Prerogative Powers PDF

6. Prerogative Powers Public Law: Principles to Practice (1st edn) David Yuratich p. 179 6. Prerogative Powers David Yuratich https://doi.org/10.1093/he/9780191881985.003.0006 Published in print: 18 April 2024 Published online: August 2024 Abstract This chapter discusses the important role prerogative powers play in how the UK’s constitution operates and how the government functions. The chapter defines prerogative powers and describes their origins and historical development. It goes on to describe how the prerogative operates today and how prerogative powers are controlled using both statute and judicial review. Keywords: prerogative powers, Constitution, government, monarchy, legal controls, UK, statute, judicial review 6.1 Introduction 6.2 What are prerogative powers? 6.3 Controlling prerogative powers using statute 6.4 Reviewing the exercise of prerogative powers 6.5 Conclusion 6.1 Introduction To start off your study of prerogative powers, watch Practitioner Video 6 to learn about a barrister’s work on a controversial prerogative powers case. Video playback is not supported in this format. Practitioner Video 6 Page 1 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers One of the main goals of a constitution is to set out what powers the executive (government) has. Up until now, we have focused on one source of executive power: those powers which are set out in an Act of Parliament or in secondary legislation. In this chapter, we will consider another type of legal power that the executive (and the monarch) can exercise: the ‘royal prerogative’ or, as we will also call it, ‘prerogative powers’. These powers play an extremely important role in how the Constitution operates and how government functions. As the ‘royal’ title suggests, the source of prerogative powers lies in the institution of the monarchy. Prerogative powers are not set out in primary or secondary legislation. They are essentially, as Poole puts 1 it, ‘left over from when the monarch was directly involved in government’. Historically, the monarch was very powerful and had legal powers simply as of right; these powers were their ‘prerogatives’. Over time, the number of prerogative powers has been reduced significantly by Parliament, and, at any rate, most of those which remain are used by the executive on behalf of the monarch (the ‘executive prerogative’). There are two categories of prerogative power that together form the royal prerogative. Executive prerogative powers relate generally to ‘the state’s custodial responsibility to defend the realm and protect 2 the state’s vital interests’, including some of the most important areas of government, such as the conduct of diplomacy and foreign policy. There is also a small number of important legal powers (the 3 ‘personal prerogative’ or ‘reserve powers of the Crown’), which can only be exercised by the monarch personally; this includes, for example, the ability to appoint the Prime Minister and grant Royal Assent to legislation. p. 180 ↵ You can see some illustrations of prerogative powers being used in Examples 6.1. Examples 6.1 Prerogative powers Prerogative powers are of great significance in the operation of the Constitution. Each of the following events uses, in whole or in part, a prerogative power: The government negotiates and signs an international treaty with another state. Parliament is ‘dissolved’ by the monarch so that a general election can take place. The government makes laws called ‘Orders-in-Council’, which apply in British Overseas Territories. The monarch, acting on the advice of the Home Secretary, pardons somebody who has been convicted of a crime. In this chapter, we look at three aspects of prerogative powers. First, we further define the categories of executive prerogatives and reserve powers and outline the constitutional principles which underpin their use (section 6.2). Second, we discuss the relationship between prerogative powers and Parliament, Page 2 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers considering how Acts of Parliament can be used to control the scope and use of prerogative powers (section 6.3). Third, we examine the situations in which the courts can conduct a judicial review into the exercise of prerogative powers (section 6.4). 6.2 What are prerogative powers? Learning outcomes After reading section 6.2, you will be able to: distinguish between the ‘personal’ (or ‘reserve’) and ‘executive’ prerogative powers, explain why prerogative powers remain significant today, identify the principles that underpin the use and control of prerogative powers. 6.2.1 Defining prerogative powers In section 6.1, we noted that prerogative powers originate in an era when the monarch was the most powerful legal entity. A clear explanation of this comes from Dicey, writing in the 1890s, who explained that the royal prerogative was ‘the remaining portion of the Crown’s original authority … the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in 4 fact exercised by the King himself or by his Ministers’. In other words, prerogative powers are not powers that have been explicitly granted to the executive or the monarch by Parliament. A helpful overview of this process was provided by the Supreme Court in R (Miller) 5 v Secretary of State for Exiting the European Union (‘Miller No 1’). This case was partly about the scope of the p. 181 prerogative power to conduct ↵ diplomacy: could the government use its prerogative powers to notify the European Union (EU) of the United Kingdom’s (UK’s) intention to leave the EU or did it require Parliament to authorize the notification in statute? The answer, as we discuss further in section 6.3, was that the prerogative could not be used, because doing so would undermine Parliament’s intentions about the applicability of EU law as expressed in the European Communities Act 1972. For now, we will simply discuss the Supreme Court’s explanation of the historical and legal background to prerogative powers. (Strictly speaking, the following account can only be attributed to the eight judges who authored the majority opinion, but there is nothing in the three dissenting judgments which suggests that any of those judges would disagree with these points). The judges first explained the origins of the prerogative: Page 3 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers Originally, sovereignty was concentrated in the Crown, subject to limitations which were ill- defined and which changed with practical exigencies. Accordingly, the Crown largely exercised all the powers of the state (although it appears that even in the 11th century the King rarely attended meetings of his Council, albeit that its membership was at his discretion). However, over the centuries, those prerogative powers, collectively known as the Royal prerogative, were progressively reduced as Parliamentary democracy and the rule of law developed. By the end of the 20th century, the great majority of what had previously been prerogative powers, at least in relation to domestic matters, had become vested in the three principal organs of the state, the legislature (the two Houses of Parliament), the executive (ministers and the government more 6 generally) and the judiciary (the judges). They then turned to the nature of the remaining powers, and noted that There are important areas of governmental activity which, today as in the past, are essential to the effective operation of the state and which are not covered, or at least not completely covered, by statute. Some of them, such as the conduct of diplomacy and war, are by their very nature at 7 least normally best reserved to ministers just as much in modern times as in the past. These descriptions bring together a number of things about prerogative powers: 1. They are ‘residual’ powers. A residue is a thing that is left over, so prerogative powers are left over from an earlier time; they are not powers which can be newly created today. 2. They are residual because they have, over time, been limited by Parliament or by the common law. 3. These residual powers are now exercised either by the monarch personally or by ministers on their behalf, depending on the power and the circumstance. 