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( 155 .)


(1) Government should seek Parliamentary approval (for example, in the House of
Commons, by the laying of a resolution) if it is proposing the deployment of British forces
outside the United Kingdom into actual or potential armed conflict;
467 The powers of government

(2) In seeking approval, the Government should indicate the deployment™s objectives, its
legal basis, likely duration and, in general terms, an estimate of its size;
(3) If, for reasons of emergency and security, such prior application is impossible, the
Government should provide retrospective information within 7 days of its commencement or
as soon as it is feasible, at which point the process in (1) should be followed;
(4) The Government, as a matter of course, should keep Parliament informed of the
progress of such deployments and, if their nature or objectives alter significantly, should seek
a renewal of the approval.

Indeed, a strong case can be made for replacing all the rather ill-de¬ned and
wide-ranging powers that currently rest on prerogative with a statutory code,
bringing clarity and appropriate safeguards to the de¬nition of these powers as
a whole, and not only in the context of the deployment of the armed forces
(see A Tomkins, Our Republican Constitution (2005), ch 4). Several private
member™s bills have been introduced in Parliament that would, if enacted,
have codi¬ed aspects of the prerogative, but none has been passed into law (see
eg, the Armed Forces (Parliamentary Approval for Participation in Armed
Con¬‚ict) Bill 2005, presented by Clare Short MP and the Constitutional Reform
(Prerogative Powers and Civil Service etc) Bill 2006, presented by Lord Lester of
Herne Hill). The case has not commended itself to governments, however,
although the Labour Government conceded in 2004 that ˜it is possible, and
sometimes desirable, that [the prerogative] should be replaced by either statute
or conventions on parliamentary scrutiny where circumstances make that
appropriate™ (Government Response to the Public Administration Committee,
Cm 6187/2004). The Public Administration Committee in its report, Taming
the Prerogative (HC 422 of 2003“04), gave its approval to a draft bill submitted
by Professor Rodney Brazier (included in Appendix 1 to the Report). The draft
bill, in the committee™s summary (para 55):

Would require governments to list the prerogative powers exercised by Ministers within six
months of the Act™s passing. The list would then be considered by a committee (probably
a joint committee of both Houses) and appropriate legislation would be framed to put in
place statutory safeguards where these are required.

The draft bill itself included speci¬c provision for controls on the exercise of
executive powers relating to the use of the armed forces, the rati¬cation of
treaties and the issue and revocation of passports. In the result the Government
declined to proceed to comprehensive legislation on the lines proposed in the
draft bill (see Government Response, Cm 6187/2004).

(ii) Nature of the prerogative
It is disputed whether the prerogative covers all executive acts of the Crown that
are not based on statute. Two classic de¬nitions of the prerogative may be
468 British Government and the Constitution

compared. Blackstone, in his Commentaries on the Laws of England ((8th edn
1778), Book 1, ch 7, p 239), wrote:

By the word prerogative we usually understand that special pre-eminence, which the king
hath, over and above all other persons, and out of the ordinary course of the common law,
in right of his regal dignity. It signifies, in its etymology, (from prae and rogo) something
that is required or demanded before, or in preference to, all others. And hence it follows,
that it must be in its nature singular and eccentrical; that it can only be applied to those
rights and capacities which the king enjoys alone, in contradistinction to others, and not to
those which he enjoys in common with any of his subjects: for if once any one prerogative
of the crown could be held in common with the subject, it would cease to be prerogative any
longer. And therefore Finch [Law (1627), p 85] lays it down as a maxim, that the prerogative
is that law in case of the king, which is law in no case of the subject.

This de¬nition of the prerogative limits it to those common law powers that
are possessed by the Crown alone. Dicey has a di¬erent de¬nition in The Law of
the Constitution (10th edn 1959), pp 424“5:

The prerogative appears to be both historically and as a matter of actual fact nothing else
than the residue of discretionary or arbitrary authority, which at any given time is legally left
in the hands of the Crown. . . . From the time of the Norman Conquest down to the Revolution
of 1688, the Crown possessed in reality many of the attributes of sovereignty. The preroga-
tive is the name for the remaining portion of the Crown™s original authority. . . . Every act
which the executive government can lawfully do without the authority of the Act of
Parliament is done in virtue of this prerogative.

