LORD JUSTICE CROOM-JOHNSON: The Northumbria Police Authority appeal from the decision of the Queen's Bench Divisional Court refusing its application for judicial review. The occasion of the application was a circular letter no. 40/1986 sent by the Home Secretary on 19th May 1986 to the Chief Officer of Police of Northumbria and to the Police Authority headed "Plastic Baton Rounds/CS: Central Facilities".
HOME OFFICE CIRCULAR NO. 40/1986
PLASTIC BATON ROUNDS/CS: CENTRAL FACILITIES
In July 1981 the Home Secretary announced that plastic baton rounds and CS would be made available to chief officers of police for use in the last resort, and under strict conditions, in situations of serious public disorder. It is now proposed that all police requirements for this equipment should be met from a central store. These arrangements will also extend to the provision of equipment in cases where a chief officer has been unable to obtain his police authority's agreement to purchase, and the chief officer's assessment of need is endorsed by HM Inspector of Constabulary.
2. The store will contain stocks of plastic baton rounds, plastic baton round dischargers, CS canisters and CS launchers. The stock holdings will be replenished as they are used.
OBTAINING EQUIPMENT FROM THE CENTRAL STORE
3. The equipment held in the central store will be the property of the Home Office. Forces wishing to acquire equipment from the store will be able to purchase it, with the financial approval of their police authorities in the usual way. In these cases, on purchase the equipment will become the property of the police authority (or, in the case of the Metropolitan Police, the Receiver). Forces wishing to purchase equipment in this way, and having the necessary approval, should contact the Home Office Police Department, F8 Division, 50 Queen Anne's Gate, London SW1H 9AT (Tel 01-213 4517).
4. Where a chief officer decides that he needs plastic baton round or CS equipment and anticipates that he will have difficulty in obtaining the approval of his police authority, he should consult HM Inspector of Constabulary. The chief officer should report the views of the HMI to the police authority. If the HMI endorses the chief officer's assessment of need but nonetheless the police authority withholds approval for such equipment, the HMI will make arrangements with the Home Office for equipment to be supplied from the central store. The chief officer should inform the police authority that this is being done. The HMI will also make arrangements, through the Home Office, for further supplies to be provided, as required. The police authority should also be notified by the Chief Officer whenever this is done.
Where baton rounds are supplied to a police force under the arrangements set out in this paragraph, the stock of baton rounds held by the force at any one time will normally be limited to 1,000 rounds. This will include rounds used for training purposes.
5. Equipment supplied to forces in the circumstances set out in the preceding paragraph will remain the property of the Home Office.
EMERGENCY SUPPLIES
6. Any police force requiring equipment for a particular operational emergency (and having officers trained in its use) should contact the Home Office direct. If the request is agreed appropriate stocks of equipment will be made available immediately from the central store.
TRAINING
7. Baton rounds and CS may only be used by officers who have been trained in the equipment and who know its characteristics. All police forces which hold this equipment, or which are intending to acquire it, should ensure they have sufficient numbers of officers trained in its use. To assist in this, central training facilities (for trained firearms instructors) will be made available to all police forces by the Metropolitan Police, at economic cost. Police forces which need to train officers in the use of the equipment (and whose police authorities are prepared to bear the cost) should contact the Deputy Assistant Commissioner (Training) Aerodrome Road, London NW9 5JE.
8. A police authority which refuses to approve the purchase of baton rounds and CS may also be unwilling to pay the costs of training officers in their use. In such cases the Home Office will be prepared to' meet the costs of training firearms instructors in the use of the equipment, provided that HM Inspectorate of Constabulary has endorsed the need for this to be done.
9. The arrangements set out in this circular have been agreed with the Association of Chief Police Officers of England and Wales. The circular does not alter in any way the guidelines for the police on the use of baton rounds and CS.
ENQUIRIES
10. Any enquiries about this circular should be addressed to Mr. P R C Storr, F8 Division, Home Office (Tel No 01 213 3633).
Yours faithfully,
D J BELFALL
In an affidavit sworn by Mr. Elton, the Clerk to the Police Authority, it is stated:
"Following incidents of serious public disorder in 1981, the Home Office took steps to make available to police authorities plastic baton rounds (popularly known as 'plastic bullets') and CS Gas for use in dealing with such riots. I am advised and I believe that plastic baton rounds have never been used by police forces in Great Britain. The Northumbria Police, like some, other police forces, have used CS Gas to disarm and detain dangerous criminals, notably during sieges carried out by such criminals. However, the Authority is very concerned that such weapons should not be used to quell public demonstrations or riots because of the likelihood of serious personal injury or death thereby resulting to individuals."
The Home Secretary declined to withdraw his circular and the Authority sought judicial review. In its application the relief sought was -
1. A declaration that Home Office Circular No. 40/1986 (or material parts of that Circular) is ultra vires the powers of the Secretary of State for Home Affairs.
2. Certiorari to quash the decision to issue and apply the said Circular (or material parts of the said Circular).
At the hearing before the Divisional Court the Authority amended the relief sought to -
"A declaration that the Secretary of State for Home Affairs has no legal power to issue plastic baton rounds or CS Gas to a Chief Constable without the consent of the local police authority, save in a situation of grave emergency."
The other forms of relief were not pursued. At the close of the hearing in this court, the police authority again asked, and was granted, leave to reamend the relief sought. The only relief now asked for is -
"A declaration that paragraph 4 of the Home Office Circular No. 40/1986 is ultra vires the powers of the Secretary of State for the Home Department."
The legal background is the Police Act 1964, which replaced a large number of Acts of Parliament which until then had governed the police forces in England and Wales. Section 1 provides that a police force shall be maintained in each police area in these countries. The Northumbria police area in its present form was delimited by Local Government Act 1985 section 25 and Schedule 11.
Section 2 established a police authority for each police area, and also its composition. Section 4 deals with the general functions of police authorities. Section 4(1) reads:
"It shall be the duty of the police authority for every police area for which a police force is required to be maintained by section 1 of this Act to secure the maintenance of an adequate and efficient police force for the area, and to exercise for that purpose the powers conferred on a police authority by this Act."
Section 4(2) places on the police authority the duty of appointing the chief constable, subject to the approval of the Secretary of State. Section 4(3) reads:
"The police authority for any such police area may, subject to the consent of the Secretary of State, provide and maintain such buildings, structures and premises .....as may be required .....".
Section 4(4) reads:
"The police authority for any such police area may, subject to any regulations under Part 11 of this Act, provide and maintain such vehicles, apparatus, clothing and other equipment as may be required for police purposes of the area."
