The Executive - Public Law

The Executive- prerogative powers, conventions and statute.

Page 122-126

AV Dicey, Introduction to the study of the law of the constitution:

• Constitutional law is law derived from custom, tradition and enacted by statute or enforced by the courts.

• The other set of rules consists of conventions, understandings, habits or practices which are not in reality laws at all because they are not enforced by the courts. This is called the Conventions of the Constitution or Constitutional morality.

• It consists of two elements:

  1. The law of the Constitution. It is a body of undoubted law.

  2. Conventions of the Constitution. Consists of practices that regulate ordinary conduct of everyone but are not strict laws.

Page 122

Re Resolution to Amend the Constitution (1981) – The Court found that Canada had conventions preventing it changing the Constitution without a large amount of provincial support but this did not create a legal requirement.

Facts:

• The Houses of Canadian Parliament adopted a resolution requesting the British government to change the British North America Act 1867 or Canadian Constitution.

• They wanted a domestic amending procedure and a Charter of Rights and Freedoms in their Constitution.

• The governments of some Canadian provinces opposed the resolution.

Prior Proceedings:

• They are before the Supreme Court of Canada under Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer.

Outcome:

• The Supreme Court held 6:3 that a Constitutional Convention existed that the Federal Parliament could not amend the Canadian Constitution affecting the powers, rights and privileges of the provinces without obtaining a substantial degree of provincial consent.

• The Court held 7:2 that this Convention did not impose a legal requirement and accordingly that this degree of consent was not constitutionally required.

Legal Reasoning:

• Many laws are not found in the Constitution. For example the right to vote and the Prime Minister should have the support of the elected branch and the majority. None of these essential rules of the Constitution are a part of the law of the Constitution. Dicey called them conventions.

• The main purpose of Constitutional Conventions is to ensure the legal framework of the Constitution will operate in accordance with the principles of the period.

• They are unwritten rules and they are not enforced by the courts. It is not the court’s duty to obey them because sometimes they conflict with other legal rules. Their importance depends on the principle that they are safeguarding.

• To violate conventions is to do something unconstitutional which has no direct legal consequence.

Ratio decidendi:

• Constitutional conventions can be broken but this has no direct legal consequence and they are not enforced by the courts.

Conventions in Australia:

• Australia has conventions. For example the powers of the Prime Minister are not mentioned. The Governor General has vast power under the Constitution but in reality the powers are illusory.

Colin Hughes, Conventions: Dicey revisited:

• Conventions expand and make the law workable. They are not legally enforceable but are often more important.

• They appear, change and disappear to reflect new circumstances and are often unclear. Much of this comes from Britain where the absence of a written constitution gives them a more prominent role.

• Yet in Australia constitutional conventions are less important.

• Dicey’s view is that the ultimate objective of most conventions will be to relate to the maintenance of the flow.

• The force of the law will support Conventions along with public approval. A breach of the conventions will bring the offender into conflict with the courts.

• It makes logical sense to obey conventions. Parliament makes them work and often if you go against a convention, you go against the Constitution. For example if you don’t call parliament then you will be unable to tax people without going against the Constitution because you need the budget.

Page 520-534

The Executive:

• The Federal executive includes the King, Governor General, ministers (including the Prime Minister and the Cabinet) and public servants employed by government departments.

• Kings lost their power after the 1688 Glorious Revolution. Parliament became dominant and monarchs had to act on their advice.

Page 520

Town Investments Ltd v Department of the Environment (1978)

• Lord Simon of Glaisdale said that the Crown is a Constitutional law denoting the collection of powers under the royal prerogative. It is a symbolic phrase betokening power. They are a personal symbol of the state.

Law Reform Commission of Canada, The Legal Status of the Federal Administration (1985):

• The survival of the crown is a confused function from the past.

• It presents two difficulties in the modern law:

  • No activity of the state is really independent of the Crown. All matters are translated as if the Crown were omnipresent.

