Public Law - The Executive

R (Bancoult) v Foreign Secretary

• The gov used a Prerogative Order in Council (form of legislation made by the Executive without Parliament) to bad the Islanders from ever returning 

• HoL ruled that while Prerogative Orders in Council are subject to judicial review, the court must show great deference to the Executive on matters of national security and foreign policy. 

• The court ultimately upheld the ban on the Islander’s return, arguing that the gov had the power to legislate for the “peace, order, and good government” of the territory. 

R (Barclay) v Secretary of State for Justice:

• Legislation passed by the States of Sark (Guernsey) needed approval by Her Majesty on advice from Privy Council Committee (Cabinet)

• Thus an exercise of royal prerogative powers

• Because the "Committee" is effectively the UK Ministry of Justice, the Supreme Court argued that their advice is a "government act."

• If it were a purely "Legislative" act (like a King signing a UK Bill), the courts couldn't touch it.

• But because it is an Executive act (Ministers giving advice based on policy), the courts do have the power to review it.

• BUT courts will exercise constitutional restrain -  The Court decided that because Sark is a self-governing territory with its own legal system, the UK courts should not be the first port of call. It is a matter of Comity—respecting the autonomy of the Islands' own institutions.

Town Investments v Department for the Environment

• DfE leases property in Central London

• 1972 law freezes business rents

• Does the freeze apply to the Crown, as “conducting a business?”

• Lord Diplock - the Crown no longer does legislative or executive acts - should speak of “the government” instead of “the Crown” - encompasses gov ministers of the crown  - the executive is a single, indivisible entity 

Willion v Berkley

Southcote J - King has two bodies, “Body natural” as well as “Body politic” (subjects of the land) - man is not the same as legal entity

R (BAPIO) v SSHD

• Changes to immigration rules have to be made by Home Sec under a special statutory procedure under Immigration Act 1971

• Health Sec made rules which restricted ability of migrant doctors to work in NHS - was this lawful?

• Lord Roger - In these circumstances, Secretary of State means any one of Her Majesty’s principle Secretaries of State - principle of constitutional law that all SoS can, when required, exercise any of the powers conferred by statute on the State. 

Harrison v Bush

• Harrison is a Magistrate, accidentally starts a riot

• Lots of electors, including Bush, write to Home Sec petitioning for his removal from office

• Harrison sues for defamation

• The Crown enters a technical defence that this was a privileged communication between a minister and the sovereign, so cannot be defamation 

• Looking at relationship between minister and monarch - is writing to the minister effectively same as writing to monarch?

• Campbell CJ says yes - Secretary of State is an “ancient position and legal power” - Privy Seal, can make decisions of behalf of King

• Lord Campbell CJ - “The office of secretary of state is one of very ancient date.” Discusses changes in the duties of SoS and their evolution over time (from one person to four)

• Communication is protected - if citizens were in fear of libel every time they wrote then right to petition would be meaningless

British Coal Corporation v The King 

• British Coal convicted in Canada for monopolistic practices

• Sought to appeal to Privy Council (highest appellate body in Canada at time)

• Appeal to PC was an appeal to Monarch

• S.17 of Canadian Statute said no criminal appeal can be brought to His Majesty (Prohibitions case)

• British Coal argued monarch retains power to hear appeals

• Crown argued in practice, appeals decided by judges, not monarch - statutory provision was effective, dismissed appeal by British Coal

• Shows limits of royal prerogative + the Crown and gov as one

Carltona Ltd v Commissioner of Works

• Commissioner of Works requisitioned C’s food factory and reallocated its workforce

• ‘A competent authority’ - is a subordinate civil servant a competent authority?

• Lord Greene MR established the Carltona Doctrine - ministers are responsible for their civil servants and can delegate ministerial roles to them (Collective Ministerial Responsibility)

• “constitutionally, the decision of [the] official is… the decision of the Minister.”

• In practice, no minister could carry out all legal duties required of them - officials can exercise discretionary powers on behalf of the minister, because they are accountable to the minister

R v Adams

• Adams detained under Detention of Terrorists (NI) Order under signature of a Minister of State (civil servant)

• Article 4(1) of the Order - “the Secretary of State may make an order” - the statute itself excludes possibility for delegation (self-excludes)

• Adams unlawfully detained because it was authorised by a Minister of State, not the Secretary of State, as required by the order

• Lord Kerr - wording revealed Parliament’s intention was that such crucial decisions should be made by the SoS themselves

• Also no reasons to apprehend that the Secretary of State’s personal decisions here would place an impossible burden (unlike Carltona)

FDA v PM

• Concerns interpretation of Ministerial Code - bullying allegations against Priti Patel but not made to resign by PM

• Issue - whether “bullying” was correctly interpreted by the PM - is the proper interpretation of the phrase a justiciable issue, and did Patel’s conduct fall under the scope of “bullying”

• Held that while the Code is non-statutory (it isn't an Act of Parliament), the meaning of specific terms within it is justiciable.