It will be noticed that section 4(1) imposes a duty, while section 4(3) and (4) gives powers which may or may not be used. Section 5 lays down the duties of the Chief Constable. The only part relevant for present purposes is subsection 5(1) which provides:
"The police force maintained for a police area under section 1 of this Act shall be under the direction and control of the Chief Constable appointed under section 4(2) of this Act."
It is common ground that the Chief Constable has complete operational control of his force. Neither the police authority nor the Home Secretary may give him any directions about that. The relationship between police forces and their appropriate local authorities was exhaustively examined by McCardie J. in Fisher v. Oldham Corporation [1930] 2 K.B.364.
In that case it was held that the police were not the servants of the Watch Committee of a borough corporation so as to make the corporation civilly liable for wrongs committed by the police. The police perform their duties as constables wholly independently of the Watch Committee (or police authority). McCardie J. on page 372 gave this illustration:
"Suppose that a police officer arrested a man for a serious felony? Suppose, too, that the watch committee of the borough at once passed a resolution directing that the felon should be released? Of what value would such a resolution be? Not only would it be the plain duty of the police officer to disregard the resolution, but it would also be the duty of the Chief Constable to consider whether an information should not at once be laid against the members of the Watch Committee for a conspiracy to obstruct the course of justice."
The independence of a constable, and a fortiori a Chief Constable, from outside control, whether by a local authority or the executive, has been repeatedly upheld. See A.G. for New South Wales v. Perpetual Trustee Co. Ltd. [1955] AC 457 and R. v. Commissioners of Police of the Metropolis [1968] 2 Q.B.118. In the latter case at page 136 Lord Denning M.R. said of the Commissioner, and so of every Chief Constable:
"No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement is on him. He is answerable to the law and to the law alone."
This independence of the police goes back a long way. It is not the creation of the Police Act 1964.
The financial provisions of the 1964 Act are contained in section 8, as amended by Local Government Act 1982 s.25 and Schedule 11. The effect is that all receipts of the police authority shall be paid into the police fund and all expenditure of any such police authority shall be paid out of that fund. That fund is in the exclusive control of the police authority.
Part 11 of the Act is headed "Central Supervision, Direction and Facilities". Section 28 sets out the general duty of the Home Secretary. It reads:
"The Secretary of State shall exercise his powers under this Act in such manner and to such extent as appears to him to be best calculated to promote the efficiency of the police."
It indicates the object to be achieved by the exercise of powers conferred on him elsewhere.
By section 31 he may make grants to the police authority in respect of expenses incurred for police purposes. By section 33 he has a power to make regulations, none of which are relevant for present purposes. Section 38 provides for the appointment and functions of inspectors of constabulary, who are to inspect and report to the Home Secretary on the efficiency of all police forces. They shall also carry out such other duties for the purpose of furthering police efficiency as the Secretary of State may from time to time direct.
Section 41 is important. It begins a part of the Act sub-headed "Central Services". It was under this section that the circular letter was sent. Section 41 says:
"The Secretary of State may provide and maintain, or may contribute towards the provision or maintenance, of a police college, district police training centres, forensic science laboratories, wireless depots and such other organisations and services as he considers necessary and expedient for promoting the efficiency of the police."
Before the Divisional Court the police authority contended that section 41 does not give the Secretary of State power to supply equipment to the police force without the consent of the police authority. On that point the Divisional Court found in favour of the police authority. In this court the Secretary of State has argued that the Divisional Court was wrong, and that he does have the power. The Divisional Court however accepted an argument advanced for the Home Secretary that alternatively he may supply equipment, without the permission of the police authority, under the Royal perogative. Against that finding the police authority now appeals.
It is convenient to take the section 41 point first. It is a straight matter of construction of the section, when placed in the context of the statute as a whole.
It is not now contended by the Home Secretaary that he can (as is stated in the Circular) propose that all police requirements for plastic baton rounds and CS Gas must be met from his central store. The police authority agree that section 41 gives the Home Secretary power to maintain a central store (which it is conceded would be an "organisation" within the meaning of that section) but it is argued that section 4(4) reserves to the authority the exclusive right to obtain equipment in discharge of its duty to secure the maintenance of an efficient police force. That the authority has financial control over the police fund is prayed in aid. This interpretation is said to be consistent with the general scheme of the statute which divides the respective functions for providing an efficient force into three: an authority to maintain, provide and equip; a Chief Constable to control and operate; and a Home Secretary to supervise and regulate. The authority's case is that the Police Act 1964 sets out a complete and comprehensive code which defines and limits the functions of each of those three entities. It is correct that there is a general scheme as described by the authority. The question is whether the functions are as closely limited and exclusive as is suggested.
Section 4 places a duty on the authority, and gives it a discretion how the duty is to be discharged. Section 8 provides it with the funds with which to do so. But section 28 places a duty on the Home Secretary to use his powers so as to promote the efficiency of the police. Those powers include the provision of central services. It is too narrow a construction of section 41 to say, as the authority contends, that the establishments mentioned in the section are only organisations and no more, and that the central store would be another. It ignores the word "services" in the section. If the Home Secretary gives instruction at a police college, or if a forensic science laboratory examines material sent to it by a force,he is providing services. Similarly, the supply of baton rounds or CS Gas from the store is another service. It is not permissible to read into section 41 words which are not there, such as "with the consent of the police authority". There is no need to do so. Such services may be asked for by a Chief Constable in the ordinary course of carrying out his duty of efficient policing. If some payment for the service used is required, it would have to come from the police fund concerned, but if the Home Secretary is willing to make no charge there is no reason why the Chief Constable may not avail himself of what is available without asking the authority.
To read into section 41 the words which are suggested would involve an interference by the authority in the operational discretion of the Chief Constable. The provisions in section 43 relating to the payment of policemen who are seconded for service under the Crown in providing the central services have no bearing on the point now at issue.
Counsel for the police authority recognised that a distinction between organisations and services was artificial.
He also recognised that an operational requirement for baton rounds and CS Gas may arise suddenly and with no prior warning. There would be no time in which to obtain the consent of the Northumbria police authority. Therefore another argument was advanced. This was that if supply is permitted under section 41, yet that supply could only be given "without consent" in an emergency. There was some discussion as to what would constitute an emergency. Riots and civil disturbances such as Broadwater Farm, or those at Brixton, erupted very suddenly and without any prior warning having been given to the police, and if such riots took place in Northumbria it would be pointless to require the Chief Constable to draw the equipment from the Home Secretary's Central store in order to deal with them. Moreover, the Northumbria police would not have been trained in the use of the baton rounds.
This argument by the police authority would require even more words to be read into the section. Not only would it be necessary to write into it a requirement for the consent of the authority before any service could be used by the force, but then to add an exception to it saying "save in an emergency".
