Industry was held to be bound by a statute regulating the licensing of

civil airlines which required an element of competition. It could not

therefore rely on its prerogative power to make a treaty for the pur-

pose of preventing Laker from setting up a cut-price airline between

London and New York. This broad view seems to conflict with the

general principle that the Crown cannot be bound by statute without

clear words or necessary implication.

More recently the courts have taken a different approach. The

prerogative was not put into abeyance where an apparently compre-

hensive system of statutory powers existed. In R. v. Secretary of State

for the Home Department ex parte Northumbria Police Authority

(1988)) it was held obiter that the Home Secretary could use a pre-

rogative power to supply the police with weapons, even though statute

placed local authorities in charge of providing police resources. The

court said that the prerogative power was suspended only when its

exercise was inconsistent with a statutory power. De Keyser’s case was

treated as an example of inconsistency. Purchas LJ suggested that the

De Keyser principle is qualified where executive action is designed to

benefit or protect the individual. In such cases the exercise of preroga-

tive power will be upheld unless statute unequivocally prevents this.

This decision was somewhat surprising since the relevant statute

contained no saving for the prerogative. Vincenzi (1998) is critical of

It, arguing that the decision is an unprecedented example of the courts

permitting the Crown to disregard statutory provisions in its percep-

tion of the public interest. He identifies a tension with the Bill of

Rights that prohibits the Crown from suspending or dispensing with

statute. R. v. Secretary of State for the Home Department ex parte Fire

Brigades Union (1995) seems to support Vincenzi’s view. The Secretary

of State had statutory power to make a commencement order bringing

legislation into force that was intended to establish a particular regime

for compensation for victims of crime. It was held that he could not

refuse to bring the statute into effect in order to establish a different

scheme under the prerogative, since this would frustrate the intention

behind the statute, which would become almost impossible to bring

308 General Principles of Constitutional and Administrative Law

into effect (cf. above p. 108). The prerogative power is therefore sub-

ject to the important limitation that it must not be exercised in a man-

ner which conflicts with the intention of Parliament. What if the

relevant statute is repealed? Does the prerogative power spring to life

again, freed from its statutory confinement? Logically the answer

should be yes, unless the repealing statute states otherwise (see A-G v. de

Keysers Royal Hotel Ltd at 539; Burmah Oil Co. Ltd v. Lord Advocate

(1965) AC 75 at 143).

13.4.8 Prerogative and human rights

The Human Rights Act 1998, s. 21 enacts that an Order in Council

made under the Royal Prerogative is ‘primary legislation’ for the pur-

poses of the 1998 Act. This means that the court cannot set aside an

exercise of the prerogative made by an Order in Council that conflicts

with a right protected under the European Convention of Human

Rights (Chapter 18). A further consequence of s. 21 is that a public

authority is only bound to act in accordance with convention rights

unless conflicting primary legislation requires it to act otherwise (s. 6).

Since an Order in Council is deemed by s. 21 to be primary legislation,

a public authority that acts in accordance with its terms would appear

to act lawfully even if in breach of a convention right (see Billings and

Ponting, 2001).

Summary

13.1 In this chapter we first discussed the meaning of the term Crown. The Queen

as head of state must be distinguished from the Crown as the executive.

It is not clear whether the Crown is a corporation sole or a corporation

aggregate.

13.2 Succession to the throne depends entirely on statute, thus reinforcing the

subordinate nature of the monarchy.

13.3 The monarch has certain personal political powers which should be exer-

cised in times of constitutional crisis. These include the appointment of a

prime minister, the dissolution of Parliament and the appointment of peers.

13.4 At common law the Crown was immune from legal action. Some of this

immunity has been reduced by the Crown Proceedings Act 1947, but the

Crown is still immune from enforcement and has certain special defences

including ‘Act of State’ and ‘executive necessity’ in contract. There is, how-

ever, no general doctrine of state necessity as justifying interference with

private rights. Certain acts of the Crown give rise to immunity from legal

liability.

309

The Crown

13.5 The Crown’s executive powers derive from three sources:

. Statutes.

. The Royal Prerogative – that is, the residue of special common law

powers peculiar to the monarch. While many prerogative powers have

been surrendered or are obsolete, some, notably in foreign affairs, remain

important. The prerogative must give way to statute and cannot be used to

make law or raise taxation. No new prerogative powers can be created.

Prerogative powers can be reviewed by the courts unless they concern a

‘non-justiciable’ subject matter such as foreign relationships. In practice,

political control over prerogative power is limited.

. Powers possessed by virtue of the fact that the Crown is a legal person

with basically the same rights and duties as an adult human being. The

Crown can therefore make contracts, own property, distribute money, etc.

