Analysis of Administrative and Constitutional Law Cases - Case Study Example

Admin Law Assignment Ans U.K. has no written and codified Constitution, therefore Constitutional practice is largely comprised of the Acts of Parliament and judicial decisions1. There is no separation of powers in the UK, rather Parliament is sovereign and the source of all valid authority.2 On this basis therefore, the leader of the largest Party in Parliament in practice, becomes the Prime Minister. However, technically, the actual appointment of the Prime Minister is a royal prerogative exercised by the Queen or the Attorney General. In Laker Airways Ltd v Dept of Trade3 Lord Denning defined the prerogative as a “discretionary power exercisable by the executive government” in cases such as the “war prerogative” or the “treaty prerogative”4 in which case, the law does not interfere with the exercise of the prerogative5 by the official concerned, since it can only be modified by Parliament itself. However, he also clarified that the law can set limits on the exercise of the prerogative, especially if it is “exercised improperly or mistakenly. That is the fundamental principle of our Constitution.”6 The question that arises in this case is whether the Queen can exercise the royal prerogative in declining to appoint Griscall, since he is the leader of the party that has won the greatest number of seats and therefore entitled to the post of Prime Minister. The Queen is obliged to appoint him. However, the proposals to repeal the Human Rights Act, Freedom of Information, etc constitute a potential violation of individual human rights. The proposed active encouragement by Government of discrimination as well as martial law, etc will constitute further infringements of individual liberties, which may be opposed by the judiciary The need to preserve individual rights is also recognized and addressed in the Constitutional Reform Act of 2005, which aims to strengthening democracy and enhance the credibility of public institutions.7 The Constitutional reform Act of 2005 is a response to the growing imbalance in the power of the executive, which is taking on quasi judicial functions.7a On the basis of these concerns, the Queen may exercise the royal prerogative against Griscall. Another aspect that may be considered by the Queen is the fact that the new Government will have to present its legislative programme to Parliament in the Speech from the throne.7b During this session, Griscall will have to present his proposals to repeal the acts that guarantee individual freedoms and human rights in the U.K. Subsequent to this, the two houses will hold a debate to vote on the speech, which will test the level of Parliamentary support for the proposals of the incoming Government. In the event that there is a defeat on the speech and most Members of Parliament oppose the new proposals, this can be attributed to be a Loss of Confidence motion which will then mandate the resignation of Griscall or a request for the dissolution of Parliament. The Courts in the UK are comprised of members of the House of Lords who are permitted by law to use their powers to constrain any abuse of powers by the other arms of Government, such as the legislative and executive branches.8 Therefore, these members could vote against Griscall’s proposals and the Speech from the throne could be a basis for the Queen to exercise her prerogative to refuse to appoint Griscall as Prime Minister. Ans 2: Assuming that Griscall is appointed to be the Prime Minister, then the formal procedure for the passage of bills in Parliament will require three readings in each House of Parliament.9 However, after a bill has completed all its parliamentary stages, there is still one final process that must be completed, which is the receipt of royal assent from the Queen. The royal assent is traditionally given, being declared to both Houses by their speakers and listed in Hansard. However, there is one instance where royal assent was refused by Queen Anne in 1707 on a bill pertaining to the settling of the militia in Scotland.10 According to Montesquieu, liberty exists only when Government is constituted such that one man need not be afraid of another.11 He believed that power needs to be so apportioned between different players in Government that minimal opportunities exist for the abuse of such power; thus such a principle of liberty will establish the rule of law. Therefore, in the event that Griscall’s Government is able to push the bills through Parliament which repeal Constitutional statutes, it is possible for the Queen to refuse to grant the Royal Assent. The basis of the prerogative that exists in the Royal assent is three fold: (a) the power to appoint the Prime Minister (b) the power to dissolve Parliament and call for a general election and (c) grant assent to legislation.12 In view of the fact that Griscall’s proposals are antithetical to the underlying democratic constitutional principles upon which the United Kingdom government functions and therefore represent a crisis where the Queen’s reserve powers are to be used, it may be possible for the Queen to refuse to grant her royal assent.13 The decision in the case of Council of Civil Service Unions14 held that the Minister’s exercise of the prerogative was valid, since the employees of the Government Communications Headquarters (GCHQ) were involved in matters involving national security. The significance of the Council case lies in