Prosecuting Tony Blair and others

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The Crown Prerogative

Has the Crown a “Prerogative” to commit crime with impunity?

(1)  The Defence Prerogative is "unreviewable"

Let me begin, at once, by acknowledging and recognising that in the matter of the planning, preparation, initiation and waging of war or of an armed conflict, indeed as respects any & all aspects of the armament, deployment and disposition of the armed forces of the Crown, both in time of war and in so-called “peace”; the Crown is acting in virtue of its powers at common law and outside of statutory authority and control in respect of its powers under the so-called “Crown Prerogative”. Furthermore, that when in exercise of this particular prerogative it enjoys an unfettered, unconditional and uncontrolled discretion. By which is meant that none may, by action in court, successfully challenge the procedural propriety, reasonableness or fairness of the making of any such decisions relating to those matters, or indeed therein by legal means doubt the wisdom, motive or purpose in the outcome of such decisions and policies.

Equally, it is still true today, that even Parliament has never sought the power to control the Crown’s unfettered command of the Royal Forces, both in war or peace, once it has granted permission for the raising of a standing army. We have in this country no equivalent of an American “War Powers Act”, no legal democratic Parliamentary control whatever over the resort to the use of military force by the Crown and its decisions whether or not to wage wars and if so against whom. Whilst it is worthy of note that on this occasion, the present “Gulf War”, Parliament was almost uniquely afforded an opportunity a priori to express its view on the wisdom of going to war, or in the modern jargon, the use of armed force, at this time, none may doubt but that legally the Crown was never bound by the outcome of a such vote.

Contrary wise, it is true that whilst at one time such procedural immunity from the writ of administrative law judicial review may once have been thought to have been enjoyed by any act of an ‘emanation’ of the Crown whilst in performance of its common law prerogatives, it is equally certain that this is no longer true today. Only certain of the most politically sensitive and highly important of the functions of executive government by the Crown are still exempt entirely from legal administrative scrutiny. The arbiter of that line is, of course, what today we call the Administrative Court of the Queen’s Bench, in exercise of its statutory supervisory jurisdiction for judicial review, but in which none the less it retains its broad discretion at the common law to decide for itself just how far the “writ of judicial review” shall run.

It has now clearly decided that when it comes to certain of the most politically sensitive and important areas of government, under which the methods of control exercised by the Crown over its subjects, both at home and abroad, is most controversial and open to abuse, the Crown shall be beyond the purview of judicial review. Once the mantra of “national security interests” is intoned, for instance, or more likely once it is merely perceived that it would be intoned were leave to review a decision to be granted, the fire curtain comes quickly clashing firmly down upon the stage of judicial review and all further enquiry is politely turned aside as the public is invited to leave the theatre. Such for example it veritably the judicial cloak of the “cloak and dagger” brigade. Equally the courts have deliberately closed their reviewing eyes to the conduct of the Crown in a broad range of areas, which are those being most vital to the civil life and continued peace of the Realm. The most oft cited of recent authority in the matter being the speech of Lord Roskill in the infamous “GCHQ” case:

“Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the granting of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The Courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.”

Council for Civil Service Unions v. Minister for the Civil Service [1984] 3 WLR 1174 HL(E) @ 1203

Clearly then, whether or not one considers the “prerogative to wage war”, or in modern parlance “the resort to the use of armed force", as falling four-square within the rubric “the Defence of the Realm”, once the title of an infamous Statute; the subject matter is, beyond any much real doubt, one of those prerogatives of the Crown which are in turn beyond “judicial review” by the courts.

(2) Prerogative and 'the Rule of Law'.

However, all of that being said, the real question raised by the issue now before this Court is an entirely different and distinct one, not to be confused or jumbled-up with the “reviewability” of certain prerogative acts of the Crown. The question for us today is simply this : “Has the Crown a Prerogative to commit a crime with impunity ?” Which is to say that, in the exercise of its undoubted prerogatives, even those that are “unreviewable”, is the institution of the Crown, or the office of any of its component or constituent parts and equally those individual persons who are the servants of the Crown and whose responsibility it is to determine and carry out the functions of those offices, immune from the writ of the ordinary and common criminal law of the land when acting, or at least when purporting to act, within their official capacities?

In short, are they then above “ the rule of law “ of the land?