4. These powers are often rooted in matters of national security or foreign policy. Let’s now explore the nature of prerogative powers further. Our focus will be on specifying what prerogative powers exist today, who can use them, and in outlining the ways that their use can be controlled. p. 182 ↵ Section 6.2.2 begins by outlining the historical events which reduced prerogative powers to a residue. This is important, because it is the history behind prerogative powers that explains and illustrates the main constitutional principles which currently restrict the use of prerogative powers. In particular, the historical background demonstrates the progressive development of parliamentary supremacy over the executive and the evolution of the separation of powers between monarch, executive, Parliament, and judiciary. These historical events have very practical modern consequences. Page 4 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers 6.2.2 Historical development of the prerogative The most significant events which led to the modern status of prerogative powers occurred in the 8 seventeenth century, the so-called ‘century of revolution’. We will look at the impact of three such events: the English Civil Wars, The Case of Proclamations, and the Bill of Rights 1689. (The history of these events, and others connected to them, is contested, fascinating, and highly nuanced. This is a law textbook, not a history book, so the following account does not delve too far into the details of the events, 9 but for more information, see the footnotes and the ‘Further reading’ section). You can see these events in context in the timeline in Figure 6.1. Figure 6.1 Key events in the seventeenth century that shaped the development of prerogative powers p. 183 6.2.2.1 The English Civil Wars The three English Civil Wars took place between 1642 and 1660. They were fundamentally a dispute between Parliament and the Stuart monarchs (especially King Charles I) about the balance of powers between the monarch and Parliament. The monarch’s prerogative powers were considerably larger at this Page 5 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers time than they are today. Most of what we would today recognize as ‘governing’ was done by the monarch and their advisors, and laws were frequently made through the monarch’s personal prerogative; the 10 monarch was legally sovereign, not Parliament. This caused arguments about the relationship between Parliament and the Crown. The argument was essentially whether Parliament was just a chamber to provide the monarch with advice and permission to levy taxes or a more powerful body that set out the legislation by and through which the monarch had to govern. Tax was the crucial question here, since parliamentarians tended to be the landowners who paid tax; Parliament was not the sort of representative democratic body we see today. This dispute was 11 ultimately settled on the battlefield. Supporters of Parliament (‘Roundheads’) defeated the King and his supporters (‘Cavaliers’), and Charles I was executed in 1649. (Historians would be at pains to explain that this conflict was not purely about constitutional matters; there was, among other factors, a religious dispute that underpinned the conflict. They would also point out that the constitutional arguments described here played out across a number of years in a multitude of different ways. For our purposes, we 12 only need to note the basic conflict between Crown and Parliament). So, what does the Civil War mean for today’s Constitution and for the topic of prerogative powers? Its underlying constitutional cause—to what extent does Parliament control the legal powers of the Crown— remains important. When we looked at separation of powers in Chapter 2, we noted that the Constitution must strike a balance between the powers of executive, legislature, and judiciary. We may not have King Charles I today, but we do have a government which carries out most of the executive duties of the Crown, and this includes using a residue of prerogative powers. The Constitution needs to create a balance between letting the executive govern and controlling its powers. During the seventeenth century, two other important events (other than the Civil Wars) took place, which 13 shape the way this question is resolved today: The Case of Proclamations and the Bill of Rights 1689. The first of these relates to how the judiciary can control the executive’s powers and the second to how Parliament can do so. 6.2.2.2 The Case of Proclamations Although the Civil Wars were the most dramatic clash between Parliament and the Crown during the seventeenth century, they were not necessarily the most important legal events. The wars were foreshadowed by the Case of Proclamations. Even though this case was decided in 1610, it is still cited today as a leading authority for the principle that the prerogative only extends to areas which the statute or 14 common law allows it to cover. King James I and VI (that was one person, simultaneously reigning as King James I of England and Ireland p. 184 and King James VI of Scotland) had used his prerogative powers to ↵ proclaim (in effect, declare) a new law stating that no new buildings could be built around London and that starch could not be made from wheat. The Case of Proclamations asked whether King James could really rule by proclamation, making laws without Parliament’s approval. Coke CJ held that ‘the King hath no prerogative, but that which the law of Page 6 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers 15 the land allows him’. In other words, prerogative powers were subordinate to the law, both common law and statute. The extent of the King’s prerogative power was governed by the law, and the law did not give James the power to make these declarations. Although the Case of Proclamations set out the principle that the royal prerogative was not unlimited, its 16 immediate effect did not initially last for very long. In 1686, it was seemingly overturned by the now 17 obsolete case of Godden v Hales, which held that King James II (of England and Ireland) and VII (of Scotland—again, this was one king with two titles) had the prerogative to dispense with (remove) or suspend Acts of Parliament. Think about what Godden v Hales would mean today, if it was still good law: the government would be above the law, and it could veto legislation passed by Parliament. This would be a clear breach of the separation of powers and of the modern principles of parliamentary sovereignty and the rule of law. Today, we know that the monarch or the executive do not have powers that Godden v Hales said that they did and that the The Case of Proclamations is frequently cited as the basic authority about the relationship 18 between prerogative powers and the law. The reason mainly lies in the so-called ‘Glorious Revolution’ of 1688. 6.2.2.3 The Glorious Revolution and the Bill of Rights 1689 In the ‘Glorious Revolution’, King James II/VII’s daughter Mary and her husband William of Orange took over the English and Scottish thrones at the request of Parliament, in large part because James II/VII had used prerogative powers to suspend Acts of Parliament and because he was Catholic, whereas England was 19 considered to be a Protestant country. They ruled jointly, as William II (of Scotland) and III (of England and Ireland) and Mary II. In exchange, Parliament insisted on passing the Bill of Rights 1689. We discussed the Bill of Rights in Chapter 3 because it secured parliamentary privilege, but its broader purpose was to enshrine a constitutional settlement between the Crown and Parliament where Parliament was ultimately supreme. (Despite its name, it did not have anything to do with the much more modern concept of human rights; the ‘rights’ to which it refers are those which Parliament has over the Crown.) Indeed, the Act of Settlement 1701 went on to specify who could and could not become the monarch, the implication being that it was Parliament’s choice to have a monarchy at all. Article 1 of the Bill of Rights says (using the modern spelling): ‘the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal’. In other words, the p. 185 monarch cannot suspend or execute (use) laws unless ↵ Parliament allows them to, which must mean 20 that Parliament decides what is and is not law. In Scotland, a similar law was passed called the Claim of Rights Act 1689. Both were, at least in part, intended to overrule Godden v Hales and to re-affirm Parliament’s supremacy over the Crown. When the Act of Union 1707 joined England, Wales, and Scotland as a United Kingdom, it made clear that the Bill of Rights and the Claim of Rights both remained valid laws. Of these, the Bill of Rights 1689 is the one that relates to the rights of the modern Westminster Parliament and, hence, its powers against the modern British government. Page 7 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers 6.2.3 The prerogative today The events of the seventeenth century laid out the main principles that still govern prerogative powers. They can be summarized as follows. First, Parliament can abolish, amend, or suspend them, as it did, for example, in Article 1 of the Bill of Rights (see section 6.3, where we examine the relationship between statute and prerogative). Second, the courts will only allow prerogative powers to be used if they are recognized by the law. As 21 Diplock LJ noted in 1970, ‘it is 350 years and a Civil War too late to broaden the prerogative’. In 2004, the Public Administration Select Committee (PASC) provided a list of the main prerogative powers in use at that time. Although some have since been abolished or converted into statutory powers by Parliament, the report is still a useful guide to the remaining prerogatives and the people who can use 22 them. Indeed, it provided the basis of a later report published by the House of Commons Library in 2017. 