Medieval chains, invisible inks: On non-statutory powers of the executive

Oxford Journal of Legal Studies

Volumn 25, Issue 1, 2005, Pages 97-122

  Cohn, Margit ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

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EID: 27644489535     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi005     Document Type: Review

References (205)

1. Oral evidence before the Public Administration Committee, House of Commons, 22 May 2003, HC 642-iii. Transcript at http://www.publications.parliament.uk/pa/cm200203/cmselect/cmpubadm/642/ 3052201.htm
2. For the distinction see R. Brazier, 'Constitutional Reform and the Crown' in M. Sunkin and S. Payne (eds), The Nature of the Crown: A Legal and Political Analysis (1999) at 337.
3. Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 at 417 (hereinafter referred to as GCHQ).
4. A. Lester and M. Weait, 'The Use of Ministerial Powers without Parliamentary Authority: The Ram Doctrine' (2003) PL 415.
5. R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115.
6. H.C. Mansfield Jr, Taming the Prince (1989);
7. M. Loughlin, Public Law and Political Theory (1992);
8. M. Loughlin, 'The Pathways of Public Law Scholarship' in G. Wilson (ed), Frontiers of Legal Scholarship (1995) at 163.
9. Compensation for Victims of Crimes of Violence, Cmnd 2323 (1964) at 4.
10. See www.homeoffice.gov.uk/justice/sentencing/wrongful/index.html.
11. See, generally, M. Freedland, 'Public Law and Private Finance - Placing the Private Finance Initiative in a Public Law Sphere' (1998) PL 288.
12. For an example of the plethora of rule types in environmental regulation see L. Etherington, '"Mandatory Guidance" for Dealing with Contaminated Land: Paradox or Pragmatism?' 23 Stat L Rev 203 (2002).
13. See Home Office, 'Ex Gratia Payment Scheme for Small Calibre Pistols', at www.homeoffice.gov.uk/docs/vexgrat.html.
14. The application of the scheme was challenged in courts, although power of its instation was not questioned. cf. Association for British Civilian Internees Far Eastern Region v Secretary of State for Defence [2003] EWCA Civ 473 (rejecting appeal against decision to deny compensation from civilian internees lacking close connection to the United Kingdom), and R (Gurung and Others) v Ministry of Defence, The Times, 28 December 2002 (High Court deciding for Nepalese Gurkha soldiers. Government appeal withdrawn in March 2003).
15. See C. Adams, 'Bereaved partners to get war widows' pensions payouts', Financial Times, 21 March 2003.
16. Annual Appropriation Acts, which set ceilings of departmental expenditure, can be their sole legal basis.
17. The statute book does contain a detailed framework for the creation and operation of statutory inquiries, but many important public inquiries were non-statutory. The Profumo report, the Bingham report on the BCCI collapse, the Scott report, the BSE inquiry, the foot and mouth disease inquiries and the Hutton inquiry are strong enough examples. The legitimacy of such procedures is relatively uncontested. Arguments for a right to a publicly open inquiry regarding government's dealings with the foot and mouth crisis were concerned with the inquiry procedure and not with their form, and they were rejected by the administrative court.
18. R (Persey and others) v Secretary of State for the Environment, Food and Rural Affairs [2002] 3 WLR 704
19. Edwards v United Kingdom (2002) 35 EHRR 19. In the Edwards case, the European Court of Justice did find the 'private' investigation, instigated by the Prison Service, the local County Council and Health Authority, in breach of Art. 2 of the European Convention, but the applicants, and the court, were concerned with the actual elements of the inquiry and not with its particular form.
20. See ibid at para 65.
21. Challenges to the legality of such informal rules have not fared well. Information pamphlets and the like are viewed as legitimate policy dissemination (Jenkins v Attorney General (1971) 115 Sol J 674).