I do not consider that the general scheme of powers under the Act justifies any such reading of section 41. The judgment of what is an emergency must be within the operational powers of the Chief Constable, unsubjected to any control on the part of the police authority. It was submitted to us in argument that not even the Broadwater Farm or Brixton riots could be regarded as an "emergency", but in my view that decision would be for the Chief Constable and not for the authority.
Accordingly the Divisional Court was mistaken in construing section 41 as not authorising the Home Secretary to supply the equipment from the central store in the way described in paragraph 4 of the circular. All he is proposing to do is to hold the equipment and make it available for supply on request and without charge to such extent as appears to him to be best calculated to promote the efficiency of the policing.
The second question is, on the assumption that section 41 gives no statutory power to the Home Secretary to supply this equipment to Chief Constables, then does the Royal prerogative supply it?
Although there has always been what is called the War Prerogative, which is the Crown's right to make war and peace, Mr. Keene has submitted that there is no corresponding prerogative to enforce the keeping of what is popularly called the Queen's peace within the realm. Mr. Keene based his submission by reference to Chitty's Treatise on the Law of the Prerogatives of the Crown (1820) and pointed out that there is no power referred to in it for keeping the peace. It does, however, contain an extensive section on "The King as the Fountain of Justice" and courts and gaols. The argument is that if there was no prerogative power to keep the peace in 1820, at which date no organised police force existed, then all police forces exist and are controlled only by the later statutes by which they were created, and there is no residual prerogative power to draw upon in cases of necessity.
In contrast to this submission, Professor O. Hood Phillips in "Constitutional and Administrative Law" (6th edn.) Chapter 21 states unequivocally "Although the preservation of the peace, which is a royal prerogative, is one of the primary functions of any state, the administration of the police has always been on a local basis in this Country"
It may be that the King's power to establish courts and gaols and to administer justice was no more than the larger power to see that the peace was kept. There were constables long before the establishment of Peel's Metropolitan Police in 1829.
At all events, the assumption was early made that keeping the peace was part of the prerogative. The position of the Home Secretary is that he is one of a number of secretaries of state through whom the prerogative power is exercised. In Harrison v. Bush [1855] 5 E & B 344 at, 353 Lord Campbell C.J. stated, "In practice, to the Secretary of State for the Home Department ..... belongs peculiarly the maintenance of the peace within the kingdom, with the superintendence of the administration of justice as far as the Royal prerogative is involved in it." That case does not establish the existence of the power with regard to the police, but only the status of the Home Secretary.
In Richard Coomber v. The Justices of the County of Berks [1883] 9 A.C.61 the question for decision was whether a block of buildings comprising county assize courts and a police station -were liable to income tax under Schedule A. If they were erected as part of the function of government in the administration of justice, then notwithstanding the fact that they were built by the county and paid for out of the county rates, the Crown's exemption from payment of taxes would apply. The House of Lords held that they both were exempt, the police being ultimately a crown responsibility. On page 67 Lord Blackburn said:
"I do not think it can be disputed that the administration of justice, both criminal and civil, and the preservation of order and prevention of crime by means of what is now called police, are among the most important functions of Government, nor that by the constitution of this country, these functions do, of common right, belong to the Crown.
In England a subject may have a franchise, giving him the right to administer justice in a particular locality in courts held by him; and he may also have a right to name the constables. In early times, such local franchises were of value for the revenue derived from the fees, and, no doubt, as increasing the local influence of the grantee. But it was always held that on a proceeding in quo warranto the Crown could call on the person in possession of such a franchise to shew his title, on the ground that they were among the matters quae mere spectant ad regem, and that unless he shewed a title by grant from the crown, or by prescription, the franchises were seized and he was ousted. (See Comyn's Digest, Quo Warranto A, and the authorities there collected). In the present case there is no question raised as to any franchise in the hands of a subject.
From very early times, judges acting under the King's Commission went down to administer justice in counties. The sheriff, the head officer of the county, but appointed by the Crown, was always called upon to attend them, and to provide lodging and accommodation for them. He did this at the cost of the county. I do not stop to inquire by what machinery the cost was in early times defrayed. It is now provided for by the statutes referred to, and comes out of the county rate.
The sheriff also was bound to raise the hue and cry, and call out the posse comitatus of the county whenever it was necessary for any police purposes; in so doing he was acting for the Crown, but the burthen fell on the inhabitants of the county. By modern legislation, the county police are arrayed at the expense of the county, defrayed by a police rate on the county, supplemented, in some cases, by grants from the imperial revenues.
A recent instance of the exercise of the Royal prerogative in the context of preserving law and order was the creation of the Criminal Injuries Compensation Board in 1964. See R. v. Criminal Injuries Compensation Board, ex p. Lain [1967] 2 Q.B. 864 at 881 per Lord Parker C.J., 886 per Diplock L.J. and 891 per Ashworth J. By its very nature, the subject of maintaining the Queen's peace and keeping law and order has over the years inevitably been dealt with by statute much more than the War Prerogative' has been. Instances of the way in which such a prerogative may be used are more readily provided by example than by being placed in categories, but I have no doubt that the Crown does have a prerogative power to keep the peace, which is bound up with its undoubted right to see that crime is prevented and justice administered. This is subject to Mr. Keene's next submission, which was that any prerogative power may be lost by being overtaken by statute law.
Mr. Keene adopted the dictum of Dicey that the prerogative is "the residue of discretionary or arbitrary authority which at any given time is left in the hands of the crown". Attorney-General v. De Keyser's Royal Hotel [1920] A.C.508 was the decision which establishes that in the exercise of the War Prerogative the Crown's power to requisition property had been limited by Defence Act 1842 so as to require compensation to be paid to the subject. At page 526 Lord Dunedin said:
"In as much as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed."
Lord Parmoor on page 575 stated:
"The constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject."
Mr. Keene also placed reliance on the speech of Lord Atkinson at page 539.
It is clear that the Crown cannot act under the prerogative if to do so would be incompatible with statute; What is said here is that the Home Secretary's proposal under the circular would be inconsistent with the powers expressly or impliedly conferred on the police authority by Police Act 1964 s.4. The Divisional Court rejected that submission for reasons with which I wholly agree; namely that s.4 does not expressly grant a monopoly, and that granted the possibility of an authority which declines to provide equipment required by the chief constable there is every reason not to imply a Parliamentary intent to create one.
Mr. Keene's last submission was that if there is a prerogative power it can only be used in emergency and that this does not allow its use beforehand in circumstances of peace and quiet.
