Page1

Public Law
2003

The use of ministerial powers without parliamentary authority: the Ram

doctrine
Anthony Lester%N** **%N
Subject: Constitutional law . Other related subjects: Administrative law. Government administration.
Keywords: Civil servants; Crown; Government departments; Ministers' powers and duties;
Prerogative powers;
Legislation:
Human Rights Act 1998 (c.42) s.6
International Covenant on Civil and Political Rights 1966 (United Nations) Art.12
International Covenant on Economic, Social and Cultural Rights 1966 (United Nations)
European Convention on Human Rights 1950
Ministers of the Crown (Transfer of Functions) Act 1946. 1946 (c.31)
*P.L. 415 This note examines government legal advice, given in 1945 but not made public until
recently. The central issue raised by this advice, and by the government's current understanding and
use of it, is whether it accords either with contemporary principles of British parliamentary democracy
or with a modern system of public law for ministers and their departments to exercise public powers
without parliamentary authority. We shall argue that the position is unsatisfactory and cries out for
reforming legislation placing ministers and civil servants under Parliament rather than the Crown, and
setting limits to their powers.

The Ram doctrine

The legal basis for current government practice is traced to advice given by Sir Granville Ram, who
was First Parliamentary Counsel between 1937 and 1947.1 What is known within Whitehall as the
"Ram doctrine" was set out in a memorandum of November 2, 1945. It stated that a minister of the
Crown may exercise any powers that the Crown may exercise, except in so far as the minister is
precluded from doing so, either expressly or by necessary implication. The advice was made public
on January 22, 2003, in a parliamentary written answer,2 in which the minister explained that
"[g]enerally, legally *P.L. 416 privileged advice to government is not disclosed, but, given the age of
this advice, we are content to do so in this case". What may be more relevant to the need for public
disclosure is not so much the antiquity of the advice, but the way in which the Ram doctrine is relied
upon to this day as the basis for exercising ministerial powers without parliamentary authority.3
In subsequent written answers, the government has provided more information about current thinking
and practice. Baroness Scotland of Asthal has explained that4:
The Ram doctrine reflects a well-established principle of constitutional law. Like many other persons,
Ministers and their departments have common law powers which derive from the Crown's status as a
corporation sole. Ministers and their departments also exercise prerogative powers of the Crown.5
Common law and prerogative powers may be limited by statute either expressly or by necessary
implication and in this respect are subject to direct parliamentary control. The courts have recognised
the legitimacy of these principles.
Whether legislation is necessary or appropriate to authorise government actions depends on the
circumstances and the matters in issue. Sometimes it will be clear that legislation is needed, for
example, when the proposed action might substantially interfere with human rights. In such cases a
clear and reasonably accessible legal framework is required in order to comply with human rights law.
At other times, the legal necessity for legislation will not be clear, in which case a political as well as a
legal judgment has to be made as to whether legislation is desirable. Such a judgment may take into
account a number of factors, including whether the proposed action is a priority and whether
authorising that action by legislating represents a good use of Parliamentary time.
The principles governing the use of the annual Appropriation Act to provide authority for the exercise
of functions by government departments where such functions may involve financial liabilities
 Page2

extending beyond a year are stated in the Public Accounts Committee Concordant [sic], 1932 (see
Annex 2.1 of Government Accounting 2000).6
During the past five years, as in previous periods, the common law powers of the Crown have often
been relied upon as the legal basis for government action. Common law powers form the basis of
such *P.L. 417 governmental actions as entering into contracts, employing staff, conveying property
and other management functions not provided for by statute either expressly or by implication. To
require parliamentary authority for every exercise of the common law powers exercisable by the
Crown either would impose upon Parliament an impossible burden or produce legislation in terms that
simply reproduced the common law.
Finally, the circumstances that gave rise to the Ram doctrine are that the Ram opinion (the text of
which was made available when an earlier Question [HL595] was answered on 22 January 2003) was
given when the Ministers of the Crown (Transfer of Functions) Bill was being considered. This Bill
later became the Ministers of the Crown (Transfer of Functions) Act 1946. The opinion addresses the
need for legislation to confer power to add new functions to existing government departments by
order. At that time Ministers were considering machinery of government changes following the
Second World War.
The final paragraph of that account indicates the limited basis upon which the legal advice was given;
a narrow foundation upon which to base what has become official doctrine in Whitehall. It is also an
account which raises further important questions. These were addressed in a subsequent written
answer, by Baroness Scotland7:
Ministers can act only within the law. It follows that an extension of ministerial power will always
require legislation (or, conceivably, a change in the common law). Legislation will also be necessary
where what is proposed requires not only the exercise of powers but also, for example, the imposition
of legal obligations, the creation of offences, or the raising of taxes.
If, however, it is proposed that Ministers exercise powers that are already available at common law to
private individuals, or to the Crown by virtue of the prerogative, there is no legal requirement for
legislation.
The case for putting existing powers onto a statutory footing will therefore depend not on strict law but
on the matters of convention, good governance and practicality discussed in the previous Answer.
These include the considerations of propriety addressed by the Public Accounts Committee
Concordat mentioned in that Answer. They include also the principles of legal certainty, accessibility
and clarity, which the government regard as important in their own right, quite apart from human
rights considerations.
In considering the possibility of legislation, the Government indeed have in mind all their international
treaty obligations. As well as the European Convention on Human Rights, these include the
International Covenant on Civil and Political Rights, the International Covenant on Economic Social
and Cultural Rights and the International Labour Organisation Conventions.
*P.L. 418 The use of non-statutory powers was discussed by the House of Lords in the Fire Brigade
Union case [1995] 2 AC 513. The Ram doctrine is being considered by the Court of Appeal in a
current case, R (Hooper) v Secretary of State for Work and Pensions. 8
Finally, in a further written answer to a question seeking information about the main examples of
circumstances in recent years in which the government decided, in accordance with the Ram
doctrine, that legislation was undesirable, Baroness Scotland replied, "[o]ccasions on which the
Government has chosen not to legislate in order to provide statutory authority for an action that is in
any event lawful at common law are necessarily difficult to categorise. No list is maintained …"9

