304 [2000] 3 WLR 1785, [2001] 2 AC 50 305 [2000] 3 WLR 1785, [2001] 2 AC 50.

306 [1994] QB 349 at 365.

307 See Halsbury vol 8(2) 1996 para 824.

308 R v Oxford County Inhabitants (1811) 13 East 411 at 416 note (b). Cited in Halsbury vol 8(2) para

825 n 2.

309 The right to petition for pardon is enshrined in the Bill o f Rights s . l . See Halsbury vol 8(2) para 825 n 3.

310 Halsbury vol 8(2) para 825.

Measure 1963. Section 83 (2)(a) of this measure provides that nothing in the measure 312 shall affect any royal prerogative. Pardon can also be granted by Act of Parliament.

A related exercise of prerogative power is the entering by the Attorney General on behalf of the crown of an order nolle prosequi to stop criminal proceedings. Such an order has the effect of stopping a trial on indictment after the indictment has been signed. It is not the same as an acquittal and does not prevent the defendant from standing trial on the same charges again. The power has most usually been used when a defendant is unfit to stand trial, but John Edwards, writing in 1984, states that in previous times it had been used either to stop technically imperfect proceedings that had been instituted by the Crown or to stop technically perfect but oppressive private prosecutions.313 The power is rarely used, particularly as the Director of Public Prosecutions now enjoys the statutory power under s 3 of the Prosecution of Offences Act 1985 to take over the conduct of any prosecution and, in practice, to stop an inappropriate trial by offering no evidence and securing an acquittal.314

Discretion

Reference was made in Inland Revenue Commissioners v National Federation o f Self-

Employed and Small Businesses Ltd , to lawful exercise of discretion. According to

Wade and FOrsyth all legal power, as opposed to duty, is in some sense discretionary but must be exercised properly and lawfully ‘in accordance with the presumed intentions of the legislature that conferred [the power]’.316 They go on to state, citing AV Dicey, that wide discretionary power was incompatible with the rule of law but that actually what is important in preserving the rule of law is not the absence of discretionary power but the ability of the law to control its use and misuse.317 Leading

312 Halsbury, vol 11(2), para 1449. During 2008 draft proposals were issued under the title o f the

Contitutional Renewal Bill. The proposals included a consultation on the possibility o f the Queen formally relinquishing the Royal Prerogative o f Mercy. (See Constitutional Renewal Bill

http://www.commonsleader.gov.uk/output/page2171.asp accessed 28 November 2008. See also UCL Constitution Unit Commentary on Constitutional Renewal Bill).

313 Edwards, John LI J, The Attorney General, Politics and the Public Interest, London, 1984, 445. 314 The power o f the Attorney General in this matter is subject to abolition according to s 11 o f the Constitutional Renewal Bill 2008. (See also UCL Commentary, as above.)

315 [1981] STC 260.

316 Wade, HWR and Forsyth CF, Administrative Law 9th edn., Oxford, 2000, 311. 317 Wade and Forsyth, 343-4.

cases such as Associated Provincial Picture Houses v Wednesbury Corporation318 and

Ridge v Baldwin319 show that the court will consider that an authority exercising discretion will be acting ultra vires where, in exercising its intra vires discretion it acts improperly or unreasonably in various ways: these ways include ‘disregard of the rules of natural justice, unfairness, taking into account irrelevant considerations, ignoring relevant considerations, bad faith, fettering discretion, attempting to raise taxation, interfering with the free exercise of individual liberties, and so on.’320 That said, however, there are areas where discretion has been exercised which has had the effect of allowing or causing behaviour that is against the strict letter of the law. Two examples follow of where such discretion has been challenged but upheld by the court.

The first is the discretion of the police not to prosecute. In R v Commissioner o f the 991

Metropolitan Police ex parte Blackburn the court was asked to review a decision by

the Metropolitan Police not to prosecute those involved in illegal gambling. The court held inter alia that ‘it was the duty of the Commissioner, as also o f chief constables, to enforce the law, and though chief officers of police had discretions (eg, whether to prosecute in a particular case, or over administrative matters), yet the court would interfere in respect of a policy decision amounting to a failure of duty to enforce the law of the land; the present instance was one in which the court would have interfered

9 9 9

in appropriate proceedings’. Thus, whilst in this case the Commissioner was wrong in failing to prosecute (and he undertook during the hearing to reverse his previous policy decision) and the court reserved the right to interfere by means of mandamus if and when necessary yet ‘it is for the ... chief constable ...to decide ... on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter.’323

318 [1948] 1 KB 223. 319 [1964] AC 40.

