One must note that while it is generally accepted that the revolutionary settlement of 1688 had imbued the prerogative with a residual character, the exact extent of that residue is far from clear. The courts have on occasion been called upon to decide the precise limits of prerogative powers (e.g. Burmah Oil Ltd v Lord Advocate), which, even 300 years after the revolution, remain poorly defined. Although, for the first time in history, on 20/10/03, a list of government’s prerogative powers were published in response to a demand by the House of Commons Public Administration Select Committee.
No new prerogative powers can be created either by statute, Crown or the courts. In BBC V Johns, Lord Diplock stated:
……it is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative.
The common law rule is that if a prerogative power has been replaced by statute, the courts will proceed on the basis that it is the statutory power that prevails. This point is illustrated by the House of Lords’ decision in Attorney –General v De Keyser’s Hotel, where the court was faced with the claim for compensation by the owners of the hotel, under the Defence of the Realm Act 1914, for compensation due as a result of occupation by the armed forces in wartime. The government sought to rely on the prerogative under which a lesser sum of compensation would be payable. The HL rejected the government’s right to rely on the prerogative, holding that, once a statute had been enacted, the prerogative power fell into ‘abeyance’, that is to say, it was set aside for the duration of the life of the statute. Should the statute be repealed, the prerogative would once more come into operation.
A distinction will be drawn by the courts where the prerogative power is not entirely replaced by a statute. In R v Secretary of State for the Home Department, ex parte Northumbria Police Authority, the Court of Appeal held that, despite the power granted to the Secretary of State under s41 of the Police Act 1964, s4 (4) of the Act had not replaced the prerogative power of the SoS to maintain law and order.
In some statutes, the prerogative power is expressly preserved, for example, the Immigration Act 1971, s33 (5).
The prerogative is divided into that which is exercised by ministers (in the name of the Crown), the ‘political prerogative’ and that which is personal to the monarch, ‘personal prerogative’. While regal powers are exercised in the name of the Crown by the government of the day, the Crown nevertheless retains important residual power. Of these, the dissolution of Parliament and the appointment of Prime Minister are the most significant. ‘There still remains the prerogative notion that the Crown never dies and can do no wrong’, thus placing the Queen outside the jurisdiction of the courts and guaranteeing immunity from prosecution in her own courts.
The political prerogative is usually sub-classified into Executive, Judicial and Legislative prerogatives. The Executive prerogative relates to international and national affairs, covering matters such as: disposition of the armed forces, conduct of the realm in time war and emergency, declaring war and peace, issuing passports, making treaties and the general conduct of external relations, including recognising foreign states and the consequential privileges and immunities flowing therefrom. The Judicial prerogative include that of mercy (power to issue pardon for offences) and of stopping prosecutions on indictment where the Attorney-General enters a nolle prosequi, [Latin: to be unwilling to prosecute]. Legislative prerogatives include declaring existing law by proclamations (established in The Case of Proclamations) and the principle that statute is presumed not to bind the Crown unless that is expressly stated or it is the statute’s necessary implication. This was affirmed in Bombay Province v Bombay Municipal Corporation.
These prerogative powers are significant because in time of emergency, for example, war, the Executive can use its prerogative powers to carry out rapid decisions, decisions that do not need Parliament’s approval. An example of this is the 2003 invasion of Iraq, which Tony Blair in a major break with precedent sought parliamentary approval for British participation in the war. However, Parliament’s decision was in constitutional terms, advisory, as the actual decision would be taken by the exercise of the royal prerogative.
So with this information, can we then agree with the view that the royal prerogative is immune from scrutiny by the courts?
If this question had read, ‘Is the royal prerogative immune from judicial scrutiny’, then the simple answer would be, no.
As stated above, the personal or ‘reserve’ powers of the Queen are not open to judicial review, however, the limitation here is that Parliament can enact a statute which could abolish or limit the personal powers of the Queen.
It was formerly held that while the courts could determine the existence and extent of any prerogative, and whether its use had been restricted by statute, they might not question or review the grounds on which a prerogative power had been exercised. Judges in a number of cases disclaimed competence to review prerogative acts, as when Lord Denning MR said in Blackburn v A-G that ministers in negotiating and signing treaties, exercise the prerogative of the Crown. Their action in doing so cannot be challenged by the courts.
From the late 1960’s onwards, the courts’ attachment to the orthodox proposition that prerogative powers were subjected only to limited review began to change.
The leading case on the development of judicial review of the prerogative is Council for Civil Service Unions v Minister for the Civil Service. In this case, civil servants working at GCHQ, Cheltenham, were deprived of the right to join independent trade unions. This was put into effect by a prerogative instrument made under the Civil Service Order in Council 1982. Lords Diplock, Roskill and Scarman were clear that the important factor in deciding if a court could exercise its review jurisdiction was the subject-matter of a power and not its source. Just as the exercise of statutory powers could be reviewed so could the exercise of the prerogative. The limitation is the justiciability of the subject-matter – is it open to judicial review? Lord Roskill suggested that the following prerogative powers could not be subjected to review: treaty-making, defence of the realm, prerogative of mercy, grant of honours, dissolution of Parliament and the appointment of ministers were not open to review, as the subject-matter and nature of these powers are regarded as involving matters of high policy which should be for ministers to decide, and by implication for Parliament to control.
Their Lordships agreed therefore that executive action based on common law or the use of prerogative power was not necessarily immune from review. Nevertheless, the governments plea of national security was a matter the HL thought was for the executive to weigh and decide. Their Lordships accepted that the overriding element of national security, in maintaining services at GCHQ, displaced any right the unions may have had to review of the order.
Since the GCHQ case, the courts have been willing to review the exercise of prerogative powers as regards the issuing of passports, as was the case in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett where it was held by the CA that issuing of passports was a matter affecting the rights of individuals and their freedom of travel and raised issues no less justiciable than those commonly arising in the courts in immigration cases, which means that the prerogative powers exercised by the Home Secretary in respect of immigration and deportation decisions will be subject to judicial review. In addition, the reviewability of the exercise of the prerogative of mercy was confirmed in R v Secretary of State for the Home Department, ex parte Bentley, although included in Lord Roskill’s list of non-justiciable prerogative powers.
The prerogative seems not to be subject to a satisfactory degree of accountability, either through Parliament or the courts. There have been a number of proposals for the reform of the royal prerogative by academics such as Professor Munro and Professor Brazier. Former Labour MP, Tony Benn campaigned for the abolition of the Royal Prerogative in the 1990’s, arguing that all governmental powers exercised on the advice of the Prime Minister and Cabinet should be subject to parliamentary scrutiny and require parliamentary approval.
In conclusion, it is clear the view that the royal prerogative is immune from scrutiny by the courts, as the citation of the different types of prerogative powers and the reference to decided cases illustrate, is not quite accurate. However, saying that the royal prerogative is not immune from judicial scrutiny would be inaccurate, as the personal prerogative powers of the Queen is at least one element of the royal prerogative that supports the view above. It would be more accurate to say that royal prerogative powers within the UK are immune from judicial scrutiny to a certain extent, depending upon the nature of the power, not their source.
WORD COUNT: 2,032.
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