Royal Prerogative cases

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Burmah Oil v Lord Advocate [1965] AC 75

Facts: The House of Lords had to consider the extent to which government could destroy property in wartime. In 1943, during WW2, the British Government ordered destruction of Burmah Oil refinery to prevent it falling in the hands of the Japanese. After war the Government offered small compensation to Burmah Oil for doing this, so they took the Government to court arguing that the Prerogative powers they acted under meant they should get more compensation

Held: The Judges wrestled with the idea of the prerogative. Lord Reid said “it is extremely difficult to be precise” when deciding how far the Government’s royal prerogative powers go. Nevertheless, the majority of the House of Lords held in favour of Burmah Oil: although the Governement were allowed to destroy the refinery using the prerogative powers, they still had to pay decent compensation for doing so

Chandler v DPP (1964) AC 763

Facts: The defendants wished to show opposition to nuclear weapons by planning to immobilize an RAF airbase by sitting on its runway. They were convicted for conspiracy under the Official Secrets Act. They appealed arguing they acted in the interest of the State

Held: The court held that the deployment of armed forces was completely up to Government and it is not up to individuals to question the way the power was exercised

In other words, this was not a question for the judiciary but a political question – the court said they could not review the exercise of the prerogative powers unless those powers had been abused!

GCHQ case (1985) UKHL 6

Facts: Thatcher was the Prime Minister and also Minister for Civil Service at the time. The Government was concerned by the effects of industrial action (i.e. strikes) on national security. She gave orders using the prerogative powers saying that those working for GCHQ could not be part of trade unions

Held: The House of Lords held whether or not the power was statutory or prerogative it was potentially revisable by the courts – the source of that power does not matter.

  • Lord Scarman said “in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter…”
  • In other words, the court was moving on from the position of Chandler v DPP (1964) where it was said Prerogative powers can only be questioned if abused. The court here was saying the prerogative powers are potentially revisable, depending on the subject matter
  • However, because this case was to do with national security the court could not review the use of the prerogative powers here. But, this is NOT because of its source (i.e. not due to the fact it was a prerogative power), but because of the subject matter (i.e. because it was a matter of national security) → national security was high policy outside the remit of the court

R (On the Application of Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2009] 1 AC 453

Facts: The US went to build an airbase on the Chagos Islands. Britain wanted to evict the Chagossians and did so by 1975. Their eviction was given effect by an prerogative Order in Council (i.e. primary legislation which does not require parliamentary scrutiny), which was made in 1971. In 2000, the Order of Council was quashed by the court. There was no further right of Chagossians for further compensation for their eviction. In 2004 the Government enacted a further Order in Council which removed all rights of the Chagossians to move back to the island.

Held: The case went to the Court of Appeal – there the Order in Council was quashed as the people had a legitimate expectation they could return to Chagos. When the case went to the House of Lords the court found that the crown could legislate a colony in the interest of the UK

So they found that the Order was valid, but the case demonstrates that a prerogative Order in Council is reviewable

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R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB 26

Facts: The Court in this case distinguished between high policy (i.e. policy outside the remit of the court e.g. national security as in the GCHQ case) and other issues. In the case, a central store of police equipment was kept in case of disorder. It was questioned whether they could keep this store without the consent of local authorities. Prerogative power stated that the Government could do whatever "was necessary to meet either an actual or an apprehended threat to the peace", however this conflicted with Police Act 1964 (i.e. Statute) which said "police authorities are to provide for the supply of equipment to their local forces". So, which overrules? The prerogative or the statute?

Held: The court found that where the two overlap they should rely on prerogative

  • This was criticised for making more uncertainties in the law because if they had simply made statutes overrule prerogatives the limits of the prerogative powers would have been much clearer

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