On the face of it even to ask this question is an absurdity, for it is to sanction an assault on a fundamental pillar of the unwritten constitution as finally (and allegedly) fully settled at the time of the Glorious Revolution. If it is even conceivable that the “Crown Prerogative” could stretch to such an extent that, those of its servants and agents acting with the colour of authority and purportedly within capacity, are indemnified or immune, before the event, against the commission of any offence against the ordinary rule of the common criminal law, rather than merely likely to be pardoned, by exercise of the royal prerogative for pardon or mercy, after the event ; then it follows that in practice all of the freedoms, liberties and privileges, supposedly enjoyed by ordinary “Englishmen” in virtue of that Constitutional Settlement, and specifically in return for their common law presumption of allegiance to the Crown, are set at nought. Were this notion to have any legal currency then indeed every “squaddie” manning a vehicle check point in Armagh, or every driver of an Armoured Personnel Carrier on the public highway in Wiltshire, or every Master-at-Arms on shore patrol in “Pompeii” after midnight would have a lot less to worry about, and the rest of us would have a great deal more to worry about.

Lord Diplock, when giving his opinion in the very same “GCHQ” case as per Lord Roskill above, first sets out the three, now notorious and oft cited, separate heads or grounds for the exercise of judicial review as a general principle, being “irrationality”, “procedural impropriety” and finally “illegality”. He then continues by noting that the general liability or subjection of the Crown, its components, servants and agents, to the ordinary rule of the law, meant that, in his view at least, decisions, even in the field of “national security”, were susceptible to judicial review at least on grounds of “illegality”:

“My Lords, that a decision of which the ultimate source of power to make it is not a statute but the common law (whether or not the common law is for this purpose given the label of ‘the prerogative’) may be the subject of judicial review on the ground of illegality is, I think, established by the cases cited by my noble and learned friend, Lord Roskill, and this extends to cases where the field of law to which the decision relates is national security, as the decision of this House itself in Burmah Oil Co. Ltd. v the Lord Advocate [1964] SC (HL) 117 shows.”

Council for Civil Service Unions v. Minister for the Civil Service [1984] 3 WLR 1174 HL(E) @ p.1196h

Accordingly, it is instructive to next examine what was said regarding this issue, on the matter of the Crown prerogative and subjection to the rule of law, in that earlier case dating from the mid-sixties, on the vexed issue of compensation for the destruction of the Burma Oil Companies infrastructure (A Scottish Company registered in Edinburgh)ahead of the Japanese invasion. In his noteworthy opinion in the House, Lord Pearce said as follows :

“The prerogative or right of sovereignty or eminent domain (as Grotius and other institutional writers called it) was, theoretically at least, subject to the public law by which citizens either individually or as a whole had certain rights. And it is those rights which the writers on eminent domain recognised and which, in their view, the sovereign was bound to respect, although there might in practice be no one strong enough to call him to account if he failed to do so. But the King in Parliament is limited by no such restraints, since, when King and citizen consent together, they can curtail either the rights of sovereignty or the liberties of the subject. Where, however, the prerogative survives, it remains the ancient sovereignty within the limits of the law existing side by side with the King in Parliament that can alter the law. Bracton’s theory that the Crown was subject to the rule of law has, after some vicissitudes in Stuart times, prevailed. The Crown was under the law quia lex facit regem. ... Non est enim Rex, ubi dominatur voluntas et non lex. “

Burmah Oil Co.Ltd.-v- the Lord Advocate [1965] AC 75 @ p147 (my emphasis added).

Translation of final expressions :

“Because it is the law which maketh the King ... (so that) none is in fact King who rules by will and not the law”.

Henry de BRACTON (d. 1268) “De Legibus et Conseutudinibus Anglae” (Edn. G. Woodbine 1915-1922) Folio 5B

(3)  The 17th & 18th. Century Authorities.

It is respectfully submitted that Lord Pearce need not have resorted to the opinions of foreign jurists and writers, even those as acclaimed as Grotius, so as to discover and discern the legal limits on the exercise of the royal prerogative in this country, or as known abroad as the doctrine of “eminent domain”. There have been eminent jurists and judges enough in the troubled history of the constitutional settlement of this Realm to cite on the limits of Royal Prerogative. Take for example the references made by Lord Denning MR in his later judgement in Laker Airways Ltd v. the Department of Trade (1977). Denning MR says :

“Much of the modern thinking on the prerogative power of the executive stems from John Locke’s treatise on the True End of Civil Government, which I have read again with much profit, especially chapter 14, ‘Of Prerogative’. .... The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere in those situations ; but it can set limits by defining the bounds of the activity: and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our constitution. It derives from two of the most respected of our authorities. In 1611 when the King, as the executive government, sought to govern by making proclamations, Sir Edward Coke declared that : ‘the King hath no prerogative, but that which the law of the land allows him’ ... In 1765 Sir William Blackstone added his authority, Commentaries, volI, p 252 :

‘ For prerogative consisting (as Mr Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner’.