22. Guidances are viewed as generally followed rules of conduct (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL);
23. R (on the application of IPSEA Limited) v Secretary of State for Education and Skills [2003] EWCA Civ 7).
24. On these administrative tools see generally R. Baldwin, J. Houghton, 'Circular Arguments: The Status and Legitimacy of Administrative Rules' (1986) PL 239
25. Etherington, above n 9.
26. Wilkinson v Commissioners of Inland Revenue [2002] EWHC 182 at para 13. The Court rejected arguments that extra-statutory concessions are used only in marginal and exceptional cases:
27. ibid at paras 21-27.
28. Social Security (Contributions) Regulations (SI 2001/1004), s 40(7), Sch 3, Pt V, s 6, Pt VIII, s 6, Pt X, s 8; Tax Credits (Definition and Calculation of Income) Regulations (SI 2002/2006), s 2, s 4(4), s 12(c).
29. See generally C. Vincenzi, Crown Powers, Subjects and Citizens (1998) at 28-30.
30. See C. Turpin, Government Contracts (1972);
31. T. Daintith, 'Regulation by Contract: The New Prerogative' (1979) 32 Curr L Prob 41
32. Ian Harden, The Contracting State (1992);
33. M. Freedland, 'Government by Contract and Public Law' (1994) PL 86
34. C. Turpin, Government Procurement and Contract (1989);
35. S. Arrowsmith, The Law of Public and Utilities Procurement (1996);
36. A.C.L. Davies, Accountability: A Public Law Analysis of Government by Contract (2001). The Deregulation and Contracting Out Act 1994 is too broad an authorization to constitute even a minimal rule book for these exercises of governance, and in any case it merely empowers, and does not provide any substantive benchmarks (see Mark Freedland, 'Privatising Carltona: Part II of the Deregulation and Contracting Out Act 1994' (1995) PL 21
37. Davies, ibid at 9-10).
38. Police surveillance is a well-known example. See Malone v United Kingdom (1985) 7 EHRR 14 (no sufficient statutory framework, decision followed by the Interception of Communications Act 1985);
39. Halford v United Kingdom (1997) 24 EHRR 523 (1985 Act did not cover private communication systems, decision followed by Police Act 1997);
40. Khan v United Kingdom (2001) 31 EHRR 45 (1997 Act came into force in 1999, earlier surveillance found a violation of Article 8; enactment of the Regulation of Investigatory Powers Act 2000). This is not a singular case. For decades, the Department of Health's 'Consultancy Service Index', has listed people 'whose suitability to work with children was in doubt', was non-statutory. Its legality was upheld just before entrance into force of the Human Rights Act, in cases not covered by the 1999 legislation of the index.
41. R v Secretary of State for Health, ex parte C [2000] HRLR 400
42. R v Worcester CC, ex parte SW [2000] HRLR 702. See below for further analysis of the latter field of law.
43. US v Midwest Oil, 236 US 459 (1915).
44. French administrative law identifies such action under the doctrine of circonstances exceptionnelles. See CE 28 juin 1918, Heyriès, Rec. 651, S. 1922.3.49
45. L. Nizard, La Jurisprudence administrative des circonstances exceptionnelles et la légalité (1962);
46. R. Chapus, Droit administratif général (14th edn, 2000) at 1064-68.
47. CE 17 févr 1978, Union des syndicats nationaux des cadres et techniciens d'affichage et de publicité extérieure Rec 80
48. CE Sect 22 déc 1978, Union des chambres syndicales d'affichage et de publicité extérieure Rec 530.
49. HCJ 282/61 El Srouji v Minister of Religion 17 PD 188.
50. John Locke, Two Treatises on Government (a critical edition by P. Laslett, 2nd edn, 1967), The Second Treatise, §160.
51. I. Leigh, 'The Prerogative, Legislative Intent and the Democratic Deficit: The Fire Brigades Union Case' [1995] 3 Web JCLI;
52. K. Syrett, 'Prerogative Powers: New Labour's Forgotten Constitutional Reform?' (1998) Denning LJ 111.
53. A.V. Dicey, An Introduction to the Law of the Constitution (10th edn, 1959) at 426 and passim.
54. T.R.S. Allan, 'Law, Convention and Prerogative', in Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (1993) at 237.