23 PASC identified three categories of prerogative powers. Two of those categories will hopefully be familiar to you by now. The first familiar category was called by PASC the ‘Queen’s Constitutional Prerogatives’ (at the time, Queen Elizabeth II was on the throne; these powers are also held by her successors), by which it meant the monarch’s ‘personal prerogatives’ or their ‘reserve powers’: those prerogative powers, which are exercised exclusively by the monarch, usually following advice given by ministers. Some of these are of great importance, such as the appointment of the Prime Minister; others, such as the grant of honours, are less so. The second, previously discussed, category was the ‘executive prerogative powers’, used on a day- to-day basis by the government on behalf of the monarch. PASC also outlined a third category, which we have not yet discussed. This is the ‘legal prerogatives of the Crown’, which are certain legal rights still enjoyed by the Crown. These are, generally, rather specific, such as their rights to ownership of swans and whales (apparently, in the past, the head of a whale belonged to the King, whereas the tail belonged to the 24 Queen!). Let’s take a closer look at the first and second categories: reserve powers and executive prerogative powers. We will not be looking at the third category, but note that the controversial doctrine of Crown 25 immunity, which we discussed in section 5.3.3, is a legal prerogative of the Crown. p. 186 6.2.3.1 Reserve powers of the Crown The most important reserve powers are the appointment of the Prime Minister and other ministers, the prorogation (suspension) of Parliament, granting Royal Assent to legislation, dissolving Parliament (calling a general election), and calling Parliament (reconvening Parliament after a general election). On the face of it, the monarch alone can choose who heads the government, when Parliament sits, and whether a Bill that has been approved by both Houses of Parliament (or by the House of Commons under the procedure set by the Parliament Acts 1911 and 1949) becomes a law. These powers are a strong reminder that prerogatives are the ‘residue’ of the Crown’s original, absolute, sovereignty. They do not have any direct basis in legislation. Page 8 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers It would be strange if, today, the unelected monarch had free rein (or ‘reign’, in this case) to use these powers as they saw fit. Reserve powers are regulated by what we call constitutional conventions, which are non-legally binding rules of constitutional conduct (discussed further in Chapter 7). The relevant conventions include that the monarch only appoints as Prime Minister the person who is capable of commanding the confidence of the House of Commons; that Royal Assent is never refused—or at least, would only be refused on the advice of ministers in exceptional circumstances (it has not been refused since 1708); and that Parliament is prorogued only on ministerial advice. These conventions are so strict 26 that the monarch is usually said to have no real choice about how or when to use their reserve powers. Although, in general, it is conventions that regulate the use of reserve powers, there is occasionally litigation about whether they have been exercised lawfully. This is not aimed at the monarch personally but at the ministerial advice on which they have acted. That is what happened in R (Miller and Cherry) v 27 Prime Minister, discussed in Precedents 6.1. Precedents 6.1 R (Miller and Cherry) v Prime Minister (2019) Court: UK Supreme Court. Facts: The Prime Minister, Boris Johnson, had asked Queen Elizabeth II to prorogue Parliament for the unusually long period of up to 34 days; prorogation usually lasts no longer than a week, so this request was unusual and very controversial. Miller and Cherry both argued that the advice was unlawful because the Prime Minister did not have the power to request such a long prorogation and therefore that the prorogation should be ended. Held: The Prime Minister’s advice was unlawful because the time period, without any further justification from the Prime Minister, fell outside the scope of the prerogative power to prorogue. The prorogation was therefore void and Parliament, as a matter of law, had never been suspended at all. This decision was not that the Queen had acted unlawfully; it was that the advice she was given was unlawful, meaning that the Queen did not ever have the power to prorogue for 34 days, at least on the facts of this case. Miller and Cherry was controversial for many reasons, not least because a lot of people felt that the Prime Minister’s decision to prorogue Parliament was an inherently political (not legal) matter, which was part of his strategy towards the Brexit negotiations, and that it should not have been considered by the courts p. 187 for that reason. We return to the case in that ↵ context in section 6.4.3. For the time being, the lesson from Miller and Cherry that we can apply to the monarch’s personal prerogatives is that the courts can only pass judgment on their usage in very rare circumstances. Indeed, the Supreme Court speculated that these 28 circumstances ‘have never arisen before and are unlikely ever to arise again’. The monarch has other, less dramatic, reserve powers. One of the more interesting is that they meet with 29 the Prime Minister weekly and have the right to ‘be consulted, to encourage, and to warn’ during these meetings. This seems to have led to some interesting situations in the past. Brazier recounts that George Page 9 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers VI, who had a good relationship with the then Prime Minister Winston Churchill, had to rely on his right to warn in order to convince Churchill not to sail with the invasion fleet on D-Day (the Allied invasion of 30 occupied France on 6 June 1944, during the Second World War). Recently, fictionalized accounts of the meetings between Prime Ministers and the monarch have been dramatized in films such as The Queen (2006) and Darkest Hour (2017), and television series such as The Crown (2016–24). 6.2.3.2 Executive prerogative powers On a day-to-day basis, the executive’s prerogative powers are probably more important than the monarch’s reserve powers, and they are certainly more frequently used. PASC listed several examples in 2004: making and ratifying international treaties; conducting diplomacy; governing British overseas territories; deploying and using the armed forces overseas, including involvement in armed conflict; using the armed forces within the UK to maintain the peace in support of the police; appointing and removing ministers; the Prime Minister’s ability to recommend peerages (i.e. to appoint someone to the House of Lords) and honours (e.g. knighthoods); granting or revoking passports; granting pardons. Lists like these are helpful, but they are not exhaustive. Sometimes, the executive will argue that a prerogative exists, but it will be unclear whether they are correct; in that case, the courts need to determine whether that power exists by assessing the relevant legal authorities and historical practices. A relatively 31 straightforward example is Burmah Oil v Lord Advocate. This case related to an incident in 1942, during the Second World War, when the British army destroyed an oil refinery as they retreated from Burma (today known as Myanmar) to prevent the advancing (enemy) Japanese army from capturing the facility. Burmah Oil, the owner of the refinery, later sought compensation from the British government. It was accepted by p. 188 both parties that the destruction of the refinery had been done under ↵ the sole authority of a prerogative power to take or destroy property during wartime. The House of Lords had to decide whether the prerogative required compensation to be paid. Following a comprehensive cataloguing of the precedents that related to the seizure of property during wartime, including some which dated back to 1606, the Lords held that the prerogative had been reduced in this area, and compensation was, indeed, due. In Burmah Oil, the parties had agreed, at least by the time the case reached the House of Lords, that the executive did have a prerogative power to take or destroy property during wartime; the disagreement was about whether that power could be used to demolish property without providing compensation. That was a Page 10 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers difficult legal question, and things can be even more unclear when there is a dispute about the existence of a prerogative power in the first place. We can see this in R v Secretary of State for the Home Department, ex 32 parte Northumbria Police Authority. The prerogative power issue in this case was whether there was a power to ‘keep the Queen’s peace’. If so, could the Home Secretary use that power to keep a supply of police equipment, such as tear gas, for the Chief Constables in charge of regional police forces to access and use as they considered appropriate? As it happened, the Court of Appeal found that there was a statutory authority—the Police Act 1964—which allowed the Home Secretary to keep this cache, but the Court still went on to examine whether the prerogative power to keep the peace existed, given that there was no clear answer. The Court found that this power did exist, for two main reasons. First, old books of authority, particularly Chitty’s Prerogatives of the Crown from 1820, made clear that the king had a power to administer justice and maintain law and order, for example by establishing courts and jails. It was felt that this must have necessitated a general power to keep the peace, even if, in general, this power was now 33 administered through statute law, and several cases had made a similar observation. Second, the Court considered what prerogative powers were typically used for. It concluded that the existence of prerogative powers, even those which are now exercised by the executive, is based on the historical duty and the right of the monarch to protect those who reside within their realm, and it would be very unusual if that did not 34 include a general power to take steps that would help to keep the peace. Burmah Oil and Northumbria Police Authority show that identifying existence of prerogative powers can be a historical as much as a legal exercise. There might not be case law that explicitly identifies the power, and there