The prerogative as a source of ministerial power

The United Kingdom is unusual among modern democratic states in its system of government, in that
it lacks a comprehensive constitutional charter which establishes and gives limited powers to the
institutions of government; confers and protects the civil and political rights of citizens and others
within the United Kingdom10; may be repealed or amended only in accordance with special procedural
requirements; and enjoys particular sanctity.11 We are governed under a hybrid constitution, partly
written, partly parliamentary, partly monarchical. The legal sources of executive powers are derived
from statutes, and, more obscurely, from the royal prerogative, and common law powers claimed as
 Page3

being derived from the legal personality of the Crown.

*P.L. 419 On the other hand, the rule of law is a fundamental principle of the British Constitution, that
is to say, the supremacy not only of the common law but the whole of British law, both statute law and
case law, interpreted and applied by the independent judiciary. Inherent in the rule of law is the
principle of legality which means that the executive must be able to demonstrate a lawful authority for
its actions, whether under statute, common law or prerogative.12 Halsbury's Laws of England sums up
the complex interface between executive power and the common law principle of legality in this way:
The traditional way in which the executive exercises power is through legislation which is enforceable
by the courts. In practice the state has a monopoly of coercive power. The rule of law or principle of
legality has imposed legal restrictions on the exercise of this kind of power, which has been called
"imperium" or "condign" power.
Nowadays other methods of exercising power are also significant, including the use of government
resources in the form of property and money raised in taxation to induce individuals and organisations
to behave in accordance with government policy or to enter into negotiated relationships with
individuals, organisations and collectivities: this sort of power has been termed "dominium" or
"property" power …13
The exercise of the so-called "dominium" or "property" power, which has become an increasingly
important supplement to "imperium" over the past quarter-century, is neither politically nor legally
controversial. Plainly, the institutions of government--whether central, devolved, regional or
local--must be able, like any individual or private organisation--to enter into contracts, employ staff,
convey property and carry out other management functions without requiring parliamentary authority.
Such functions are normally to be characterised as "private" rather than "public" in nature, even
though they are exercised by public authorities.14
However, their ability to do so is surely not, in the minister's words, on account of "common law
powers of the Crown which derive from the Crown's status as a corporation sole" but is instead part
and parcel of the freedom given by Parliament and the common law to everyone, including the Crown
(as corporation sole) and other public authorities to make contracts, convey property and manage
their affairs. In terms of public law principles, such activities are sometimes "public" rather than
"private" in nature.15
*P.L. 420 What is controversial is the exercise of coercive powers of "dominium" without
parliamentary authority. That is the area in which the legitimacy or otherwise of the Ram doctrine
really matters as the claimed legal basis for the exercise of the prerogative or common law powers
derived from the Crown's status as a corporation sole. As a leading textbook on constitutional law
observes:
In many instances governments, of whatever political hue, prefer to achieve their objectives by
"extra-legal" means, rather than introduce legislation with the possible embarrassment of
Parliamentary criticism and, subsequently, the risk of challenge in the Courts. Employers are
"persuaded" to follow government guidelines on pay, under the threat of losing grants and
government contracts. A "voluntary" system of censorship relating to matters of defence and security
insulates decisions taken by the responsible officials from any form of review. In some instances
sections of the community may be prepared to reach informal agreements with a government in order
to avoid being subjected to what they fear will be stricter control by legislation.16
Ram did not refer in his memorandum to ministers and their departments as having common law
powers which derive from the Crown's status as a corporation sole. That reference to the corporate
personality of the Crown is contained in the minister's written answer of February 25, 2003 that
glosses Ram's advice.

