Potential Further Issues

COMMON LAW ISSUES

(8.1) CROWN PREROGATIVE and the RULE of LAW

Contention : That certain acts performed in exercise of the Crown Prerogative, especially

in the field of national security, are exempt from the criminal jurisdiction of the courts.

8.1.1 Prerogative acts performed for ‘national security’ purposes are unreviewable.

153 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.

154 In particular that those great decisions and policies of State, as made by the most senior and leading ministers and Secretaries of State are, by their self made rule, beyond the ambit of the courts, when in exercise of their power of and jurisdiction for administrative law judicial review of executive action; such that none may therein challenge the “procedural propriety”, “administrative fairness” or “rationality” etc. of the same, or thereby seek to amend, strike down or substitute any alternate decision or policy for that made by the duly appointed executives of state power theoretically democratically accountable under our system of government.

155 See now, of course, most especially the infamous list of unreviewable areas of prerogative action as per Lord Roskill in the so-called “GCHQ” case (Council for Civil Service Unions v. Minister for the Civil Service [1984] 3 WLR 1174 HL(E) @ p.1203).

8.1.2 Crown Prerogative, Judicial Review and the Rule of Law.

156 However, even in the field of administrative law judicial review of executive action there is abundant authority for the qualification that, whilst the courts have a self-regulatory power to limit their own jurisdiction to review executive conduct in exercise of certain important prerogative powers, this will not stretch to or in any way include any diminution from the consequences of the constitutional settlement in this country and which is engaged wherever the challenge to the prerogative act is based on no mere allegation of procedural impropriety or administrative unfairness etc. alone, but rather on an accusation of a positive breach of the rule of law, most especially, the criminal law.

157 See, for example, the view of Lord Diplock in the “GCHQ” case (@ p1196h) who cites the authority of their Lordship’s opinions in Burmah Oil Co.ltd. v. the Lord Advocate [1965] AC 75 (HL) as for example Lord Pearce @ p.147.

8.1.3 The 17th & 18th Century Authorities.

158 It was during the turbulence of the constitutional settlement of 17th century, culminating in the so-called Glorious Revolution, that much of the seminal case law authority on the limitations on the exercise of the Prerogative was laid down by the great common law judges in this country.

See now esp. Lord Coke in Proclamations (1611) XII Co.Rep. 74 @76, 77 ER 1352 and in

Prohibitions del Roy (1608) XII Co.Rep. 63 @ 65, 77 ER 1342. Sir John Vaughan CJ in Thomas v. Sorrel (1673) Vaugh. 330 @ 336, 124 ER 1098.

159 In the subsequent Century the claim that the requirements of “state necessity” as judged by a Secretary of State, justified his messengers in ransacking the home of a suspected revolutionary pamphleteer, reasonably suspected of printing seditious libel, was met by the Court of the King’s Bench with short shrift.

“ 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.”

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

8.1.4 The Constitutional Settlement and the Rule of Law.

160 The 17th. Century assertion of Thomas Fuller that “Be you never so high, the law is above you..”, as for example cited by Edmund-Davies LJ in R. v. Commissioner of the Metropolis, ex p. Blackburn [1968] 2 QB 118@ 148F, finds no more renowned and detailed affirmation than in Professor AV Dicey’s four-fold exposition of the rule of law in the English Constitution in his seminal work “Introduction to the Law of the Constitution”

“ 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 ...”

(my emphasis added).

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

161 Dicey relies upon this very line of 17th.- 18th. Century common law authorities to substantiate this analysis as is also true in more recent standard texts, for example Halbury’s Laws of England :

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.

8.1.5 Conclusion

162 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” and capricious 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” !

163 When divested of all 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, especially in a field as delicate and sensitive as so-called ‘national security’, 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.

164 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 Monarch 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. That is what government subject to the rule of law means, or else it means nothing.

For a fuller examination of the law on this topic, including quotes from cases cited above, see now the further exposition in Background Document RLM 008.

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