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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

China Navigation Company Ltd v Attorney-General [1932] 2 KB 197

Scrutton LJ: The important question was thus raised in this Court as to the exact powers of the King as head of the army, whether His Majesty by his prerogative could regulate the army as he pleased, so far as he was not expressly restrained by the Army Act, or the financial provisions of the Appropriation Act, or whether the position was not that the King as head of the army could only incur such expense and take such action as was authorized by statute, and especially could not demand money for protection afforded by his armed forces, which was said to be imposing a charge on the subject without the authority of Parliament. But if there was no duty to afford anticipatory protection in foreign parts, no charge was imposed on the subject, because he was not bound to accept the protection, and need not pay money unless he asked for protection, which the Crown was under no duty to afford him. I am reluctant to discuss the matter under the head of "Prerogative," because, as Professor Dicey said, the word introduces the political controversies of an earlier age as to the existence of a royal sovereign power which could not be superseded, regulated, or abolished by Act of Parliament. Professor Dicey, in his Law of the Constitution, 8th ed., p. 421, treats the prerogative as "the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers. Every act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative." Now it is clear that there is a wide margin of executive acts done by the King or his Ministers in relation to the administration of the army, which the Courts of law will not interfere with or control. The Statute Law Revision Act, 1863 (26 & 27 Vict. c. 125), left unrepealed that part of the preamble of the Act of 1661, which recited that "within all His Majesty's realms and dominions, the sole supreme government, command, and disposition of the militia and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was, the undoubted right of His Majesty, and his Royal predecessors, Kings and Queens of England; and that both, or either of the Houses of Parliament cannot, nor ought not to pretend to the same." Lord Haldane, in Halsbury's Laws of England, vol. XXV., p. 37, cited this preamble as the authority for his statement that "the government of the forces is vested in the Crown, who has power to make regulations as to command and administration." As Lord Kenyon said in Macdonald v. Steele ((1973) Peake 175), where an officer was asking the Paymaster-General for his half-pay, "His Majesty's pleasure supersedes all enquiry, as he has the absolute direction and command of the army." The Courts have repeatedly refused to intervene in questions of pay and service, though the Royal Warrants appear to entitle the claimant to what he asks the Court to give him. This is so, whether the claimant asks relief from the King or from the executive officer. Colonel Mitchell in Reg. v. Secretary of State for War ([1891] 2 QB 326), demanding half-pay under a warrant, failed against the Secretary of State for War on the ground that there was no obligation on the Secretary except to the Crown, and that there was "no obligation on the Crown to make this allowance recognised by the law." He also failed on petition of right against the Crown. Lord Esher said: "An officer .... cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter." This is because the administration of the army is in the hands of the King, who unless expressly controlled by an Act of Parliament cannot be controlled by the Courts....

The matter is left to the uncontrolled discretion which he exercises by his Ministers. The Courts cannot question it, though Parliament by vote of no confidence or pressure in Parliament may influence it.