Case of Proclamations

The Case of Proclamations [1610] EWHC KB J22 was a court decision during the reign of King James VI and I (1603-1625) which defined some limitations on the Royal Prerogative at that time. Principally, it established that the Monarch could make laws only through parliament.^[1] The judgment began to set out the principle in English law (later developed by future Parliaments and other members of the judiciary in subsequent cases, for example Dr. Bonham's Case) that when a case involving an alleged exercise of prerogative power came before the courts, the courts could determine:

• whether the proclaimed prerogative existed in law and how far it extended;
• whether it had been limited by statute, and if so, in what way; and
• whether there was any requirement that The Crown pay compensation after the exercise of the prerogative.

Abstract

Tudor monarchs believed that they had the power to regulate, through the issue of royal proclamations, without the consent of Parliament. However, the monarch's absolute power to "make" the law was beginning to be challenged by the English judiciary and was raising concern in Parliament itself. The issue of the King's power to make law came before the judges in 1610 when James I and Parliament were struggling over the issue of impositions. Parliament was opposing the King's power to impose further duties on imports over and above what had already been sanctioned by Parliament. James however hoped to use proclamations to raise further money outside of Parliament.

On 20 September 1610, Sir Edward Coke, then Chief Justice of the Common Pleas, was called before the Privy Council and he was asked to give a legal opinion as to whether the King, by proclamation, might prohibit new buildings in London, or the making of starch or wheat, these having been referred to the King by the House of Commons as grievances and against law. Coke asked for time to consider with his colleagues, since the questions were "of great importance, and they concerned the answer of the king to the Commons."^[2]

Coke and his fellow judges ruled that the power of the King to create new offenses was outlawed and that the King could not by proclamation prohibit new buildings in and around London; i.e., the Royal Prerogative could not be extended into areas not previously sanctioned by law:

"...the King cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament."^[3]

In giving his judgment, Chief Justice Coke set out the principle that the King had no power to declare new offences by proclamation:

"The King has no prerogative but that which the law of the land allows him".^[3]

Consequently, the King had no power by which to arbitrarily through royal proclamations prohibit the erection of new buildings in London nor the making of wheat starch without the consent of Parliament because this power had not previously been granted by Parliament to the King by the making of statute law. James however did not concede this point and attempted to place all of his proclamations on a constitutional footing having them published in a book as if they were statutes. He went to argue that proclamations were necessary to "apply speedy, proper, and convenient remedies...in matters so variable and irregular in their nature, as are not provided for by Law, nor can fitly fall under the certain rule of a law."^[4]

Implications

17th century

In future English history, the issue of proclamations would form part of the many grievances and issues in dispute between both James I and Charles I and their Parliaments before the English Civil War. MPs would go on to cite Coke's judgment in the Case of Impositions to support their arguments against the arbitrary use of royal power in the years up to 1641. Whilst disputed, the case is seen by some historians and jurists as influential in the development of the concept of judicial review in English common law. However, the issue about the extent of the royal prerogative was not properly resolved until the Bill of Rights 1689 "established that the powers of the Crown were subject to law, and there were no powers of the Crown which could not be taken away or controlled by statute."^[5]

Exiting the European Union

Over 400 years on, the Case of Proclamations is alive and kicking and continues to have an impact on the constitutional law of the UK. It was cited by the Divisional Court in its landmark judicial review decision on 3 November 2016 concerning whether the UK government had the power, under royal prerogative, to serve a notice triggering Brexit (following the 'leave' vote in the EU Referendum on the United Kingdom's EU membership, 2016) without a vote by Parliament to do so (Miller v Secretary of State for Exiting the European Union ^[6]). The Divisional Court quoted two principles from the Case of Proclamations: that "the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm"; and that "the King hath no prerogative, but that which the law of the land allows him". It rejected the government's argument in robust terms and concluded that the government did not have the right to rely on royal prerogative to serve a notice pursuant to Article 50 of the Treaty on European Union, triggering the formal process for the UK to leave the EU. It held that, because Brexit would have a direct impact on substantive legal rights under UK domestic law, only Parliament could decide whether to serve such a notice. This is likely to complicate very significantly the government's ability to proceed with Brexit swiftly (and possibly at all).

References