55. 1965 was a good year for this type of judicial dictum. For example, '[t]he prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute'. Burmah Oil v Lord Advocate [1965] AC 75 at 101.
56. Another oft cited dictum that stresses the archaic nature of prerogative is Lord Diplock's 'it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative'. BBC v Johns [1965] 1 Ch 33 at 79.
57. Entick v Carrington, 19 St. Tr. 1029. For further analysis of this case see below.
58. Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508 ('if the whole ground of something which could be done by prerogative is covered by statute, it is the statute that rules'. Ibid at 528).
59. Previous rulings were weaker: 'the prerogative right cannot be interfered with or taken away except by plain language or necessary implication' in re a Petition of Right [1915] KB 649 at 660.
60. Further decisions have implemented this ruling in the context of various prerogatives. See R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 QB 811 (the passport regime);
61. R v Home Secretary, ex parte Bentley [1994] QB 349 (the prerogative of mercy).
62. GCHQ at 407
63. BBC v Johns [1965] 1 Ch 33 at 79
64. Burmah Oil [1965] AC 75 at 99.
65. Blackstone's initial definition (Commentaries on the Laws of England (facsimile of 1765-1769 edn, 1979),
66. Book I, Ch 7 232) is almost identical to Cowell's, printed more than a century earlier (J. Cowell, The Interpreter or Booke Containing the Significations of Words (facsimile of 1607 edn, 1970)): 'Prerogative of the King is that special power, preeminence, or privilege that the King hath in any kinde, over and above the ordinarie course of the common law, in right of his crowne'. For this resemblance
67. see Chrimes, 'The Constitutional Ideas of Dr. John Cowell' (1949) 49 Eng His Rev 461.
68. For a compilation of judicial preferences of Dicey over Blackstone see the GCHQ decision at 398 (per Lord Fraser).
69. See G. Winterton, 'The Prerogative in Novel Situations' (1983) 99 LQR 407
70. R.G. Zellick, 'Government Beyond Law' (1985) PL 283-308
71. B.V. Harris, 'The "Third Source" of Authority for Government Action' (1992) 109 LQR 626
72. Leigh, above n 25
73. A. Le Sueur, M. Sunkin, Public Law (1997) at 269-70
74. Syrett, above n 25
75. D. Gladstone, 'What Shall We Do with the Crown Prerogative?' (1998) 4(3) J Legisl Stud 1
76. Lester and Weait, above n 4 at 420-5
77. Syrett, above n 25
78. Brazier (1999), above n 2 at 356
79. S. Payne, 'The Royal Prerogative' in Sunkin and Payne, above n 2 at 77
80. Lester and Weait, above n 4
81. I. Ward, The English Constitution: Myths and Realities (2004) at 61-65.
82. See also the recently published report of the House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report of Session 2003-04, HC 422, 16 March 2004, and the government's response, at www.dca.gov.uk/pubs/reports/prerogative.htm.
83. For recent contributions see J. Jacob, The Republican Crown (1996);
84. The collection in Sunkin and Payne, above n 33
85. T. Daintith and A. Page, The Executive in the Constitution (1999);
86. D. Oliver, Constitutional Reform in the UK (2003) at 203-11
87. R. Brazier 'The Monarchy' in V. Bogdanor (ed), The British Constitution in the Twentieth Century (2003) 69 at 88-91.
88. See P. Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990);
89. M. Loughlin, Public Law and Political Theory (1992) at 3-4
90. M. Loughlin, The Idea of Public Law (2003).
91. For a recent analysis of some of the main streams of this debate see T. Poole, 'Back to the Future? Unearthing the Theory of Common Law Constitutionalism' (2003) 23 OJLS 435.