the fact that it establishes the supremacy of the prerogative even in cases of exercise of a delegated power, where there are issues of national security at stake. The Minister action in declaring that members of GCHQ could not be members of other unions was deemed to be a lawful act. The case of the Fire Brigades Union15 is also significant in that it concerns the exercise of a crown prerogative, however in this case, the Home Minister’s exercise of such prerogative was deemed to be unlawful. The DeKeyser principle16 which upheld the royal prerogative had questioned whether an executive can claim a prerogative power in order to justify a particular decision when that decision has been shown to be inconsistent with the statutory law. The guiding principle appears to be that when a crisis is involved, such powers can be invoked. Therefore, since Griscalls’ proposals expressly repeal Constitutional statutes, the matter may be deemed to be one of crisis proportions and as a result, the exercise of the Queen’s prerogative may be justified. Ans 3: Under the separation of powers existing within the British system of Government, judicial review of Executive decisions alleged to be ultra vires is permitted to keep it functioning within the legitimate scope of its powers. Therefore, in the event that a decision is made to prevent Griscall from assuming office and he takes this matter to the Courts, there are good grounds to substantiate a claim. Constitutional procedures spell out the assumption of the Prime Minister’s office by the leader of the majority Party, which in this case is Griscall’s. The separation of powers is maintained and as stated by Lord Diplock, “it cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interprets them.”17 As Oxford Professor Dicey clarifies, the “prerogative is the name for the remaining portion of the crown’s original authority….whether such power be exercised by the King himself or by his Ministers.”18 The right of a Minister to exercise such a prerogative was upheld in the case of Attorney General v De Keyser’s Royal Hotel Ltd,19 especially in the context of a statute that had been passed by Parliament. In this case, it was held that once the existence of the prerogative was established, the Courts cannot question the exercise of that power. On this basis, a decision involving the royal prerogative is within the scope of Parliamentary function, therefore the judiciary can only step in if such a decision is ultra vires. If the Queen has exercised a prerogative that does not exist, or if she has exercised it inappropriately, Griscall can challenge such a decision in the Courts. But this may not be the case, since the validity of the Queen’s prerogative may be upheld, especially in view of the discriminatory measures proposed by Griscall which may be violative of human freedoms. Lord Browne Wilkinson has however pointed out that British judges have already used their judicial power in several cases to protect what they consider as fundamental rights,20 indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny.”21 Therefore, in the case of Griscall, the Government is executing a decision that impacts upon the fundamental rights of Griscall to assume his legitimate seat. However, the issue of Griscall’s fundamental rights also needs to be balanced against the fundamental rights of the citizens of the United Kingdom, a majority of whom will be impacted negatively if Griscall’s proposals are allowed to continue. Therefore, if Griscall takes this matter to the Courts, it is likely that the validity of exercise of the Queen’s prerogative will be balanced against any violation of Griscall’s rights. While he has the right under Constitutional principles to assume office, the exercise of judicial discretion may require that the fundamental rights of the majority are upheld. Griscall’s proposals are discriminatory and violate the human rights of many UK citizens, therefore his bid for Prime Minister-ship and execution of the discriminatory proposals may not be supported by the Courts. The Queen is well within her rights to exercise her prerogative in a crisis and Griscall may not be able to successfully contest her refusal to appoint him. Bibliography Cases cited: * Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 * Lord Bridge (House of Lords) , in R v Secretary of State for the Home * Council of Civil Service Unions and Others v Minister for the Civil service (1984) 3 All ER 935 * Department ex parte Bugdaycay (1987) AC 514 at 531 * Duport Steel v Sirs (1980) 1 All ER 529 at 541 * R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others (1995) 1 All ER 888 Books/journal articles: * Barnett, Hilaire, 2004. “Constitutional and Administrative Law” at pp 111 * “Bill Procedure” [online] available at: http://www.parliament.uk/works/newproc.cfm * Bradley, A.W. & Ewing, K. D. 2003. Constitutional and Administrative Law. (13th ed.), Harlow, Longman, pp 233 * DeSecondat, Charles, 1873 (First published 1748) Baron de Montesquieu: The Spirit of the Laws (Nugent Translation, revised edn). Bk XI, Ch VI, pp 175-179 at 174 * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press, pp 470-471. * Laker Airways Ltd v department of Trade [1977] 2 All ER 182 at 192, [1977] QB 643 * Lord Browne Wilkinson. The infiltration of a Bill of Rights. Public Law 397, 1992: 409 * Sunkin, M., & Payne, S. (1999). “The Nature of the Crown: a legal and political analysis”. Oxford University Press at pp 19 Read More