R v Secretary of State for the Home Department, ex parte Northumbria Police Authority
Encyclopedia
R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26
was an English administrative law
decision that first recognised the prerogative power to do whatever "was necessary to meet either an actual or an apprehended threat to the peace". It concerned the Home Office
's decision to maintain a store of CS gas
and plastic baton rounds. In 1986, a Home Office circular, 40/1986, authorised the Home Secretary
to release this store to a police force without the approval of the Chief Constable if Her Majesty's Inspectorate of Constabulary
agreed that it was necessary. The Northumbria Police Authority brought a judicial review
case against this decision, arguing that it was ultra vires
. The Divisional Court which heard the case recognised a prerogative power to keep the peace, which authorised the Home Office's actions. On appeal to the Court of Appeal of England and Wales
, the decision was confirmed, although several alternate grounds for allowing the distribution of the store were also given.
created a store of CS gas and plastic baton rounds, which could be provided to police forces in situations of public disorder. A Home Office circular, 40/1986, authorised the Home Secretary
to release this store to a police force without the approval of the Chief Constable if Her Majesty's Inspectorate of Constabulary
agreed that it was necessary. The Northumbria Police Authority brought a judicial review
case against the Home Secretary, arguing that the open-ended nature of this circular made it ultra vires
.
and Mann J. Mann, with Watkins concurring, rejected the Northumbria Police Authority's argument, saying that under the Royal Prerogative HM Government retained the right to do whatever "was necessary to meet either an actual or an apprehended threat to the peace", something that had not previously been recognised as a prerogative power. A stumbling block to this was the previous judgment in Attorney General v De Keyser's Royal Hotel Ltd
, which confirmed that where statutory provisions and prerogative powers acted in the same area, the prerogative power could not be used contrary to the provisions. Section 4(4) of the Police Act 1964
stated that "police authorities are to provide for the supply of equipment to their local forces", something that conflicted with the exercise of the prerogative. To get around this, Mann stated that section 4(4) did not "confer a monopoly power so as to limit the prerogative by implication", and was not the "statutory equivalent" of the prerogative, something Conor Gearty
describes as "rather mystifying".
The case then went to the Court of Appeal of England and Wales
, where it was heard by Purchas, David Croom-Johnson and Nourse LJJ, and judgment given on 18 November 1987. The Court of Appeal relied on section 41 of the 1964 act, which allows the Home Secretary to "provide...such...organisations and services as he considers necessary and expedient for promoting the efficiency of the police"; they found that this covered not only setting up the central store, but also providing the equipment to police forces. At the same time, they affirmed the Divisional Court's findings about the prerogative power to do whatever "was necessary to meet either an actual or an apprehended threat to the peace". For this, they relied on the fact that police officers, sworn to the Crown, had a duty to keep the peace, and that the Crown had a duty to protect its citizens.
that it has "Full marks for creative thinking, but the result looks distinctly like that constitutional solecism, the recognition of a new prerogative... the impact of the prerogative power to maintain the peace is potentially so far-reaching as to make the decision look rather like a Pandora's box - from which a host of evils were loosed upon the world".
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
was an English administrative law
English administrative law
-Ombudsmen:In the United Kingdom a post of Ombudsman is attached to the Westminster Parliament with additional posts at the Scottish Parliament, the Welsh Assembly and other government institutions...
decision that first recognised the prerogative power to do whatever "was necessary to meet either an actual or an apprehended threat to the peace". It concerned the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
's decision to maintain a store of CS gas
CS gas
2-chlorobenzalmalononitrile is the defining component of a "tear gas" commonly referred to as CS gas, which is used as a riot control agent...
and plastic baton rounds. In 1986, a Home Office circular, 40/1986, authorised the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
to release this store to a police force without the approval of the Chief Constable if Her Majesty's Inspectorate of Constabulary
Her Majesty's Inspectorate of Constabulary
Her Majesty's Inspectorate of Constabulary and Her Majesty's Inspectorate of Constabulary for Scotland in the United Kingdom have statutory responsibility for the inspection of police forces.-England and Wales:...
agreed that it was necessary. The Northumbria Police Authority brought a judicial review
Judicial review in English Law
Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual...
case against this decision, arguing that it was ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
. The Divisional Court which heard the case recognised a prerogative power to keep the peace, which authorised the Home Office's actions. On appeal to the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, the decision was confirmed, although several alternate grounds for allowing the distribution of the store were also given.
