In Council relating to the civil service are legally enforceable, whereas

private employment depends on either contract or statute. Wade

would also exclude the power to issue passports and the power to

make treaties from being prerogative powers since these are voluntary

executive acts that do not in themselves have legal consequences.

Blackstone’s distinction seems unreal in that all these Crown powers

are important politically, and involve wide discretion which can be

exercised independently of Parliament. There is much to be said for

Dicey’s view and for treating all non-statutory powers of the Crown

alike. Indeed the modern cases seem to support Dicey. In CCSU v.

Minister for Civil Service (1985), the House of Lords treated the

control of the civil service as part of the Royal Prerogative holding

that they could review the validity of an Order in Council varying the

terms of employment of certain civil servants. Lord Diplock expressed

the view that the distinction between special and ordinary powers of

the Crown is artificial and would regard all common law powers of the

304 General Principles of Constitutional and Administrative Law

Crown as part of the prerogative. In R. v. Criminal Injuries Com-

pensation Board ex parte Lain (1967) a government scheme to pay

compensation to the victims of crime was treated as a matter of pre-

rogative, thus enabling the court to review errors of law made by

the board which was set up to run the scheme. The scheme was financed

out of money provided by Parliament but was not then statutory. Since

anyone can give away money, this scheme would not count as Royal

Prerogative under the Blackstone/Wade definition.

13.4.5 Parliamentary scrutiny

The exercise of some (but not all) prerogative powers can be subject

to parliamentary scrutiny. However, in practice, effective scrutiny is

limited (Syrett, 1998; Munro, 1999, pp. 275–8). In part this is because

of the general weakness of parliamentary scrutiny of ministerial action.

Another reason is that, by convention, the prime minister cannot be

questioned about advice given to the sovereign concerning her personal

prerogative powers, such as the grant of honours, the appointment

and dismissal of privy councillors and the dissolution of Parliament.

Whether their exclusion is justifiable upon any basis other than the

mystique that has traditionally attached to the prerogative is debatable.

They involve wide discretionary powers, but that in itself is an argu-

ment for rather than against political accountability.

Most prerogative powers, such as the deployment of the armed

forces, do not need formal parliamentary approval, so that opportunity

for debate is limited. Other prerogative powers relate to foreign

relationships, national security matters and the prerogative of mercy

on which ministers sometimes refuse to be questioned. However,

Parliament, if it wished, could insist on investigating. Parliament also

retains ultimate power because of its control over government spend-

ing although in the case of the prerogative the exercise of this in any

detail is unrealistic.

13.4.6 Judicial control over the prerogative

In the past the courts exercised only limited control over the pre-

rogative. If a prerogative power was disputed a court could determine

whether it existed, and (if it existed) what it empowered the executive

to do, but the monarch (that is, a minister) was the only judge of how

to exercise the power. An example includes Prohibitions del Roy (1607)

12 Co Rep 63 in which the court decided that the king did not have

a prerogative power personally to sit as a judge in court. Another

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The Crown

example is the Saltpetre case (1607) in which the king was held to have

the power in an emergency to enter private land and to be both the

sole judge of whether an emergency existed and what measures to take

(see also R. v. Hampden (1637); A-G v. de Keysers Royal Hotel Ltd

(1920)). The courts’ approach was contradictory. A power limited to

emergencies (as in Saltpetre) was not really limited at all if its holder

can conclusively decide what counts as an emergency.

In CCSU v Minister for the Civil Service (1985) the courts asserted a

jurisdiction over prerogative powers. A decision made under a pre-

rogative power is in principle reviewable on the same basis as a

decision made under a statutory power. But this does not mean that

this jurisdiction will always be exercised. The power must be of a

‘justiciable’ nature, which means that it must be suitable for the courts’

intervention. This is no longer resolved by looking at the source of

the power (statute or prerogative) but upon its subject matter. If the

subject matter is amenable to judicial review (i.e., a matter which,

under the separation of powers, the courts are entitled to consider) the

matter is open to judicial review.

