In Burmah Oil v Lord Advocate [1965] AC 75, Lord Reid observed that there was practically no authority on the prerogative from the Revolution Settlement of 1688-9 until World War 1. Attorney-General v De Keyser's Royal Hotel is a key House of Lords decision from that period.
De Keyser:
1916, in the midst of World War 1, the
Army Council found it necessary to have accommodation in London for the headquarters personnel of the Royal Flying Corps - (a predecessor of the Royal Air Force). The government "requisitioned" De Keyser's Royal Hotel which stood on the Victoria Embankment.
In their dealings with the hotel, the government (War Office) sought to claim possession of the hotel under Defence of the Realm legislation in force on 1 May 1916. The hotel asked the courts to make a declaration that they were entitled to a fair rent for use and occupation by way of compensation under the Defence Act 1842. Peterson J ruled against the hotel. The Court of Appeal, by a majority, ruled in favour of the hotel.
In both the Court of Appeal and the House of Lords the Attorney-General (for the government) claimed that the premises could be requisitioned under Royal Prerogative powers without compensation. The House of Lords (Lords Dunedin, Atkinson, Moulton, Sumner and Parmoor) dismissed the government's appeal and found in favour of the hotel. Attorney-General v De Keyser's Royal Hotel [1920] AC 508, [1920] All ER 80.
The House found that the whole field of the prerogative regarding acquisition of land or rights therein was covered by the relevant legislation. In the words of Lord Dunedin, that left 'no room for asserting an unrestricted prerogative right as existing alongside .. the statutory powers authorising the Crown to acquire on certain terms. The conclusion is that the Crown could not take the petitioners' premises by the powers of the prerogative alone.'
Lord Atkinson's speech approved the observation of Swinfen Eady MR who had said - 'Those
powers which the executive exercises without Parliamentary authority are
comprised under the comprehensive term ‘prerogative.’ Where, however, Parliament
has intervened and has provided by statute for powers previously within the
prerogative being exercised in a particular manner and subject to the
limitations and provisions contained in the statute, they can only so be
exercised. Otherwise what use would there be in imposing limitations if the
Crown could at its pleasure disregard them and fall back upon prerogative?'
The House therefore decided that where legislation has been enacted to deal with a particular matter then it was the legislation that determines the outcome and not prerogative. Any prerogative powers are, whilst the statute is in force, held in abeyance.
Key Cases:
R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] UKSC 5 - Prerogative power came very much to public notice with the litigation concerning leaving the European Union ("Brexit"). The litigation was concerned with whether the Royal Prerogative power to make and unmake treaties enabled Ministers to give notice to the Council of the European Union that the United Kingdom had decided to leave the EU. If the prerogative power did not permit the giving of notice then an Act of Parliament was required so that Ministers had the necessary authority. The Supreme Court held, by 8 to 3, that an Act of Parliament was required to give the authority – R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] UKSC 5. In response to the case, the European Union (Notification of Withdrawal) Act 2017 was enacted.
For an amusing aspect of this case see Law Society Gazette - De Keyser, De Geezer T-shirts go down a storm
R v Homes Secretary ex parte Fire Brigades Union [1995] UKHL 3 - the Criminal Justice Act 1988
introduced a statutory scheme for criminal injuries compensation
with several sections coming into law (by statutory instrument) on a
date of the Home Secretary's
choosing. However, the government rather than implementing this
legislation amended a non-statutory tariff based scheme under the royal
prerogative. This tariff based scheme would save money by awarding less
compensation. A trade Union sought judicial review of the decision of
the Home Secretary not to bring into force the compensation scheme in
the 1988 Act. The House of Lords ruled by a majority of 3-2 that the Home Secretary had acted unlawfully.
J.H.
Rayner (Mincing Lane) Ltd v Department of Trade [1990] 2 AC 418- (Tin Council case) -
as a matter of the constitutional law .., the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.
as a matter of the constitutional law .., the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.
R v Secretary of State for the Home Department, ex parte Northumbria
Police Authority [1989] 1 QB 26 (CA) - the case concerned the Home Secretary’s power to issue baton rounds to a chief
constable without the consent of the police authority. The Court held that the Police Act 1964 gave the Home Secretary the power to do this but went on to
hold that in any event the Crown had a prerogative power to keep the peace
within the realm, which was not displaced by the 1964 Act, and the Home
Secretary could therefore have acted even if the Act had not provided him with
one.
Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 - the House of Lords held that, in principle, judicial review applied to prerogative powers subject to the subject matter being “justiciable.”
Burmah Oil case [1965] AC 75 - concerned the destruction of oil fields in Burma by British forces in 1942, during the Second World War. The destruction was ordered in order to prevent the installations from falling into the hands of the advancing Imperial Japanese Army. The Burmah Oil Company brought an action against the UK government. Scotland's Court of Session (Outer House) found in favour of Burmah Oil. The Crown appealed and the First Division of the Inner House of the Court of Session unanimously reversed the decision below. Burmah Oil then appealed to the House of Lords which, by a majority of 3:2, held that although the damage was
lawful, it was the equivalent of requisitioning the property. Any act
of requisition was done for the good of the public, at the expense of
the individual proprietor, and for that reason, the proprietor should be
compensated from public funds. Viscount Radcliffe and Lord Hodson dissented. The War Damage Act 1965 was enacted to reverse the House of Lords decision.
BBC v Johns [1964] EWCA Civ 2 - 'The limits within which the executive government
may impose obligations or restraints upon citizens of the United Kingdom
without any statutory authority are now well settled and incapable of extension' - per Diplock LJ.
Some Background reading:
House of Commons Public Administration Committee - 4th Report of Session 2003-2004 Taming the Prerogative: Strengthening Ministerial Accountability to Parliament
The Governance of Britain: Review of the Executive Royal Prerogative Powers: Final Report
Parliament August 2017 – The Royal Prerogative – Briefing Paper No. 03861
- Analysis / The Supreme Court’s Judgment in Miller January 25, 2017
- 1,000 words / The Supreme Court’s Judgment in Miller January 25, 2017
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