Attorney General v De Keyser's Royal Hotel

Facts

In 1916, during the First World War, the Crown took possession of the De Keyser's Royal Hotel in London for use as the headquarters of the Royal Flying Corps. The Crown claimed that it could do so under the royal prerogative to requisition property for defence. The Defence Act 1842 provided a statutory scheme under which land could be taken for the defence of the realm, with a right to compensation for the owner. The hotel company claimed compensation under the Act, while the Crown offered only an amount as rent.

History

The hotel company brought a petition of right and the Court of Appeal held in its favour. The Attorney General appealed on behalf of the Crown to the House of Lords.

Issue

Whether the Crown could rely on the prerogative to take possession of the hotel without the statutory right to compensation, when a statute dealt with the taking of land for defence purposes.

Held

The appeal was dismissed. Where a statute covers the same ground as a prerogative power and regulates the manner in which the Crown may exercise it, the Crown must act under the statute and the prerogative power is in abeyance.

Ratio

• When Parliament has by statute regulated a matter previously governed by the prerogative, the Crown cannot continue to rely on the prerogative in that field, but is bound by the terms of the statute, including any conditions or rights of compensation.

The judgments

Key reasoning

• The prerogative is a residue of power left in the Crown and is subject to the supremacy of Parliament, so that statute can restrict or replace it.
• It would be absurd to hold that the Crown, having been given a statutory power with a duty to pay compensation, could ignore the statute and exercise the prerogative to avoid payment.
• The Crown could not claim that the Act merely supplemented the prerogative, since this would remove the safeguards the legislature had put in place to protect subjects whose property was taken.

Where it fits in the module

De Keyser is the foundational case in the section on the Crown and the royal prerogative. It shows how the sovereignty of Parliament is reflected in the position that the prerogative is subordinate to statute, and it asks whether the prerogative is displaced or merely in abeyance. It also relates to later issues, such as the powers of ministers to act without legislation in foreign affairs.

Criticisms

• The distinction between prerogative being abolished and in abeyance is unclear, and the consequences for the Crown when a statute is repealed have not been fully worked out.
• The test of whether a statute covers the same ground leaves uncertain how closely a statute must regulate a matter, and later courts have found it hard to apply.
• The case does not say whether a statute displaces the prerogative by implication whenever it deals with the same subject or only when the statute is plainly inconsistent with the prerogative.