Facts
Following riots in the early 1980s, the Home OfficeHome Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
created a store of CS gas and plastic baton rounds, which could be provided to police forces in situations of public disorder. A Home Office circular, 40/1986, authorised the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
to release this store to a police force without the approval of the Chief Constable if Her Majesty's Inspectorate of Constabulary
Her Majesty's Inspectorate of Constabulary
Her Majesty's Inspectorate of Constabulary and Her Majesty's Inspectorate of Constabulary for Scotland in the United Kingdom have statutory responsibility for the inspection of police forces.-England and Wales:...
agreed that it was necessary. The Northumbria Police Authority brought a judicial review
Judicial review in English Law
Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual...
case against the Home Secretary, arguing that the open-ended nature of this circular made it ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
.
Judgment
The case was first heard by a Divisional Court, composed of Watkins LJTasker Watkins
The Rt Hon Sir Tasker Watkins VC GBE PC was a Lord Justice of Appeal and deputy Lord Chief Justice...
and Mann J. Mann, with Watkins concurring, rejected the Northumbria Police Authority's argument, saying that under the Royal Prerogative HM Government retained the right to do whatever "was necessary to meet either an actual or an apprehended threat to the peace", something that had not previously been recognised as a prerogative power. A stumbling block to this was the previous judgment in Attorney General v De Keyser's Royal Hotel Ltd
Attorney General v De Keyser's Royal Hotel Ltd
Attorney-General v De Keyser’s Royal Hotel Limited [1920] AC 75 is a case in English law which is the authority for the statement that the royal prerogative is placed in abeyance when statute law can provide a legal basis for an action....
, which confirmed that where statutory provisions and prerogative powers acted in the same area, the prerogative power could not be used contrary to the provisions. Section 4(4) of the Police Act 1964
Police Act 1964
The Police Act 1964 was an Act of the Parliament of the United Kingdom that updated the legislation governing police forces in England and Wales, constituted new police authorities, gave the Home Secretary new powers to supervise local constabularies, and allowed for the amalgamation of existing...
stated that "police authorities are to provide for the supply of equipment to their local forces", something that conflicted with the exercise of the prerogative. To get around this, Mann stated that section 4(4) did not "confer a monopoly power so as to limit the prerogative by implication", and was not the "statutory equivalent" of the prerogative, something Conor Gearty
Conor Gearty
Conor A. Gearty is the Rausling Professor of Human Rights Law and Director, Centre for the Study of Human Rights at the London School of Economics.-Background:...
describes as "rather mystifying".
The case then went to the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, where it was heard by Purchas, David Croom-Johnson and Nourse LJJ, and judgment given on 18 November 1987. The Court of Appeal relied on section 41 of the 1964 act, which allows the Home Secretary to "provide...such...organisations and services as he considers necessary and expedient for promoting the efficiency of the police"; they found that this covered not only setting up the central store, but also providing the equipment to police forces. At the same time, they affirmed the Divisional Court's findings about the prerogative power to do whatever "was necessary to meet either an actual or an apprehended threat to the peace". For this, they relied on the fact that police officers, sworn to the Crown, had a duty to keep the peace, and that the Crown had a duty to protect its citizens.
Significance
The case recognised a never-before discussed prerogative power; while creating prerogative powers violates precedent, it was found that this power had existed but had not been referenced. The court's decision was criticised; academic Robert Ward writes in the Cambridge Law JournalCambridge Law Journal
The Cambridge Law Journal is a peer-reviewed academic law journal published by Cambridge University Press. It is the principal academic publication of the Faculty of Law of the University of Cambridge. Founded in 1921 it is the longest running university law journal in the United Kingdom . Its...
that it has "Full marks for creative thinking, but the result looks distinctly like that constitutional solecism, the recognition of a new prerogative... the impact of the prerogative power to maintain the peace is potentially so far-reaching as to make the decision look rather like a Pandora's box - from which a host of evils were loosed upon the world".