320 Oliver, Dawn ‘Is the Ultra Vires Rule the Basis o f Judicial Review?’ in Forsyth, Christopher (ed)

Judicial Review and the Constitution, Oxford, 2000, 4.

321 [1968] 2 QB 118. 322 [1968] 2 QB 118.

323 Per Lord Denning MR at 136. Affirmed in the judgment o f Lord Hoffmann in R v Chief Constable o f

Therefore, the allocation of scarce police resources is a justifiable reason for chief police officers not to prosecute offences. This can be seen to have the same effect as permitting illegality, especially if such a decision is made public.324

The second example again involves Lord Denning and the emergency services. In

Buckoke v Greater London Council325 the Fire Brigades’ Union sought a judicial

determination on whether it was lawful for the driver of a fire appliance to cross a red traffic light in an emergency. The letter of the law stated, at the time, that, whilst drivers of emergency vehicles were permitted not to observe the speed limit there was no statutory discretion given to them to cross a red light. The Chief Officer of the London Fire Brigade had, conversely, issued a brigade order permitting drivers to ignore red lights if there was no risk. In practice this was what normally happened but by so doing a driver would be committing an offence under the Road Traffic Act 1960 (as amended).

Lord Denning noted that, since the Bill of Rights, no one (not even the crown) has had ‘power of dispensing with laws or the execution of laws’. He contended, however, that where law had become ‘dead letter’ the police need not prosecute nor justices punish offences against that law. Citing Blackburn’s case he stated that chief police officers were able to make policy decisions about not prosecuting certain offences and that in this case, a policy of not prosecuting fire engine drivers for crossing red lights ‘would be a justifiable policy decision so as to mitigate the strict rigour of the law’. He was confident that if such a prosecution did come to court that the justices would give an absolute discharge (but he did not suggest an acquittal, thus not maintaining that the action was anything other than strictly illegal). ‘Thus by administrative action, backed by judicial decision, an exemption is grafted on to the law’. He held that the Chief Officer’s brigade order was legal. In the end the discretion or dispensation granted by the Chief Officer was temporary, like so many, in that the obligation to stop at red

324 See also discussion, for example, o f the establishment o f toleration zones for prostitution. E.g. the Prostitution Toleration Zones (Scotland) Bill unsuccessfully introduced in the Scottish Parliament in 2003 and a 2004 Home Office Green Paper www.timesonline.co.uk/tol/news/uk/article457955.ece. See also the Lambeth Cannabis Warning Pilot Scheme. Report to Metropolitan Police Authority by the Commissioner dated 26 September 2002 www.mpa.gov.uk/committees/mpa/2002/020926/17.htm 325 [1971] 2 All ER 254 CA.

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lights in all cases was removed by subsequent legislation in 1975. This judgment builds on Blackburn’s case in that it not only permits the police effectively to tolerate illegal behaviour by taking decisions not to prosecute328 but also allows others in authority to direct their subordinates to disobey laws which they consider either to be dead letter or to be inopportune in some way.329

Ministerial Dispensations

Ministers of the Crown possess and exercise a variety of dispensing powers granted to them under legislation. These powers are delegated but are clearly dispensatory. Examples include the ability of the Secretary of State to grant a dispensation on the advice of the local authority exempting a small zoo from all or part of the Zoo Licensing Act 1981 and dispensations from Fireworks Regulations under the Fireworks Act 2003.331 Ministers are accountable to Parliament, as always, for the exercise of their powers. The following are some more detailed examples of this type of dispensation.

