Royal Prerogative Power of Mercy

“Previously, judges refused to review how the Royal Prerogative power of mercy was used. This was clear from the speech of Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374. However, the decisions in R v Secretary of State for the Home Department ex p. Bentley [1994] QB 349 and R (on the application of Shields) v Secretary of State for Justice [2009] 3 All ER 265 show that the courts are now willing to review how the power of mercy is used. The courts have moved in the right direction.”

Explain and analyse the significant issues raised by this statement. Use examples of relevant case law and take into account relevant ideas from journal articles.

Royal power remains the royal prerogative power. It is described as being those inherent legal attributes which is unique to the Crown/Sovereign. They all belong to the Queen as a person as well as to the institution which is called crown. Royal prerogative includes powers which are exercised directly by the Queen as the appointment by Minister/PM, the dissolution of Parliament and the powers which are exercised directly by the Civil Servant and the ministers such as the declaration of peace/war, treaty negotiation and international diplomacy. Prerogatives are derived from customary common law and are legally binding and will be recognized and enforced by the courts.

In some prerogative powers the difficulties arise when they asked the courts to decide whether an accident power should applies in a new situation i.e. the Crown’s power which act in a situations of grave national emergency to deal with the terrorist activity in a threatens the nation. Whether the prerogative power of rights to interrupt the postal communication and tapping the telephone communication.1 According to these situations it may be difficult to creating new prerogative power and applying old prerogative power on new circumstances. In the case R v Home Secretary, ex p Northumbria police Authority [1988]2 the court concluded that there is in fact exist of ‘prerogative to enforce the keeping of what is popularly called the Queen’s peace within the realm’. Croom – Johnson LJ concluded that such powers are bound up with the Crown’s ‘undoubted right to see that crime is prevented and justice administered’. In early 17 century the most famous Case of Proclamations (1611)3 it was held that the King cannot change any part of the common law or statute law by proclamation and he cannot create any new offences. Later in case R v Hampden (1637)4 in court the defendant argued that only parliament could tax, even for defence of the realm, or in the alternative if such power did exist, then the power could only exercised when there is real danger which was proved however not everything would go to Sovereign’s way. Lord Dioplock LJ said in case BBC v Johns [1964]5 that it is too late in civil war for the Queen’s courts to broaden the prerogative power. The executive government may impose the obligation, or restraints on the citizens of the United Kingdom who are now well settled and incapable of extension without any statutory authority. However in the case of Malone v Metropolitan Police Commissioner [1979]6 Lord Diplock LJ treated the statement with caution and concluded that a prerogative power existed to authorize the telephone tapping which was based on the argument that no new power was being created even though the old one was being extended to a new circumstances. It would be argued that creating new power and adopting old one is not always clear, in Malone case it is an example of an instance in which it is arguable that new power which was being claimed and unsure that whether a prerogative power to intercept had ever existed between the communication and citizens.

1. Cf Cmd 283, 1957. In Malone;s case, no claim of prerogative power was made.

2. 1 All ER 556, 571

3.12 Co Rep 74

4. 3 St Tr 825

5. 1 All ER 923

6. Ch 344

In the case Council of Civil Service Union v Minister for the Civil Service [1985] known as GCHQ case where civil servants working at government communication Headquarters, Cheltenham were deprived of the rights to join independent trade union. It was set into effect by a prerogative power instrument made under the civil service order in the council by Mrs. Thatcher, that judicial review by sought on the ground of unfairness due to failure to consult. House of Lord held that it was clear that the important factor when deciding whether or not a court could exercise its review jurisdiction was the subject-matter of the power and not its source, i.e. if the power was exercised did not matter by authority of statute or prerogative. Lord Roskill suggested that the following prerogative powers could not be subjected and to be reviewed by treaty making, defence, mercy, honors, dissolution of parliament and appointed by minister. The lordships held that although exercise of this particular power was review able by courts and considerations of national security outweighed the facts which had been procedural irregularity in the exercise of the prerogative power. The same issue has been declared and reviewable in the case R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989].7

As per Dicey view the prerogative power is in the hand of the discretionary or arbitrary power which is legally left in the hands of the Crown. In 1919, Lord Haldane meant that the common law is opposed to the statutory and the powers of the Crown. However the government prerogatives are includes the appointment and dismissal of ministers, civil and military servants, and appointment of judges. There are some important judicial prerogatives which includes the mercy of prerogative, the entering by the Attorney- General of a (nolle prosequi) to discontinue a criminal proceeding on indictment. Prerogative power also connected with foreign affairs, defence and emergence. Emergency powers 1920 can be invoked in peacetime. Northern Ireland (Emergency Provisions) Act 1975 is not only applies on such statutes which are more certain and far reaching than the prerogative power but they have advantage of being acceptable as the products of parliamentary legislation.

According to Burman Oil Co Ltd v Lord Advocate (1965)8 House of Lord held that the prerogative power is only lawful when compensation is payable for consequent loss to subjects. They allowed the appeal by the majority, that the prerogative power to wage the war which had been recognized for the centuries, there is no law that private property might be taken by the crown which is disclosed by authorities. However as per Lord Roskill view in the case Council of Civil Service Union v Minister for the Civil Service [1985] he mentioned that the prerogative power “are those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honors.” The question is raised that which prerogative powers are reviewable in courts after GCHQ case.

