During the cabinet meeting of 1st January 2004 matters relating to prerogatives were discussed. Prerogatives are defined by Dicey as "the residue of discretionary or arbitrary authority at which any given time is left in the hands on the crown". In other words the discretionary powers exercisable by the Government in certain spheres where Parliament has made no provision.
Historically the courts have extensively controlled the Crown by ruling upon whether a claimed prerogative power actually exists, if it does, the scope of the power. 1 However, a number of cases have now established that judicial review does extend to the prerogative, and the courts may review the manner in which certain prerogatives are exercised. 2 The dominating factor in determining whether the exercise of the power was the justicability of its subject matter and whether its source was the prerogative.
In GCHQ (1985) Lord Roskill explained that although the prerogative was not as a source of law immune from review, there were still certain prerogative powers that were not justicable namely, Appointment of Ministers, Dissolution of Parliament, Grants of Honours, Making treaties and Foreign Affairs, National Security and the Prerogative of Mercy. The first matter concerns the Prerogative of mercy. In De Freitas v Benny (1976) Lord Diplock observed, "mercy is not the subject of legal rights but begins where legal rights end.
" Christopher Gelber considered this a ruling that "the exercise of the prerogative of mercy was inherently extra-legal in nature and therefore not justicable," as did Lord Roskill in the GCHQ case. However, Watkins L. J. rejected the test of justiciability "in favour of an examination of the court's capacity to weigh the competing issues of principle in each case. " Watkins considered the courts to be competent enough to review the prerogative of mercy. This falls in line with the contemporary position regarding the review of prerogative in the UK.
3 Indeed, it now appears that the fairness of the sentencing that falls under the exercise of the powers of remission of sentencing under the prerogative may be reviewed. Hence, the refusal to grant Justin Palmer a posthumous pardon is reviewable. However, regarding Jessica Palmer the administrative court may be hesitant, because applicants in such cases seeking concessions and policy confer no substantive rights. Indeed the applicant has no legitimate expectation of reward, as it is entirely discretionary. 4 Moreover, this case is problematic in that the crime in question relates to treason.
A policy which the PM has made clear his Governments intends to be tough on. The Home Secretary could cite the prerogative of national security. This is listed by Roskill as non-justicable5 and followed in Exp. Hosenball (1977). The case deals with rights of individuals in times of national security. The appeal was dismissed and it was held that when there interests of national security and individual rights conflicts, it is a matter for the Secretary of state to decide for the home department and not for a court.
Furthermore a parallel can be drawn with the current case of Maxine Carr's application for early release from jail, which was rejected. The Prison governors' granted Prison Service chief the ability to refuse release on the grounds that it would undermine public confidence in the tagging scheme. Arguably Jessica Palmer's release would undermine public policy. The Commons public administration committee (PAC) stated that the prerogative of mercy is no longer used to save condemned men from the scaffold but can be exercised to remedy miscarriages of justice, which are not put right by the courts.
In contrast to Justin, Jessica is likely to viewed as the former category hence, it is unlikely to be reviewable. The second matter deals with the conduct of foreign affairs by the Government. This is carried on mainly by reliance on the prerogative. In order for the treaty obligations to be given the force of law domestically, they must be incorporated into domestic legislation. The Trade Agreement (Flamencoland) Act 2004 incorporates the Treaty with Flamencoland into domestic law, s. 3 (2) grants the Secretary of State the discretion to bring the statute or part into force as he sees fit.
The fact that all chemical weapons are prohibited by Public International law is irrelevant, as it is not stated that this has been incorporated into domestic law. By instigating the revocation of passports of all British citizens in Flamencoland and ordering an invasion to stop the manufacture of chemical weapons it appears that he is "fettering his discretion" to obstruct Parliament's intention. In exp Fire Brigades Union (1995) the question posed was whether the SOS not having implemented the statutory scheme provided in the Criminal Justice Act 1988 was free to implement a different scheme under the royal prerogative.
It was ruled that he could not use the prerogative to defeat the statute. The cabinet may consider the challenge by British Chemical Company Ltd to enforce the original Treaty as non-reviewable. 6 However, Rees Mogg challenged the power to make the treaty. In this case they are not challenging the treaty, instead they are presumably challenging the overriding of the statute that brings this treaty into law. Indeed, if it has not been brought into law, they are challenging whether the Secretary of state can go against Parliaments intention. 7 However, further information will be required as it is unclear whether the act is in force.
The Secretary of State's decision to revoke the passports of all British citizens remaining in Flamencoland after July 2004 under the authority of exp Everett (1989) will be reviewable. It was held that the decision whether or not to issue a passport was an administrative decision that affected the individuals rights which was unlikely to have foreign policy implications. Similarly this prerogative was held to be reviewable in Ex p. Al-Fayed (No. 2) (1999). To order an invasion of Flamencoland to seize control of British companies so that Flamencoland cannot manufacture weapons carried out under the prerogative of Defence of the Realm.
Judicial review is unlikely as it perceived to be the duty of the recognised organs of government and authority to decide what its interests are according to the agreed policy and this shall not be subject to review. 8 However, Lord Devlin did state "The courts will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse". Laker Airways V Department of trade (1977) in which case a prerogative can be impliedly suspended by statute. Similar to the situation here it was held that the Secretary of State was acting ultra vires.
However, it is possible for the statute and prerogative to co-exist. The statute may continue to be used for the public good unless a statute expressly covers the same ground. In ex parte Northumbria Police Authority (1988) the prerogative power to keep the peace supplemented powers available under Police Act 1964. In the wake of British involvement in the invasion of Iraq in 2003 this appears to be very likely. It is arguably the case that it would be in the interests of the nation for the Secretary of State to carry out these actions.
Finally the PM's opposition to the Independent Honours Commission wanting to award the opposition a Knighthood, and instead wanting to confer a peerage to Marcus Fatcat. Firstly, the fact that the Independent Honours Commission was established under a Code of Practice drawn up by the Cabinet Office. This relates to the case of ex parte Lain (1967). Lord Parker CJ stated that despite the board had been established under prerogative it did not render its acts any the less lawful i. e. it was not above judicial review, so it appears in this case the PM will be granted judicial review.
Secondly, the fact that Marcus is a major donor to the PM's political party coupled with the loan of his villa for family holidays for the last ten years would equate to "honours or privileges recognising contributions to party political life" which are expressly prohibited by section 1 of The Award of Honours Act 2003. This goes against De Keysers principle which states that Parliament may abolish, suspend restrict or curtail any prerogative. Hence, once a statute is in place the latter one prevails over the prerogative. Thus, judicial review would be granted absolutely.