92. One salient example of this regression is the Northumbria case, discussed below, text to n 48.
93. Brazier (1999), above n 2.
94. Town Investments v Department of the Environment [1978] AC 359.
95. In re M [1994] 1 AC 377.
96. Ibid at 415.
97. M. Loughlin, 'The State, the Crown and the Law', in Sunkin and Payne, above n 2 at 33, 71-73.
98. H.W.R. Wade, Constitutional Fundamentals (2nd rev. edn, 1989) at 59.
99. Ibid at 56-62. further examined and reasserted in H.W.R. Wade, 'Procedure and Prerogative in Public Law', 101 LQR 180 (1985) at 190-94.
100. Ibid at 61.
101. Ibid at 70.
102. M. Cohn, 'Constitutional Problem Solving: A Comparative Analysis of Non-Statutory Powers of the Executive', paper presented at the Law and Society Association Annual Meeting, Chicago, May 2004.
103. See in re a Petition of Right, above n 29 at 659-60; language or necessary implication' in re KB 649 at
104. de Keyser, above n 29 at 565.
105. R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB 26 (CA) at 576.
106. Ibid at 574.
107. For criticism of both decisions see H.J. Beynon, 'Prerogative to Supply Plastic Baton Rounds and CS to the Police' (1987) PL 146
108. A.W. Bradley, 'Police Powers and the Prerogative' (1988) PL 298.
109. See D. Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?' (1987) PL 543 at 545
110. Harris, above n 33
111. M. Elliott, The Constitutional Foundations of Judicial Review (2001) at 166.
112. See for example Winterton, above n 33
113. Harris, above n 33
114. in Elliott's words, the government has 'residual liberty' to act; The Constitutional Foundations of Judicial Review (2001) at 167-72.
115. E. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (1957).
116. For the history of bodily and other conceptions of the Crown see Loughlin (1999), above n 41 at 51-56.
117. Lester and Weait, above n 4 at n 2. Para 3.46, Privacy and Data-Sharing: The Way Forward for Public Services, the Performance and Innovation Unit, Cabinet Office, April 2002. At www.number-10.gov.uk/su/privacy/ index.htm.
118. Lester and Weait, above n 4 at n 2.
119. Ibid.
120. R (Hooper) v Secretary of State for Work and Pensions [2003] 3 All ER 673 at 707.
121. See Lord Lester and Weait, ibid, and text to n 66 below.
122. HL Debs vol. 643, cols. WA 98-9 (22 January 2003);
123. for the text of the memorandum see www.parliament.the-stationery-office.co.uk/pa/ld200203/ldlwa/ 30122wa1.pdf.
124. Ram memorandum, ibid. Emphases added.
125. Lester and Weait, above n 4 at 421.
126. HL Debs vol. 645, col. WA 12 (25 February 2003).
127. For analysis of the written answers and the discrepancy between the reading of the memorandum and its original text see Lester and Weait, above n 4 at 416-18, 420, 421.
128. See text to n 42 above.
129. Other proponents include Harris, above n 33 at 626,
130. and Winterton, above n 33, although their versions are more cautious.
131. Malone, above n 19.
132. In re M, above n 39.
133. Circular No. LAC (93) 17, quoted in ex parte SW, above n 19 at 709.
134. ex parte C, above n 19 at 405-6.
135. The Consultancy Service Index had already received explicit statutory reference in the Protection of Children Act 1999, but the Act was yet to come into force. The ruling was buttressed by the courts' assessment of the limited impact of the list on the appellant. The appellant was an unqualified social worker whose name was added to the list following disciplinary hearings regarding sexual misconduct, which resulted in his dismissal. The court ruled that he was not deprived of qualification, nor had he any right to be provided employment. On the implications of possible interference with human rights see section 2C below.
136. Hooper, above n 56 at 707.
137. Moreover, the Ram memorandum does not identify the exact source of such powers, and any notion of the government as a 'corporation sole' cannot rely on this memorandum. Lester and Weait, above n 4 at 420.
