R v Secretary of State for the Home Department, ex p. Northumbria Police Authority

Facts

After serious public disorder in the mid-1980s, the Home Secretary issued a circular saying that he held stocks of plastic baton rounds and CS gas, and would supply them to chief constables who considered them necessary, without needing the agreement of the police authority. Northumbria Police Authority, which was responsible for providing equipment for its force under the Police Act 1964, objected that the Home Secretary had no power to supply equipment in that way.

History

The police authority applied for judicial review, which the High Court dismissed. The authority appealed to the Court of Appeal.

Issue

Whether the Home Secretary had lawful power to supply the equipment to a chief constable without the consent of the police authority, and in particular whether the royal prerogative to keep the peace survived the Police Act 1964, which allocates responsibility for police equipment to the police authority.

Held

Appeal dismissed. The Home Secretary had power to supply the equipment, and the prerogative to keep the peace of the Queen had not been displaced by the Police Act 1964.

Ratio

• The Crown has a prerogative power to keep the peace within the realm, which was not abrogated by the Police Act 1964 and which supports the Home Secretary making equipment available to chief constables for that purpose without the consent of the police authority, since the Act is not inconsistent with that power.

Key reasoning

• A prerogative power is displaced by statute only where the statute covers the same ground and is inconsistent with the continuation of the prerogative, as shown by the De Keyser case [1920] AC 508.
• The prerogative to keep the peace is an ancient power of the Crown to maintain order, and nothing in the 1964 Act purports to abolish it or to confine its exercise by the Home Secretary to the functions the Act sets out.
• The 1964 Act gives police authorities the duty to provide an adequate and efficient police force, but it did not remove the ability of the central government to act on its own account to ensure that forces could deal with serious disorder.

Where it fits in the module

The topic on the Crown and the royal prerogative asks what prerogative powers survive, how they relate to statute and how far the courts review their use. The case applies the De Keyser test to a prerogative with no clear statutory counterpart, showing the courts allowing the executive to rely on an old power for modern purposes. It raises a question about accountability, as the exercise of the prerogative lay outside the statutory scheme of local control.

Criticisms

• Allowing a prerogative power to keep the peace to support central supply of weapons undermines the statutory allocation of responsibility for policing equipment to local police authorities.
• The broad and ill-defined prerogative to keep the peace is a source of executive power with no statutory limits or parliamentary control.
• The decision uses an old power to answer a modern problem, which is in tension with the principle that the executive must be able to point to legal authority for acts that interfere with rights and with local democratic control.