The constitutional illegitimacy of the Ram doctrine

It is inappropriate for the executive to seek to base the exercise of ministers' and civil servants'
powers without parliamentary authority on medieval concepts of the Crown as a corporation sole.
Those concepts were appropriate for a feudal landowning monarch but they are wholly outmoded as
a basis for the exercise of ministers' powers within a modern system of government based upon
parliamentary democracy and the rule of law. As Lord Diplock observed,17 the concept of the Crown
was a legal fiction and some of the confusion associated with that fiction would be eliminated if
instead of speaking of "the Crown" we were to speak of "the government". Legal vocabulary apart, it
 Page4

is important to be clear that the public powers of the central government are not based in law upon
so-called "common law powers", except to the extent that this refers not to the Crown's status as a
corporation sole but to prerogative powers.
*P.L. 421 As we have already noted,18 in its recent paper on Privacy and data-sharing: the way
forward for public services, the Cabinet Office's Performance and Innovation Unit asserted that one of
the sources from which a government department derives its powers is "the "Ram' doctrine--i.e. a
department can do anything that a natural person can, provided it is not forbidden from doing so".
However, Sir Granville Ram's memorandum did not express his understanding of the position in that
way. What he advised was that a minister "may as an agent of the Crown, exercise any powers which
the Crown has power to exercise, except so far as he is precluded from doing so by statute". In other
words, he did not claim that a government department can do anything that a natural person can do.
Legal support for the Cabinet Office viewpoint might be based upon Malone v Metropolitan Police
Commissioner, where Sir Robert Megarry V.-C. observed, in the context of a challenge to telephone
tapping by the police, that England "is not a country where everything is expressly permitted; it is a
country where everything is permitted except what is expressly forbidden".19 Accordingly, he decided
that, in the absence of statutory provisions or judicial precedent to the contrary, the Home Secretary
was not precluded from authorising the tapping of private telephones, though he added that the
situation cried out for legislation. That decision, equating the freedom of the police with that of an
ordinary citizen, resulted in a finding by the European Court of Human Rights that the United Kingdom
was in breach of the Convention principle of legal certainty. The government failed to convince the
court that its telephone tapping regime had a sufficiently clear legal basis; a mere administrative
practice regulating such tapping which was regularly adhered to was held to be insufficient.20 We
submit that Malone does not correctly state the present state of the law.21
The notion that a minister or government department can do anything that a natural person can do,
provided it is not forbidden from doing so, fails to have regard not only to the United Kingdom's
obligations under the European Convention but also to the modern constitutional position of public
authorities, including ministers and their departments. Public authorities have legal obligations by
virtue of the public nature of their functions as servants of the public. So much is clear from the
principles of public law, including the principle of legality, and from the constitutional scheme
contained in the *P.L. 422 Human Rights Act 1998, and the devolution legislation. These principles
preclude arbitrary action by the executive or any other public authority. It is therefore disappointing to
find civil servants within the Cabinet Office propounding what is now a constitutional and legal heresy.
22

The correct position was explained by Laws J. in Ex p. Fewings, 23 as follows:

Public bodies and private persons are both subject to the rule of law; nothing could be more
elementary. But the principles which govern their relationships with the law are wholly different. For
private persons, the rule is that you may do anything you choose which the law does not prohibit. It
means that the freedoms of the private citizen are not conditional upon some distinct and affirmative
justification for which he must burrow in the law books … But for public bodies the rule is opposite,
and so of another character altogether. It is that any action taken must be justified by positive law. A
public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its
dealings constitute the fulfilment of duties which it owes to others; indeed it exists for no other
purpose. I would say that a public body enjoys no rights properly so called … [I]n every instance …
where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to
vindicate the better performance of its duties for whose fulfilment it exists. It is in this sense that it has
no rights of its own, no axe to grind beyond its public responsibility: a responsibility which defines its
purpose and justifies its existence. Under our law, this is true of every public body. The rule is
necessary in order to protect the people from arbitrary interference by those set in power over them.
Although this statement of principle was made in the context of local authority powers, at least since
the coming into force of the Human Rights Act 1998, it applies to all public authorities, including
ministers and civil servants, acting as Crown agents. That was the implication of the minister's written
answer, in explaining the government's current understanding of the Ram doctrine, when she
acknowledged that, "legislation is needed, for example, when the proposed action might substantially
interfere with human rights. In such cases a clear a reasonably accessible legal framework is required
in order to comply with human rights law."24
This is not because of a requirement imposed by the Human Rights Act, for, although s.6 requires all
 Page5