One need only quote, and adapt, two passages from the speeches in Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C.75. That was a case concerning the War Prerogative, but the same point was taken. At page 100 Lord Reid said "it would be very strange if the law prevented or discouraged necessary preparations until a time when it would probably be too late for them to be effective". At page 144 Lord Pearce said, "the prerogative power in the emergency of war must be one power, whether the peril is merely threatening or has reched the ultimate stage of crisis. Bulwarks are as necessary for the public safety when they are constructed in good time against a foreseen invasion as when they are hastily improvised after the enemy has landed. The Crown must have power to act before the ultimate crisis arises".
The same reasoning must apply to the provision of equipment to the police, and to their being trained in its use, in times when there is reason to apprehend outbreaks of riot and serious civil disturbance. The steps contemplated by the circular are within prerogative powers, and in my view the declaration now asked for should not be granted.
I would dismiss this appeal, and allow the appeal on the Home Secretary's cross-notice.
LORD JUSTICE PURCHAS: The statutory and factual background has been set out in the judgment of Croom-Johnson L.J. and need not be repeated here. The appellants, the Police Authority for the Police District of Northumbria ("the Authority"), seek a declaration that in promulgating paragraph 4 of the Home Office Circular No. 40/1986 the Secretary of State for the Home Department ("the Minister") acted outside his powers. For the sake of convenience I repeat this paragraph here:
"Where a chief officer decides that he needs plastic baton round or CS equipment and anticipates that he will have difficulty in obtaining the approval of his police authority, he should consult HM Inspector of Constabulary. The chief officer should report the views of the HMI to the police authority. If the HMI endorses the chief officer's assessment of need but nonetheless the police authority withholds approval for such equipment, the EMI will make arrangements with the Home Office for equipment to be supplied from the central store. The chief officer should inform the police authority that this is being done. The HMI will also make arrangements, through the Home Office, for further supplies to be provided, as required. The police authority should also be notified by the chief officer whenever this is done. Where baton rounds are supplied to a police force under the arrangements set out in this paragraph, the stock of baton rounds held by the force at any one time will normally be limited to 1,000 rounds. This will include rounds used for training purposes."
The respect in which the Authority assert that the Minister has exceeded his powers is that his offer is extended directly to chief officers of police forces in cases where they expect their Police Authority would be unwilling to make this equipment available themselves. The Minister's powers in this regard must either be based upon statute or be derived from the Royal Prerogative and exercised by the Minister as a Secretary of State acting on behalf of the Crown - see the quotation already given in the judgment of Croom-Johnson L.J. from Lord Campbell C.J. in Harrison v. Bush [1855] 5 E. & B. 344 at 353.
I shall return to consider the question of the exercise of prerogative powers in a little more detail later in this judgment. At this stage before considering the position under the Police Act 1964 ("the Act") it is convenient to notice the distinction between the underlying prerogative power which undisputably resides in the Crown to "protect the Realm", "keep the Queen's Peace", "make treaties", etc., and the various ways in which that power is exercised and has been exercised over many centuries.
Whether the prerogative powers variously described are merely different aspects of the same fundamental power to protect the Realm, or are separate individual Prerogative powers may be more important academically than in the resolution of the issues raised in this appeal. The exercise of the prerogative of keeping the peace and the enforcement of law and order was effected by proclamation and statute from earliest times (see the proclamation of Humbert Walter the Justiciar in 1195 and the Statute of Winchester in 12851. The constable's powers and duties have been described in the judgment of McCardie J. in Fisher v. Oldham Corporation [1930] 2 KB 364, already cited by Croom-Johnson L.J. and by Lord Denning M.R. in R. v. Commissioner of Police of the Metropolis e.p. Blackburn [1968] 2 Q.B.118 at page 135F:
"The office of Commissioner of Police within the Metropolis dates back to 1829 when Sir Robert Peel introduced his disciplined force. The commissioner was a justice of the peace specially appointed to administer the police force in the metropolis. His constitutional status has never been defined either by statute or by the courts. It was considered by the Royal Commission on the Police in their Report in 1962 (Cmnd.1728). But I have no hesitation in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the Police Act, 1964, the Secretary of State can call upon him to give a report, or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must,or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. That appears sufficiently from Fisher v. Oldham Corporation and Attorney-General for New South Wales v. Perpetual Trustee Co. Ltd."
In carrying out these duties, the powers of the chief constables must stem from delegated power to exercise the prerogative power to keep the peace. The duty to do this is confirmed in s.5(l) of the Act. How he disposes of the personnel available to him or what use he may make of any particular equipment in any given set of circumstances has not been altered by the Act. S.48 provides that the chief constable shall in certain circumstances be vicariously liable for the acts of constables under his direction and control.
Again from early times the courts have not been averse to considering whether a power does or does not exist within the Prerogative - see Laker Airways Ltd. v. Department of Trade [1977] 1 Q.B.643 at page 705, per Lord Denning M.R.:
"The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations: but it can set limits by defining the bounds of the activity: and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our constitution. It derives from two of the most respected of our authorities. In 1611 when the King, as the executive government, sought to govern by making proclamations, Sir Edward Coke declared that: "the King hath no prerogative, but that which the law of the land allows him": see the Proclamations Case (1611) 12 CoRep 74, 76. In 1765 Sir William Blackstone added his authority, Commentaries, vol.1, p.252:
'For prerogative constisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner'."
The question whether once the power is held to exist the courts will interfere with its exercise is still open -see the speeches in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C.374 per Lord Fraser of Tullybelton at page 398B and Lord Roskill at page 418A-C.
It is useful to consider the Act in its historical and constitutional setting. Hereafter references to section numbers etc. are references to sections of the Act. The preamble reads:
"An Act to re-enact with modifications certain enactments relating to police forces in England and Wales, to amend the Police (Scotland) Act 1956, and to make further provision with respect to the police."
The Act is partly a consolidating Act and partly an amending Act. Mr. Keene submitted that it provided "a complete code"; but with respect to his careful submissions I do not think this contention can be sustained in the sense that it exclusively embraces all the powers and duties involved in carrying out their functions by the three parties involved namely: the Minister, the Chief Constables and the Police Authorities.
I am grateful to counsel for their references to the treatment of this topic in Holdsworth's History of England Law, Vol. I, and Constitutional and Administrative Law by Hood Phillips and Paul Jackson. These describe the historical development and interrelationship of the Justice of the Peace and the constables appointed by them. From the Statute of Winchester onwards the office of constable has been one held directly from the Crown to whom each constable swears an oath to keep the Peace, etc. and in the case of all except the Metropolitan Police District the attestation of this oath is made before a Justice of the Peace (s.18 and Schedule 2).- The powers given to Justices of the Peace to police constables and their predecessors, their organisation, admini-* stration and control have been the subject matter of a vast number of statutory provisions, namely on a local geographical basis.