Notwithstanding the initial references to ˜authority™ and ˜sovereignty™, the con-
cluding words of this passage express a comprehensive view of the prerogative.
Blackstone™s and Dicey™s views have both received judicial and academic
approval, although in general the courts have followed Dicey. It is therefore
debatable whether the government is rightly said to exercise the prerogative of
the Crown when, for example, it engages an employee or purchases goods or
makes grants of money, these being acts that any other person may perform.
Perhaps these are simply things that the Crown can do by virtue of its corporate
capacity at common law “ although in making payments of money it must act
within the limits of parliamentary authorisation of expenditure. (Cf Harris,
˜The “third source” of authority for government action™ (1992) 108 LQR 626
and Cohn, ˜Medieval chains, invisible inks: on non-statutory powers of the
executive™ (2005) 25 OJLS 97. The power of the Crown, as a corporation sole, to
deal with its property or spend money was acknowledged in the judgments of
the Law Lords in R (Hooper) v Secretary of State for Work and Pensions [2005]
UKHL 29, [2005] 1 WLR 1681.) It is also questionable whether the prerogative
label should be attached to governmental acts that have no e¬ect on the rights
or duties of persons under English law, as when the government publishes
469 The powers of government

o¬cial information or issues a passport. But these actions too have been held to
belong to the prerogative: see Jenkins v Attorney-General (1971) 115 Sol Jo 674;
R v Secretary of State for Foreign and Commonwealth A¬airs, ex p Everett [1989]
QB 811. Again, the making of a treaty by the Crown has no e¬ect on the
domestic law, but the treaty-making power is regarded by the courts as part of
the prerogative: see Blackburn v Attorney-General [1971] 1 WLR 1037 and
Ex p Molyneaux [1986] 1 WLR 331. (On the whole question see Sir William
Wade, Constitutional Fundamentals (rev edn 1989), pp 58“64.)

(iii) Prerogative and statutory powers
In using either prerogative or other common law powers, the government is free
of the constraints of an enabling statute; it may therefore prefer to take this
course when it is available, rather than obtain statutory authority for its actions.
But there is an important limitation upon the government™s freedom to act in
this way. If statutory powers already exist which cover the same ground as a pre-
rogative power, the government is in general not free to choose between them,
but must act under the statute.

Attorney General v De Keyser™s Royal Hotel Ltd [1920] AC 508 (HL)
During the First World War the Government took possession of De Keyser™s
Royal Hotel in London for the accommodation of sta¬ o¬cers. Afterwards the
owners of the hotel sued the Crown (by the procedure known as petition of
right, which has since been superseded) for compensation for the use and occu-
pation of the hotel. The main ground of their claim was that the hotel had been
taken under the Defence Act 1842, which provided for compensation. The
Government™s reply was that the hotel had been occupied under the prerogative
power to take property for the defence of the realm, which (it was contended)
imported no duty to pay compensation.
The House of Lords held that the Government could not lawfully act on the
prerogative power when there was a statute which authorised it to take the prop-
erty and prescribed the conditions on which that could be done. The taking
could be justi¬ed only by the statute, and its provisions as to compensation
must be observed. The reasoning of their Lordships is indicated by the follow-
ing passages.

Lord Atkinson: . . . It is quite obvious that it would be useless and meaningless for the
Legislature to impose restrictions and limitations upon, and to attach conditions to, the exer-
cise by the Crown of the powers conferred by a statute, if the Crown were free at its plea-
sure to disregard these provisions, and by virtue of its prerogative do the very thing the
statutes empowered it to do. One cannot in the construction of a statute attribute to the
Legislature (in the absence of compelling words) an intention so absurd. It was suggested
that when a statute is passed empowering the Crown to do a certain thing which it might
470 British Government and the Constitution

theretofore have done by virtue of its prerogative, the prerogative is merged in the statute.
I confess I do not think the word ˜merged™ is happily chosen. I should prefer to say that when
such a statute, expressing the will and intention of the King and of the three estates of the
realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the
Crown can only do the particular thing under and in accordance with the statutory provisions,
and that its prerogative power to do that thing is in abeyance. Whichever mode of expres-
sion be used, the result intended to be indicated is, I think, the same “ namely, that 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.

Lord Moulton, after discussing the legislation culminating in the Defence Act
1842, said:

What effect has this course of legislation upon the Royal Prerogative? I do not think that it
can be said to have abrogated that prerogative in any way, but it has given to the Crown
statutory powers which render the exercise of that prerogative unnecessary, because the
statutory powers that have been conferred upon it are wider and more comprehensive than
those of the prerogative itself. But it has done more than this. It has indicated unmistakably
that it is the intention of the nation that the powers of the Crown in these respects should
be exercised in the equitable manner set forth in the statute, so that the burden shall not
fall on the individual, but shall be borne by the community.
This being so, when powers covered by this statute are exercised by the Crown it must
be presumed that they are so exercised under the statute, and therefore subject to the
equitable provision for compensation which is to be found in it. There can be no excuse
for reverting to prerogative powers simpliciter “ if indeed they ever did exist in such
a form as would cover the proposed acquisition, a matter which is far from clear in such a
case as the present “ when the Legislature has given to the Crown statutory powers which
are wider even than anyone pretends that it possessed under the prerogative, and which
cover all that can be necessary for the defence of the nation, and which are moreover
accompanied by safeguards to the individual which are in agreement with the demands
of justice.