public authorities to act in a way that is compatible *P.L. 423 with the Convention rights, it does not
include a failure to introduce in, or lay before Parliament a proposal for legislation.25 The need for
legislation arises because of the principle of legal certainty embedded in the Convention itself.
The European Convention is only one among the international human rights treaties by which the
United Kingdom is bound. These other instruments, like the European Convention, require
compliance with the principle of legal certainty.26 They are as much part of "human rights law" as is
the European Convention, and the rights they cover are as important as the Convention rights. It is
therefore to be welcomed that the government has acknowledged that the need to seek parliamentary
authority where human rights are involved is not limited to the demands imposed by Convention.
This acknowledgment is important, for example, in the context of prerogative powers over British
passports. There is no enforceable right to a passport in UK law, and successive governments have
been unwilling to relinquish its prerogative powers controlling the grant and withdrawal of passports.27
By contrast, Art.12 of the International Covenant on Civil and Political Rights guarantees freedom of
movement from and to this country, without restrictions *P.L. 424 except such as are "provided by
law". That would be a compelling reason for introducing legislation enshrining the right to a passport
in statute, along with procedural rules designed to ensure fair decisions about them.28 It remains to be
seen whether the government will now agree to introduce such legislation.
Another area in which there is an especially compelling argument for legislation to regulate
prerogative powers is the parliamentary scrutiny and approval of treaties prior to ratification.29 These
days, treaties reach into the nooks and crannies of most aspects of life. It is the prerogative which
empowers the executive to negotiate and ratify treaties, and in consequence there are many matters
of fundamental importance to the peoples of the United Kingdom (including their human rights), which
have been settled without any parliamentary debate, scrutiny or approval.30 The practice of laying
treaties before Parliament prior to their ratification allows for "comment and debate if parliament so
desires"31 but no more.32 This democratic deficit has been criticised, among others, by the House of
Commons Defence Select Committee in its Report on NATO enlargement.33 In its response to the
evidence of the Minister of State at the Foreign and Commonwealth Office, Mr Tony Lloyd MP, it
commented:
It is unclear how the views of Parliament would have been taken into account, should the Minister of
State prove wrong in having "no belief that the view of Parliament … will be anything other than that
enlargement is consistent with our national ambitions" since the Government could then ignore
Parliament's view.34
The only circumstances in which the government's recent written answers recognise the necessity for
legislation is where proposed action would substantially interfere with human rights, or where it
involves the imposition of legal obligations, the creation of offences, or the raising of taxes. Yet surely
in a modern democratic society, based on parliamentary government and the rule of law, it should not
be left to the executive to decide whether legislation *P.L. 425 is needed to authorise executive
action. As Brazier, among other recent commentators, has argued persuasively:
[T]he state of executive powers is unsatisfactory. Ministers rely daily on those powers to do what
would otherwise lack legal foundation, in circumstances which are very agreeable for ministers. For in
relying on the prerogative as authority, ministers, obviously, are not limited by the terms of any Act of
Parliament … Ministers do not have to consult, or even to inform, Parliament when they have it in
mind to do things by virtue of the prerogative. They do not have to worry in every case whether the
courts might review the manner in which they use those powers … [T]he royal prerogative is an
elastic concept, the apparent limits of which may be stretched by ministers; and in doing so they are
safe in the knowledge that anyone aggrieved will have to mount a challenge, after the event, through
judicial means--if such means are open, and if the citizen has the inclination and perseverance to do
so. Once again, an old constitutional notion has proved itself to be exceptionally helpful to
governments. If ministerial responsibility to Parliament amounted to a real check on executive power
then this would matter less. But on the whole it does not amount to very much.35

The future of the prerogative

How much scope remains in practice for the extension under the prerogative of the powers of
ministers and government departments? The prerogative is created and limited by the common law,
and the Sovereign can claim no prerogative except such as the law allows.36 The courts have
jurisdiction, therefore, to inquire into the existence or extent of any alleged prerogative.37 The extent of
 Page6

the prerogative may not be enlarged. When the BBC unsuccessfully claimed that the Crown had a
monopoly of broadcasting exercised through the Crown, and that the Corporation was entitled to
Crown exemption from income tax, Diplock LJ said,38 "[i]t is 350 years and a civil war too late for the
Queen's courts to broaden the prerogative".
However, being part of the common law, the prerogative is adaptable and elastic, and "the distinction
between adapting a recognized prerogative and claiming a new power may be difficult to draw, as in
Malone v Metropolitan Police Commissioner where Megarry V-C held that the Home Secretary had a
limited power to authorize telephone tapping as an extension of the power to open articles sent
through the post".39
*P.L. 426 Because of the development of modern principles of judicial review, the courts now have
the power to review alleged abuses of prerogative powers as well as of statutory powers.40 But the
political accountability of ministers and civil servants to Parliament when they exercise powers without
parliamentary authority is weak and ineffective.
Ours is a system of parliamentary representative government in which, according to constitutional
theory, Parliament exercises supreme control over all branches of government, except for the
devolved governments of Scotland, Wales and Northern Ireland. In addition to its supreme legislative
powers, Parliament supervises the general conduct of the executive. However, when ministers or civil
servants exercise public powers under cover of the prerogative, there is no systematic and effective
parliamentary supervision, whether by either House of Parliament or by their specialist committees.
For example, the Lords Select Committee on Delegated Powers and Regulatory Reform is concerned
41
with the over-broad delegation of legislative power and the lack of sufficient parliamentary scrutiny
of the exercise of delegated legislative power. It is not concerned with the situation where Parliament
has not legislated at all. The Lords Select Committee on the constitution is empowered "to examine
the constitutional implications of all public bills coming before the House; and to keep under review
the operation of the constitution". However, it has not considered prerogative powers or the issues
raised by this note as to the exercise of public powers by ministers and civil servants without
parliamentary authority. The terms of reference of the Joint Select Committee on Human Rights
include consideration of matters relating to human rights in the United Kingdom. Its main focus is
upon the scrutiny of Bills for their compatibility with the European Convention and other international
human rights instruments by which the United Kingdom is bound. It has no mandate to consider the
issues raised by this note except in the context of human rights.
However, the Public Administration Select Committee has recently undertaken to review the honours
system as part of a wider investigation into the use and scrutiny of the prerogative. In announcing its
review, the Chairman of the Committee, Tony Wright MP, said:
A review of the prerogative powers exercised by British governments is long overdue. These are
powers which have passed from monarchs to ministers without Parliament having a say in how they
are exercised. It is time to examine whether this arrangement is satisfactory. There has been *P.L.
427 discussion and concern over the years about the exercise of prerogative powers, but there has
not been a systematic review. That is the purpose of this inquiry.42
This review indicates both a much needed recognition of the important and complex part which the
prerogative continues to play in government, and a desire on the part of parliamentarians to challenge
the ways in which less concerted attempts at scrutiny have been dismissed in the past.43 This, in turn,
reflects the concern of politicians from across the political spectrum who, for different reasons, believe
that the prerogative jeopardises the effective monitoring and control of legislatively unconstrained
executive action.44
And parliamentarians are surely right to be concerned about a means of legitimating action which is
so useful in government that it seduces those who have been, when in opposition, its fiercest critics.
For example, in 1994 Jack Straw MP wrote robustly that:
The royal prerogative has no place in a modern western democracy … Accountability of the executive
is fundamental to any democracy. Where power is based not upon statute but upon the Royal
Prerogative it is this accountability which suffers … Much of the discussion about the Royal
Prerogative centres on the way in which it has been used as a smokescreen by ministers to obfuscate
the use of power for which they are insufficiently accountable. That is entirely right.45
We respectfully agree, but the government of which Mr Straw is a senior member shows no sign of
 Page7