is no guarantee that every power is identified on a list. This has raised several questions about the appropriateness of ill-defined executive prerogative powers, as discussed in Controversy 6.1. Controversy 6.1 The vague nature of executive prerogatives Bradley, commenting on the Northumbria Police Authority case, argued that it is undesirable that the extent of the royal prerogative is often so uncertain and difficult to pin down. He suggested that it undermines the rule of law and could enable power grabs by the executive, which could be tempted to rely on poorly defined historical powers to justify actions which it lacks the legislative authority 35 to carry out. He is far from the only person to raise this concern. In 2004, PASC concluded that ‘the prerogative has allowed powers to move from Monarch to Ministers without Parliament having a say in how they are exercised. This should no longer be acceptable to Parliament or the 36 people’, going on to suggest that a law should be passed that would ultimately list all prerogative 37 powers and require procedural safeguards for their use. Even the government has raised concerns; in 2009, the Labour government concluded that prerogative powers are ‘notoriously 38 difficult to determine’. However, there is something to be said for the open-ended nature of prerogatives: their flexibility. If prerogative powers were transferred into statutory powers, there is a risk that the new statutory powers would be phrased in a way that is either too inflexible or too broad. Commenting on prerogative powers relating to foreign affairs, for example, Lord Reed noted that they were rooted Page 11 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers 39 in ‘the value of unanimity, strength, and dispatch’: in other words, that the prerogative allowed the government to respond quickly and with one voice to international events. Statutory powers are often less flexible and may involve procedural requirements that, at least from the government’s perspective, make it more difficult to effectively respond to crises. The Civil Contingencies Act 2004 demonstrates this way of thinking. This Act provides powers to respond to national emergencies such as invasion or an outbreak of disease, for example allowing the army to use private property for tactical purposes and allowing the government to create secondary legislation in a range of areas. It explicitly preserves similar prerogative powers because, in an emergency, decisions may need to be taken very rapidly, and there may not be time to follow the procedural requirements, or it might become impossible to create secondary legislation 40 through Parliament. Interestingly, the Civil Contingencies Act was not used during the COVID-19 pandemic, at least in part because it was considered easier to establish ‘lockdown’ using the Public Health (Control of Disease) Act 1984 critics pointed out that this act also meant that the 41 government’s proposals were subjected to less parliamentary scrutiny. p. 189 6.2.4 Controlling prerogative powers Controversy 6.1 brings us back to a wider point. Where, and how, should we control the use of any executive power and, in particular, the use of prerogative powers? We will concentrate, in this chapter, on the legal restrictions on the executive prerogative, but note that, as with reserve powers, their use is (at least in part) regulated by conventions, which we pick up on in Chapter 7, and more generally by the political constitution and the methods of executive accountability to Parliament that we discussed in Chapter 3. We have already discussed some examples in relation to reserve powers (for instance, the conventions about when to grant Royal Assent); for executive prerogative powers, a good example is the convention which seems to have developed since 2003 that if the 42 p. 190 ↵ government wishes to begin military action, then it should usually seek Parliament’s approval. The use of executive powers, in contrast to reserve powers, is often subjected to judicial review. In general, the courts will approach the judicial review of these powers in a three-step process, which can be described 43 as the ‘existence, extent, and exercise’ test. It is helpful to outline it here because we will be referring to it across sections 6.3 and 6.4. 1. Existence: as we have seen already, the courts will determine whether a prerogative power exists, as in Northumbria Police Authority. If the power does not exist, the executive is likely to have acted illegally unless they can show another legal basis. 2. Extent: if the prerogative power does exist, they will decide on its extent. If, as we saw in Miller and Cherry, the power does not extend to the decision made, then it is likely to be illegal unless another legal basis for that decision can be shown. It is often important, in an ‘extent’ analysis, to know whether Parliament has passed any legislation that overrides the prerogative power; we discuss this aspect of judicial review in section 6.3. Page 12 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers 3. Exercise: if the power exists, and its scope extends to the action taken, then the courts might review whether its exercise was lawful or not on the grounds of illegality, irrationality, procedural impropriety or, if there is a human rights issue, disproportionality. They will only do so if the decision is ‘justiciable’, which means it is something that courts are equipped, in terms of their expertise and constitutional position, to make a decision about. We discuss ‘justiciability’ in section 6.4. The judicial controls on the use of prerogative powers are a useful note on which to end this section. As we have seen, prerogative powers, whether they are ‘reserve’ or ‘executive’, are a highly important source of authority within the UK’s Constitution. But their unique nature as non-statutory, largely historically derived powers, raises a number of challenges for the Constitution, which has responded by developing a mixture of legal and political principles that are based on Parliament’s supremacy over the executive and over the monarch. We look further at how the courts approach the extent analysis in section 6.3.2 and how they approach the exercise and justiciability questions in section 6.4. Now test your knowledge using this section’s self-test questions and then apply what you have learned to Practical scenario 6a. Level 1 Practical scenario 6a: What prerogative powers does the minister have? Bearing in mind the issues we have discussed so far, read the following scenario and consider how the law would work in practice. The events and people in the scenario are fictional. Scenario You work for the government legal services. The new Secretary of State for International Development has asked you to provide advice on what they can and cannot do at a forthcoming summit in Southampton. The summit will discuss the amount of aid that G7 countries (a group that includes the UK) will provide to less developed countries to help them combat climate change. She wants to meet with her counterparts from other G7 governments and find out what aid they are willing to provide in an attempt to identify common principles that could lead to an international treaty. She explains that her briefing papers say that, for centuries, there has been a prerogative power to ‘maintain the nation’s reputation’. She thinks that this power could allow her to commit to high levels of aid in order to promote the UK’s reputation. Knowing this might be a politically unpopular move, she wants to know whether this power actually exists. Advise the Secretary of State. Page 13 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers In order to advise the Secretary of State, you can use the ‘IRAC’ method: Issues, Rules, Application, Conclusion. Remember to cite relevant cases or statutes as evidence when setting out the rules. You will find a full sample answer provided below, but first, let’s walk through how you can use this framework to approach this scenario. Guidance (a) What are the issues? In this scenario, the Secretary of State needs to know what prerogative powers she has. She is a member of the executive, which means we need to look at the following points: What are prerogative powers? How do we identify prerogative powers? How can prerogative powers be controlled? (b) What are the legal principles? The following legal principles, which we discussed in section 6.2, are relevant to this scenario. Executive prerogative powers are residual powers that are exercised by the executive on behalf of the monarch. They include areas such as international diplomacy and the making and ratification of treaties (Miller No 1). No new powers can be created, but we do not have a definitive list of prerogatives, and some old powers may be identified by looking at precedents and implied powers (ex parte Northumbria Police Authority). (c) How do the principles apply? We can apply the principles to this scenario in the following ways: The Secretary of State’s plans to engage in diplomacy, by talking to other leaders, at the Summit fall within her prerogative powers. It is unclear whether the Secretary of State has a prerogative power to ‘maintain the nation’s reputation’. It was not listed by the PASC and cannot be created as a new prerogative, but that does not mean it did not already exist. In Northumbria Police Authority, the power to keep the King’s peace was found in works of authority and implied by the existence of a general power to maintain law and