Statute, Prerogative and Grounds of Review

One of the issues which recurred in the UK Supreme Court’s hearing of the prorogation litigation this week (see my posts here, here and here) was whether the grounds of review applied to exercises of statutory powers are equally applicable to prerogative powers. The Court’s previous decision in R (Sandiford) v Foreign and Commonwealth Secretary [2014] UKSC 44 featured prominently. Here is what I wrote about Sandiford in “Royal Treatment: The Special Status of the Crown in Administrative Law” (2017) 22 Review of Constitutional Studies 81:

Does this distinction between statutory discretion and prerogative make sense? The distinction is formal and it is underpinned by logic: largesse under the prerogative is entirely in the gift of the executive, something that cannot be said of largesse provided for by statute. In the latter case, the executive cannot ignore the statutory context in exercising its powers.[1] In the former case, the executive is not so constrained (or, at least, has not yet been so constrained).

But in substance, there is less to commend the distinction. Given that the executive has chosen to invoke the prerogative and thereby affect individuals’ legal positions, there is much to be said for imposing constraints on its exercise. A positive action invites scrutiny in a way that a failure to act does not. Indeed, the constraint of rationality applies (though the applicant lost on this point).[2]

An additional possible constraint would be a prohibition on enacting a blanket policy. The same considerations that underpin the rule against fettering discretion in the context of a statutory power apply here with equal force: it is unfair to completely shut the door to individual circumstances; and from the point of view of good administration, submissions from individuals might highlight flaws in the policy.[3] And doubtless, the individuals on the receiving (or non-receiving) end of the largesse do not care about its legal provenance. The distinction operates particularly unfairly in a case like Sandiford. Deciding to set out a blanket policy that, say, gives everyone the same amount of money or subjects everyone to the same criteria is quite different from deciding to set out a policy of blanket refusal. Not taking account of individual circumstances seems especially likely to lead to unfairness and poor administration in the latter case. In the former case, the executive can at least claim that everyone is better off.

In summary, in the area of judicial review of exercises of the prerogative, the Crown again benefits from a special status. The “royal” source of the power exerts a significant influence on the nature of judicial control, with unfortunate results. Once more, no normative basis is offered for the special status of the Crown, which is asserted, not explained and still less justified.[4]

[1] See e.g. Roncarelli v Duplessis, [1959] SCR 121 at 140, Rand J; R v Minister of Agriculture and Fisheries, ex parte Padfield, [1968] AC 997 (HL).

[2] Sandiford, UKSC, supra note 77 at paras 67-73.

[3] See British Oxygen, supra note 79 at 625:

[A] Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing . . . . The respondent might at any time change his mind . . . .

[4] Compare Banfield & Flynn, supra note 60, who perceive judicial oversight as one accountability mechanism amongst many and welcome the reluctance of the courts to “impose substantive outcomes on the government,” trusting instead “that arbitrary action will be limited through the use of proper procedural processes” (ibid at 151). I have no objection to courts deferring to the executive when appropriate (see generally Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge: Cambridge University Press, 2012)) [Daly]; my target in this paper is the distinction between the Crown and other bodies.

This content has been updated on September 20, 2019 at 19:54.