Nature of Prerogative

• ‘that special pre-eminence which the

King hath, over and obove all persons,
and out of the ordinary course of the
common law, in right of his regal dignity’
– Blackstone Commentaries vol.1 p.238

• ‘a residue of miscellaneous fields of law

in which the executive government
retains decision-making powers that are
not dependent on any statutory authority
but nevertheless have consequences on
private rights or legitimate expectations
of other persons.’Public Law 1 1
– Diplock Council of Civil Service Unions v
 Queen’s Prerogatives
• Appointment of PM (Macmillan/ Churchill-
Eden DPM)
• Dismissal of PM (1783)/Government
(Australia 1975)
• Dissolution of Parliament (House of Lords
coercion 1911)
• Refusal of dissolution (Ontario 1985)
• Refusal of Royal Assent (Queen
Anne/George V)
• Appointment and Honours
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 Limits to Prerogative Power
• Ambit determinable by courts
– Case of Proclamations (1611) 12 Co. Rep. 74
• Under the Bill of Rights 1688 it is
unlawful for the executive to suspend
laws without the consent of Parliament.
– R v Commissioners of Customs and Excise, ex p
Kay And Co The Times 10 December 1996
• ‘It is 350 years and a civil war too late for
the Queen’s courts to broaden the
prerogative.’
– (Diplock) BBC v Johns [1965] Ch 32, 79
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 Government Control of
Prerogative
• "In my opinion, the tenant was the
government acting through its
appropriate member or, expressed in the
term of art in public law, the tenant was
the Crown."
– (Diplock) Town Investments Ltd v Department
of Environment [1978] AC 359 at 380
• "We are told that power has moved over
time from the throne to the Lords, from
the Lords to the commons and from the
commons to the people. But in practice
power has now moved to the prime
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minister who then, exercising the powers
 Domestic Prerogatives
• Prerogative of Protection
• R v Secretary of State for the Foreign &
Commonwealth Office, ex p Bancoult
[2001] 2 WLR 1219
– (s.11 British Indian Ocean Territory Order 1965
prerogative Order to "make laws for the peace,
order and good government of the territory".
The Order was an Order in Council made under
the Royal Prerogative.)
• R v Secretary of State for the Home
Department, ex p Northumbria Police
Authority [1988] 2 WLR 590
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– (s.41 Police Act 1964 power to supply
 Prerogative and Justice
• Court powers
– Prohibitions del Roy (1607) 12 Co. Rep. 63
– Sears v Attorney-General New Zealand [1998] 2 WLR
427 (Nature of prerogative jurisdiction of courts.)
• Create New Courts
– Re Lord Bishop of Natal 91864) 3 Moo. PCC (NS) 115
• King can do no wrong
– R v Environment Agency, ex p Marchiori and ors
[2001] EWCA Admin 267 (2001) Env LR 840 (Nuclear
weapons work within nuclear power industry a
matter of high policy even beyond Euratom.)
• Crown Proceedings Act 1947
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 Prerogative and Justice
• Prosecutions, ‘nolle prosequi’, Relator Actions
– Gouriet v Union of Post Office Workers [1978] AC 435
• Pardon/Mercy
– R v Secretary of State for the Home Department, ex
p Quinn [2001] ACD 45
• Compensation
– R v Secretary of State for the Home Department, ex
parte Fire Brigades Union [1995] 2 WLR 464

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 Miscellaneous
• Civil Service
– Council of Civil Service Unions v Minister for
the Civil Service [1984] AC 374
• Passports
– R v Secretary of State for the Foreign &
Commonwealth Office, ex p Ginwalla (Lawtel) 7
January 1999
– R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte Everett [1989]
QB 811).

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 War and Armed Forces
• Declaration of war and conduct of war
– Burmah Oil v Lord Advocate [1965] AC 75
– Falklands invasion "It is an inherent
jurisdiction of the government to negotiate
and reach decisions, afterwards the House of
Commons can pass judgment on the
government." Thatcher
• Disposition of armed forces
– HM Advocate v Zelter & ors Lawtel 3 April 2001
Chandler v Director of Public Prosecutions
[1964] AC 763 (Prerogative powers which
governed the state's armed forces were not
justiciable in court.)
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– R v Ministry of Defence, ex p Macgillivray
Prerogative and Foreign Affairs
• Treaties
– (ratification 21 day Ponsonby rule) for
Parliament
– Lonrho Exports Ltd v Export Credits Guarantee
Department [1998] 3 WLR 394
– European Community Act 1972, ss 1, 2(1) & 3
future treaties authenticated by Order in
Council and directly applicable.
• Reception of Diplomats
– Agbor v Metropolitan Police Commissioner
[1969] 1 WLR 703
• Crown Certificates in Relation to Foreign
Affairs Public Law 1 10
 Prerogative and Statute
• Sir Thomas
Bingham MR,
legislation is 'the
most solemn form
for which
constitution
provides'
– R v Secretary of
State for the Home
Department, ex
parte Fire Brigades
Union and Others
[1995] 1 All ER 888,
896.
• Act of Parliament
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suspends
 Limitations on the De Keyser
Principle
• Majority of CA held that prerogative
suspended by Act of Parliament even
though not commenced. House of Lords
disagreed.
– R v Secretary of State for the Home
Department, ex parte Fire Brigades Union and
Others [1995] 1 All ER 888 (CA)
• Statute should not detract from
prerogative where no attempt to deprive
the subject of rights
– (Hobhouse) R v Secretary of State for the
Home Department, ex parte Fire Brigades
Union and OthersPublic
[1995]Law 1
1 All ER 888, 906 12
 Prerogative and the
• Courts
Prerogative reviewable by the courts.
– R v Criminal Injuries Compensation Board, ex
parte Lain [1967] 2 Q.B. 864
• ‘I am unable to see ... that there is 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 challenge to the
manner of its exercise which he would
possess were the source of power
statutory. In either case the act in
question is the act of the executive. To
talk of that act as the act of the
sovereign savours of the archaism of past
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 Reason and Risks
• 'To avoid a vacuum in which the citizen
would be left without protection against
a misuse of executive powers, the courts
have had no option but to occupy the
dead ground in a manner, and in areas of
public life, which could not have been
foreseen 30 years ago… Nevertheless, it
has risks, of which the courts are well
aware. ....some of the arguments
addressed would have the court push to
the very boundaries of the distinction
between court and Parliament
established in, and recognised ever
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since, the Bill of Rights 1689...’ (Mustill)
 Political Limitations on the
Courts
• Governmental decisions reflecting
financial priorities are seldom questioned
– also national security
– R v Cambridge Health Authority ex parte B
[1995] 1 WLR 898).
– Council of Civil Service Unions v Minister for
the Civil Service [1985] AC 374

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