7. QB 811

8. AC 75

The answer was seemed to be for those who create the legitimate expectations which were explained by Lord Faser that “either from an express promise given on behalf of a public authority or from the existence of a regular practice which claimant can reasonably expect to continues”. The issue matter of many prerogative powers given rise to no such expectations and will remain outside of scope of judicial review. Lord Diplock said in his speech that new nomenclature of each of them is respectively “illegality,” “irrationality” and “procedural impropriety.”

The prerogative of mercy, nowadays exercised by Home Secretary this is the power which is to pardon the persons convicted of criminal offences. Royal pardon preserves the conviction but when it passed by the courts it reduces and removes the sentences. The case of person sentenced life of imprisonment and death sentenced is also exercised by the prerogative of mercy. However as far as judicial review the “Justifiability” determines are there any potential availability of judicial review of the exercise of prerogative of mercy.9 The name which has been given to the constitutional concept is “Justifiability” and recognize the capabilities of the courts are liminted10. Courts are only performs the functions which are appropriate to their place in the constitution and operate the way it is structured. Every court has their own way for appropriateness the assessment. For the last seventeen years the law has been moved from non- availability of judicial review,11 to recognizing the potential for review,12 then back to denying the potential,13 and finally in the privy Council in Lewis v. Attorney- General of Jamaica14, for accepting the availability of potential. The decision of House of Lord in the case GCHQ15 it was held by Lord Roskill that prerogative power includes prerogative mercy which he thought to be inherently non-justiciable.16

9. For background discussion of the nature of the prerogative of mercy and the courts’ attitude to judicial review of the exercise of that prerogative until 1991 see B.V. Harris, ‘‘Judicial Review of the Prerogative of Mercy?’’ [1991] P.L. 386. See also A.T.H. Smith, ‘‘The Prerogative of Mercy, the Power of Pardon and Criminal Justice’’ [1983] P.L. 398.

10. See generally P. Cane, An Introduction to Administrative Law, 3rd edn. (Oxford 1996) pp. 34–39; G. Marshall, ‘‘Justiciability’’ in Oxford Essays in Jurisprudence, First Series (Oxford 1961),ch. 10.

11. See de Freitas v. Benny [1976] A.C. 239.See Burt v. Governor-General [1992] 3 N.Z.L.R. 672; R. v. Secretary of State for the Home

12. Department, ex parte Bentley [1994] Q.B. 349.

13. See Reckley v. Minister of Public Safety and Immigration (No. 2) [1996] A.C. 527.

14. See Lewis v. Attorney-General of Jamaica [2001] 2 A.C. 50.

15. Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374.

16. Ibid., at p. 418 per Lord Roskill.

The example to an individual of executive for decision-making should be treated as relevant consideration in justiciability and determination the prerogative of mercy where the decision-making to imposed the death penalty. Non- justiciability could be allow the survival of procedural faulted then executive decision allows judicial decision to maintain the death sentences. When the decision overridden the prerogative they should correct the procedure which have been employed while making the prerogative power decision.

In the case de Freitas v Benny (1975)17 PC concluded that prerogative mercy is not a susceptible to be reviewed. In R v Secretary of State for the Home Department, ex parte Bentley (1994)18 held by court that although the exercise of prerogative of mercy was not justiciable and failure by Home Secretary to recognize that he could grant a conditional pardon and was justiciable. However court didn’t think about that this is suitable case for a declaration, later the Home Secretary did grant the conditional pardon. The decision which was held by Court of Appeal in 1998 that under the Royal prerogative power the prerogative of mercy provide the remedy in the case where they miscarriages the justice. According to the case R v Secretary of State for the Home Office ex p fire brigades union and other (1995)19 it was held by Court of Appeal that Home Secretary acted unlawfully and abused the prerogative power to tried to make changes by using his power to the Criminal injuries powers under the prerogative. However a statutory scheme could not lawfully set up a radically new scheme through the prerogative. Court should not involve in their matter when parliament has to decide. R v Secretary of state for the home department ex pa FBU [1995] .20 In 1991 there are three case in which prerogative power was exercised in Jenkins v Attorney – General (1991) 21where the power to disseminate the free information, in Hanratty v Lord Butler (1971)22 where the royal prerogative of mercy was used and in Blackburn v Attorney general [1971]23 where the treaty making powers of the crown are used.

According to Professor Patrick McAuslan he said that “the fact is that the Royal prerogative is alive and well and living for the most part in 10 Downing Street.”23

The prerogative of mercy has been delegated to the Home Office and originally used for withdraw death penalty but now it is used to changed any sentence or penalty.

17. 27 WIR 318

18. 2 WLR 101

19. 2 WLR 1

20. 2 All ER 244.

21. 115 SJ 674

22. 115 SJ 386

23. 2 All ER 1380

24. The Independent, 27 January 1988