The main purpose of the Act, as disclosed in its preamble, was to bring together with modifications in one statutory instrument the large number of localised enactments then in force. It did not establish or purport to establish a national police force, nor did it purport to affect either the underlying concept of keeping the peace of the realm.
Subject to this qualification, the Act provides an overall structure against which the administration and control of police constables in the exercise of their duties to keep the peace can fairly be described as providing an administrative code. Part I provides for the countrywide establishing and organisation of police forces and the establishing of police authorities. S.4(l) places a duty on the police authority "to secure the maintenance of an adequate and efficient police force, and to exercise for that purpose the powers conferred on a police authority by this Act". Various powers are conferred in the ensuing subsections, e.g. s.4(3) provision of equipment subject to Regulations (if any) made by the Minister under s.36. S.5 provides that the police force shall be under the direction and control of the chief constable. The original jurisdiction of the constable, including the chief constable, is specifically preserved by s.19. The only jurisdiction over chief constables given by the Act to police authorities is the power, subject to the approval of the Minister, to appoint him (s.4(2)) and to require his resignation (s.5(4)). There is no provision in the Act granting to the police authority any direct power to dictate to their chief constable how he is to discharge his duties either as a constable or under s.5(l) of the Act. Indeed such a provision would be so alien to the established constitutional position of the constable as to require very clear and specific statutory language. Sanctions are, however, available to police authorities. They can insist on reports under s.12 or withhold equipment under s.4(4). They can, of course, also act under s.5(4). However, I do not find it possible to construe out of the duty to secure the maintenance of a police force under s.4(l) or the power to supply vehicles, apparatus and other equipment under s.4(4), a power to control what equipment shall or shall not be used and in what circumstances.
On the contrary, it would be an unusual and exceptional power to give to a police authority if Parliament decreed that a constable, including a chief constable, could be ordered to carry out his duty to keep the peace in a particular manner or by using particular equipment or apparatus. This can be illustrated by looking at the reverse position to that apparently existing in the present case. Suppose an aggressive authority ordered its constables to adopt an unnecessarily provocative approach by wielding weapons and threatening to use gas, could it be said that the constable had to obey such a command, where in his judgment the result might well be counter-productive to the faithful execution of his oath to preserve the Queen's Peace? Pursuing this argument one step further, could it be said that the power to provide lethal equipment under s.4(4) conferred a power upon the authority to order its use by the members of that force? I think not. Nor, with respect to Mr. Keene's able submissions, can the provisions of s.4(4), even when read in conjunction with s.4(l), give the reverse power to the authority, namely to prevent the use by the members of their force of equipment if this is reasonably necessary for the proper discharge of their duties if the equipment is made available from sources elsewhere.
Apart from s.48 the individual constable is responsible for the manner in which he discharges his duties to keep the peace subject to orders given to him by Justices acting themselves under the common law prerogative to protect the peace.
Section 48 provides:
"(1) The chief officer of police for any police area shall be liable in respect of torts committed by constables ..... in like manner as a master is liable in respect of torts committed by his servants .....".
(2) There shall be paid out of the police fund
(a) any damages or costs .....
(3) .....
(4) A police authority may, in such cases and to such extent as they think fit, pay any damages or costs .....". (emphasis provided)
The liability imposed on chief officers by s.48(l) when contrasted to the discretionary power to contribute -given to the authority by s.48(4) underlines the point that the Act does not give any powers to the authority to control the policing operations of their force.
Part II of the Act ("Central Supervision, Direction and Facilities") in s.28 provides:
"28. The Secretary of State shall exercise his powers under this Act in such manner and to such extent as appears to him to be best calculated to promote the efficiency of the police."
The powers referred to include the right to call on the police authority to require the resignation of chief officers, to call for reports and hold local inquiries and make grants (ss.29 to 32); to make Regulations by Statutory Instruments controlling the government, administration and conditions of service and standard of equipment (ss.33 and 36); and to appoint inspectors (s.38).
However, the Minister is given "supportive powers" under s.41 Common Service and s.42 Research. S.41 is central to this appeal:
"41. The Secretary of State may provide and maintain, or may contribute towards the provision or maintenances of, a police college, district police training centres, forensic science laboratories, wireless depots and such other organisations and services as he considers necessary or expedient for promoting the efficiency of the police."
The Common Services, it is agreed, include the establishing of a central supply depot from which equipment is to be made available "for promoting the efficiency of 'the police'". The same expression, namely "promoting the efficiency of the police", is used in connection with the general exercise of powers by the Minister in s.28. There is nothing in the wording of the section to restrict the power to make the services available only to or at the request of a police authority, to the exclusion of direct supply to police.
As with the police authorities, the Act gives no direct power to the Minister to dictate to members of the police forces how they are to discharge their duty to keep the peace. Although as Mr. Keene pointed out, the Act does not give "default powers" to the Minister to act if the police authority failed to discharge their duties under the Act, the Minister is given a degree of control over the police authorities in the discharge of their functions, e.g. requiring the resignation of chief officers under s.29, powers to approve or withhold approval of appointment of chief officers and to confirm or reject establishments proposed by police authorities, including numbers and ranks of officers under s.4(2); provision of buildings, etc. under s.4(3). Subject to the overriding control of Parliament when the statutory instrument is laid before it, the Minister may also exert considerable control over police authorities through his powers to make Regulations. He must exercise his powers "in such a manner and to such an extent as appears to him to be best calculated to promote the efficiency of the police". Provision is also made in s.38 for the appointment of Inspectors of Police, who are charged with the duty of inspecting and reporting to the Minister upon the efficiency of all police forces.
The Authority complain that the Minister had no power to make the offer contained in paragraph 4 of the Circular. It is submitted that if the offer were accepted, the Minister would be obliged to act outside any powers possessed by him. It is not suggested that under s.41 the Minister may not establish a central store containing equipment including plastic baton rounds and CS equipment, and in appropriate circumstances to distribute such equipment from that store. What, in effect, the Authority's contentions boil down to is that equipment from stores established under s.41 can only be provided to police forces through the channel of a police authority acting under s.4(4). The Minister wishes to make such equipment available to police forces in cases where the Chief Constable of that force wishes to equip members of his force with the equipment and has convinced the inspectorate of police that it is appropriate for his force to have the equipment. The requirement to obtain the approval of the Inspectorate is a control imposed by the Minister for his own purposes and does not relate to the Act. Such approval, however, is a reassurance that the issue of the equipment is necessary or expedient for promoting the efficiency of the police within ss.28 and 41.