If the subject matter of the decision concerns the rights or legiti-

mate expectations of individuals the decision is more likely to be

reviewable. For example, reviewable powers now include the power to

issue a passport (R. v. Secretary of State for Foreign and Common-

wealth Affairs ex parte Everett (1989)); the power to grant a pardon

(R. v. Secretary of State for the Home Department ex parte Bentley

(1993); A-G of Trinidad and Tobago v. Phillips (1995)), the power to

make ex gratia payments to the victims of crime (R. v. Criminal Injuries

Compensation Board ex parte P (1995)); the issue of warrants for

telephone tapping (R. v. Secretary of State for Home Department ex

parte Ruddock (1987), the policy of discharging homosexuals from the

armed service (R. v. Ministry of Defence ex parte Smith (1996)).

The courts accept that the subject matter of some prerogative

powers means that they are not suitable for review. For example, the

court will not entertain an application that asserts that a treaty-

making power has been unlawfully exercised, nor review the content

of a treaty (R. v. Secretary of State for Foreign and Commonwealth

Affairs ex parte Rees-Mogg (1994); Blackburn v. A-G (1971)). The

dichotomy between reviewable and unreviewable powers compels

the courts to address the question of which issues are amenable to the

judicial process under the separation of powers. This poses questions

about the functions of the courts. The reasons for a power being

deemed non-justiciable are many and various. These include (i) defer-

ence to matters of high policy and to Parliament; (ii) lack of judicial

306 General Principles of Constitutional and Administrative Law

knowledge and effectiveness; (iii) the absence of objective standards;

(iv) the need to trust the executive in an emergency; (v) the existence

of other remedies; and (vi) worries about hampering government

efficiency (see the American case of Baker v. Carr (1962) for a useful

general discussion). A non-justiciable power can in principle be statu-

tory or prerogative but is more likely to be prerogative. Prerogative

powers are usually exercised at the highest political levels; many of

them concern foreign affairs and emergencies and most of them

involve wide subjective discretion.

An indicative but not comprehensive list of non-justiciable powers

was offered by Lord Roskill in the CCSU case ([1985] AC 374, at 418).

The making of treaties and other high-level political decisions involving

foreign governments, the disposition of the armed forces, and the

Attorney-General’s powers to commence legal actions have all been

held to be unreviewable (see Blackburn v. A-G (1971); Chandler v. DPP

(1964); Gouriet v. UPOW (1978)). To these can be added the appoint-

ment and dismissal of ministers, the grant of honours and the sum-

moning and dissolution of Parliament. Lord Roskill’s list also included

the prerogative of mercy. However, this power has subsequently

become reviewable (ex parte Bentley, above). Thus the courts are

still developing the boundary between justiciable and non-justiciable

powers. It is unlikely, however, that other powers mentioned by Lord

Roskill would be justiciable in the absence of a fundamental remodel-

ling of the separation of powers.

13.4.7 Prerogative and statute

Parliament being sovereign, statute can abolish a prerogative power

although the courts may require express words or necessary implica-

tion (British Coal Corporation v. R. (1935); De Morgan v. Director

General of Social Welfare (1998)). Sometimes an exercise of prerogative

power is needed to repeal a statute. For example, the Import, Export

and Customs Powers (Defence) Act 1939 was to continue in force until

an Order in Council declared that the ‘emergency’ (the Second World

War) was over. No such Order was made and thus the Act continued

in force notwithstanding the end of hostilities (R. v. Blackledge, The

Times, May 29th 1995).

If a matter is subject to both a statutory and a prerogative power, the

statutory power may supersede the prerogative power (see A-G v. de

Keysers Royal Hotel Ltd (1920); Laker Airways Ltd v. Department of

Trade and Industry (1977)). Whether or not it does so is a matter of

interpretation of the statute in question. First, it depends on whether

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the statute is intended to bind the Crown (see above), and secondly,

whether the statute is intended to replace the prerogative.

Where the statute co-exists with a prerogative power it seems the

government cannot choose whichever power is most favourable to it

but must apply the statute Laker Airways suggests that, for statute to

prevail, the prerogative and statute do not have to be inconsistent. It is

enough that the statute covers the same ground as was formerly

regulated by prerogative. In that case the Department of Trade and