R v Secretary of State for the Home Department, ex p. Northumbria Police Authority

Factual and Procedural Background

The Police Authority for the Police District of Northumbria ("the Authority") appealed against the decision of the Queen's Bench Divisional Court, which refused their application for judicial review of Home Office Circular No. 40/1986. The circular, issued by the Secretary of State for the Home Department ("the Home Secretary") on 19 May 1986, concerned the provision of plastic baton rounds and CS gas from a central store maintained by the Home Office for use by police forces under certain conditions.

The circular outlined arrangements whereby police forces could obtain such equipment either through their police authorities or, in cases where the police authority withheld approval, directly via the Home Office upon endorsement by Her Majesty's Inspector of Constabulary ("HMI"). The Authority sought judicial review challenging the legality of paragraph 4 of the circular, which permitted the Home Secretary to supply equipment to Chief Officers of Police without the consent of the local police authority, save in emergencies.

The Authority initially sought a declaration that the circular, or parts of it, were ultra vires and certiorari to quash its issuance. They later amended their relief to focus solely on a declaration that paragraph 4 was ultra vires. The Home Secretary defended the circular, asserting statutory power under section 41 of the Police Act 1964 or alternatively prerogative powers to supply equipment.

The Divisional Court ruled against the Home Secretary on the statutory power point but accepted the alternative argument that the Royal prerogative might supply the power. The Home Secretary cross-appealed, and the Authority appealed the Divisional Court's ruling on the prerogative.

Legal Issues Presented

1. Whether the Secretary of State for the Home Department has statutory power under section 41 of the Police Act 1964 to supply plastic baton rounds and CS gas directly to Chief Constables without the consent of the local police authority.
2. Whether, in the absence of statutory power, the Secretary of State may rely on the Royal prerogative to supply such equipment to police forces.
3. Whether paragraph 4 of Home Office Circular No. 40/1986, which permits supply of equipment from the central store without police authority consent (except in emergencies), is ultra vires the Secretary of State's powers.
4. The extent and nature of the Royal prerogative relating to maintaining the Queen's peace within the realm and its interaction with statutory powers.

Arguments of the Parties

Police Authority's Arguments

• Section 41 of the Police Act 1964 does not empower the Secretary of State to supply equipment directly to Chief Constables without police authority consent.
• The statutory scheme grants police authorities exclusive control over provision and maintenance of equipment under sections 4(1) and 4(4), supported by their financial control over the police fund.
• The Home Secretary's circular attempts to circumvent this exclusivity by allowing supply without consent, which is ultra vires.
• If any prerogative power exists, it is limited to emergencies and cannot be used to supply equipment in advance of serious public disorder.
• The Police Act 1964 constitutes a complete and comprehensive code regulating police functions and should be construed as limiting prerogative powers.
• The prerogative power to keep the peace, if it exists, has been overtaken and curtailed by statute.

Home Secretary's Arguments

• Section 41 of the Police Act 1964 authorizes the Secretary of State to provide and maintain organisations and services, including a central store supplying equipment, for promoting police efficiency.
• The supply of equipment from the central store constitutes a "service" and is not restricted by police authorities' powers under section 4(4).
• The Chief Constable has operational control of the police force and may request equipment from the Home Office without police authority consent.
• The Royal prerogative includes a power to keep the Queen's peace, which includes powers to supply police forces with necessary equipment.
• Prerogative powers have not been extinguished or limited by the Police Act 1964 unless expressly and unequivocally stated, which is not the case here.
• The prerogative power extends to acts taken in anticipation of emergencies, not only during actual emergencies.
• The Home Secretary's circular is consistent with promoting police efficiency and the prerogative to maintain peace.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether section 41 of the Police Act 1964 authorized the Home Secretary to supply plastic baton rounds and CS gas directly to Chief Constables without police authority consent. The court found that section 41 empowers the Secretary of State to provide and maintain organisations and services necessary or expedient for promoting police efficiency, which includes a central store and the supply of equipment as a service. The court rejected the police authority's argument that section 4(4) grants them exclusive control over equipment provision, noting that no express statutory monopoly exists. The court emphasized the operational independence of Chief Constables and the practical necessity for the Home Secretary to supply equipment without delay or authority consent, especially in emergencies.

Turning to the Royal prerogative, the court acknowledged the historical and constitutional basis for a prerogative power to keep the Queen's peace within the realm, distinct from but related to the war prerogative. The court rejected the argument that the prerogative was abolished or extinguished by statute, holding that unless there is express and unequivocal statutory restriction, prerogative powers remain intact. The court further held that the prerogative power to maintain peace extends to acts taken in anticipation of emergencies, not only during immediate crises, and includes supplying police forces with necessary equipment.

The court concluded that paragraph 4 of the Home Office Circular 40/1986 was within the Home Secretary's powers, either under section 41 of the Police Act or under the Royal prerogative. The court found the Divisional Court erred in denying statutory power and upheld the Home Secretary's alternative prerogative argument. The court dismissed the appeal by the Police Authority and allowed the Home Secretary's cross-appeal.

Holding and Implications

The appeal by the Police Authority is dismissed, the cross-appeal by the Home Secretary is allowed, and the application to appeal to the House of Lords is refused.

The court held that the Secretary of State for the Home Department lawfully issued paragraph 4 of Home Office Circular No. 40/1986, permitting the supply of plastic baton rounds and CS gas directly to Chief Constables without police authority consent, either under statutory power in section 41 of the Police Act 1964 or under the Royal prerogative to keep the peace.

This decision affirms the operational independence of Chief Constables and recognizes the Home Secretary's power to provide central services and equipment necessary for police efficiency. It clarifies the continuing existence of the Royal prerogative to maintain the peace within the realm and its coexistence with statutory police regulation. No new precedent altering the balance of powers between police authorities, Chief Constables, and the Home Secretary was established; rather, the ruling confirms the scope of existing statutory and prerogative powers.