Quite recently the House of Lords set a limit to the war prerogative when it declared that, even in time of war, the property of a British subject cannot be requisitioned or demolished without making compensation to the owner of it : see Burmah Oil Co. (Burmah Trading) Ltd. v.Lord Advocate. It has also circumscribed the treaty prerogative by holding that it cannot be used to violate the legal rights of a British subject, except on being liable for any damage he suffered: see Nissan v the Attorney General by Lord Reid.

Seeing that the prerogative is a discretionary power to be exercise for the public good, if follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive ...The House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers, so as to see that they are used properly, and not improperly or mistakenly. By mistakenly, I mean under the influence of a misdirection of fact or in law. Likewise, it seems to me that, when discretionary powers are entrusted to the executive by the prerogative - in pursuance of the treaty-making power - the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly. ”

Laker Airways Ltd v. the Department of Trade [1977] 2AllER 182 @ pp.192-194

Most notably then, Lord Denning MR, when in exercise of what amounted to a “judicial review” of executive action, though it was not then exactly so termed (just predating the procedural Act of 1977), makes reference to a perceived power in “the courts”, to interfere with the exercise of the prerogative, even with those highly important and sensitive prerogatives such as concern “the war prerogative” and “the making of treaties”, merely on the basis of an “improper” or “factually mistaken” decision. Sadly, one must now concede that such expressions of judicial independence and fortitude, in the face of such executive misconduct and maladministration, have now succumbed to the contrary and craven view point expressed by Lord Roskill, only some six years later, in his notorious speech in the “GCHQ” case as above.

However, in so far as Lord Denning’s citations and authorities make reference to the power, even the duty, in “the courts” to intervene whenever the prerogative is exercised, or is shown to have been exercised, in an unlawful manner, be that under a mistake of law or more precisely tainted by “illegality”, rather than merely in an “improper” or “irrational” manner, then clearly the basis of such common law authority as he cites far exceeds such matters as the bounds of the self-regulatory jurisdiction of “the courts”, as is today exercised by the Administrative Court over the scope for judicial review of administrative action, but rather, as Lord Denning himself said, goes to the very heart of our constitutional settlement.

Firstly, Lord Denning MR, cites the most renowned dictum of Sir Edward Coke CJ in the case of Proclamations (1611) wherein that historically distinguished of judges of the Century of Revolution states :

“ ...it was resolved by the two Chief Justices, Chief Baron and Baron Altham upon conference betwixt the Lords of the Privy Council and them that ... the King hath no prerogative, but that which the law of the law allows him.”

Proclamations (1611) XII Co.Rep. 74 @ 76, 77 ER 1352.

Equally, he could also have cited that other renowned dictum of that same judge, in his earlier record, of the case of Prohibitions del Roy (1608), as debated in the Privy Council itself, wherein Coke claims to have cited Bracton again but this time before the King in person, per

“ ... the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege.“

Prohibitions del Roy (1608) XII Co. Rep.63 @ 65; 77 ER 1342

(Translation of concluding phrase : “the King shall be beholden to no man, but under God and the law.”)

This renowned judge, of course, is most respected for having risked these royally unwelcome views of the legal limits upon the exercise of the Royal Prerogative, at a time before the Civil War, the Republic and the Restoration. But even in the immediate aftermath of these momentous constitution shaping events, the highest Judges were still ready and prepared to defend the rights of Englishmen under the Common Law against the arbitrary power of Kings. Of particular note is, for example, the judgement of Sir John Vaughan CJ in the case of Thomas v. Sorrel (1673), in which he states that from first principles of law and reason that, if by exercise of his royal prerogative “for granting dispensations“, the King purported to make it lawful in certain instances to kill, or to appropriate property, then :

“ ...a law making murther, stealing, etc. lawful, would be a void law in itself. “

Thomas v Sorrel (1673) Vaugh. 330, 124 ER 1098 @ 336-337

Sir John Vaughan CJ continues by conceding that the King had a prerogative of mercy whereby he could well pardon a murderer or thief once convicted :

“... but if the King will give power to kill a man, (etc)..... it is void. And upon the same reason, a licence to imprison a man, to take his land, his horse, or any thing that is his from him, is void. For in life, liberty and estate, every man who hath not forfeit them, hath a property and right which the law allows him to defend; and if it be violated, it gives him an action to redress the wrong, and to punish the wrong-doer. Therefore a dispensation, that is, to make lawful the taking from a man any thing which he may lawfully defend from being taken, or lawfully punish if it be, must be void.”

