Fetters on Prerogative Powers

Suppose you have a statutory power, which you decide to exercise in a certain way from now on, come what may. Maybe your decision takes the form of a policy. Maybe it takes the form of an agreement. Either way, a British or Canadian court would look at your decision very carefully. ‘Fetters’ on statutory powers – ie, commitments as to whether and how to use statutory powers – are lawful only under stringent conditions. Now substitute ‘the Crown’ for ‘you’ and ‘prerogative power’ for ‘statutory power’. Does anything change? That is to say, is there anything to prevent the Crown from fettering its prerogative powers? On this issue, British and Canadian courts have very recently taken different approaches. (Roughly, ‘the Crown’ is the executive in Britain and Canada. Even more roughly, a ‘prerogative power’ is a non-statutory power of the Crown’s. See here for a more precise explanation.)

This is a tricky area of law, and so I am going to simplify. In my simplified story, there are three cases.

The first, Rederiaktiebolaget Amphitrite v The King (‘The Amphitrite‘), is nearly a century old. During the First World War, the British government gave assurances to a Swedish shipping company that, if one of its ships landed a cargo at a British port, it would be allowed to leave after. But the ship was not allowed to leave, and the company sued for breach of contract.

The High Court judge, Rowlatt J, held that there was no valid contract. Although the Crown ‘can bind itself … by a commercial contract’, he said, ‘it is not competent for … [the Crown] to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises’. The Crown ‘cannot by contract hamper its freedom of action in matters which concern the welfare of the State’.

Commentators love to debate The Amphitrite. It has plenty of detractors, and a few defenders. It has been followed a handful of times, including by the Privy Council. And it has never been overruled – except, perhaps, earlier this year, in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs.

Ms Sandiford was arrested in Indonesia when cocaine was found in her luggage. She was convicted of drug trafficking offences and sentenced to death. Ms Sandiford is a British citizen, and she asked the British Foreign Secretary to pay for the costs of appealing against her conviction and sentence. He refused, citing his blanket policy of not funding the legal costs of any British citizen facing criminal charges abroad. Ms Sandiford challenged this refusal, arguing the Foreign Secretary had unlawfully fettered the prerogative power to make ex gratia payments. But the UK Supreme Court disagreed. Without citing The Amphitrite, the Court held that prerogative powers, unlike statutory powers, may be fettered absolutely.

So, The Amphitrite says that the Crown may not by contract fetter its prerogative powers in matters of national interest. Sandiford, meanwhile, says the Crown may use a policy to fetter its prerogative powers absolutely. Perhaps the two cases can be reconciled, but it would take some ingenuity. At least the thrusts of the two decisions are at odds.

Just when the principle in The Amphitrite is being abandoned in Britain, it is being applied in Canada. And now I have arrived at my third case – the 2013 decision of the Ontario Superior Court of Justice in Ontario First Nations (2008) Ltd Partnership v Ontario (Minister for Aboriginal Affairs) (‘OFN’). The First Nations of Ontario agreed with the province that the Crown would appoint a representative of the First Nations to the board of a lottery commission. Five years after the agreement was made, the Crown had still not appointed a First Nations’ representative.

The Crown defended its inaction on the basis that the appointment power was a prerogative power, the exercise of which could not be fettered by contract. Lederer J rejected the argument. Without citing The Amphitrite, Lederer J distinguished between ‘business contracts’ and non-business contracts, and held that the former, but not the latter, were a legitimate fetter on the Crown’s prerogative powers.

The contract in The Amphitrite was a non-commercial contract, formed during a time of war, which Rowlett J set aside as an unlawful fetter on the Crown’s powers. By contrast, the contract in OFN was a business contract, ‘entered into to settle … who had the right to the profits of a large and successful casino’. Lederer J accordingly held that the contract was valid. The results are different, but the principle at work is remarkably similar.

In short: in Britain, the Crown may fetter its prerogative powers absolutely with a policy; and in Canada, the Crown may not fetter its prerogative powers absolutely with a contract. In this context, there is no great difference between policies and contracts. So these two jurisdictions seem to be on track to develop quite different approaches to fetters on prerogative powers.

The difficult issue is which approach is better. It’s a topic for an article (or a longer blog post!), but I am inclined to prefer the Canadian approach. The Crown has its prerogative powers so that it can use them for the public good. Why should the Crown be allowed to commit itself now to exercising a power in a certain way later, even if when the time comes it may be obvious that exercising that power in that way does not serve the public good? Sandiford never addresses that question. As far as I know, no one else squarely addresses it either. But I would be interested to know if I am mistaken.

This post originally appeared on the blog of the International Journal of Constitutional Law here on 2 January 2015. 

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