• This means the Executive cannot simply "re-define" words in its own rules to suit political needs. The court has the power to determine if the Prime Minister has "misdirected himself" on what those words actually mean.

R(Lain) v Criminal Injuries Compensation Board

• Lain’s husband shot himself; appealed to compensation board which had been set up not by statute but by royal prerogative 

• Said she had already received national insurance; sought judicial review since scheme was set up using prerogative powers (power for gov to give money away)

• Held claim could succeed, didn’t matter if powers were statutory or prerogative, still justiciable because it is a public function (Lord Parker)

• Limits on executive power + judicial review

GCHQ

• Thatcher sought to prevent civil servants at GHCQ from joining union, exercised under royal prerogative 

• Trade Unions sought judicial review (esp after Lain found prerogative powers to be justiciable)

• HoL said both prerogative AND executive action derived from statute had to conform to rules of judicial review (Lord Diplock) and were justiciable

• However, exception applies where national security is concerned, and national security is a matter to be judged exclusively by executive (and not public court)

• (Basc builds on Lain but adds exception)

Case of Prohibition

• King James I attempts to try cases in person

• Coke CJ - “The king in his own person cannot adjudge any case”

• “The King may sit in the King’s Bench, but the Court gives the judgement.”

Case of Proclamations

• King James tries to ban building and other stuff

• “The King hath no prerogative but what the law of land allows him.” (cited in Miller I) - i.e. the king can’t create new prerogative powers, they’re fixed  (Coke LJ)

• “The king by his proclamation… cannot change any part of the common law, or statute law”

• “Also the King cannot create any offence… which was not an offence before”. (Coke LJ)

Entick v Carrington 

• Entick edits newspaper called The Monitor

• Home Sec sends men to search Entick’s home. Ransack it and take away copies of The Monitor

• Entick sues them for trespass against his land and goods (private right from one individual to another rather than bringing case against State)

• The men claim it was lawful bc they had a warrant issued by SoS

• Fact they’re acting under warrant isn’t enough - have to prove you have a legally acceptable reason

• Lord Camden - “this warrant is wholly illegal and void”

• “If no excuse can be found, the silence of the books is an authority against the defendant”

• Limits to prerogative powers

Adams v Naylor

• Two children playing on beach near army base - Smith killed and Adams injured by land mine

• Solicitor wrote to Treasure Secretary to ask for name and rank of the officer who should be made defendant - such a claim could not be made directly against the Crown and thus must be made against servant of the crown whose fault will justify a personal action against him

• Unity of Crown and Executive + shows prerogative doesn’t guarantee immunity from justice

Malone v Metropolitan Police Commissioner 

• Phone tapping to bring case against Malone

• Argued phone tapping isn’t interfering with private rights (unlike trespassing in Entick)

• Since there was no contention in statute or common law against tapping phones, it isn’t unlawful, as it can be carried out without any breach of law. Doesn’t need anything to justify it, can be done lawfully just because there is nothing to make it unlawful 

Shows exceptions to limits on prerogative powers (use to counter Entick)

M v Home Office

• Home Secretary disobeyed court order not to remove M to Zaire on the grounds of royal prerogative

• Argued on the basis that “the Crown can do no wrong” - can’t punish the Crown and therefore the Queen’s ministers for contempt 

• HoL rejected this - this would contradict the rule of law - distinguished between monarch’s personal and the prerogative’s official powers - ministers can be held in contempt, not above the law 

• Lord Templeman - Home Sec’s argument would “establish a proposition that the executive obey the law as a matter of grace and not as a matter of necessity” (goes against rule of law - Dicey, equality under the law)

Attorney General v De Keyser

• Hotel taken for WWI use, compensation denied under prerogative

• Right to compensation established under Defence Act 1842

• Held that Crown cannot revert to prerogative powers when there is an existing statute with protections (statute takes precedence over prerogative)

• Applied in Miller I (gov argued no statute that explicitly contradicts their prerogative power, but courts provided much wider reading - this would frustrate existing statutes that regulate in the area, e.g European Committees Act 1972)

Laker Airways 

• Lord Denning - prerogative can’t displace statute because Laker Airways would be deprived of the protection which the statute affords them - “if a discretionary power is exercised under the influence of misdirection, it is not properly exercised, and the court can say no.”

