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KembaraXtra-Case Law-R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg (1994)
This guide summarizes the key aspects of R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg (1994) and the prerogative of mercy, focusing on areas likely to cause confusion.
I. R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg (1994):
This guide summarizes the key aspects of R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg (1994) and the prerogative of mercy, focusing on areas likely to cause confusion.
I. R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg (1994):
- Central Issue: Could the court review the government's ratification of the Maastricht Treaty (specifically Title V) which involved foreign and security policy? This challenged the non-justiciability of treaty-making powers.
- Facts: Rees-Mogg argued that ratifying Title V unlawfully transferred prerogative powers (the inherent powers of the executive) to the European Community without parliamentary authorization.
- Decision (Court of Appeal): The court dismissed the application. Two key arguments supported the decision:
- Non-Justiciability: The court generally lacks jurisdiction to review treaty-making. This principle, supported by precedent (Blackburn and Molyneaux), asserts that such matters are inherently political and not subject to judicial oversight.
- Merits of the Argument: Even if justiciable, the court found that Title V didn't transfer prerogative powers; rather, it represented an exercise of existing powers.
- Crucial Exception: While upholding the general principle of non-justiciability, Lord Justice Lloyd acknowledged that this principle is not absolute. He cited Section 6 of the European Parliamentary Elections Act 1978 as an example of a statutory exception. This section mandates judicial review of treaties if they impact the European Parliament's powers. This highlights that statutory intervention can override the usual non-justiciability of treaty-making.
- Key Takeaway: The non-justiciability of treaty-making is the general rule, but it's not an inviolable one. Parliament can create exceptions through legislation. This case shows the limits of judicial review in the area of foreign affairs.
- Definition: The power to pardon or reduce sentences of convicted criminals. This is a royal prerogative now exercised by the Home Secretary.
- Effects of a Pardon: A pardon doesn't erase the conviction itself, but it removes or lessens the punishment. A significant example is commuting a death sentence to life imprisonment.
- Key Takeaway: The prerogative of mercy represents a significant executive power that allows the government to mitigate the consequences of judicial decisions in criminal cases.
- Focus on the interplay between judicial review and executive power. Understand how the principle of non-justiciability operates and the conditions under which it can be overridden.
- Distinguish between "transfer" and "exercise" of prerogative powers. This is crucial to understanding the court's reasoning in Rees-Mogg.
- Note the importance of statutory exceptions. Parliament can explicitly grant or limit judicial review.
- Understand the nature and effects of the prerogative of mercy. How does it differ from an appeal or a retrial?
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