138. Ibid at 421.
139. I will nevertheless argue below for a form of 'anxious scrutiny' of non-statutory powers. For analyses of judicial review in the context of prerogative see B. Hadfield, 'Judicial Review and the Prerogative Powers of the Crown', in Sunkin and Payne, above n 2 at 197-232; review in the context of prerogative see Sunkin and Payne
140. Syrett, above n 25 at 120-4.
141. HL Debs, vol. 645, col. WA 12, 25 February 2003.
142. Lester and Weait, above n 4 at 422.
143. Entick v Carrington, above n 28 at 1066.
144. For criticism of the latter decision, based on the legacy of Entick, see Bradley, above n 49.
145. See text to n 16 above.
146. See Bugdaycay v Secretary of State for the Home Dept [1987] AC 514 at 531
147. R v Ministry of Defence, ex parte Smith [1996] QB 517 at 554 ('The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable').
148. For this process see, for example, T.R.S. Allan, 'Constitutional Rights and Common Law' (1991) 11 OJLS 453-80
149. C. McCrudden and G. Chambers 'Individual Rights and British Law: Some Conclusions' in C. McCrudden and G. Chambers (eds), Individual Rights and the Law in Britain (1994) 535
150. H. Fenwick, Civil Liberties and Human Rights (3rd edn, 2002) at 102-12.
151. The formulation 'prescribed by law' can be found in Art. 9(2) (freedom of thought, conscience and religion), Art. 10(2) (freedom of expression), and Art. 11(2) (freedom of assembly and association). 'In accordance with the law' appears in Art. 8(2) (right of privacy and family life) and in the provision protecting freedom of movement (Protocol 4, Art. 2, unratified by England). The condition 'in accordance with a procedure prescribed by law' appears in Art. 5 (right to liberty and security). No importance is attached to the different English wordings (the French version consistently employs the term 'prévu(e) par loi').
152. For example, Sunday Times v The United Kingdom (1979) 2 EHRR 245.
153. Ibid at para 47.
154. For example, Barthold v Germany (1985) 7 EHRR 383 at para 47.
155. Sunday Times, above n 77.
156. Gay News Ltd v United Kingdom (1983) 5 EHRR 123 CD 268 (common law crime of blasphemous libel);
157. Chappell v United Kingdom (1990)12 EHRR 1 (Anton Piller order made by High Court);
158. Tolstoy Miloslavski v United Kingdom [1996] EMLR 152 (award of damages and injunction).
159. Huvig v France (1990) 12 EHRR 528
160. Kruslin v France (1990) 12 EHRR 547
161. Gay News, ibid.
162. Council of Civil Service Unions v United Kingdom (1988) 10 EHRR CD 269.
163. Groppera Radio v Switzerland (1990) 12 EHRR 321.
164. Steel v United Kingdom (1999) 28 EHRR 603. Conversely, not all statutes pass the test. The title 'law' has been denied from statute law when it was too vague or contained an improperly broad discretion (for example, Malone, above n 19
165. Petra v Romania (2001) 33 EHRR 5).
166. Silver v United Kingdom (1983) 5 EHRR 347 (unpublished 'orders and instructions' made by prison authorities).
167. Halford, above n 19
168. Khan, above n 19.
169. The Commission found that '[the prerogative] powers of the Minister must be seen in connection with the two Employment Acts of 1975 and 1978 which restrict the exercise of the powers under the Civil Service Order in Council'. Above n 83 at 289. The sensitivity of the subject matter could account for the terseness of the Commission's decision (the relevance of national security is the crucial part of the reasoning). Other prerogatives pertain to sensitive areas, and the same type of reasoning could very well apply.
170. Raymond v Honey [1983] 1 AC 1.
171. See also R v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778
172. R v Secretary of State for the Home Department, ex parte Leech (No. 2) [1994] QB 198.
173. R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539.
174. R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (Prison act's broad authorization to make rules could not have authorized blanket prohibition of interviews with journalists).
175. Simms, ibid at 131 (see also Lord Steyn's dictum on the principle of legality at 130).
176. See text to n 64 above.
177. ex parte SW, above n 19 at 715.
178. Ibid at 717-20 (the Human Rights Act had not yet come into force).
179. For example, R v Tagg [2001] EWCA Crim 1230
180. McGrogan v Chief Constable of Cleveland Police [2002] EWCA Civ 86.
181. ex parte SW, above n 19 at 720.
