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The Courts and the Executive: Four House of Lords Decisions

Published online by Cambridge University Press:  16 January 2009

Philip Allott
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Extract

The purpose of the present study is to consider the constitutional significance of four House of Lords decisions which raise fundamental questions about the legal status of the Executive branch of government in the United Kingdom and its relationship to the courts. The decisions are those in: Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75; [1964] 2 All E.R. 348; Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 2 All E.R. 536; Conway v. Rimmer [1968] A.C. 910; [1968] 1 All E.R. 874; Nissan v. Attorney-General [1970] A.C. 179; [1969] 1 All E.R. 629.

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Articles
Information
The Cambridge Law Journal , Volume 36 , Issue 2 , November 1977 , pp. 255 - 283
Copyright
Copyright © Cambridge Law Journal and Contributors 1977

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References

1 Page references hereafter are to Law Reports (A.C.) page numbers, unless other-wise indicated.

2 “Against the Crown” in the sense that the decision and, especially, its reasoning would not have been expected by the Executive (nor by the Governments of the U.S.S.R., G.D.R. or F.R.G.).

3 [1915] 3 K.B. 649.

4 [1920] A.C. 508.

5 A. V. Dicey. An Introduction to the Study of the Constitution, 1885; 10th ed. (1959), p. 424.

6 Locke, J., Two Treatises of GovernmentGoogle Scholar, II, Chap. XIV.

7 [1920] A.C. 508, 526.

8 [1964] A.C. 763.

9 See below at note 13.

10 [1968] 1 Q.B. 286; [1967] 2 All E.R. 1288 (C.A.).

11 At p. 213.

12 At p. 236.

13 That section removes the entitlement at common law to compensation for damage caused by “acts lawfully done” in or before a war. But the question is precisely whether the taking of property without compensation is “lawfully done.” The House of Lords held in Burmah Oil that, in the given circumstances, it would not be. On that view, the section would mean that no one is entitled at common law to compensation for damage in respect of which he had been compensated in accordance with common law.

14 The Septennial Act 1715 (as amended) acknowledges the power of dissolution at any time within the maximum statutory duration of a Parliament. The Prorogation Act 1867, simplifying the formalities, acknowledges the power to prorogue (terminating a session within the life of a Parliament). The Meeting of Parliament Acts acknowledge the power to summon Parliament. In each case, it can be said that the prerogative power is supplemented or modified but not superseded by the statutory provision.

15 The power is acknowledged by the Parliament Acts 1911 and 1949 and by the Royal Assent Act 1967, and by a series of decided cases up to Pickin v. British Railways Board [1974] 1 All E.R. 609Google Scholar; [1974] A.C. 765.

16 It is difficult to say whether this is a legal power, its strictly legal consequences being limited to the effects of the few statutory provisions which recognise the Prime Minister by name. Its functional consequences flow from the constitutional conventions structuring the relationship between the Executive and the Monarch.

17 Clearly a legal power, having regard to the powers and duties of ministers. Assignment of functions and payment of salaries to ministers are controlled by statute.

18 The prerogative power may have been superseded by the extensive statutory provisions as to the appointment and removal of judges which, however, might be read as implying the continuance of a power of which they merely control the exercise.

19 The doubt expressed in note 18 applies here also, having regard, in particular to the Appointment of Bishops Act 1533.

20 A power not regulated by statute, but acknowledged incidentally by statute. A legal power because of the formal functions of the Privy Council.

21 A legal power to the extent that legal rights and duties flow from the appointment (for example, the right to a writ of summons to the House of Lords).

22 Recognised in decided cases, in particular Dunn v. R. [1896] 1 Q.B. 116.

23 The Civil Service Order in Council 1969 is a rare example of a prerogative Order in Council applying in the United Kingdom.

24 Recognised in decided cases, particularly Attorney-General for Canada v. Attorney-General for Ontario [1937]Google Scholar A.C. 326 (P.C.) and Blackburn v. Attorney-General [1971] 1 W.L.R. 103.Google Scholar

25 A legal power having regard, in particular, to the Diplomatic Privileges Act 1964.

26 The legal effect of recognition is considered further below.

27 The Territorial Waters Order in Council 1964 is another rare example of a prerogative Order in Council (cf. note 23 above).

28 The power to issue a passport must be regarded as a legal power to the extent that a passport is legally necessary to enter other countries. Control of aliens is now probably wholly statutory—see Thakrar v. Home Secretary [1974] 2 All E.R. 261Google Scholar (C.A.).

29 Recognised in R. v. Bottrill, ex p. Kuechenmeister [1947]Google Scholar K.B. 41 (C.A.).

30 A legal power, albeit subject to extensive statutory supersession and to fundamental constitutional principle (particularly, Bill of Rights (1688) s. 1) about the maintenance of a standing army. Considered in Chandler v. D.P.P. [1964]Google Scholar A.C. 763.

31 Considered in the opinions of the House of Lords in the Burmah Oil case.

32 See Sammut v. Strickland [1938]Google Scholar A.C. 678 (P.C.).

33 Exercised by the Attorney-General, the power has been recognised in decisions of the courts.

34 The prerogative of mercy is expressly acknowledged by the Criminal Appeal Act 1968, s. 49.

35 See China Navigation Co. v. A.-G. [1932] 2 K.B. 197Google Scholar (C.A.).

36 For example, Chandler (note 30 above), Blackburn (note 24 above).

36a See now Laker Airways Ltd. v. Department of Trade [1977] 2 All E.R. 182Google Scholar (C.A.).

37 See below at note 40.

38 “Foreign government” acts were considered in Occidental Petroleum Corp. v. Buttes Gas & Oil Co. [1975] 2 All E.R. 51Google Scholar (C.A.). “Sovereign immunity” acts have been considered recently in Trendtex Trading Corp. v. Central Bank of Nigeria [1977] 1 All E.R. 881Google Scholar (C.A.).

39 [1924] A.C. 797.

40 At p. 813.

41 At pp. 905–906.

42 At p. 961.

43 Per Lord Reid, at p. 907.

44 Per Lord Wilberforce, at p. 961.

45 [1965] Ch. 596; [1965] 1 All E.R. 300 (C.A.).

46 Compare the attitude of the courts in Rhodesian cases, e.g. Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645Google Scholar (P.C.). But note that they are about a question of colonial constitutional law rather than a question of “recognition.”

47 At p. 996.

48 [1942] A.C. 624, particularly at pp. 642–643.

49 [1973] A.C. 388, 400 per Lord Reid.

50 Per Lord Reid, at pp. 401 and 402.

51 (1765) 19 St.Tr. 1029.

52 These three principles are reformulations of Dicey's three aspects of the Rule of Law (cf. op. cit., note 5 above, at p. 202).

53 At p. 212. He rejected the “nature of the act” as the relevant variable because it would involve the courts in investigating the policy basis of the Executive's act.

54 Such as Cook v. Sprigg [1899] A.C. 572 and West Rand Central Gold Mining Co. Ltd. v. The King [1905] 2 K.B. 391.Google Scholar

55 See now Trendtex, note 38 above.