being willing to place the prerogative under parliamentary authority.

*P.L. 428 Any attempt to ensure effective scrutiny of the prerogative must engage with the role and
constitutional status of civil servants,46 just as it must engage with the means by which prerogative
powers might be put on a statutory footing.47 Each of these is important if we are to secure the
principles of legal certainty and democratic accountability which underpin the rule of law.
In 1854, the Northcote-Trevelyan Report recommended the enactment of a Civil Service Act. That
recommendation has never been implemented. Instead, the Civil Service Commission was
established in 1855 under an Order in Council.48 The present government is committed in principle to
a Civil Service Bill, but has yet to publish its proposals; and it seems unlikely that it will seek to restrict
its prerogative powers by statute.49 The time is over-ripe to place the civil service and the Civil Service
Commission on a statutory basis, and to define and limit the powers of ministers and their
departments.50
Anthony Lester%N***%N
P.L. 2003, Aut, 415-428

*.
1. Of Sir (Lucius Abel John) Granville Ram (1885-1952), the Dictionary of National Biography (Oxford University Press)
says: "Ram was not a lawyer of academic stamp and he relied a good deal on the researches of his assistants. He was
inclined to be impatient when the niceties of the law or the details of administration got in the way of the form a Bill
should take. His strength lay in his creative approach, his refusal to be defeated by difficulties, and his resource in
finding solutions which were politically acceptable." Ram was responsible for drafting both the original and revised
forms of Emergency Regulation 18B seeking to meet Home Office anxiety that it could not be challenged in the courts:
see generally, G. Lewis, Lord Atkin (Hart Publishing, Oxford, 1999), pp.149-151. His work succeeded when the majority
of the House of Lords rejected a legal challenge in Liversidge v Anderson [1942] A.C. 206, Lord Atkin dissenting.
2. HL Deb., Vol.643, col.WA98, January 22, 2003, the Parliamentary Secretary, Lord Chancellor's Department, Baroness
Scotland of Asthal. The existence of the Ram doctrine was revealed in para.3.46 of a Report on Privacy and Data
Sharing, issued by the Performance and Innovation Unit of the Cabinet Office:
www.cabinetoffice.gov.uk/innovation/2002/privacy/report/index.htm. The Report stated, "[w]hen considering what
powers one has to share data, one must first consider the type of public body one is dealing with. Generally speaking, a
government department derives its powers from a number of different sources:--Specific statutory powers--known as
information gateways--to share information with others;--Implied powers--the power to do anything that is necessarily
incidental to express powers; and--The "Ram' doctrine--i.e. a department can do anything that a natural person can,
provided it is not forbidden from doing so." A footnote reference simply explained that "[t]his derives from advice by Sir
Granville Ram, First Parliamentary Counsel 1937-1947". It continued (para.3.47) "[b]y contrast, statutory bodies derive
their power to act from their creating statute, and have no vires to act outwith their statutory powers". The PIU Report
was discussed at a seminar, Privacy: Lost or Found?, convened by JUSTICE and Sweet & Maxwell in December 2002,
notably by R. Jay in her paper "Exchange of Information: What Price the Greater Good?". Jay (a solicitor at Masons)
observed in her paper (p.6) that she had been told that "all civil servants know of it [i.e. the Ram doctrine] but I could not
find it on the LCD website and I do not know how one can find a publicly available copy". It was this that prompted the
authors of this note to table parliamentary questions on the subject.
3. The full text of the Memorandum may be found at http://pubs1.tso.parliament.uk/pa/ld200203/ldlwa/30122wa1.pdf.
4. HL Deb., Vol.645, col.WA12, February 25, 2003.
5. Prerogative powers include: the maintenance of the civil service, the grant and revocation of passports, the granting of
pardons and the staying of prosecutions, the making and ratification of treaties, the recognition of states, the
governance of British territories overseas, the use of the armed forces to support the police in maintaining the peace,
deploying armed services overseas (the Royal Navy is maintained under the prerogative); and the Prime Minister's right
to appoint and dismiss ministers, recommend the dissolution of Parliament and advise on the bestowal of honours.
6. The text of the Concordat may be found at www.government-accounting.gov.uk/current/content/ga_02_5.htm.
7. HL Deb., Vol.646, col.WA59, March 24, 2003.
8. In R. (on the application of Hooper) v Secretary of State for Work and Pensions, [2003] EWCA Civ 875, the Court of
Appeal considered the Ram Doctrine in the context of sex discrimination in the provision of Widow's Payment and
Widowed Parent's Allowance, paid to widows but not to widowers, in breach of Art.14 read with Art.8 of the ECHR and
Art.1 of Protocol No.1. One issue concerned whether the Secretary of State has a common law power to make
extra-statutory payments to place widowers in the same position as widows. The Court of Appeal held that, before the
coming into force of the Human Rights Act 1998, there was no such power but that, once that Act was in force, its
requirements altered the restraint upon the Secretary of State resulting from the principle on AG v De Keyser's Royal
Hotel [1920] A.C. 508 (HL). There is a presumption that Parliament does not intend legislation to infringe the ECHR,
and in so far as the Human Rights Act placed upon the Secretary of State an obligation to make extra-statutory
payments, no constitutional impropriety or illegality could be involved in his putting in place a scheme to give effect to
that obligation, and, if necessary, seeking from Parliament appropriation of funds to implement the scheme.
9. The answer continues, "[h]owever, the Government recognizes limits to the reliance that should be placed on
 Page8