    1. E.g. Crown lands, crown prosecutor, royal assent etc.

    2. This makes it hard to distinguish entitites from each other and make a close relational dependence to the crown even though Parliament and the judiciary are not associated directly with the crown. It is hard to conceive executive action as independent.

  • It is impossible to make a clear distinction between the crown and government administrator. The government and the cabinet are associated directly with the crown.

• In Australia, the Constitution opens with “Federal Commonwealth under the crown”. Much of the Queen’s power is ascribed in unwritten convention.

Sources and scope of executive power:

• Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen. It says that the Governor General will exercise this power as representative.

• It says the power “extends to the execution and maintenance of the Constitution and of the laws of the commonwealth”. Yet it is silent on the scope of this power.

• The exercise of executive power is barely challenged on Constitutional ground in the High Court. It is only clear that the Executive must exercise the prerogative powers of the crown.

Prerogative power:

• Section 61 incorporates the prerogative powers of the Crown in the right of the Australian Commonwealth.

• The Constitution is conceived as coming into force under the crown. Some attributes merely arise because the crown is recognised as a legal person. For example, the executive can own property and enter into contracts.

Adam Tomkins, Public Law (2003):

• Blackstone gave a narrow view of the prerogative power. Prerogative powers are unique to the crown. There are tasks uniquely for the state like issuing passports.

• Dicey granted prerogative power a far broader and vague meaning which does not list the powers because lists have always been suspect. He wrote that prerogative consists of the “residue of discretionary or arbitrary authority which at anytime is legally left in the hands of the crown”.

• The Praerogativa Regis, a Statute never enacted from the regnal year 17 Edward II was till 1880 seen as a list of the King’s powers. In the Bishop of Ely’s case (1475) Littleton ruled it was not a statute but an affirmance of the common law.

Sir John Comyns, A digest of the laws of England (1800):

• The King’s prerogative relates to:

  • His own subjects and the dominion of the whole sea around England. This belongs to him.

  • He has prerogative to make wars or declare peace. Every subject must assist in war. But no man must serve the king out of the realm except for wages. He cannot be sent to another realm.

  • In peace the king enacts laws, jurisdiction, nominates officers, trade and revenue. No statute can be enacted without royal assent. The King cannot alter the law. He can make proclamations to enforce the law and make an offence punishable. But he cannot make something unlawful which was lawful.

  • He cannot alter statute, common law or customs.

  • He cannot dispense with Magna Carta or an act of Parliament or a judgment without legal process.

  • He cannot erect a new court without an act of Parliament expressing the jurisdiction as well.

  • He cannot grant commission.

• The Royal prerogatives are so disparate in subject matter that it is hard to assign categories.

Republic advisory committee, An Australian Republic: the options (1993):

• Dr HV Evatt divided the prerogatives into three categories:

  1. Executive prerogatives. The monarch can execute treaties, declare war, make peace, coin money and pardon offenders.

  2. Immunities and preferences. The priority of crown debts over those owed to other creditors, immunity from ordinary court processes etc.

  3. Property rights. Like entitlement to royal metals, fish, treasure trove and sea beds etc.

• Commentators argue about whether prerogative powers refer to all non statutory or common law crown powers or whether it should be confined to powers unique to the crown.

• The crown rights can be changed through legislation. The crown does have original or radical title to land and section 61 of the Constitution gives the monarch power but really this power is vested in the executive government. A statutory regime can regulate the exercise of a prerogative power by imposing criteria and procedures on power. Or it can supplant or extinguish prerogative so power depends on the state.

• Prerogative powers can be regulated, changed by statute or fall out of use.

Page 527

Attorney General v De Keyser’s Royal Hotel Ltd (1920) – If there is legislation available on an issue, then it supersedes the prerogative power.

Facts:

• The UK government used a hotel during WWI as a headquarters of the Royal Flying Corps.

• The Defence...