order. ‘Maintaining the international interest’ sounds like it might be implied by the existence of the power to conduct diplomacy. Page 14 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers (d) What do you conclude? Applying the legal principles to the facts leads us to advise that the Secretary of State negotiate with her counterparts at the Summit and that she may well have a power to ‘maintain the nation’s reputation’. Sample answer The Secretary of State for International Development needs to be advised on the scope of her executive prerogative powers. Prerogative powers are, as observed in Miller No 1, the ‘residue’ of the Crown’s original authority. Some prerogative powers, known as reserve powers, are only exercisable by the monarch personally, but most prerogatives now fall into the category of ‘executive prerogative powers’, which are powers used by the government on the executive’s behalf. These often cover areas such as diplomacy and the conduct of international relations. The first issue is whether the Secretary of State can hold talks with representatives of other national governments. This is an act of diplomacy. There is no doubt that diplomacy is a prerogative power, as confirmed (not that it was ever doubted) by the PASC and by the Supreme Court in Miller No 1. Therefore, the minister is free to engage in negotiations. The second issue is whether a power to ‘maintain the nation’s reputation’ exists. This was not listed by an influential report by PASC into executive prerogative powers, but that does not mean the power does not exist. Northumbria Police Authority shows that a prerogative power can be identified from past practices and works of authority, although no new powers can be created. In this scenario, the minister has been briefed that the power has been used for centuries, suggesting that there may be sufficient evidence for the courts to confirm its existence. Another way of assessing this issue is to consider whether the accepted power to conduct diplomacy and international relations implies the existence of any other powers. In Northumbria, the general power to maintain order was said to imply the existence of a power to keep the King’s peace. Similar reasoning applies here: diplomacy is, in part, about protecting the nation’s reputation. It is plausible that this power exists. References 1: UKSC 5. 2: 1 QB 26. Page 15 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers p. 192 6.3 Controlling prerogative powers using statute Learning outcomes After reading section 6.3, you will be able to: discuss whether a prerogative power can be ‘abolished’ by Parliament, demonstrate how Parliament can place a power into ‘abeyance’, apply the ‘non-frustration’ principle. In section 6.2, we saw that the reserve powers of the Crown and executive prerogative powers remain central to the government of the UK, and we identified several ways that their use is controlled. One such method was through political controls, such as conventions and the political constitution. Leave this aside p. 193 for now. Instead, the rest of this ↵ chapter focuses on legal methods of controlling the use of the prerogative. You can see a summary of the ‘existence, extent and exercise’ approach used by the courts (which we outlined in section 6.2.3) in Figure 6.2. This chapter mainly considers the ‘extent’ analysis, focusing on when Parliament can abolish or limit the use of prerogative powers, although, as part of this task, many of the cases we discuss also identify the ‘existence’ of a power. Page 16 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers Figure 6.2 The three-step process through which courts conduct the judicial review of prerogative powers 6.3.1 Parliament and the prerogative As we saw in Controversy 6.1, there is no exhaustive list of prerogative powers, and their limits are sometimes unclear, which could allow the executive, in particular, to claim that many of acts are justified by the prerogative. These issues can be avoided if the power is contained in an Act of Parliament, because legislation can provide a clear, or at least clearer, sense of how the executive should use its statutory power. It can include any procedural requirements which are felt necessary to control the use of the power. Powers exercised under an Act of Parliament are also inherently susceptible to judicial review, avoiding any problems of justiciability, although the courts are still deferential to the judgement of elected politicians in sensitive areas of policy such as national security and foreign policy (as we will discuss in section 6.4). Page 17 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers p. 194 ↵ When Parliament passes legislation in conflict with a prerogative power, an important constitutional and legal issue arises. To what extent does the prerogative power remain in existence? The basic answer to this comes from The Case of Proclamations: the ‘King hath no prerogative except for that which the law of 44 the land allows him’. If an Act of Parliament or the common law overlaps, to any extent, with a prerogative power, that law is considered to have intended to remove, limit, or qualify the prerogative. This reflects the constitutional settlement that was reached by the Bill of Rights 1689, which saw Parliament established as sovereign over the executive. It not only reflects Parliament’s sovereignty but also the rule of law: the government must use its powers lawfully. There are three ways through which a statute might regulate a prerogative power: 1. The statute can expressly, or by implication, abolish it. 2. The statute can expressly, or by implication, suspend or limit aspects of the prerogative power. The 45 classic example is Attorney General v De Keyser’s Royal Hotel. In that case, the Defence Act 1842 was held to entirely overlap with prerogative powers, so the government had to follow the procedures and requirements contained within that Act instead of using its prerogative powers. 3. A statute will always have a purpose. It will reflect Parliament’s intention that a legal power should exist and that it exists for a particular reason. So, prerogatives cannot be used if they will frustrate (undermine or prevent the effective functioning of) an Act of Parliament, even if there is no direct overlap between the statute and the prerogative power. We will discuss each of these in turn. 6.3.2 Abolishing a prerogative power An Act of Parliament might intend to abolish a prerogative power so that it cannot be used again. This can happen in one of two ways. First, Parliament might entirely get rid of the power and not provide any statutory equivalent at all, which was the effect of Article I of the Bill of Rights: Parliament simply did not want the power to suspend or execute laws to be used ever again. Second, Parliament might replace the prerogative power with statutory powers so that the government can still take actions related to the now- abolished prerogative, but its powers are now on a statutory footing. That is what the Constitutional Reform and Governance Act 2010 did: it intended to more clearly define and control how the civil service is regulated and, as part of this, converted the relevant prerogative powers into statutory ones. 6.3.3 Limiting a prerogative power The second way that Parliament might interfere with a prerogative power is by passing legislation which overlaps with that power, either in whole or in part. The leading case on this point is Attorney General v De p. 195 Keyser’s Royal Hotel, which we outline in Precedents 6.2. ↵ Page 18 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers Precedents 6.2 Attorney General v De Keyser’s Royal Hotel (1920) Court: House of Lords. Facts: During the First World War, the Royal Flying Corps (the predecessor of the modern RAF) took over a large hotel to use as its headquarters. The hotel owner allowed it to do so, but he argued that he should have been granted compensation under the Defence Act 1842 and other associated legislation. The government, on the other hand, argued that the requisition took place under its prerogative powers, not under the Defence Act, and that the prerogative did not require the owner to be compensated. There was a clash between the prerogative power to requisition property during times of emergency and the Defence Act. They both covered the same ground, with the only major difference being that the statute required compensation to be paid. Held: The House of Lords ruled that the Defence Act superseded the prerogative power and that the government therefore had to pay compensation to the hotel owner. The reasoning was rooted in separation-of-powers arguments: as Lord Atkinson noted, it would be pointless if Parliament passed legislation designed to control the government’s powers in a particular area, but those 46 controls could simply be ignored by relying on a prerogative power. The effect of the De Keyser case is that statute takes precedence over the prerogative: a prerogative power is suspended and cannot be used insofar as it conflicts with statute. Lord Parmoor explained the principle as follows: when the power of the Executive … has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to 47 observe the restrictions which Parliament has imposed in favour of the subject’. This principle has been described in a variety of different ways. In the case itself, Lord Atkinson said that 48 the prerogative was ‘held in abeyance’ (abeyance means suspended); Lord Moulton said it was ‘covered 49 50 by this