non-statutory authority. For example, in accordance with Government Accounting, para.11.3.33, departmental
estimates should identify expenditure which rests on the sole authority of the Appropriation Act. This is done by the use
of symbols in the notes to the estimates. Departments are also required constantly to review provision, to ensure that it
complies with the 1932 Concordat (referred to in previous Written Answers) so far as possible. It follows that scrutiny of
the estimates for each year should disclose the main cases in which expenditure rested on the Appropriation Act,
without other statutory provision.", HL Deb., Vol.647, col.WA38, April 9, 2003. For the paragraph to which Baroness
Scotland refers, see www.government-accounting.gov.uk.
10. Although the ECHR, as incorporated via the Human Rights Act 1998, and the devolution legislation, now provides
important constitutional and legal protection.
11. Halsbury's Laws of England (4th ed., reissue, Butterworths, London, 1998), Vol.8(2), Constitutional Law and Human
Rights, para.1.
12. The common law principle of legality also means that, in the absence of express language or implication to the contrary,
the courts will assume that even the most general statutory words were intended to be subject to the basic rights of the
individual: R. v Secretary of State for the Home Department Ex p. Simms [2000] 2 A.C. 115, HL, at 130E-G (Lord
Steyn), and 131F-G (Lord Hoffmann).
13. ibid. at [366].
14. The deployment of such powers, and the legality of doing so, was discussed in R. v Secretary of State for Health Ex p.
C [2000] 1 F.L.R. 627, CA. See also R. v Worcester CC Ex p. SW [2000] 3 F.C.R. 174, QBD, and see n.21 below.
15. See e.g. Town Investments Ltd v Department of the Environment [1978] AC 359, HL, at 380-381, per Lord Diplock,
discussed by M. Loughlin, "The State, the Crown and the Law" in M. Sunkin and S. Payne, eds, The Nature of the
Crown: A Legal and Political Analysis (Oxford University Press, 1999), p.33 at pp.62-63.
16. O. Hood Phillips and P. Jackson, Constitutional and Administrative Law (8th ed., Sweet & Maxwell, 2000), para.2-027.
It is worth emphasising that such decisions, grounded in political judgment and political accountability, may amount to
the illegitimate abuse of power and so be subject to review by the courts. For a modern, critical, account of the
deployment of prerogative powers as a means of evading allegations of illegality see the Report of the Inquiry into the
Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (the Scott Report), (HMSO,
1996), especially Vol.1, paras C1.10, C1.108.
17. See Town Investment s, n.16 above, at 380 (Lord Diplock).
18. See n.2 above.
19. [1979] Ch. 344 at 357.
20. Malone v UK (1984) 7 E.H.R.R. 14 at [67]-[68]. As a result the government was compelled to introduce legislation: the
Interception of Communications Act 1985.
21. In R. v Secretary of State for Health Ex p. C [2000] 1 F.L.R. 627, CA and R. v Worcester CC Ex p. SW [2000] 3 F.C.R.
174, QBD, the Court of Appeal and the High Court respectively were concerned with the legality of the Consultancy
Service Index (CSI). The CSI, which at the material time was maintained by the Secretary of State for Health without
statutory authority, was a database from which employers could glean information as to whether a prospective
employee was unsuitable to work with children. In both cases it was held that the Secretary of State was entitled to
maintain the database, just as a natural person would be. In Ex p. C it was held that although the use made of the
database engaged competing rights (of the prospective employee's privacy and the prospective employer's right to
know), the operation by the minister of the CSI was not an unlawful and unreasonable exercise of his discretion.
22. To be fair to the authors of the paper on privacy and data-sharing, in other passages in their paper they recognised that
handling personal information about citizens (such as health records, tax returns, welfare benefits, law enforcement
records, driving licence information and so on) raises a wide range of issues about privacy and the balance between
individual rights and the common good; they also recognised that the legal framework for human rights issues and
privacy has been evolving rapidly and will lead to significant changes in the relationship between the citizen and the
state. Our criticism is confined to the reference to the Ram doctrine and its use as a source of governmental powers.
23. R. v Somerset CC Ex p. Fewings [1995] 1 All E.R. 513 at 524e-j. See also [1995] 1 W.L.R. 1037 at 1042G-H (Sir
Thomas Bingham M.R.).
24. See n.4 above.
25. s.6(6).
26. e.g. under Art.2(2) of the International Covenant on Civil and Political Rights, where not already provided for by existing
legislative or other measures, each state party undertakes "to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures
as may be necessary to give effect to the rights recognized in the present Covenant"; and other provisions require
compliance with the principle of legal certainty. The public authorities of the states parties must ensure that the principle
of legal certainty prevails in relation to the various civil and political rights protected by the Covenant. Not all of the
Covenant rights are included in the Convention, or are incorporated into UK law. Under Art.4 of the International
Covenant on Economic, Social and Cultural Rights, the states parties recognise that, "in the enjoyment of those rights
provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations
as are determined by law only so far as this may be compatible with the nature of those rights and solely for the
purpose of promoting the general welfare in a democratic society".
27. Lord Filkin, Minister of State at the Home Office, has explained: "British passports are issued to British nationals in the
United Kingdom at the discretion of my right honourable friend the Home Secretary and, at overseas posts, at the
discretion of my friend the Foreign Secretary, both exercising the Royal Prerogative. The essential requirements are
that the intended holder has British nationality and is the person described by the personal details to be entered in the
 Page9

