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Public Law 1 7
Miscellaneous
• Civil Service
– Council of Civil Service Unions v Minister for
the Civil Service [1984] AC 374
• Passports
– R v Secretary of State for the Foreign &
Commonwealth Office, ex p Ginwalla (Lawtel) 7
January 1999
– R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte Everett [1989]
QB 811).
Public Law 1 8
War and Armed Forces
• Declaration of war and conduct of war
– Burmah Oil v Lord Advocate [1965] AC 75
– Falklands invasion "It is an inherent
jurisdiction of the government to negotiate
and reach decisions, afterwards the House of
Commons can pass judgment on the
government." Thatcher
• Disposition of armed forces
– HM Advocate v Zelter & ors Lawtel 3 April 2001
Chandler v Director of Public Prosecutions
[1964] AC 763 (Prerogative powers which
governed the state's armed forces were not
justiciable in court.)
Public Law 1 9
– R v Ministry of Defence, ex p Macgillivray
Prerogative and Foreign Affairs
• Treaties
– (ratification 21 day Ponsonby rule) for
Parliament
– Lonrho Exports Ltd v Export Credits Guarantee
Department [1998] 3 WLR 394
– European Community Act 1972, ss 1, 2(1) & 3
future treaties authenticated by Order in
Council and directly applicable.
• Reception of Diplomats
– Agbor v Metropolitan Police Commissioner
[1969] 1 WLR 703
• Crown Certificates in Relation to Foreign
Affairs Public Law 1 10
Prerogative and Statute
• Sir Thomas
Bingham MR,
legislation is 'the
most solemn form
for which
constitution
provides'
– R v Secretary of
State for the Home
Department, ex
parte Fire Brigades
Union and Others
[1995] 1 All ER 888,
896.
• Act of Parliament
Public Law 1 11
suspends
Limitations on the De Keyser
Principle
• Majority of CA held that prerogative
suspended by Act of Parliament even
though not commenced. House of Lords
disagreed.
– R v Secretary of State for the Home
Department, ex parte Fire Brigades Union and
Others [1995] 1 All ER 888 (CA)
• Statute should not detract from
prerogative where no attempt to deprive
the subject of rights
– (Hobhouse) R v Secretary of State for the
Home Department, ex parte Fire Brigades
Union and OthersPublic
[1995]Law 1
1 All ER 888, 906 12
Prerogative and the
• Courts
Prerogative reviewable by the courts.
– R v Criminal Injuries Compensation Board, ex
parte Lain [1967] 2 Q.B. 864
• ‘I am unable to see ... that there is any
logical reason why the fact that the
source of the power is the prerogative
and not statute should today deprive the
citizen of that right of challenge to the
manner of its exercise which he would
possess were the source of power
statutory. In either case the act in
question is the act of the executive. To
talk of that act as the act of the
sovereign savours of the archaism of past
Public Law 1 13
Reason and Risks
• 'To avoid a vacuum in which the citizen
would be left without protection against
a misuse of executive powers, the courts
have had no option but to occupy the
dead ground in a manner, and in areas of
public life, which could not have been
foreseen 30 years ago… Nevertheless, it
has risks, of which the courts are well
aware. ....some of the arguments
addressed would have the court push to
the very boundaries of the distinction
between court and Parliament
established in, and recognised ever
Public Law 1 14
since, the Bill of Rights 1689...’ (Mustill)
Political Limitations on the
Courts
• Governmental decisions reflecting
financial priorities are seldom questioned
– also national security
– R v Cambridge Health Authority ex parte B
[1995] 1 WLR 898).
– Council of Civil Service Unions v Minister for
the Civil Service [1985] AC 374
Public Law 1 15