If the Authority's contention is correct, then by refusing on ideological or irrelevant grounds to supply equipment, which in the view of the Inspectorate is necessary or expedient to promote the efficiency of the policy, they can prejudice the performance by the Chief Constable of his duties under s.5(l) and the discharge by constables in that force of their oath attested under s.18 and Schedule 2. This is a result which, in my judgment, cannot have been contemplated by Parliament in passing the Act.
The Divisional Court was persuaded by Mr. Keene's argument that the power of equipping a police force was given exclusively to police authorities, but with respect to the Divisional Court I find myself in agreement with Croom-Johnson L.J. in thinking that no such exclusivity is to be inferred from the co-relation between s.41 with ss.4(l) and 4(4) of the Act. The only qualification placed upon the power to provide services and equipment is that the minister should consider them "necessary or expedient for promoting the efficiency of the police". The Minister has taken steps to meet this requirement by invoking the assistance of the Inspectors appointed under s.38. For this reason I am in agreement with Croom-Johnson L.J. that the cross-appeal by the Minister should succeed.
My judgment on the issues relating to the Act is sufficient to dispose of this appeal. I will, however, add some words of my own on the issue relating to Royal Prerogative, upon which the Divisional Court found in favour of the Minister. I find this a more difficult topic. As I have already said when I touched upon it at the beginning of this judgment, the Act is mainly a consolidating Act and does not, in my judgment, affect any prerogative power otherwise enjoyed by the Crown any more than any of the enactments in whose place it now stands from the Statute of Winchester onwards. The continued existence of Prerogative has never been questioned. Indeed the Authority have conceded that it still exists in the case of national emergency - although as a concept this was difficult to define beyond the obvious extremes of War or threat of War (civil or otherwise). So far as I know, it has never been suggested that in assenting to any of the enactments referred to in this judgment the Monarch has in any way derogated from the Royal Prerogative to maintain the Peace of the Realm.
As I ventured to comment at the outset in considering the powers of Ministers exercising as a Secretary of State the Royal Prerogative, one must distinguish between the existence of the Prerogative and the machinery set up to enable the expeditious and efficient use of that Prerogative. Thus it was seen in the case of R. v. Pinney [1832] 1 Barnwell and Adolphus 947 the magistrate was called upon to act in accordance with his duties to preserve the peace. It was held that he sufficiently discharged this duty by calling upon the armed forces, and constables and by appointing special constables. Having done this the manner in which those whom he marshalled discharged their respective duties, was no concern of the magistrates - but at no point was the existence of the Prerogative of keeping the King's Peace as the origin of the resulting duties and powers put in question.
The part of the speech of Lord Blackburn in Richard Coomber v. The Justices of the County of Berkshire [1883] 9 A.C.61, already cited by Croom-Johnson L.J., clearly sets out the Prerogative powers stemming from the Crown which form the basis of the jurisdiction. By the time Lord Blackburn delivered his speech the statute of Winchester had been in existence for nearly 600 years. I am unaware that the statutory provisions for organising the police or their predecessors the constables or custodians of the law or for appointing commissions for the appointment of Justices in the Statute of Winchester or the many subsequent Acts of Parliament, have in any way eroded or derogated from the prerogative in the Crown to protect the peace of the realm.
Mr. Keene's submissions based on Attorney General v. De Keyser's Royal Hotel [1920] A.C.508 deserve careful analysis. Croom-Johnson L.J. has already cited two extracts from the speeches of Lords Dunedin and Parmoor; and I would like to refer in addition to the following:
Per Lord Dunedin at page 526:
"..... whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: 'What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?"
Per Lord Atkinson at page 539:
"It is quite obvious that it would be useless and meaningless for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the legislature (in the absence of compelling words) an intention so absurd. It was suggested that when a statute is passed empowering the Crown to do a certain thing which it might theretofore have done by virtue of its prerogative, the prerogative is merged in the statute. I confess I do not think the word 'merged' is happily chosen. I should prefer to say that when such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same - namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been."
Per Lord Parmoor at page 568:
"The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments. The result is that, whereas at one time the Royal Prerogative gave legal sanction to a large majority of the executive functions of the Government, it is now restricted within comparatively narrow limits. The Royal Prerogative has of necessity been gradually curtailed, as a settled rule of law has taken the place of an uncertain and arbitrary administrative discretion. A similar tendency may be traced in the growth of our legal system. Portions of the Common Law have been systematically incorporated in or modified by Acts of Parliament, and in this way the obligations which the law imposes have become more definite, and more certain in their application."
These speeches are authority for the proposition that where the Crown has assented to statutory rights of compensation to the subject of expropriation in a national emergency, then the Crown cannot use prerogative powers to avoid its statutory liability to pay such compensation.
When considering Crown of Leon (Owners) v. Admiralty Commissioners [1921] 1 K.B.595, De Keyser's Hotel and Burmah Oil cases, the courts were dealing with the purported exercise of the War or Defence Prerogative to avoid a liability to compensate the subject. As Lord Reid pointed out, the exercise of the Prerogative in the circumstances must be rare because, in recent times, powers to requisition were available under the Emergency Legislation. It is well established that the courts will intervene to prevent executive action under prerogative powers in violation of property or other rights of the individual where this is inconsistent with statutory provisions providing for the same executive action. Where the executive action is directed towards the benefit or protection of the individual, it is unlikely that its use will attract the intervention of the courts. In my judgment, before the courts will hold that such executive action is contrary to legislation, express and unequivocal I terms must be found in the statute which deprive the individual from receiving the benefit or protection intended by the exercise of prerogative power. t
In the present case the Minister contends that if he does not have the power to make equipment available to police forces under the Act, he must have this power under the Royal Prerogative for the purpose of promoting the efficiency of the police. In order to dispute this the Authority must contend that the combined effect of ss.4(l), 4(4) and 41 j is to prevent the Minister from supplying equipment unless it is requested by the Authority. These sections have already been considered in this judgment. Even if I am not justified in holding that these sections afford positive statutory authority for the supply of equipment, they must fall short of an express and unequivocal inhibition sufficient to abridge the prerogative powers, otherwise available to the Secretary of State, to do all that is reasonably necessary to preserve the peace of the realm.
Mr. Keene referred us to a treatise on the law of the Prerogatives of the Crown by Joseph Chitty, published in 1820 for the purposes of demonstrating that there was then no recognisable "prerogative to provide or equip a police force".