passport. Passports are therefore not issued to persons who are not British nationals and/or whose identity cannot be
authenticated. Passport facilities are refused or can be withdrawn in certain other well defined categories, which have
been reported to Parliament from time to time. These are: (i) a minor whose journey is know to be contrary to a court
order, to the wishes of a parent or other person or authority in whose favour a residence order has been made or
awarded custody or care and control, or to the provisions of s.25(1) of the Children and Young Persons Act 1933, as
amended by s.42 of the Children and Young Persons Act 1963, or s.56 of the Adoption Act 1976, as amended by the
Children Act 1989; (ii) a person for whose arrest a warrant has been issued in the United Kingdom or who is wanted by
the police on suspicion of a serious crime; (iii) in very rare cases, a person whose past or proposed activities are so
demonstrably undesirable that the grant or continued enjoyment of passport facilities would be contrary to public
interest; (iv) a person repatriated at public expense, until the debt has been repaid. The refusal or withdrawal of
passport facilities in these circumstances is rare and cases are considered on their individual merits. On the basis of the
limited case law it is clear that such action is open to scrutiny by the courts. The possibility of introducing a statutory
right to passports has been debated in Parliament in the past but successive governments have taken the view that the
current system has worked well and change is not required.", HL Deb., Vol.638, col. WA106, July 25, 2002.
28. As suggested by R. Brazier, "Constitutional Reform an the Crown", in M. Sunkin and S. Payne, eds, The Nature of the
Crown: A Legal and Political Analysis (Oxford University Press, 1999), p.337 at p.358.
29. This is what the Treaties (Parliamentary Approval) Bill 1996 sought to do.
30. Under the Ponsonby rule, the practice is that treaties requiring ratification, acceptance, approval or accession are laid
before Parliament for 21 days before the government deposits the instrument of ratification, acceptance or approval.
31. So explained the Minister of State, Foreign and Commonwealth Office, Baroness Chalker of Wallasey, during the
Second Reading debate on the Treaties (Parliamentary Approval) Bill, HL Deb.,Vol.569, col.1556, February 28, 1996.
32. Prior parliamentary approval, usually in the form of statute, is required in certain limited circumstances. These are
where a treaty requires an amendment to UK law, where it affects private rights, where it creates a charge on public
funds, where it attributes new powers to the Crown, or where it cedes British territory (ibid. col.1557). See generally D.
Limon and W. McKay, eds, Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, (22nd
ed., Butterworths, London, 1997).
33. Third Report, 1998, paras 104-106.
34. ibid. para.103.
35. ibid. at 356.
36. Halsbury's Laws of England (4th ed., reissue, Butterworths, London, 1998), Vol.8(2), Constitutional Law and Human
Rights, para.368.
37. ibid.
38. British Broadcasting Corporation v Johns [1965] Ch.32, CA, at 79.
39. Hood Phillips and Jackson, n.16 above, para.15-004. In R. v Secretary of State for the Home Department Ex p.
Northumbria Police Authority [1989] Q.B. 26, the Court of Appeal held that under the prerogative the Home Secretary
had authority to act at all times, and not only in times of actual emergency, to maintain the Queen's peace and to keep
law and order, unless any such action would be incompatible with statute. The Home Secretary had issued a circular to
chief officers of police and clerks to police authorities informing them that in future police requirements for plastic baton
rounds and CS gas, for use in the event of serious public disorder, would be met from a Home Office central store. A
police authority challenged the issue of the circular on the grounds that the Home Secretary had not power, either by
virtue of the Police Act 1964 or otherwise, to maintain a central supply of such equipment or to supply it without the
relevant police authority's approval, except in a situation of grave emergency.
40. Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, HL.
41. The Committee's terms of reference are "to report whether the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny".
42. Public Administration Select Committee press release, February 12, 2003.
43. In reply to a parliamentary question by Jeremy Corbyn MP, when he asked the Home Secretary if he would introduce
legislation to bring the exercise of the prerogative under parliamentary scrutiny, the Minister, Mike O'Brien MP replied,
"No. With very few exceptions, the Royal Prerogative is exercised only on the advice of Ministers. This provides
accountability to Parliament for its exercise" (HC Deb., Vol.344, col.865w, February 22, 2000). An attempt at general
legislative curtailment of the prerogative was embodied in Tony Benn MP's private Member's Bill, the Crown
Prerogatives (Parliamentary Control) Bill (HC Bill 55, 1998-99).
44. For a general account of contemporary Conservative thinking on parliamentary scrutiny of the executive (which does
not address the prerogative directly) see Lord Norton of Louth's Report, Strengthening Parliament, (Conservative Party,
London, 2000). For a critical discussion of the present administration's approach to constitutional reform and the
prerogative see R. Blackburn and R. Plant, "Monarchy and the royal prerogative" in R. Blackburn and R. Plant, eds,
Constitutional reform: the Labour Government's Constitutional Reform Agenda, (Longman, London, 1999). For the
Liberal Democrat position see Reforming Governance in the UK: Policies for Constitutional Reform, (Policy Paper 40,
2000) para.3.1.2 (www.libdems.org.uk/documents/policies/Policy_Papers/REFORM.pdf).
45. J. Straw, "Abolish the Royal Prerogative" in A. Barnett, ed., Power and the Throne: The Monarchy Debate, (Vintage,
London, 1994), pp.125-9 (extracts). Although the Conservative Party has expressed concern about executive scrutiny
generally (see above, n.43, it supported the use of the prerogative when in government. In a debate on the prerogative
in 1993, the then junior Home Office Minister, Charles Wardle MP, said, "[i]n any parliamentary democracy, the
Government must not be above the law and are subject to parliamentary scrutiny. It is open to Parliament to restrict the
prerogative powers exercised by Ministers further, if it wishes to do so, by introducing new Acts of Parliament. However,
 Page10

