The Royal Prerogative Power

1688-1689 also known as the "Glorious Revolution"1 was perhaps the most important and insurrectionary period of time in terms of our Constitutional Law. Where "clear statutory limits on the extent of Prerogative Powers"2 where entrenched after the reign of King James II, where he attempted to exercise the Prerogative Powers; contradictory to Parliaments wishes and the Anglican Church. This is demonstrated in the case of Godden v Hales (1686). William of Orange and wife Mary (elder daughter of James II) intervened and mutually took over the reign of James II.

In doing so, agreed to the terms and conditions set out in the Bill of Rights 1689 which limited the use of Prerogative Powers and in conjunction, avowed the Supremacy of Parliament over the Monarch. Prerogative Powers became "the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers"3 "Among academics, the judiciary, and the government that the exact limits of the prerogative power are not capable of precise definition"4.

The Government in response to the Select Committee of HC Public Administration in 2003, for the first time released a list of Prerogative Powers relating to both domestic and foreign affairs. Amongst the list of powers, was the Power of Mercy. William Blackstone describes the Prerogative powers as what "the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects"5. Prerogative Powers are those which the Monarch poses and are unique to the Crown, however, are exercised on the advice of Government Ministers.

This essay is concerned with The Royal Prerogative Power of Mercy, which "no longer saves condemned men from the scaffold but it is still used e. g. to remedy errors in sentence calculation"6. The death penalty was abolished by the Murder (Abolition of Death Penalty) Act 1965; so it would seem that the Prerogative Power of Mercy would no longer be valid, however it is. The power does apply to remedy sentence miscalculations; "use of the prerogative powers to grant free, conditional and remission pardons has been largely, but not entirely, superseded by statutory provisions.

Residual Prerogative Powers may still be relied on, however, in exceptional cases. "7 Where an irregularity between the Royal Prerogative and Statute arises, it is the latter power which prevails. This principle arose from the case of A-G v De Keyser's Royal Hotel Ltd8 Lord Atkinson stated "after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been"9.

This therefore means that, Acts of Parliament which have been enacted after the Royal Prerogative which does the same as the Prerogative powers did, takes president; even if they contain limitations which the Prerogative Powers did not. Previously, judges have refused to review the usage of Prerogative Powers; mainly due to the Doctrine of Separation of Powers since "it would be difficult for the courts to review their exercise of political judgement without transgressing the doctrine of the Separation of Powers"10.

An example of this notion of judicial review boundaries of Prerogative Powers is demonstrated in the case of R (Anderson) v Secretary of State for the Home Department11 Where the Secretary of State under section 29 of the Crime (sentences) Act 1997 may release on license a life prisoner on recommendation of the Parole Board. Lord Bingham described this as "judicial vandalism"12 due to the Executive overstepping its constitutional function. Montesquieu (a French philosopher) wrote about the idea of separation of functions in l'esprit des lois.

Due to the nature of some of the Royal Prerogative Powers, and the Doctrine of Separation of Powers; the use of some of the powers are unable to be viewed under the scope of judicial review. Lord Woolf and Jeffrey Jowell describe the limits as "decisions that the courts are ill-equipped to review; those which are not justiciable, either because they admit of no objective justification or because the issues they determine are polycentric in effect.

Such decisions include those that necessitate the evaluation of social and economic policy, or the allocation of scarce resources among competing claims. Courts are institutionally unsuited to resolving these kinds of problem, which are best left to be decided in the political arena. "13 It is an interesting hypothesis that only some of the Prerogative Powers can be subject to judicial review; based on the nature of the use.

When it comes to Judicial Review of Prerogative Powers, limited review seemed to be the option taken rather than a full review; the reason being that of the application of the Wednesbury Principles14. The Wednesbury Principles consist of three parts which determines whether the authority has acted Ultra Vires (beyond legal power/authority). The first; where the authority concerned is guilty of exercising a power which the law does not possess. The second; where the authority concerned exercises a power in such an unreasonable manner, that it in itself becomes open to review.

The third; "where it has acted contrary to what are often called "principles of natural justice"15 which is a duty to act fairly. Historically, Judicial Review over the Royal Prerogative Powers have been very limited to the extent that they were confined to establish if they even existed; before the powers were clearly established (by the Government in response to the Select Committee of HC Public Administration in 2003) they were very indistinct.

"Prior to the 1980s, the orthodox view amongst constitutional lawyers was that the courts were unwilling to say in what way, or for what objectives, the powers which did exist should be used"16 The courts were only able to apply the first part of the Wednesbury Principles to establish if such powers existed; however they did not rule on powers that did exist.

Previously, the courts have not viewed Prerogative Powers for many reasons, however were prepared to "accept jurisdiction to examine if the requisite factual triggers for an exercise of the power were present in the case before it"17 this shows that the courts were ready to accept jurisdiction on reviewing the use of Prerogative Power but were hesitant to move into an unfamiliar field; setting new presidents and crossing into a separate constitutional function as there was nothing similar previously; "very diluted rule of law"18.

This is why the courts would have limited review establishing whether or not the Prerogative Powers did in fact exist; demonstrated in the case of R v Allen19 which was regarding the power nolle prosequi that the Attorney General had which allowed him to halt any ongoing trials of a criminal nature. The power had been presented however, procedurally incorrectly. It was said in the brief judgement; that the remedy for abuse of such power would be for Parliament to hold him accountable. This shows that the judiciary were not able to conduct a full review of the power invested in the Executive, due to its nature.

In later cases such as Laker Airways20 a case regarding civil aviation of aircrafts. Lord Denning added further weight to the argument for Prerogative Powers to be subject to full review; not just limited review where he said "Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive"21. So just like the power to propose and create law which is also open to judicial review, Royal Prerogative Powers should also be as they are also in the hands of the executive (government).

The QCHQ22 case of 1983 was a case regarding the trade union rights of those who worked in the Governments Communication Head Quarters (GCHQ). The Minister of Civil Service (also the Prime Minister at the time) prohibited the employees of GCHQ being members of a trade union. This was supposedly done under the Royal Prerogative Power stated in Article 4, Civil Service Orders in Council 1982. This case potentially made Prerogative powers susceptible to full Judicial Review. Prior to this case, the powers were subject to limited Judicial Review, I. e. whereby only to establish the existence of the powers and not the fairness of the use.

Lord Roskil stated "It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken"23 limiting the review to establish the existence of the power. He then went onto quoting Lord Atkin "the clanking of mediaeval chains of the ghosts of the past"24 suggesting that even though the Prerogative Powers where not before subject to judicial review; if they were, it was limited; that is now a thing of the past; as stated by Lord Denning in the case of Laker Airways [1977] QB 643 at 705 (quoted above).