With respect to Mr. Keene, in my judgment this argument begs the question. One is not seeking a prerogative right to do this. The prerogative power is to do all that is reasonably necessary to keep the Queen's Peace. This involves the commissioning of Justices of the Peace, constables and the like. The learned author clearly identifies the prerogative powers inherent in the Crown in relation to the duty placed upon the Soveriegn to protect his dominions and subjects. At page 4 the learned author adopts the definition of prerogative by Sir William Blackstone:
"By the word 'prerogative' we usually understand", observes Sir William Blackstone (b), "that special pre-eminence which the King hath over and above all other persons, and out of the ordinary course of the common law, in right of his royal dignity. It signifies, in its etymology, (from prae and rogo) something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in its nature singular and eccentrical; that it can only be applied to those rights and capacities with the King enjoys alone, in contradistinction to others; and not to those which he enjoys in common with any of his subjects; for if once any one prerogative of the Crown could be held in common with the subject, it would cease to be prerogative any longer. And therefore Finch(c) lays it down as a maxim, 'that the prerogative is that law in case of the King, which is law in no case of the subject.'
The splendour, rights, and powers of the Crown were attached to it for the benefit of the people (d), and not for the private gratification of the sovereign; they form part of, and are, generally speaking, as antient as the law itself, and the statute 17 Ed.2. st. 1 de prerogative regis is merely declaratory of the common law(e)."
After considering the principle and transcendent prerogatives with respect to foreign states and affairs, as supreme head of the church as the fountain of justice the learned author turns to the question of the protection of the realm in these terms:
"The duties arising from the relation of sovereign and subject are reciprocal. Protection, that is, the security and governance of his dominions according to law, is the duty of the sovereign; and allegiance and subjection, with reference to the same criterion, the constitution and laws of the country, form, in return, the duty of the governed, as will be more fully noticed hereafter.
We have already partially mentioned this duty of the sovereign, and have observed that the prerogatives are vested in him for the benefit of his subjects, arid that his Majesty is under, and not above, the laws."
The up-to-date position is summarised in paragraph 320 of Vol. 36 of Halsbury's Laws of England, 4th edition:
"320. General functions of constables. The primary function of the constable remains, as in the seventeenth century, the preservation of the Queen's peace. From this general function stems a number of particular duties additional to those conferred by statute and including those mentioned hereafter.
The first duty of a constable is always to prevent the commission of a crime. If a constable reasonably apprehends that the action of any person may result in a breach of the peace it is his duty to prevent that action. It is his general duty to protect life and property. The general function of controlling traffic on the roads is derived from this duty."
The passing of the Act did nothing to affect the duties and powers of police constables including Chief Officers of Police Forces. In my judgment, the prerogative powers to take all reasonable steps to preserve the Queen's Peace remains unaffected by the Act and these include the supply of equipment to police forces which is reasonably required for the more efficient discharge of their duties.
In Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C.75 passages from the speech of Viscount Radcliffe, who at the outset was careful to state that he was dealing with the war prerogatives, are also relevant to the exercise of the prerogative in general - see page 114:
"What then do we mean by the prerogative in this connection? I say 'this connection' because in our history the prerogatives of the Crown have been many and various, and it would not be possible to embrace them under a single description. Some of them were or came to be beneficial or sources of profit to the Crown - these, I suppose, had their origin in the military tenures and the status of the feudal superior, and examples of them would be wardship and purveyance and the right to the royal minerals. Others were as much duties as rights and were vested in the Sovereign as the leader of the people and the chief executive instrument for protecting the public safety. No one seems to doubt that a prerogative of this latter kind was exercisable by the Crown in circumstances of sudden and extreme emergency which put that safety in peril. There is no need to say that the imminence or outbreak of war was the only circumstance in which that prerogative could be invoked. Riot, pestilence and conflagration might well be other circumstances; but without much recorded history of unchallenged exercises of such a prerogative I do not think that for present purposes we need say more than that the outbreak or imminence of war, provided that it carried with it the threat of imminent invasion or attack, did arm the Crown with what may be called the war prerogative."
Mr. Keene conceded that there is a residual prerogative to act in relation to the maintenance of the peace in what he describes as an emergency in respect of which he found it difficult, understandably, to give a useful definition. As Croom-Johnson L.J. has already commented, and I agree with respect, it would be idle for the Crown to have retained a prerogative right if this cannot be used except in the immediate presence of an emergency.
For these reasons I have come to the conclusion that nothing in the Act or the preceding legislation has eroded the fundamental prerogative to keep the peace. In the exercise of this power, .it is, in my judgment, open to the Minister to supply equipment reasonably required by police forces to discharge their functions. I would, therefore, dismiss the appeal of the Authority.
LORD JUSTICE NOURSE: I agree.
We are asked to declare that paragraph 4 of the Home Office circular, in which there is an offer to supply chief officers of police with plastic baton rounds and CS gas from the central store, is ultra vires the Secretary of State. Before the equipment can be supplied the chief officer's assessment of the need for it must be endorsed by Her Majesty's Inspector of Constabulary and his view reported to the police authority. From paragraph 1 of the circular it can be seen that any equipment so supplied is for use only in the last resort, and under strict conditions, in situations of serious public disorder.
The first question which has been argued is whether the Secretary of State has power to supply the equipment under section 41 of the Police Act 1964. It is clear that the central store is an "organisation" which the section empowers him to provide and maintain, and the contrary has not been suggested. I think that it is no less clear that the supply of equipment from the central store is the provision and maintenance of a "service", and that the power to supply it is not excluded or diminished by the police authority's general power to supply equipment under section 4(4) of the Act. Although we differ from the view of the Divisional Court, I do not wish to add anything to the reasoning of Croom-Johnson L.J. on this question.
Although the second question would only be decisive if the Secretary of State did not have the necessary power under section 41, it is one of general interest and importance which has been fully argued on both sides. I therefore attempt a contribution of my own.
References in reported cases and authoritative texts to a prerogative of keeping the peace within the realm are admittedly scarce. The police authority relies especially on Chitty's silence as to that matter in his Treatise on the Law of the Prerogatives of the Crown (1820). I do not think that the scarcity is of any real significance. It has not at any stage in our history been practicable to identify all the prerogative powers of the Crown. It is only by a process of piecemeal decision over a period of centuries that particular powers are seen to exist or not to exist, as the case may be. From time to time a need for more exact definition arises. The present need arises from a difference of view between the Secretary of State and a police authority over what is necessary to maintain public order, a phenomenon which has been observed only in recent times. There has probably never been a comparable occasion for investigating a prerogative of keeping the peace within the realm.