there is no sensible option of a blanket approach … The case must be made and considered specifically, in each area"
(HC Deb., Vol.223, cols 489-494, April 21, 1993).
46. For a detailed discussion see the Treasury and Civil Service Committee, Fifth Report: The Role of the Civil Service,
Vol.1 (1994 HC 27-I).
47. One way would be to entrench such a provision in a written constitution. Art.40.1 of the IPPR's proposal for a UK
constitution, for example, provides that "[t]he executive power for the United Kingdom is vested in, and, subject to this
constitution, shall be exercised by, the Government of the United Kingdom". That government would comprise the
Prime Minister and members of Parliament appointed as ministers (Art.40.2), A Constitution for the United Kingdom
(Institute of Public Policy Research, London, 1991).
48. The current (1995) Order in Council may be found at www.civilservicecommissioners.gov.uk/order incouncil.htm.
49. T. Daintith and A. Page, The Executive in the Constitution (Oxford University Press, 1999) observe that there is "little
obvious incentive for the executive to limit its capacities in this way. Thus the powers conferred by the Ministers of the
Crown Act 1975 are without prejudice to "any power exercisable by virtue of the prerogative power of the Crown in
relation to the functions of Ministers of the Crown' (s. 5(5))".
50. Although not dealing specifically with the prerogative, this is one of the recommendations of the most recent Report of
the Wicks Committee (Committee on Standards in Public Life, Ninth Report: Defining the Boundaries within the
Executive: Ministers, Special Advisers and the permanent Civil Service, Cm 5775 (April 2003). See, especially,
Recommendation 34. The Report may be found at www.publicstandards. gov.uk/reports/9thr#eport/report/report.pdf.

© 2022 Sweet & Maxwell and its Contributors