statute’, Lord Dunedin held that the prerogative had been ‘curtailed’, Lord Sumner that it had 51 52 been ‘abated’, and Lord Parmoor that the prerogative had been ‘taken away or abridged’. When the De Keyser principle was applied in Miller No 1, the Supreme Court described it in yet another way, saying that the prerogative had been ‘displaced in a field which becomes occupied by a corresponding power conferred 53 or regulated by statute’. Despite their apparent variation, all these phrases mean the same thing: that when an Act of Parliament conflicts with a prerogative power, to any extent, the overlapping statutory provisions must take precedence, and the government will be acting under the authority of the statute instead. Perhaps the most common term is that the prerogative has been placed into ‘abeyance’, so that is the one that we will be using. Page 19 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers One term that does not necessarily mean the same thing as abeyance, and so is best avoided, is ‘abolished’, which some use to describe what happens to a prerogative power in a De Keyser situation. While De Keyser does, in practice, mean that when a prerogative power clashes with a statute or a statutory provision, it cannot be used, this risks confusing De Keyser with the total abolition of a prerogative power that we discussed in section 6.3.2. p. 196 ↵ Another reason to be cautious about using the word ‘abolished’ is that the abeyance principle, in 54 theory, permits the prerogative power to return when the statute is repealed. The effect is like suspending an athlete; they are not available for the duration of their suspension but are free to play once the period has been served. That said, while athletes are often suspended and return, there has not been a situation where a prerogative in abeyance has been definitively held to have returned after a conflicting statute has been removed. It is, however, still a possibility, so the word ‘abolish’ should be reserved for a genuine abolition of the power—a situation where the clear intention is that the prerogative power never comes back. You can read more about this debate in Controversy 6.2, where we discuss the disagreement as to the effect of the (now repealed) Fixed-Term Parliaments Act 2011 on the monarch’s reserve power to dissolve Parliament and call an election. Controversy 6.2 The Fixed-Term Parliaments Act 2011 Elections are formally called using the monarch’s reserve power to ‘dissolve’ Parliament. Before the FTPA was passed, the Prime Minister essentially chose the timing of each election; they would advise the monarch to dissolve Parliament, and the convention was that the monarch would normally act on that advice. The only legal limit was that, according to the Parliament Act 1911, there had to be an election at least every five years. From 2011 until 2022, the FTPA controlled the timings of general elections. The FTPA set dates for elections at five-year intervals and stipulated, in section 2, that a dissolution may only be granted before the five-year period is over if: (a) the government lost a vote of no confidence and no new government was formed after 14 days or (b) if two-thirds of all MPs voted in favour of an early election (as happened in June 2017 and December 2019). The FTPA started a debate about whether it had abolished or merely placed into abeyance the reserve power to dissolve Parliament. Phillipson argued that the power had been abolished since a dissolution could only occur in the circumstances set out by section 2, not at the discretion of the 55 monarch or Prime Minister. Craig and Brazier, on the other hand, both argued that the power to dissolve had merely been placed in abeyance, and that it could revive if the FTPA were to be 56 repealed, unless the repealing Act was worded in such a way that kept the power in abeyance. The FTPA was repealed by the Dissolution and Calling of Parliament Act 2022 (DCPA). The DCPA was intended to revive the prerogative and so section 2(1) says that ‘powers relating to the dissolution of Parliament … are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted’. On the face of it, Craig and Brazier were right: the prerogative to dissolve Parliament has returned. Or has it? The dissolution power is now included in a statute, so is it a Page 20 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers prerogative power or a statutory one? This may seem like hair-splitting, but there could be an important practical consequence. The use of statutory powers, unlike the use of prerogative powers, is always susceptible to judicial review, so it is important to know whether the DCPA contains a new statutory power or simply revives the prerogative that had been put in abeyance by the FTPA. As it happens, the DCPA contains an ‘ouster clause’, which aims to prevent decisions 57 about dissolution being subject to legal challenges. It is very unlikely that this ‘ouster clause’ will ever be tested in the courts, but there is a wider lesson here: controversies about whether prerogative powers have been placed in abeyance or abolished are not easily resolved. p. 197 ↵ When an Act of Parliament overlaps with a prerogative power, its restrictions might—as was the case in De Keyser—entirely, or almost entirely, cover the prerogative power. However, the overlap might also be more partial. If so, the extent of the overlap between statute and prerogative has to be determined, because the two powers can co-exist alongside one another. Northumbria Police Authority is an example of a prerogative co-existing with a statutory power. As we saw in section 6.2, this case was partly about whether there was a prerogative to ‘keep the peace’. If there was, had this power been put in abeyance by the Police Act 1964? Remember that the Home Secretary created a central store of equipment for police to use if there was serious public disorder. If a Chief Constable wanted their officers to access this equipment, they were first told to follow the statutory procedures under section 4 of the Police Act, which allowed the local police authority to provide the equipment. If, however, the Chief Constable thought that this request would be refused, or if they made a request which was refused, they could apply to the Home Secretary for supplies from the central store. The Home Secretary argued that section 41 of the Police Act allowed him to keep this store and to provide supplies from it, because it allowed him to ‘provide and maintain … such other organisations and services as he considers necessary or expedient for promoting the efficiency of the police’. The Court of Appeal agreed but went on to consider in obiter whether, if this provision did not exist, the prerogative power to keep the peace would have allowed him to maintain and supply the store. The Court held that the prerogative to keep the peace was not in abeyance. Although the Police Act regulated some aspects of the prerogative to keep the peace, it did not regulate every aspect of it. Section 4 did not give local authorities the sole power over the provision of police equipment. This meant that the Home Secretary would have 58 kept the prerogative power to provide that equipment, had section 41 not existed. In other words, there was no overlap between the Police Act and the prerogative, because the statute did not say that only the police authority could equip the police: the power was shared. Page 21 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers 6.3.4 The non-frustration principle If De Keyser applies, the part of the prerogative power which overlaps with the statute cannot be used. To make sure that any prerogative powers cannot override the will of Parliament in any other way, the courts have also developed the ‘non-frustration’ principle. Simply put, this principle means that a prerogative power cannot be used in a way that goes against the intentions of Parliament as expressed in a statute, even if the power does not directly overlap with that statute. 59 p. 198 ↵ The non-frustration principle originated in Laker Airways v Department of Trade. In this case, it was held that the government had unlawfully used its prerogative powers to undermine the intentions of Parliament. Laker Airways provided cheap flights from the UK to the United States, and it had been given permission to do this by the Civil Aviation Authority (CAA), an organization which was established by the Civil Aviation Act 1971. However, the CAA’s licence only allowed Laker to fly planes from London to New York City. It did not grant any rights to land in the United States. Landing rights were granted under an international treaty, and the government’s powers regarding treaties are generally exercised using prerogative powers. The British government wanted to protect two airlines (British Airways and British Caledonian) from Laker’s competition, so it asked the US government to refuse Laker the right to land in the United States. De Keyser did not apply in Laker because the CAA’s statutory powers did not include granting landing rights. It was clear, however, that the Civil Aviation Act 1971, and the powers it granted to the CAA, was still 60 ‘interwoven’ with the prerogative. That was because the overall regulation of airlines was reliant on (a) licences being granted by the CAA according to the statutory criteria and (b) the government then using its prerogative to arrange for those licences to be effective by negotiating the relevant landing rights. In requesting that the United States denied