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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
    1. Godden v Hales (1686) 11 St Tr 1165
    2. The Bill of Rights 1689
    3. Attorney-General v De Keyser's Royal Hotel [1920] All ER 80; [1920] AC 508
    4. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.
    5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.
    6. R v Allen (1862) 121 ER 929
    7. China Navigation Company Ltd v Attorney-General [1932] 2 KB 197
    8. R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864
    9. Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382
    10. Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.
    11. Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
    12. R v Foreign Secretary, ex parte Everett [1989] 2 WLR 224
    13. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All 442
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.

LORD DENNING MR:....On 29 July 1975 the Secretary of State made an announcement in the House of Commons on future civil aviation policy. He said that it was the result of a review by his department. It was a complete reversal of the previous policy. He declared that(

"in future it should be our general policy not to permit competition between United Kingdom airlines on long-haul scheduled services, and, therefore, not to license more than one United Kingdom airline on any given long-haul route"....

So we have this remarkable position. British Airways had failed to get the licence of Laker Airways revoked by the duly constituted authority, the Civil Aviation Authority. Six months later the licence was rendered useless by the Minister's statement in the House of Commons....

The Secretary of State considered how to effect here his complete reversal of policy. He considered whether an amendment to the Civil Aviation Act 1971 would be required. He decided it was not necessary. But that it could be done by issuing a new policy 'guidance' for the Civil Aviation Authority.

The new policy guidance

So in February 1976 the Secretary of State issued a White Paper entitled Future Civil Aviation Policy....It contained a special section dealing with Skytrain, and said:

"The Secretary of State has accordingly decided that Laker Airways' designation as a scheduled service operator under the United Kingdom/United States Air Services Agreement should be cancelled. The Skytrain licence will be dealt with in accordance with paragraph 7 of the new Policy Guidance".

The second paragraph stated the new policy guidance. In para 7 it said:

"In the case of long-haul scheduled services the Authority should not license more than one British Airline to service the same route. The Authority should review existing licences and exemptions in the light of this paragraph and take appropriate action"....

This new policy guidance had a direct impact on Laker Airways Ltd. They were not to be allowed to operate the Skytrain service because it was feared that it would divert passengers from British Airways. So the authority was to revoke the licence it had granted for Skytrain; or, at any rate, not allow it to start... And the Minister would cancel the designation of Laker. It was just as if the Minister had called out: "Stop. Skytrain shall not take off from England. Its licence should be revoked. And I will see that it does not land in America. I will cancel the designation".....

Laker Airways issued a writ claiming that the Secretary of State was acting unlawfully....There are three issues of law.

Ultra vires

The first is whether the Secretary of State was acting beyond his lawful powers when he gave the new policy guidance to the Civil Aviation Authority.

In determining this point, I have found much help from the well-reasoned decisions of the Civil Aviation Authority, not only in 1972, when they granted the licence to Laker Airways....It is plain that they applied most conscientiously and sensibly the four general objectives set out in [s.3] of the 1971 Act...The new policy guidance of 1976 cuts right across those statutory objectives. It lays down a new policy altogether. Whereas the statutory objectives made it clear that the British Airways Board was not to have a monopoly ( but that at least one other British airline should have an opportunity to participate ( the new policy guidance says that the British Airways Board is to have a monopoly. No competition is to be allowed. And no other British airline is to be licensed unless the British Airways had given its consent...

Those provisions disclose so complete a reversal of policy that to my mind the White Paper cannot be regarded as giving 'guidance'. In marching terms it does not say 'right incline' or 'left incline'. It says 'right about turn'. That is not guidance, but the reverse of it....

Seeing that the old policy had been laid down in an Act of Parliament, then, in order to reverse it, he could have introduced an amending bill and got Parliament to sanction it. He was advised, apparently, that it was not necessary, and that it could be done by guidance. That, I think, was a mistake. And Laker Airways are entitled to complain of it, at any rate in its impact on them. It was in this respect ultra vires....

Prerogative

The Attorney General contended that the power of the Secretary of State 'to withdraw' the designation was a prerogative power which could not be examined in the courts. It was a power arising under a treaty which, he said, was outside the cognisance of the courts. The Attorney General recognised that, by withdrawing the designation, the Secretary of State would put a stop to Skytrain, but he said that he could do it all the same....

Much of the modern thinking on the prerogative power of the executive stems from John Locke's treatise, True End of Civil Government, which I have read again with much profit, especially chapter 14 'Of Prerogative'....The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations; but it can set limits by defining the bounds of the activity; and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our constitution. It derives from two of the most respected of our authorities. In 1611 when the King, as the executive government, sought to govern by making proclamations, Sir Edward Coke declared: "The King hath no prerogative but that which the law of the land allows him": see the Proclamations Case ((1611) 12 Co Rep 74 at 76). In 1765 Sir William Blackstone added his authority:

"For prerogative consisting (as Mr Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent; if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner".....

Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. At several times in our history, the executive have claimed that a discretion given by the prerogative is unfettered: just as they have claimed that a discretion given by statute or by regulation is unfettered. On some occasions the judges have upheld these claims of the executive, notably in R v Hampden, Ship Money Case, and in one or two cases during the Second World War, and soon after it, but the judges have not done so of late. The two outstanding cases are Padfield v Minister of Agriculture, Fisheries and Food, and Secretary of State for Education and Science v Metropolitan Borough of Tameside, where the House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers, so as to see that they are used properly, and not improperly or mistakenly. By mistakenly, I mean under the influence of a misdirection in fact or in law. Likewise, it seems to me that, when discretionary powers are entrusted to the executive by the prerogative ( in pursuance of the treaty-making power ( the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly. I turn, therefore, to examine the power in question in this case(the power to withdraw a designation.

The exercise of the power in this case....

[I]f there was a proper case for stopping Skytrain, there were available some perfectly good means of doing it. They were already provided by the 1971 Act. One particular means was provided by s.4. Under that section the Secretary of State could himself get the licence revoked. He could direct the Civil Aviation Authority to revoke it and they would have to obey. But this was only in carefully defined circumstances, such as in the interests of national security, or good international relations....In this case the Secretary of State did not give any direction under s 4. So, presumably, the circumstances did not exist so as to permit him to do so....

Seeing then that those statutory means were available for stopping Skytrain if there was a proper case for it, the question is whether the Secretary of State can stop it by other means? Can he do it by withdrawing the designation? Can he do indirectly that which he cannot do directly? Can he displace the statute by invoking a prerogative?....To my mind such a procedure was never contemplated by the Act. The Secretary of State was mistaken in thinking that he could do it. No doubt he did it with the best of motives. He felt that it was for the public good that Skytrain should not be allowed to start. Nevertheless, he went about it, I think, in the wrong way. He misdirected himself as to his powers. And it is well-established law that, if a discretionary power is exercised under the influence of a misdirection, it is not properly exercised, and the court can say so....

Conclusion

We have considered this case at some length because of its constitutional importance. It is a serious matter for the courts to declare that a Minister of the Crown has exceeded his powers. So serious that we think hard before doing it. But there comes a point when it has to be done. These courts have the authority, and I would add the duty, in a proper case, when called on to inquire into the exercise of a discretionary power by a Minister or his department. If it found that the power has been exercised improperly or mistakenly so as to impinge unjustly on the legitimate rights or interests of the subject, then these courts must so declare. They stand, as ever, between the executive and the subject, alert, as Lord Atkin said in a famous passage, 'alert to see that any coercive action is justified in law': see Liversidge v Anderson ([1941] 3 All ER 338 at 361). To which I would add "alert to see that a discretionary power is not exceeded or misused"....