Fire Brigades Union

• Parliament passed Act that would bring into force a statutory Criminal Injuries Compensation Scheme replacing existing one created under prerogative 

• Under the prerogative Act, enacted provisions were expressed to come into force on the day the Secretary of State may appoint, which they didn’t - non-statutory scheme remained in operation

• Prerogative is reviewable - De Keyser principle doesn’t apply, but Minister is held under ongoing duty to keep question of whether to bring statute into force under review 

• Technically, because the Act hadn't "started" yet, it wasn't law in the sense of being active. Therefore, the Prerogative wasn't "buried" yet. This created a loophole: could the Executive simply "stall" a law forever and use their own powers instead?

• Held - no, can’t use the prerogative to “frustrate the will of Parliament as expressed in a statute” (Lord Browne-Wilkinson)

• “Executive cannot exercise prerogative in a way that would derogate from a statutory duty.”

• Prerogative cannot be used to frustrate the purpose of Parliament as set out in a statute 

Miller I

• Miller J - Inevitable burden of Brexit is need for large amounts of domestic legislation - such burden will be undertaken by Parliament thus exit clause shouldn’t be triggered by executive through prerogative powers without prior Parliamentary authorisation 

• Gov argued no statute that explicitly contradicts their prerogative power (under De Keyser principle), but courts provided much wider reading - this would frustrate existing statutes that regulate in the area, e.g European Committees Act 1972

• Drew on the Case of Proclamations

Miller II

• The personal prerogative of prorogation is also reviewable, on the theory that the advice to prorogue can be unlawful so decision to prorogue would also be unlawful

• Prorogation powers belong to monarch (so personal prerogative) but advice given my PM is official prerogative powers - can be subject to review

A-G v Jonathan Cape (Crossman Diaries Case)

• Crossman kept diary of cabinet proceedings he sought to publish in full (Cabinet proceedings must be kept private under CMR)

• Sunday Times submitted portions to Cabinet Secretary (in accordance with usual custom) but went on to publish without receiving clearance 

• AG brought injunction to restrain publication

• As this was a breach of CMR and the cough has common law power to restrain disclosure of secrets between private persons, would be strange to not find the court similarly has power to restrain disclosure of public secrets - so injunction held

Finnis LJ, ‘Common Law Constraints’

“Her Majesty acts … on the advice of Her council, the symbol of collective responsibility.”

Jennings, ‘The Law and the Constitution’

 “There has been a constant process of invention, reform, and emended distribution of powers.” - the balance of power in the constitution has been shifted without any formal change in the “ordinary law”

E.W. Maitland, ‘The Constitutional History of England’

The government is “an extra-legal organisation: the law does not condemn it but does not recognise it - knows nothing about it”

Bagehot, ‘The English Constitution’

“The most powerful body in the state… is a committee wholly secret.”

“the Cabinet is thus also a link between the different parts of the executive. It is the coordinating body and ultimate decision maker”

Chequers Act 1919

first piece of British legislature that uses the title Prime Minister 

The Precedent Book [1.1]

‘The Prime Minister has very few formal powers…”

Sir Edward Coke (The Crown)

the Crown is “an hieroglyphic of the Laws”

MF Fortin, ‘The King’s Two Bodies’

Building on Southcoute J in W v B - says this means “the King and subjects from the body politic of the realm”

Earl Grey (Delegated powers + ministerial responsibility)

“The powers belonging to the Crown [are] to be exercised through Ministers… held responsible for the manner in which they are used”

N. Barber, ‘The United Kingdom Constitution’

These cases are an “assertion by the courts that it was for judges, not the king, to determine the scope of the prerogative.”

AV Dicey (Prerogative powers)

“The residue of discretionary or arbitrary authority”

Lord Reid (prerogative)

“relic of the past”

Lord Roskill (prerogative - GCHQ)

“clanking of mediaeval chains of the ghosts of the past”

Lord Neuberger (Miller I)

“the residue of powers which remain vested in the Crown, and they are exercisable by ministers” 

Hobbes (State)

“persona ficta” - acting as authorised head of the people