Marriage Validity Orders

The Lord Chancellor has the power to issue a declaration of validity of a marriage in cases where validity is doubtful. These powers were conferred on the Home Secretary by the Marriages Validity (Provisional Orders) Acts 190 5 332 and 1924333 and transferred to the Lord Chancellor by Order in Council in 2001.334 The 1905 Act enabled the minister ‘in the case of marriages solemnised in England which appear to him to be invalid or of doubtful validity by reason of some informality, [to] make [an order] for the purpose of removing the invalidity or doubt.’ Section 1 of the 1924 Act added the provision that, in making such an order, the minister ‘may include such supplemental, incidental and consequential provisions, including provisions for relieving from liability ministers who may have solemnized the marriages to which the

327 Amended rule reproduced in Twining, William and Miers, David, How To Do Things With Rules 4th edn. London 1999.

328 See Julius v Bishop o f Oxford discussed in Chapter 9 below.

329 See evidence o f toleration o f illegal ritual practices, particularly by Bishops Creighton and Winnington-Ingram in the late 19th and early 20th centuries in the Diocese o f London, e.g. RCED PP 1906 vol xxxiv paras 20738 and 20839.

330 Halsbury vol 2(1) para 750.

331 Halsbury vol 17(2) para 1015.

332 5 Edw 7 c 23. 333 1924 c 20.

order relates, as appear to him to be necessary or expedient. ’ The minister must publish

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notice of the making of such an order and take into account any objections raised.

Few orders have been made under this provision. A request under s 1 of the Freedom of Information Act 2000336 produced details from the Department of Constitutional Affairs about three such orders. All were made after errors in the preliminaries to marriage. The most recent was the Marriages Validity (Harrogate District Hospital) Order 2003337 in which an order was made to remove any doubt as to the validity of a marriage solemnised just before the death of the groom, where there had been no time to obtain an Archbishop’s Special Licence. The order stated that the marriage ‘shall be deemed to have been as valid as if it had been solemnized on the authority of a special licence of marriage granted by the Archbishop o f Canterbury and shall be registered accordingly. ’

The exercise by the Lord Chancellor of this retroactive validation of marriage has many of the hallmarks of economy and appears to be making valid something which otherwise would not be valid. However, the power to make such an order is not inherent in the office of the minister (whichever minister of the crown holds the power) but delegated by Parliament.

Tax Concessions

Her Majesty’s Revenue and Customs has hitherto frequently granted concessions in the calculation and collection of tax revenue. Such concessions have been extra-statutory and have resulted in individuals or classes of tax payer paying less tax than they might otherwise have done had the statute been rigidly applied.338

The practice has been criticised in the courts and has been judicially likened to a dispensation. In Vestey and Others v Inland Revenue Commissioners (No 2) in the High Court, Walton J questioned the very basis of the Commissioners of Inland Revenue’s powers to make extra-statutory concessions, suggesting that changes in tax

335 336

S 2. 2000 c 36. 337 SI 2003/1237.

338 Halsbury vol 23(1) reissue para 28.

law should be made by Parliament and applied by the Commissioners. He cited340 a Canadian judgment wherein the Court o f Appeal in Manitoba held that ‘the Crown may not, by executive action, dispense with laws. The matter is as simple as that, and nearly three centuries of legal and constitutional history stand as the foundation for that principle.’341 Lord Edmund-Davies, in Vestey’s case in the House of Lords, quoted Mr Justice Walton favourably and even referred to the Bill of Rights, thereby agreeing with Walton in his likening of such concessions to the sort of dispensations meted out by James II and stamped out in 1688. However, he also referred to other authorities, for example, Donovan LJ, who observed342 ‘This is a difficult code to administer, and practical considerations no doubt justify at times some departure from strict law for the common convenience of the revenue and the taxpayer.’343

Latterly such concessions have been considered as proper exercises of managerial discretion.344 Lord Diplock in IRC v National Federation o f Self-Employed and Small Businesses Ltd 345 stated that ‘no court considering this evidence could avoid reaching the conclusion that the Board and their inspector were acting solely for “good management” reasons and in the lawful exercise of the discretion which the statutes confer on them’.346 However, the possibility of unfairness was brought up by the courts on a number of occasions347 and the necessity for retaining such a discretion when Parliament had the option of renewing or amending tax law in every year was questioned by Viscount Radcliffe348 and Lord Wilberforce, who observed that ‘... administrative moderation ... is ... no real substitute for legislative clarity and

• • ,349

precision.