There is a dispute as to whether this kind of power is part of the Royal

Prerogative.

Further Reading

Billings and Ponting (2001) ‘Prerogative powers and the Human Rights Act: elevating

the status of Orders in Council’ Public Law 21.

Brazier, Constitutional Practice, chapter 9.

Harris, B.V. (1992) ‘The third source of authority for government action’, 109 LQR 626.

Hennessy, The Hidden Wiring, chapter 2.

Jowell and Oliver (eds), The Changing Constitution, chapter 8.

Loveland, Constitutional Law, a Critical Introduction, chapter 4.

Munro, Studies in Constitutional Law, chapter 8.

Nairn, T. (1988) The Enchanted Glass: Britain and its Monarchy.

Turpin, 137–54, chapter 6.

Vincenzi, Crown Powers, Subjects, Citizens.

Exercises

13.1 Compare the Royal Prerogative with parliamentary privilege (see Chapter

10) with reference to (i) its purposes; (ii) its history and sources; and (iii) the

extent to which it can be controlled by the courts.

13.2 Define the Royal Prerogative and discuss the extent to which Royal Pre-

rogative powers can be politically and legally controlled. How does judicial

control of the prerogative relate to the separation of powers?

13.3 To what extent do government contracts differ from ordinary contracts?

13.4 To what extent does the Crown enjoy special privileges in litigation?

13.5 Explain the legal effect of a treaty in UK law. In what circumstances must a

treaty be confirmed by statute?

13.6 What is the significance of constitutional convention in relation to the Royal

Prerogative (see also Chapter 3).

13.7 There has just been a general election in the UK. The existing government

has obtained the largest number of seats in the Commons but without an

310 General Principles of Constitutional and Administrative Law

overall majority. The opposition is negotiating with a minority party to form a

government. The prime minister refuses to resign. Advise the Queen.

What would be the position if the opposition had obtained the largest

number of seats in the Commons, and the government was negotiating with

the minority party?

13.8 The government is defeated in a vote on the Annual Finance Act. The prime

minister refuses to resign. Advise the Queen.

13.9 The prime minister has just been sacked as party leader. However, due to an

agreement with the opposition and a minority party, he could still command

a small majority in the Commons. Advise the Queen.

13.10 The prime minister wishes to enact legislation transferring the powers of the

monarch to the president of the European Commission. Opinion polls

suggest a bare majority of public support for this proposal, but a minority

within his party are depriving him of a Commons majority. He asks the

Queen to dissolve Parliament and to call a general election. Advise the

Queen.

13.11 The government of Carribia, an independent commonwealth island, is

overthrown by a rebel force, ‘The People’s Front’. Cane, the displaced prime

minister of Carribia, requests the aid of the British government. British troops

are sent to Carribia and are authorised under an agreement between the

British government and Cane to ‘use all necessary measures to restore

the lawful government of Carribia’. During the British troops’ campaign on

the island they requisition buildings owned by Ford, an American citizen, for

use as a military depot, and destroy the home of Austin, a British citizen,

in the belief that it is being used as a base by the rebels. Ford and Austin sue

the British government for compensation. Discuss.

13.12 Ruritania is a self-governing member of the commonwealth. The Queen is the

Queen of Ruritania. Last week a military coup in Ruritania succeeded in

capturing the palace occupied by the Governor-General who represented the

Queen. The military commander requests the Queen to abdicate in favour of

himself as King. The situation in Ruritania is currently uncertain, and forces

loyal to the Queen are attempting to secure control. The British govern-

ment advises the Queen not to abdicate. The commonwealth Secretary-

General advises her to abdicate. What would you advise?

14 Ministers and Departments

14.1 The Prime Minister

The office of prime minister is a creation of convention and the main

powers of the prime minister are conventional. The prime minister also

holds the formal office of first lord of the Treasury (No. 10 Down-

ing Street is the first lord’s official residence) and is the minister for the

Civil Service. The Chancellor of the Exchequer is actually in charge of

the Treasury. The prime minister is appointed by the Queen. By con-

vention the Queen must appoint the person who can command a

majority in the Commons. This usually means the leader of the largest

party, but could involve a coalition of parties. The Queen usually has

no discretion in the matter.

14.1.1 The powers of the prime minister

The powers of the prime minister have evolved gradually since the

middle of the eighteenth century, corresponding to the decline in the

powers of the monarch. The office was originally that of cabinet chair-

man deputising for the monarch, and intermediary between the mon-

arch and the government ( primus inter pares).

The extent of the power of a modern prime minister is controversial.

The powers of a prime minister are scattered in convention, custom and

practice, royal prerogatives and ‘nods and winks’. The prime minister

also has statutory powers in sensitive political areas (e.g. Police Act