Ibid. p.337

Nearly a Century later, and after the “Glorious Revolution” and the repeal of the “prerogative for dispensation” by the Bill of Rights (1688) , we then have the most famous judgement of the King’s Bench in the matter of Entick v Carrington (1765) as authority for how this constitutional pillar had survived those intervening turmoils. The Plaintiff (Entick) sued “messengers” who had broken into his house one night without a magistrates’ warrant, nor even in the presence of regular constables answerable to the magistrates, and who had then ransacked his house and seized him and his papers. In their defence the “messengers” claimed to have been acting on the authority of their master, a Secretary of State and Member of the Privy Council, who had suspected Entick to be in possession of libellous literature produced on an unlicenced press.

On this memorable occasion the King’s Bench denied that the Secretary of State’s general duties as a ‘conservator of the peace’ entitled him to issue vague and ill regulated search warrants, far more invasive of the liberties of the subject than anything which a true justice of the peace could issue. The fact that individual Privy councillors had been in the regular habit of issuing such “general warrants” without being challenged in the courts before was immaterial. Breaking into someone’s house, capturing them and taking their papers - these are all prima facie unlawful acts. It was up to the defendants to establish the legal authority behind the Secretary of State’s order or they’d be guilty as charged.

“... we were told that he was obliged by his oath to sweep away all papers whatsoever ; if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; ...if he will tread upon his neighbour’s ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the Revolution ..[1688].. ... if it began then, it is too modern to be law; the common law did not begin with the Revolution; the ancient constitution which had been almost overthrown and destroyed, was then repaired and revived; the Revolution added a new buttress to that ancient venerable edifice ..[ the bill of Rights] ..”

Entick v Carrington (1765) 2 Wils. KB 275 @ 291; 95 ER 807

The Court then turns to examine the specific issue of justification raised by the State “messengers” in their defence, namely that of State “necessity” to suppress seditious libel and rabble rousing literature produced on unlicensed presses, what today would doubtless be phrased “the public interest in national security”. The Court displayed an equally robust scepticism :

“ It is said that it is better for the Government and the public to seize the libel before it is published ; if the Legislature be of that opinion they will make it lawful. Sir Samuel Astey was committed to the Tower, for asserting there was a law of State distinct from the common law.”

ibid P.292

(4)  The Constitutional Settlement & the Rule of Law.

I naturally favour and adopt the sentiment that “if the legislature be of that opinion they will make it lawful”. Of course, I would most warmly welcome that day of unaccustomed candour and debate in our public life when our Government places a Bill before our Parliament, whether under the unashamed title “Assistance for American Wars of Aggression (Enablement) Bill” or otherwise. However in the meantime, and whilst such candour in public life seems nought but a pipe dream, I shall be content to continue to invoke the notion that “be you ever so high yet the law of England is above you.” That general proposition was never so forcefully put as by Professor A.V. Dicey in his seminal work “Introduction to the Study of the Law of the Constitution” (1885) wherein on the subject of “the Rule of Law” he holds:

“ It means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by law, and law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else.

We mean in the second place, .... not only that with us no man is above the law, but (what is a different thing) that here every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. ... With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. A Colonial Governor, a Secretary of State, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private or unofficial person ...

The ‘rule of law’, lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts ; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the Land. “

(my emphasis added).

A.V. Dicey “Introduction to the Law of the Constitution” (1885) 10th. edn., London 1959, p.202-203

Although, one cannot doubt but that certain aspects of Dicey’s forthright conception of the “rule of law” in England have been criticised, the main essentials of his position have stood the test of time. His classic work after all stands in a line of authorities dating back through centuries and rating the greatest of our constitutional theorists and jurist, Thomas de Bracton, Lord Chief Justice Coke, John Locke, Sir William Blackstone etc., etc. It is these very authorities and their ilk which are the source for the expositions on the subject to be found in our most notable contemporary legal reference works. Take for example, typically, Halsbury’s Laws of England which says this :

“Para 919. Restraints upon the improper exercise of prerogative. Although, in consequence of the legal attribute of perfection, the Sovereign can do no wrong, certain restraints are imposed by the law and customs of the constitution upon the arbitrary and improper exercise of the prerogative.

