“In our scheme for Scotland and Wales legislative powers would be conferred on a legislature consisting of Your Majesty and the assembly. This would have the consequence that assembly Bill would need to secure the Royal Assent before being given the force of law.”
Decisions made on senior position now belong as a role to the Prime Minister or other senior Ministers. Their responsibilities include elevation to most senior positions in state and/or church and armed forces. Issues regarding that matter are usually criticised under the royal prerogative and not Act of Parliament. In the case Chandler v Director of Public Prosecutions was stated “If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty’s Ministers for the time being”.
On the other hand in Burmah Oil v Lord Advocate , Lord Reid has made a conclusion that the royal prerogative covers things which are absolutely necessary in emergency situations during the conduct of war. During the time of that limitation, the right to requisition and destroy property, the right to enter upon land and construct fortifications, the right to demand personal service within the realm and the right to intern aliens, have been raised. However the first two rights were objected to be classified as prerogatives.
In R v Secretary of State for the Home Department, ex parte Northumbria Police Authority , LJ Purchas has stated that the aim of the executive prerogative is there “to take all reasonable steps to preserve the Queen’s peace”. However this statement was breached in the case mentioned above.
Declaring war and peace, making treaties, recognition of foreign states and government, sending and receiving diplomatic representatives and annexation and cessation of territory are also covered by royal prerogative powers. An example is Salaman v Secretary State of India , where the actions for any damages empowered by the enforcement of foreign policy by the Crown or its servants. However in Buron v Denman it was regretted. The destruction of Spanish national’s slave trading station in West Coast of Africa by a British naval officer was not actionable. Reason being: it was done under governmental instructions to cover up slave trade.
Under Parliament Act 1694, the Parliament should be summoned once for every three years. The prorogation is only few days long and is exercised on the advice of the Prime Minister. Legislation does not bind the Crown, however in Dumbarton District Council v Lord Advocate was expressed that “the question of whether the Crown is bound by statutes is a matter of interpretation, but there is a presumption in favour of the prerogative of immunity”.
The prerogative of mercy is exercised by the Secretary State for the Home Department. R v Foster is an example of how the court has quashed the removals of any ‘pains, penalties, and punishments’ affected by the conviction.
Lord Roskill has had a list of unreviewable prerogatives. However, it was stated that “this should no longer be regarded as absolutely sacron sanct”.
The first and main case in this category was R v Secretary of State for the Home Department ex parte Bentley where the courts highlighted that there is not a good reason to be reviewed in terms of its susceptibility. Until 1980s it was normally assumed that the principles of judicial review applicable to the exercise of statutory discretion did not extend to the non-statutory powers of government. However the British Columbia Supreme Court in ReGulf Canada Ltd v City of Vancouver held that discrimination within a group (of service station companies) is not permitted, even if that discrimination is effected by not granting a license to one company.
On the other hand, cases which are following the GCHQ or have political or policy content effecting rights, interests and expectations are reviewable. Examples include R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett , where a passport was refused. R v Secretary of State for the Home Department ex parte Ruddock affected by the issuing of warrants to ‘tap telephones’. R v Ministry of Defence ex parte Smith , where a member of the armed forces was excluded.
Government decisions made under the royal prerogative does not require approval by the Parliament. ‘ The courts are not the proper place where in to determine whether a treaty should be concluded or the armed forces disposed in a particular matter of Parliament dissolved on one day rather than another.” This is the main reason why Lord Roskill created the list of non-reviewable prerogatives.
The Case of Proclamations 1611 has established the basic principle that the courts should determine the powers contained within the prerogative. This principles were not prepared, judicially to allow the Crown to be the final arbiter.
“ the exercise of the royal prerogative by the government to deploy armed forces overseas is outdated ‘and should not be allowed to continue as the basis for legitimate law-making”.
Back to the 18th century, the case Millar v Taylor have expressed doubts as to the continued existence of the prerogative power. However, the weight of opinion supports the view that prerogatives are not lost by disuse and must be expressly removed by statute.
On the other hand, Ricketson has argued that a prerogative made right in relation to the sole printing of judgements still exists. Toggart, however, has disagreed. He argued that cases during 17th century have upheld patents to public law reports and can be “explained by the then extant prerogative control over all printing”. His arguments are that the prerogative extends only to the duty to publish statutes, and that the historical basis for this duty ‘is entirely foreign to reasons for judgements and law reports”.
Bibliography:
- Alex Caroll, Constitutional and Administrative Law, page 247
- Royal Commission on the Constitution, 1969-1973, volume 1
- Alex Caroll, Constitutional and Administrative Law, page 262
- David J Mullan, Administrative Law: cases, text and materials, page 1031
- Alex Caroll, Constitutional and Adminitrative Law, page 264
- Attorney-General v Butterworth [1938], Skone James
- Burmah Oil v Lord Advocate [1965] AC 75
- Buron v Denman [1842]
- BBC v Johns [1965] CA
- Chandler v Director of Public Prosecutions [1964] AC 763
- Dumbarton District Council v Lord Advocate [1990] 2 AC 580
- Habeas Corpus Act 1640
- Millar v Taylor [1769] 4 burr 2303 at 2329 (willes J), 2404 (Lord Mansfield)
- Prohibitions del Roy [1607] 12 co rep 63, ch 18 c
- Regulf Canada Ltd v City of Vancouver [1981] 130 DLR
- R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] QB 811
- R v Secretary of State for the Home Department ex parte Ruddock [1987]
- R v Ministry of Defence ex parte Smith [1996] All ER 257
- R v Secretary of State for the Home Department ex parte Bentley [1993] 4 All ER 442
- R v Secretary of State for the Home Department ex parte Northumbria Police Authority [1988] 2WLR
- Salaman v Secretary State of India [1906] 1KB
Alex Caroll, Constitutional and Administrative Law, page 247
Prohibitions del Roy [1607] 12 co rep 63, ch 18 c
The Case of Proclamations [1611] 12 co rep 74, ch 4a
Dumbarton District Council v Lord Advocate [1990] 2 AC 580
Royal Commission on the Constitution, 1969-1973, volume 1
Chandler v Director of Public Prosecutions [1964] AC 763
Burmah Oil v Lord Advocate [1965] AC 75
R v Secretary of State for the Home Department ex parte Northumbria Police Authority [1988] 2WLR
Salaman v Secretary State of India [1906] 1KB
Alex Caroll, Constitutional and Administrative Law, page 262
R v Secretary of State for the Home Department ex parte Bentley [1993] 4 All ER 442
David J Mullan, Administrative Law: cases, text and materials, page 1031
Regulf Canada Ltd v City of Vancouver [1981] 130 DLR
R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] QB 811
R v Secretary of State for the Home Department ex parte Ruddock [1987]
R v Ministry of Defence ex parte Smith [1996] All ER 257
Lord Roskill, Council of Civil Service Unions v Minister for the Civil Service
Alex Caroll, Constitutional and Adminitrative Law, page 264
Millar v Taylor [1769] 4 burr 2303 at 2329 (willes J), 2404 (Lord Mansfield)
Attorney-General v Butterworth [1938], Skone James