime applying under the Defence of the Realm Act.
This established the De Keyser principle which established that statutory power was a superior form of power than that of the prerogative and thus reflected the central importance of the sovereignty of Parliament,
Implied suspension by statute
Laker Airways v Dept of Trade [1977] QB 643
The government justified a reversal of aviation policy through the use of its prerogative power to negotiate international treaties (in this case the Bermuda Agreement which regulated transatlantic flights)
The DoT cancelled Freddie Laker's Skytrain approval under the Bermuda Agreement.
Lord Dennings criticised this in the Court of Appeal as he saw that the action was at odds with the statutory requirements of the Civil Aviation Act 1971 for fevoking airline designations.
There were statutory means available for cancelling the Skytrain, but the DoT used the prerogative instead.
This shows implied suspension by statute.
This was not allowed as it would have deprived Laker Airways of the protection the statute affords them, the DoT should have used the statutory means instead of the prerogative ones.
Primacy of statutory law
R v SoS for the Home Department, ex parte Fire Brigades Union [1995] 2 All ER 244
This case accentuate the important to the courts of following parliamentary intention if there are any forms of over-lapping statutory and prerogative power in operation.
The then Home Secretary decided to use the prerogative power to introduce a tariff based criminal injuries compensation scheme.
This was despite Parliament having legislated earlier for a statutory scheme in the Criminal Justice Act 1988.
The HS claimed to be able to introduce his scheme as the stautory scheme wasn't implemented yet.
His actions were challenged by the FBU and the law lords found against him on the main issue underlining the primacy of statutory law over other forms of common law.
It was said that the powers exercised by the HS frustrated the will of Parliament expressed in a statute.
R (Miller) v SoS for Exiting the European Union [2017] UKSC 5
Theresa May sought to trigger Article 50 by using her prerogative power in relation to treaty-making.
The UKSC found against the government.
Miller 1 can be seen as a legality case because Miller argued that the PM didn't have the power to trigger Art 50 using the prerogative.
The Admin Court and the UKSC agreed as it was a major decision and that it would be constitutionally inappropriate for the process of leaving the EU to be triggered by the use of the prerogative when the effects and consequences would be so significant for the UK.
A step of such magnitude, leading to a notable change in the law of the land and in individual right, could only be sanctioned by Parliament through primary legislation.
A limit to the De Keyser principle
R v SoS for the Home Department ex p Northumbria Police Authority [1989] QB 26
The Home Secretary sought to establish a central store for providing plastic baton rounds and other riot-control equipment to the various national police forces.
Northumbria PA argued that the Police Act 1964 gave it a monopoly over the supply of equipment to the police force in its area.
The CA held that the PA's power to supply equipment under the Act didn't give it a monopoly and the Act didn't override the Home Secretary's prerogative power to keep peace in the realm.
Purchas LJ took the view that the prerogative may still apply if it is directed to the benefit or protection of the individual as opposed to restricting the rights of the individuals.
R (XH and AI) v SoS for the Home Department [2017] EWCA Civ 41
This confronted the issue of whether use of a prerogative power was excluded by a statutory power.
The appellants argued that the Home Secretary's use of the prerogative to cancel their British passports over concerns over their involvement in terrorism-related activities was unlawful.
They argued that this power was excluded or limited because of the Terrorism Prevention and Investigation Measures Act 2011. This argument was unsuccessful.
It was held that the prerogative power continued to exist and had not been expressly or impliedly repealed by the statutory power in the Act. Effectively, both powers were seen to co-exist but were viewed as having different scopes, the Act having a narrower and more specific application.