Sources of government power

Page 52: What was the source of the power that the Ministry of Defence exercised in creating the criminal injuries compensation scheme?

• There was no statute authorising the creation of the scheme. The term ‘prerogative power’ is sometimes used for any power of central government (i.e., of the ministers of the Crown) that was not conferred by a statute. Some have argued that ‘prerogative power’ is a term best kept for powers of the Crown that no private person could have (such as the power to send ambassadors to other countries on behalf of the U.K.), and that the Crown also has the same powers that a private person has (to enter into contracts, etc); see B V Harris, ‘The “Third Source” of Authority for Government Action’ (1992) 108 Law Quarterly Review 626; B V Harris, ‘The “Third Source” of Authority for Government Action Revisited’ (2007) 123 LQR 225. If that is true, then would you say that the power to create a criminal injuries compensation scheme is a specially governmental power that ought to be seen as an exercise of prerogative? Or just an exercise in giving away money, which any private person can do?
• Whether you say that the power is an instance of prerogative or not, the courts have the same power to control its exercise, in the ways they were prepared to do in the Walker case.

Judicial independence and judicial review

Page 57: Judges, unlike administrative officials, are independent. Does that mean that replacing another public authority’s decision with the decision of a judge generally promotes the rule of law?

• No. Judicial independence is a crucial aspect of the justification of judicial interference with administrative decisions, when it is justified. But not all decision making is best made by an independent body. The agendas or policies that other administrative authorities have may or may not make it arbitrary for the decision to be made without a judge reviewing it.

Consider R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598 (see 1.1). The Court of Appeal in that case decided that it is not arbitrary for the Foreign Secretary to decide whether to complain to the United States, without the court in judicial review deciding whether the decision is reasonable.

The common law and the sovereignty of Parliament

Page 70: Who established the sovereignty of Parliament? Lord Steyn said in Jackson [102], ‘It is a construct of the common law. The judges created this principle.’ Is there any authority for that? Can the judges, as Lord Steyn suggests, change or abolish the principle?

• Lord Steyn is right that the sovereignty of Parliament is part of the common law, as long as we understand the common law in the right way: it is the law that has been binding on the whole country since the 1100s. It binds the judges as well as other institutions. The judges have legal power to identify its requirements, and the doctrine of precedent gives legal effect to judicial decisions, so that much of the common law has indeed been made by judges.
• But the judges did not invent the legislative power of Parliament! In the early common law, the King made laws in Parliament, and the King’s judges were bound to give effect to law made by the King. Since the 17th century, it has been established that there are many changes to the law that can only be made by Parliament (so that the King has no power, for example, to raise taxes without Parliament).
• There is no authority for the proposition that judges can change the law-making power of Parliament, although (1) they have jurisdiction to interpret statutes, and (2) they have jurisdiction to resolve any dispute as to the effect of statutes.