Laker landing rights, the government had acted unlawfully. It had used its prerogative powers to frustrate—to go against—the intentions of Parliament, which were that the CAA would decide who can and cannot fly commercial aircraft. In essence, the government had tried to 61 abolish the CAA ‘by the back door’ by rendering its decisions pointless. It went against constitutional principle for the government to use its prerogative powers to change primary law. Laker Airways was later applied by the House of Lords in R v Secretary of State for the Home Department ex 62 parte Fire Brigades Union. This case was about criminal injuries compensation. When you are the victim of an injury caused by criminal activity, you may be eligible for compensation. The relevant rules were set out by prerogative powers, until sections 108–117 of the Criminal Justice Act 1988 placed the scheme on a statutory footing. These sections did not immediately come into force, meaning that the prerogative was not immediately put in abeyance. Instead, section 171 required the Secretary of State to consider ‘from time to time’ whether to bring the new scheme into force, but it did not require him or her to actually bring it into force. In 1994, the Home Secretary announced that, due to its high cost, he would not introduce the statutory scheme at all and would, instead, create an alternative using prerogative powers. That decision was challenged by several trades unions whose members were particularly likely to receive criminal injuries and who felt that the statutory scheme was preferable. The House of Lords ruled by 3:2 that the Home Secretary had acted unlawfully because he had acted to frustrate an Act of Parliament. Lord Browne- Wilkinson explained that ‘it would be most surprising if, at the present day, prerogative powers could be 63 validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute’. Page 22 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers The non-frustration principle is easy to explain but harder to apply, as demonstrated by the fact that the judges in Fire Brigades Union were split as to whether the Home Secretary had acted unlawfully. Their disagreement revolved around the fact that the minister was given the power under section 171 to decide if or when the scheme came into force. The dissenting judges argued that this provision allowed him to decide that the scheme should simply not come into force; on this reading, his use of prerogative powers to p. 199 introduce a new ↵ scheme was consistent with the intent of Parliament. If Parliament disliked his 64 decision, then the minister was politically accountable for it, but it was not illegal. Lord Browne- Wilkinson put the majority’s view. This was that the Secretary of State was required to keep the possibility of introducing the scheme under review. They may well decide that it was not the right time to introduce Parliament’s preferred scheme, but he could not create a new prerogative scheme and use that scheme to argue, as he did in this case, that the statutory scheme no longer ever needed to come into force, bypassing 65 his statutory duties. Miller No 1, the facts of which were summarized in Precedents 4.1, is another example of the frustration principle and the disagreements it can create. In this case, the Supreme Court was asked to decide whether the government could begin the Brexit process using its prerogative powers, without Parliament’s express approval. Miller and others argued that this would breach the non-frustration principle, because the European Communities Act 1972 (ECA) made provision for EU laws to be applicable in the UK. The relevant part of the ECA was section 2(1), which said, all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly. The argument said that this part of the ECA displayed Parliament’s intention that the UK was an EU Member State, and that EU law will apply in the UK. In order to leave the EU, the government had to follow the process set out in Article 50 of the Treaty on European Union (TEU). The terms of Article 50 are that the state which has given notice of its intention to leave the EU will leave automatically after two years, unless 66 an extension is agreed. So, it was argued that if the government triggered Article 50 without Parliament’s permission, the ECA’s intentions would be frustrated because the inevitable consequence was that the UK would leave the EU, that EU law would no longer apply in the UK, and that the ECA would have become a ‘dead letter’. (Miller’s case was partly inspired by arguments set out by Barber, Hickman, and King in a post on the UK Constitutional Law Association blog, which has become a rather famous event in 67 academic circles—not least because retired judges started posting comments!). The majority of the Supreme Court justices agreed with this, holding that the ECA would be frustrated if Article 50 of the TEU was activated without Parliament’s express permission. There was, however, another way of looking at the issue, put forward by Lord Reed’s dissenting judgment. He interpreted the ECA as meaning that EU law applied in the UK for so long as the UK was in the EU. That is not quite the same thing as saying that Parliament wanted the UK to be an EU member; it meant, instead, that the government of the day decides whether the UK is an EU member, and Parliament has said that if the UK is a member, then Page 23 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers EU law is applicable. In making this argument, Lord Reed focused on the fact that section 2(1) p. 200 ↵ incorporated EU law which arose ‘from time to time’. He maintained that this meant EU law will have effect in law as and when it is created but that, ultimately, its applicability in the UK was ‘inherently 68 conditional on the application of the EU Treaties to the UK’. In contrast, for the majority of the judges, ‘from time to time’ meant that ‘Parliament endorsed and gave effect to the United Kingdom’s membership 69 of what is now called the European Union’. Regardless of who was correct, the case shows the continued relevance and application of the frustration principle and that it can be difficult to neatly identify Parliament’s intentions. Nevertheless, it is clear that Parliament is supreme over the executive and that, as a result, prerogative powers may be abolished or put into abeyance, as well as limited by the non-frustration principle. Now test your knowledge using this section’s self-test questions and then apply what you have learned to Practical scenario 6b. Level 2 Practical scenario 6b: Has Parliament curtailed the prerogative? Bearing in mind the issues we have discussed so far, read the following scenario and consider how the law would work in practice. The events, people, and legislation in the scenario are fictional. Scenario You work for the government legal services. The Secretary of State for International Development would, again, like your assistance. The minister would like to know whether her powers to negotiate international treaties are affected by the following pieces of legislation: the Geneva Act 2020, which provides, in section 1, that ‘During the course of any international treaty negotiation, ministers must ensure that the negotiation discusses the possible incorporation of provisions intended to promote the cause of human rights’; the Aid Act 2020, which provides, in section 1, that ‘The United Kingdom will not spend more than 5% of its GDP on foreign aid.’ However, this provision has not yet come into force. It is due to come into force automatically in 2040. The minister asks you this because she is concerned that, in order to reach an agreement with some countries about providing aid to combat the effects of climate change, she may have to commit to more than 5 per cent of gross domestic product (GDP) being spent on foreign aid and may need to avoid discussing human rights with some other countries. Advise the Secretary of State. Page 24 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers Now write your answer, following the IRAC framework, and then click to reveal the sample answer to check your work. Guidance Identify, from the scenario, the key information you will need to advise your client. Here are some hints to help you: Do either of these Acts of Parliament place a prerogative power into abeyance? Would the use of a prerogative power frustrate either of these Acts of Parliament? Sample answer Check your answer against the sample answer. p. 202 6.4 Reviewing the exercise of prerogative powers Learning outcomes After reading section 6.4, you will be able to: distinguish between a justiciable and non-justiciable prerogative power, explain the factors that are likely to make the exercise of a prerogative power justiciable. Remember there are three ways in which the courts will review the use of a prerogative power: confirming its existence (‘Can the government claim to have this power?’), considering its extent (‘Does the power apply in this situation?’), and finally by examining its exercise (‘Has the power been used lawfully?’). We have, so far, looked at several cases where either the existence or the extent of the prerogative were in question. Burmah Oil and Northumbria Police Authority required the courts to consider whether a prerogative power existed, and all the cases discussed in section 6.3 grappled with the scope of prerogative powers. This means that our final topic to discuss is when the courts will go a step further and assess whether a prerogative power has been