341 R v Catagas [1978] 1 WWR 282 at 287.

342 In F.S. Securities Ltd. v. Inland Revenue Commissioners [1963] 1 W.L.R. 1223, 1233. 343 [1980] AC 1148 at 1195.

344 Halsbury, vol 23(1) para 28. R v Inland Revenue Commissioners ex parte Fulford-Dobson [1987]

STC 344.

345 [1981] STC 260. 346 At 269.

347 E.g. Lord Scarman in Preston v IRC [1985] STC 2 282 at 298 and Lord Edmund-Davies in Vestey v

Inland Revenue Commissioners [1980] AC 1148 at 1196.

348 Inland Revenue Commissioners v. Frere [1965] A.C. 402 at 429. Quotation cited by Lord Edmund-

Davies in Vestey, at 1195.

TCA #

Extra statutory concessions are published from time to time. John Tiley considers them to be ‘almost legislative in form’.351 However, they differ from statutory provisions in that ‘the Revenue can withhold the benefit of the concession if it is so minded without direct legal - as distinct from political or administrative - consequences.’352 The Revenue itself states that ‘Most concessions are made to deal with what are, on the whole, minor or transitory anomalies under the legislation and to meet cases of hardship at the margins of the code where a statutory remedy would be difficult to devise or would run to a length out of proportion to the intrinsic importance of the matter.’353

Tax concessions, therefore, bear many of the hallmarks of dispensations or exercises of economy - the Revenue’s claim to be exercising ‘good management’ being a direct claim to the same principle that undergirds the ecclesiastical exercise of economy. That claim is that sometimes the rigid application of the law is not in the best interests of the parties involved, or of justice or, in the case of the economy of the church, of salvation. However, the controversy surrounding extra-statutory concessions shows a tension in the administration of the law. On the one hand the law must be clear and applied fairly and impartially and on the other hand those exercising executive authority find, in the case of revenue collection as in other cases, that a certain flexibility in application of the law is necessary for the law to achieve its ultimate aim. In addition, some extra- statutory concessions are temporary and are either absorbed into positive law through statutory revision, are time limited or become obsolete as the relevant circumstances change.354

Conclusion

Lord Mansfield stated that ‘The great object in every branch of the law... is certainty’. It is certain that if all judges had the power in any case to overturn or not apply statute law then the law would not be certain, judgment could rely on judicial whim or the subjective moral judgment of a particular judge. Such a situation could

350 E.g. HMRC booklet IR1.

351 Tiley, John Revenue Law, 5th Edn, Oxford, 2005, 58.

352 Tiley (2005), 59. Cases referred to are R (Wilkinson) v IRC [2003] EWCA Civ 814; [2003] STC 1113

and AI Fayed v Adv General fo r Scotland [2004] STC 1703.

353 HMRC booklet IR1, 31 August 2005, 2.

354 E.g. Concession A2 regarding Meal Vouchers became statutory under s 89 o f the Income Tax (Earnings and Pensions) Act 2003.

also lead to a lack of consistency of treatment of similar cases. Equtiable remedies, based historically in part on higher principles such as natural justice, are still applied by the courts but their application is dependent on the application of precedents rather than the invention o f new remedies or new principles. There is, however, a considerable latitude of judicial discretion in the application of principles to concrete situations.

That said, there is a considerable history of dispensing from the law within the English legal system notwithstanding the provisions of the Bill of Rights 1688. The Bill of Rights did not absolutely remove all dispensing power but it did remove the dispensing power of the monarch acting alone and had the effect of making dispensation only

i f i r •

available subject to Parliamentary authority and scrutiny. Many current statutes give ministers or others the authority to dispense with observance of the law, but the exercise of these powers are always subject to judicial review and parliamentary scrutiny. Even the exercise of remaining prerogative powers can be subject to scrutiny

^ cn

when those powers are exercised by a minister on behalf o f the crown. An early principle of dispensation in canon law was that the legislator had the power to dispense with its own laws. This principle was seen in Godden v Hales with the assumption that the legislator (who could also dispense) was the monarch. Since 1688 it has been assumed that the legislator is the monarch in Parliament and it is Parliament that dispenses or authorises others to dispense. The Bill of Rights did not remove dispensation altogether but rejected the notion that it was a power inherent in the office