Para 920. Subjection to the law. Claims made by the Crown cannot be supported by mere pretence of prerogative, since the courts have the power to determine (both) the extent and the legality or otherwise of any alleged prerogative ; nor may illegal acts be rendered justifiable by the plea of the Sovereign’s commands or of state necessity. The Crown is bound to observe the law both by statute and by the terms of the coronation oath, which embodies the contract between the Crown and the people upon which the title to the Crown originally depended, and still in large measure depends. Upon any doubtful point of prerogative the Crown and its ministers, therefore, bow to the decision of the courts.”

Halsbury’s Laws of England Vol.8 (Constitutional Law) p.595.

The reference to “the terms of the coronation oath”, refers to that part of s.3 of the Coronation Oath Act, 1688, (which must be administered to and taken by every monarch when succeeding to the Crown according to s.2 of the Act of Settlement, 1700) and which reads as follows:

“ The Arch-Bishop or Bishop shall say,

Will You solemnly Promise and sweare to Governe the People of this kingdome of England and the

Dominions thereto belonging according to the statutes in Parlyament Agreed on and the Laws and

Customs of the same?

The King and Queene shall say,

I solemnly Promise soe to doe. “

 

(5)  Conclusion

So what can we safely derive from all of this noteworthy constitutional law authority?

In the first place, as I said at the outset, let it not be doubted but that in all matters pertaining to the disposition and use of the armed forces of the Crown, when therein in the exercise of its undoubted prerogative at the common law, including most especially its “prerogative for war”; those great decisions and policies of State, as made by the most senior and leading ministers and secretaries of government are, by their self made rule, beyond the limit of the courts, when in exercise of their power of and jurisdiction for judicial review of executive action; such that none may therein challenge the “procedural propriety”, “administrative fairness” or “rationality” of the same, or thereby seek to amend, strike down or substitute any alternate decision or policy.

However, that being stated, the quite separate and distinguishable notion, that, it then also follows, when in exercise of such an “unreviewable” prerogative power, the Crown, its servants and agents acting within the capacity of their office, are somehow thereby also exempt, immune, excused, or in any other manner whatever beyond the reach of the ordinary criminal common ‘law of the land’, is nought but an insult to the terms of the constitutional settlement and an assault on the continued peaceful observance of the contract between the people and their monarch.

It may well be the case that if the senior management at GCHQ (Cheltenham) wanted tomorrow to summarily dismiss a group of employees, without any explanation further than that in their view it was a necessary action in the public interest to safeguard national security, those employees would have no remedy at law for such an apparently “unfair” dismissal. But, if the directors of GCHQ were then to order the “security service” to break into those peoples homes, seize all their papers and ransack their property, all without benefit of any lawful warrant, then any subsequent invocation of the litany of ‘national security interests’ in defence of such manifestly criminal conduct should be met, I respectfully submit, with a swift and complete riposte - “Entick -v- Carrington”!

When divested of all legal and pseudo-legal niceties and obfuscation, what the defenders of and apologists for the “Accused Persons” are actually saying is that merely because they are the authorised officials of the State, performing in their capacities as high ministers of the Crown, when in exercise of its undoubted prerogatives for action at common law, it follows that such “government” action is above the rule of law, or which amounts to the same thing, beyond the reach of the law.

But the “prerogative” is a legally defined power, a lawful power, a power within and of the law; it does not, cannot, confer any sort of authority to move “above” or “outside of” the law. Nor does the “prerogative” confer any immunity upon those who act in breach and defiance of the ordinary common criminal law, whether or not they mistakenly believe that they have a warrant by virtue of their office. Just as the Monarch herself reigns under the law, so too is the Royal Prerogative to be exercised under and according to the law, and unlike the Queen in Person, any of her Majesty’s Secretaries of State who, whether or not in purported exercise of their official duties, whether or not in purported exercise of a royal prerogative, put themselves outside of the common law of this Realm, then they shall be answerable for that conduct before the criminal jurisdiction of the ordinary courts of law as would any other subject.

“Remember, though it be the majestic head that wears the omnificent crown, it was the inviolable arm of the law which rules the hand that put it there - and keeps it still.”

Robert L MANSON Peace Campainger XXV MAR MMIII

Brynymor, Parrog, NEWPORT, Pembs “Pax Veritas es Pax Legalis”.

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