exercised lawfully. This is different because examining whether a power has been used in the proper manner requires the courts to assess the legality of the decision-making process rather than simply confirming that the power exists and applies to the subject. In judicial review, the courts will typically consider whether the power has been used in a way that is: Page 25 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers illegal (see Chapter 11), irrational (see Chapter 12), a disproportionate interference with European Convention on Human Rights (ECHR) rights (also see Chapter 12), procedurally improper (see Chapter 13), or in breach of a legitimate expectation (see Chapter 14). As you can tell from this list, a detailed discussion of exactly how the courts decide whether the exercise of a prerogative power is lawful would take us quite some time. Instead, we are going to look at this question from a wider constitutional perspective, leaving the ins and outs of each ground of judicial review for their respective chapters. Our perspective is that of the separation of powers between executive and judiciary and on whether there are situations where it is not constitutionally appropriate for the courts to question the use of a prerogative power. We normally expect the judiciary to be happy to conduct a judicial review (as we saw in Chapter 5, judicial review is a crucial part of upholding the rule of law), but remember the nature of prerogative powers. The executive prerogative is often about national security matters, foreign policy, or the use of the armed forces, and reserve powers relate to fundamentally political decisions such as who should be Prime Minister and when to call an election. If there is no relevant legislation, we cannot argue that Parliament 70 intended those powers to be used in a particular way. Without any statutory guidance to refer to, is the judiciary well placed to decide whether it is rational to send troops to a particular country, whether the government took into account relevant factors when deciding to sign a treaty with another country, or whether to expel another country’s ambassador? p. 203 ↵ Constitutional lawyers refer to the question when the exercise of prerogative powers is possible or appropriate as being about whether those powers are ‘justiciable’. There are two main eras in the case law on justiciability. The first came before the 1984 decision in Council of Civil Service Unions v Minister for the 71 Civil Service (usually shortened to either GCHQ or CCSU: we will call it GCHQ). During this time, prerogative powers were nearly always non-justiciable. The second came after GCHQ, when the blanket non- justiciability of prerogative powers was rejected and some uses of prerogative powers were said to be justiciable. The approach of the courts shifted towards a case-by-case assessment of whether the prerogative was justiciable rather than a firm rule that it was not. We now look at how these eras developed and use this to draw some conclusions about the justiciability of prerogative powers. 6.4.1 Justiciability before GCHQ The old arguments for refusing to review the use of prerogative powers are still relevant to the remaining limits to justiciability. 72 China Navigation Company Ltd v Attorney-General is a good example. The House of Lords was asked to decide whether the government’s refusal to continue to give a British merchant shipping company a naval escort in the South China Sea, which was at the time a dangerous area famous for piracy, was lawful. The Page 26 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers relevant power was the Crown’s control of the armed forces. The Court was happy to carry out the ‘existence’ and ‘extent’ analysis, confirming that there was a prerogative power covering decisions around the deployment of armed forces. However, it concluded that the courts should go no further into reviewing the legality of this decision. Scrutton LJ explained as follows: The administration of the army is in the hands of the King, who unless expressly controlled by an Act of Parliament cannot be controlled by the Courts … The matter is left to the uncontrolled discretion which he exercises by his Ministers. The Courts cannot question it, though Parliament 73 by vote of no confidence or pressure in Parliament may influence it. We can find plenty of similar statements by judges, even in cases where they are not expressly considering justiciability. Moosavian identifies three reasons why the judiciary were (and still are) reluctant to review the use of prerogative powers related to war, defence, or foreign affairs. First, the government should be given discretion in these areas, so as to promote its goals and objectives; second, judges are legal experts, not well suited to deciding matters which raise issues of policy, especially on matters such as defence; third, the government has superior expertise—particularly in terms of accessing intelligence reports—and 74 expert advice that courts do not. 75 Re A Petition of Right provides a summary of the pre-GCHQ position. This case was decided during the First World War. The Court of Appeal was asked to decide whether a prerogative power allowed the Royal Flying Corps to requisition a private airfield to help defend the UK against air raids. The Court confirmed that this power existed and held that it could be exercised in ‘times of invasion’. It said that, considering p. 204 the air raids, the ↵ UK could be said to be facing an aerial invasion and that this ‘scope’ analysis was the only question the courts could consider. Warrington LJ explained as follows: The only condition it would appear must be fulfilled is that the act in question, having regard to existing circumstances, must be necessary for the public safety and the defence of the realm, and on this matter the opinion of the competent authorities who alone have sufficient knowledge of 76 the facts, provided they act reasonably and in good faith, should be accepted. The underlying principle here is that courts are considered to be poorly equipped to take decisions in some of the areas covered by executive prerogative powers. China Navigation and Re A Petition of Right were, respectively, cases about deploying the military and taking land for military use. This is where the arguments identified by Moosavian become especially important. The judiciary has legal expertise, but it is not politically accountable for its decisions like politicians are, nor is it usually privy to the various strategic and intelligence factors which might influence the government’s decisions in certain areas. The judiciary’s role and its expertise lies in upholding the rule of law. It can decide if the government has a legal basis for its actions, but it might be inappropriate for it to decide whether the use of prerogative powers was otherwise lawful, rational, procedurally correct, or proportionate. But this does not mean that there is no accountability for the decision-maker. If, for example, the government uses its prerogative powers to deploy the military overseas, it can and has faced political consequences. Two examples illustrate this. In May 1940, the government, led by Neville Chamberlain, Page 27 of 43 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 21 January 2025 6. Prerogative Powers faced a vote of no confidence following a disastrous military expedition to Norway (the arguments about which are known as the ‘Norway Debate’). Chamberlain won the vote, but it became clear that he had very little support (he won by hundreds of votes fewer than might have been expected, given the Conservative party’s majority in Parliament), and as a result, he was forced to resign as Prime Minister. Decades later, the decision of Tony Blair’s government to invade Iraq in 2003 led to his party’s House of Commons majority decreasing by 48 seats, to 60, in the subsequent 2005 election. This was, in large part, due to 77 public opposition to the war. The trouble is that the arguments against justiciability in defence and national security do not translate well into some of the other areas controlled by prerogative powers. For example, in Hanratty v Lord Butler of 78 Saffron-Walden, the courts were asked to review a decision not grant a pardon. Hanratty was convicted of, and executed for, murder. His family argued that the Home Secretary should have considered new evidence in the period between conviction and execution that they say would have exonerated him. This meant, in their view, that an innocent man was executed. In his judgment, Lord Denning remarked that the prerogative was ‘exercised by [Queen Elizabeth II] on the advice of one of the principal Secretaries of State. 79 He advises her with the greatest conscience and good care.’ There does not seem to be any evidence underlying his assertion. Lord Denning may well have assumed correctly in Hanratty, but his comment suggests that the blanket refusal to consider the justiciability of prerogative powers was based on a very deferential attitude to the executive. That may be understandable in a case which relates to the use of the p. 205 armed ↵ forces or to foreign affairs, but if this deference arises out of habit rather than in response to the subject matter, it becomes more problematic. This is why, in GCHQ, Lord Roskill said he was ‘unable to see … any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of 80 challenge to the manner of its exercise’. In other words, a rulin

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