182. Lester and Weait, above n 4 at 420-25.
183. Ibid at 421, 423.
184. See Basic Law for the Federal Republic of Germany (Grundgesetz), Art. 19(1) ('Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law ... must name the basic right affected and the Article in which it appears');
185. A. Zysblatt, 'Protecting Fundamental Rights in Israel without a Written Constitution' in Y. Zamir and A. Zysblatt (eds), Public Law in Israel (1997) 48.
186. The Practical Guide to the Act is 'intended to all organisations working with children', but is also available on the web, at www.doh.gov.uk/scg/childprotect/index.htm.
187. Section 17 of the Police and Criminal Evidence Act 1984 does abolish common law rules empowering a constable to enter premises without a warrant, but 'any power of entry to deal with or prevent a breach of the peace' is upheld (subs (5) and (6)). See also s 25 of the same Act; s 40(4) of the Public Order Act 1986.
188. Provisions such as 'nothing in this Act shall affect the Prerogative' are scattered across a variety of statutes. See, for example, Patents Act 1949, s 102(1); Naval Discipline Act 1957, s 138(1); Armed Forces Act 1966, s 16(3); Ministers of the Crown Act 1975, s 5(5); Limitations Act 1980, s 37(6); Town and Country Planning Act 1990, s 315(5).
189. Naval Discipline Act 1957, s 138(1).
190. For recent Private Members' Bills that focus on the prerogative in general and on specific aspects thereof see Crown Prerogatives (Parliamentary Control) Bill, 1999 [Bill 55]; Parliamentary Control of the Executive Bill, 1999 [Bill 123]; Prime Minister (Office, Role and Functions) Bill, 2001 [Bill 60]; Civil Service (No. 2) Bill (HL) 2003/ 04 [Bill 15] (formerly the Executive Powers and Civil Service Bill 2003), which passed three readings in the House of Lords; Civil Service Bill 2003/04 [Bill 37]; Crown Employment (Nationality) Bill 2003/04 [Bill 39]; Ministers of the Crown (Executive Powers) Bill 2004, Draft Bill, House of Commons Pubic Administration Select Committee Report, above n 33 at 33-38.
191. Loughlin (1999) above n 41 at 75.
192. See also J.D.B. Mitchell, above n 18
193. N. Johnson, In Search of the Constitution (1977) at 149
194. Winterton, above n 33 at 409 (views the principle of equating government with private subject with suspicion, and allows it credibility only when the executive and private actions are identical. This, he admits, will rarely be the case);
195. Zellick, above n 33 at 295-96.
196. See sources cited above at n 18.
197. See Poole, above n 35.
198. On 'the neglect of the executive' in British constitutional law literature see Daintith, above n 34 at 10-14.
199. But see G. Drewry, 'The Executive: Towards Accountable Government and Effective Governance?' in J. Jowell and D. Oliver (eds), The Changing Constitution (5th edn, 2004) at 280.
200. Rising above the national level, Mansfield discusses the executive on a theoretical and historical level, but ends the philosophical overview with the Framers of the United States Constitution. Above n 6.
201. Ibid at 15.
202. M. Loughlin, 'The Pathways of Public Law Scholarship' in G. Wilson (ed.), Frontiers of Legal Scholarship (1995) 163 at 184. The author does refer to a 'historical treatment' of subjects researched, but does not call for dominance of historically based interpretation.
203. See also Loughlin's call to revitalize the functionalist approach, expressed in the need to 'develop a style of public law thought which is able to reflect more adequately the relationships between law and society', a style that 'must recognize the normativity of law; that is, the fact of ought. But it must also be able to assimilate the idea of the positivity of law'. Frontiers of Legal Scholarship (1992) at 243-44.
204. 'Pluralization' operates in other aspects of public law, including the established concept of weighting competing rights and interests. The separation of powers ideal, especially its American version of checks and balances, is based on a similar rationale.
205. I use 'normativist' and 'functionalist' in the same way as Loughlin, above n 35.