Whether the prerogative power, had it been available to the government in
this case, would have permitted the taking of property without compensation,
did not fall to be decided. (On this question see Burmah Oil Co Ltd v Lord
Advocate [1965] AC 75.) The principle in De Keyser, that prerogative must give
way to statute, applies only where the statute is in force. (In R v Secretary of
State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513, the
House of Lords held that the Secretary of State could not rely on the preroga-
tive in introducing a scheme for the compensation of victims of crime, when
to do so involved renouncing the scheme established by Parliament in the
471 The powers of government

Criminal Justice Act 1988, which he chose not to bring into force by com-
mencement order.)
Statute and prerogative sometimes co-exist, for Parliament may have
provided additional or alternative powers without intending to abridge the
prerogative. In some statutes, indeed, we ¬nd the prerogative expressly pre-
served: for example, Immigration Act 1971, section 33(5). In other cases it is a
question of construction of the relevant statute whether it has displaced, in
whole or in part, a pre-existing prerogative. The inference should not, however,
be readily drawn that the government remains free, when Parliament has
provided a precisely regulated power, to resort to general (often ill-de¬ned)
prerogative powers to achieve its ends.

R v Secretary of State for the Home Department, ex p Northumbria
Police Authority [1989] QB 26 (DC and CA)
Section 4(4) of the Police Act 1964 provided that the police authority for a
police area ˜may . . . provide and maintain such vehicles, apparatus, clothing and
other equipment as may be required for police purposes of the area™. In May
1986 the Home Secretary sent a circular letter to chief o¬cers of police and
police authorities, saying that plastic baton rounds and CS gas would be made
available to chief o¬cers of police from a central store, for use in situations of
serious public disorder. A police force might be supplied with these items even
if the police authority did not agree, if the chief constable™s request for them was
endorsed by an Inspector of Constabulary. The Northumbria Police Authority,
in an application for judicial review, sought a declaration that the circular was
ultra vires, arguing that the Home Secretary had no power to issue plastic baton
rounds or CS gas to a chief constable without the consent of the local policy
The Divisional Court held that the only statutory power of equipping police
forces was that conferred on police authorities by section 4(4) of the Police Act
(above), but that the Home Secretary could make use of a prerogative power to
supply a police force with equipment needed for the maintenance of peace. The
Court of Appeal decided, di¬ering in this from the Divisional Court, that
section 41 of the Police Act (authorising the Home Secretary to provide and
maintain services for promoting the e¬ciency of the police) allowed the min-
ister to supply equipment to a police force without the consent of the police
authority. Having so decided it was not strictly necessary for the Court of
Appeal to consider whether a prerogative power was available to the Home
Secretary for this purpose, but the matter had been fully argued and the Court
gave its attention to this question also.
Did a prerogative power exist which could justify the Home Secretary™s
action? There was undoubtedly a prerogative of defence of the realm, or war
prerogative and the Court of Appeal held that this, or a related prerogative,
extended to keeping the peace and maintaining order in peacetime.
472 British Government and the Constitution

Nourse LJ: . . . It has not at any stage in our history been practicable to identify all the pre-
rogative powers of the Crown. It is only by a process of piecemeal decision over a period of
centuries that particular powers are seen to exist or not to exist, as the case may be. From
time to time a need for more exact definition arises.

Nourse LJ saw the war prerogative as being founded on a ˜wider prerogative™
of protection of the realm and the subjects within it. He continued:

The wider prerogative must have extended as much to unlawful acts within the realm as to
the menaces of a foreign power. There is no historical or other basis for denying to the war
prerogative a sister prerogative of keeping the peace within the realm. . . . [T]he scarcity of
references in the books to the prerogative of keeping the peace within the realm does not
disprove that it exists. Rather it may point to an unspoken assumption that it does.

Are we to see this case as one in which an existing prerogative power was given
˜a more exact de¬nition™, or was such a power signi¬cantly extended, or a new
power created (one not found in the books: cf Entick v Carrington, above,
p 78)?
The Court of Appeal had then to consider the argument that, having regard
to Attorney-General v De Keyser™s Royal Hotel, any prerogative power of keeping
the peace had been abridged by section 4(4) of the Police Act. This argument
was rejected.

Croom-Johnson LJ: . . . It is clear that the Crown cannot act under the prerogative if to do so
would be incompatible with statute. What was said here is that the Secretary of State™s pro-
posal under the circular would be inconsistent with the powers expressly or impliedly con-


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( 155 .)