A passport and a prerogative to boot.
July 12, 2014Posted by on
There is no entitlement to a passport, they are issued by a Minister’s exercise of the Royal prerogative and exercising this Royal prerogative also means that a passport can be withdrawn. There is no statute law governing the grant or refusal of British passports. A Government Minister exercising the Royal prerogative may assume that Rex non potest peccare (the King can do no wrong), yet controversy surrounding the ministerial use of the Royal prerogative continues unabated.
Some 80 years ago a certain Mr Albert Haddock, one ubiquitously litigious in his defence of civil liberty, brought a case against The Crown and others. Haddock’s case rested on the Crown’s application of the Royal prerogative as exercised by His Majesty’s Secretary of State for Foreign Affairs, and instructions issued by that office to a third party – namely Southern Railway – regarding the need to show a passport. The lower courts had decided that Haddock had no case against The Crown or others as Crown Immunity applied, which included the instructions issued to a third party and their enforcement. In his relentless pursuit of justice, Haddock took his case to the ultimate court of appeal The House of Lords. This resulted in a decision of the highest constitutional importance being given. In delivering the Lord’s verdict The Lord Chancellor went on at some length, most of which would only be of interest to avid historians; but he did allude to Magna Carta, which is resorted to by some as would be a Delphic Oracle by an ancient Greek. In summary The Lord Chancellor said:
“In the first instance Mr Haddock presented himself at Victoria Station with a railway and boat ticket for the French port of Calais, issued to him by the Southern Railway. The official at the barrier of the platform inspected the ticket and requested Mr Haddock to exhibit his passport. Mr Haddock replied, in direct but courteous terms, that the Southern Railway had contracted to to carry him to Calais, that it was not a term of that contract that he should exhibit or even carry a passport. There was some debate, but at length the official, either impressed by Mr Haddock’s personality and command of language or preferring to leave the responsibility of a decision to his colleagues at Dover, allowed him to pass onto the train”.
“At Dover, when Mr Haddock approached the steam-packet, the same request was made and was again refused. But here the official was not to be persuaded, and, although satisfied that Mr Haddock’s ticket was in order, would not allow him to approach the vessel, but even offered him physical resistance amounting technically to an assault. Mr Haddock insisted the attention of Constable Boot was attracted; the constable and the official conferred together; it was decided between them that Mr Haddock’s refusal or inability to exhibit his passport was a suspicious circumstance suggesting that he was a criminal fleeing from justice, and Mr Haddock was detained – or, to use the proper term, arrested – for enquiries”.
“The appellant then brought actions against Constable Boot for false imprisonment , and against Southern Railway for assault and breach of contract. It is admitted by the Crown that that the Foreign Office did, and does, issue instructions to Southern Railway that they carry no person to France except such as exhibit a passport. But the Foreign Office is not entitled to issue an instruction to any subject unless that instruction is authorized by an Act of Parliament or by some still surviving remnant of the prerogative of the Crown. Has the Crown, as such, without the authority of Parliament and in times of peace, a power to forbid the subject to leave the kingdom unless he has the consent of the Foreign Secretary? We find that he has not. In Magna Carta it is clearly provided and promised by the Crown that:
All merchants shall have their safe and sure sure conduct to depart out of England, to tarry in and go throughout England, as well by land as by water, to buy and sell, without any manner of evil tolls, by old and rightful customs, except in time of war.
We were told, again, that the regulations are made for the convenience of the traveller. But whether or not these defences have been erected in sincerity they have no foundation in law. If it is necessary for the good of the realm that such restrictions exist, then Parliament must say so in clear and unmistakable terms”.
“Constable Boot and the Southern Railway have injured the appellant and they may not shelter behind the instructions of the Foreign Office, for those instructions were ultra-vires, unconstitutional, against public policy, and an ‘evil toll’ such as is expressly forbidden in Magna Carta. They must pay the consequences”.
Their Lordships also awarded Mr Haddock a grant of five thousand pound from the Crown in recognition of his public service in pursuing the case.
Note: But see Magna Carta – No longer law.