The Crown's prerogative of making war and peace, the war prerogative, has never been doubted. Its origins may not have been fully explored. Here it is important to remember that the Royal prerogative was never regarded as a collection of mere powers, to be exercised or not at the will of the sovereign. The King owed certain duties to his subjects, albeit duties of imperfect obligation whose performance could not be enforced by legal process. Nowadays these duties are taken to be expressed in the coronation oath, whose modern form derives from the Coronation Oath Act 1688. They included a duty to protect the lives and property of the King's subjects. Thus Chitty, ibid., at p.7:
"The duties arising from the relation of sovereign and subject are reciprocal. Protection, that is, the security and governance of his dominions according to law, is the duty of the sovereign; and allegiance and subjection, with reference to the same criterion, the constitution and laws of the country, form, in return, the duty of the governed, as will be more fully noticed hereafter. We have already partially mentioned this duty of the sovereign, and have observed that the prerogatives are vested in him for the benefit of his subjects, and that his Majesty is under, and not above, the laws. This doctrine is laid down by several writers; and is expressly ratified by the coronation oath, wherein the King swears to govern according to law, to execute judgment in mercy, and to maintain the established religion; ...."
A duty of protection seems to have been recognised from earliest times. In Calvin's Case [1608] 7 Co.Rep. la, at 4b, we find this statement based on some observations of Glanville on the connection which there ought to be between a lord and his tenant by homage:
"But between the Sovereign and the subject there is without comparison a higher and greater connexion; for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects ...."
A later passage, at p. 5a, is to the same effect:
"..... ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; arid he is called their liege lord, because he should maintain and defend them."
These passages express the essential theory (and originally the practice) of feudalism, a system developed to remedy the chaos and perils to human life and property which succeeded the decline of the Roman Empire in Europe. Although we should be careful not to propound too romanticized a view of the feudal system in England, I feel sure that the great Plantagenet kings, notably Edward I, would never have questioned the existence of a duty or prerogative of protection. In China Navigation Co. Ltd. v. A.G. [19321 2 K.B.197, the only modern decision on the point, it was held that the Crown is under no legal duty to afford military protection to British subjects abroad. But the question whether there is a duty at home was left open; see in particular the judgment of Lawrence L.J. [1932] 2 K.B. at pp 221-223.
Reverting to the war prerogative, it is natural to suppose that it was founded, at least in part, on the wider prerogative of protection. That seems to have been the view of Lord Erskine, speaking in the House of Lords in 1808:
"What is termed the war prerogative of the King is created by the perils and exigencies of war for the public safety, and by its perils and exigencies it is therefore limited." (cited in Chitty, ibid., at p.50.)
The wider prerogative must have extended as much to unlawful acts within the realm as to the menaces of a foreign power. There is no historical or other basis for denying to the war prerogative a sister prerogative of keeping the peace within the realm.
I have already expressed the view that the scarcity of references in the books to the prerogative of keeping the peace within the realm does not disprove that it exists. Rather it may point to an unspoken assumption that it does. That assumption is, I think, made in the judgment of Lord Campbell C.J. in Harrison v. Bush [1855] 5 E & B 344, at p.353. Professor Hood Phillips has taken it for granted, and so may other learned authors whose works do not specifically refer to it. Of especial importance for their demonstration of the Crown's part in keeping the peace are these words of Lord Blackburn, which may have been based on Blackstone (Commentaries I, 343):
"The sheriff also was bound to raise the hue and cry, and call out the posse comitatus of the county whenever it was necessary for any police purposes; in so doing he was acting for the Crown, but the burthen fell on the inhabitants of the county." see Coomber v. Berks Justices [1883] 9 A.C.61 at p.67.
The posse comitatus was a civilian body, consisting in theory of all the able-bodied male inhabitants of the county, other than those in holy orders. in R. v. Pinney [1832] 3 B & Ad.947, at p.962 (the case of the Bristol Riots) Littledale J., another judge of great learning, said that, although the posse comitatus might be called out by a justice of the peace, it was generally done by the sheriff. This duty was given statutory recognition by the Sheriffs Act 1887, section 8(1) of which imposed liability to a fine on any who failed to respond to the sheriff's call. Although that particular provision has now been repealed (see section 10(2) of the Criminal Law Act 1967), the sheriff's duties in keeping the peace, along with his other common law powers and duties, were preserved by section 39(1)(d) of the 1887 Act. Their continued existence is attested by the warning which the Privy Council gave to the sheriffs in 1939 that, in the event of invasion, they might have to exercise their powers to call upon the civilian population to assist them in the defence of their counties; see Halsbury's Laws of England, 4th ed., vol 42, para 1132, note 1. True it is that for many years now it has been the invariable practice to leave the maintenance of public order to the police, who are for all relevant purposes independent of the executive. But the powers and duties of the sheriff show that the Crown retains, at the least, a general supportive power, which, if exercisable by one of its officers, is as well exercisable by the Secretary of State. At all events, there being no decision to the contrary, I decline to hold that a power so valuable to the common good no longer exists.
For these reasons I am of the opinion that a prerogative of keeping the peace within the realm existed in mediaeval times, probably since the Conquest and, particular statutory provision apart, that it has not been surrendered by the Crown in the process of giving its express or implied assent to the modern system of keeping the peace through the agency of independent police forces. I therefore conclude that, if the necessary power had not been available under section 41 of the 1964 Act, the terms and implementation of paragraph 4 of the Home Office circular would have been within the prerogative powers of the Crown.
Two further submissions which were made by Mr. Keene on behalf of the police authority must be mentioned. First, he said that section 4(4) of the 1964 Act was a particular provision which gave to the police authority a monopoly of providing such equipment as might be required for police purposes of the area. In rejecting that submission I too would respectfully adopt the reasoning of the Divisional Court [1987] 2 W.L.R.,at p.l005C.
Secondly, Mr. Keene maintained that the prerogative, if any, extends only to actual emergencies. It does not extend to apprehended emergencies. Accordingly, on no view is there a power to supply the equipment in advance of the situation of serious public disorder which is contemplated in paragraph 1 of the Home Office circular. I think that there is a confusion here between the prerogative of keeping the peace and the more general prerogative of acting in relation to emergencies, e.g. by requisitioning ships or land in time of war. Although I would accept that in the latter case the better view may be that there is no power to act in relation to an apprehended emergency, I am satisfied that the distinction is not to be made in the former. The passages which Lord Justice Croom-Johnson has cited from the speeches of Lord Reid and Lord Pearce in Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C.75, at pp 100 and 144, demonstrate that the war prerogative extends to acts preliminary to an emergency. It is only necessary to rely on commonsense and the affinity between the two prerogatives in order to arrive at the same conclusion in the case of that of keeping the peace within the realm.
I too would dismiss this appeal and affirm the judgment of the Divisional Court on the additional ground! mentioned in paragraph 1 of the respondents' notice.
Appeal dismissed with costs. Cross appeal allowed. Application to appeal to the House of Lords refused.
