Introduction
The resounding defeat for the Government in Miller v Secretary of State has already produced a huge amount of academic commentary. In my view the role of legal academics is not necessarily to ‘take sides’ in litigation. It is simply to analyse the different legal arguments presented by each side, and by other legal academics, as best they can. That may result in them finding merit in, and criticisms to be made of, different arguments advanced by both sides.
In this post I make a number of rejoinders to some of the criticisms made of the High Court judgment both by legal academics and in the Government’s written case for appeal. As Nick Barber and Jeff King noted in their post published this week, this blogpost is complementary to theirs. This is because we agree on some, though not all of the arguments, each of us advances. I strongly agree with the arguments they make in their Section 2: ‘Rights as Statutory or EU Rights?’ and with their conclusion that this is not a political issue that raises issues unfit for judicial determination: judges should dive in.
In a subsequent post I plan to set out two areas where I consider the High Court judgment is open to some criticism and where I argue that more is needed by way of reasoning: on the constitutional significance of the EU referendum and the interpretive significance of the reception of Article 50 into the European Communities Act 1972 (ECA) and of the European Union Referendum Act 2015 (both these points are made briefly in my article, ‘A Dive Into Deep Constitutional Waters’ in the current issue of Modern Law Review). That article also analyses at length Robert Craig’s argument in the same issue of the MLR that the power to trigger Article 50 is already statutory (Sionaidh Douglas-Scott essentially summarised (part of) that analysis in her recent blogpost and I do not repeat it here).
One of my particular concerns is that the course of this litigation – and academic commentary on it – could cause damage to the long-term developments in public law whereby the prerogative has been gradually brought under control by both Parliament and the courts. Indeed my ‘Deep Waters’ article opens and closes by describing the historic lack or weakness of such controls as one of the ‘central problems of the UK constitution’. I am writing this post because I believe that some of the arguments advanced by the Government and in some recent academic commentary risk doing such long-term damage. This post deals with three such arguments, each of which has been advanced by leading academics and taken up by the Government in its case for appeal.
The first is the contention that the ‘frustration argument’ (that the prerogative may not be used to frustrate the purpose of a statute or remove rights granted by it) only applies where Parliament has legislatively ‘occupied the field’ previously covered by the prerogative in question. The second is the argument that EU-law rights in the UK are not really statutory rights at all (and certainly not ‘sui generis’). The third is the contention that the prerogative may, in any event, be used to remove domestic law rights or otherwise alter the law of the land. I aim to show that each of these arguments is mistaken.
‘The ECA has not “abrogated” the prerogative’: a confused and unnecessary argument
An important strand of the academic response to Miller, taken up in the Government’s case, is the erroneous claim that, in order to show that an exercise of the prerogative has wrongfully frustrated the intention of Parliament (or removed statutory rights), it is somehow necessary to show first that Parliament has ‘occupied the field’ and thereby ‘abrogated the prerogative’. As Robert Craig has recently demonstrated, (in a post that summarises an argument made in his just-published MLR article, but which was written before the Government’s appeal case was published), such claims conflate two quite separate principles; both were well established in the case-law, but had not previously been clearly distinguished. The first of these is that Parliament may abolish parts of the prerogative – a principle variously known as ‘abeyance’ or ‘abrogation.’ This happens where statutory provisions cover the same ground and therefore replace the previous prerogative power. This is generally known as the De Keyser’s principle, after the famous case of that name (Attorney-General v. De Keyser’s Royal Hotel Ltd. [1920] AC 508). A recent example is the Fixed-term Parliaments Act 2011, which replaced the previous ‘prerogative of dissolution’ with a detailed statutory code that governs when Parliament may dissolve itself early (see further my ‘Deep Waters’ article).
However, one does not need to demonstrate any such abrogation of the prerogative in order to invoke a second, alternative and independent principle, also clearly established in the case law: that of frustration. As discussed in the Barber and King post, under this principle a subsisting prerogative may not be used in a way that frustrates the purpose of any statute (as in Laker Airways Ltd v Department of Trade [1977] QB 643) or removes rights granted by or under it. What it is crucial to understand is that the one principle does not depend on the other. In fact to suggest that they do is a logical nonsense: for when Parliament has ‘occupied the field’ with legislation, the prerogative is replaced. It has disappeared from the scene, and thus could not be used to frustrate the purpose of any statute. Thus the two principles are both separate and independent of each other. As will be demonstrated below, the leading case of Fire Brigades Union [1995] 2 AC 513 plainly demonstrates this distinction but has been badly misstated by the Government’s case on appeal.
The basic problem here is that a number of academic commentators and, in several places, the Government’s appeal case, appears to assume that, in order for use of the prerogative to be restricted, Parliament must first have abrogated it, a formulation that neatly conflates both principles. To be fair to the academics, this confusion may have been partly caused by some of the language used in Miller itself (e.g. at [94]). As Timothy Endicott puts it, ‘the claimants’ case depends on the Divisional Court’s reasons (at [81-94]) for holding that the ECA 1972 was special, so that it abrogated the Crown’s constitutional authority to make or unmake any treaty on behalf of the UK.’ The DC may simply have been referring to an intention by Parliament to limit the future use of the prerogative, but some academics and the Government have seized on this as the wholly mistaken idea that Parliament must be shown to have intended to ‘abrogate the prerogative’ for the frustration principle to apply.
It is important to say clearly that any such idea assumes the necessity for something that is not legally required. It is a general principle of law that the foreign affairs prerogative may not be used so as to remove rights that individuals enjoy in domestic law or frustrate the purpose of a statute. As the House of Lords said in JH Rayner (Mincing Lane Ltd) v DTI [1990] 2 AC 418, 500:
the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.
This is a general principle of law; it flows from the premise, fundamental to the doctrine of parliamentary sovereignty itself, that statute ranks higher than prerogative in the constitutional hierarchy of laws. As such, it is wholly unnecessary to demonstrate that Parliament specifically intended it to apply in relation to any given statute. To assert that it is necessary to show such intention amounts to an attempt to make the claimants jump through two hoops – abeyance and frustration – when only the latter one is needed. It erroneously sets up a test the claimants do not need to pass, mistakenly shielding the prerogative from challenge.
In this case, the prerogative of foreign affairs in relation to EU matters was plainly not ‘abrogated’ (abolished) by the ECA: it continued to exist post-1972, as shown by its use to negotiate and enter into numerous subsequent treaties, such as the Single European Act (1986) and the Treaties of Maastricht (1992), Amsterdam (1997) and Lisbon (2007). Thus the whole discussion about whether Parliament intended in 1972 to abrogate the prerogative is irrelevant. The claimants do not have to show any such thing in order to make out their core arguments, which turn on the removal of statutory rights and the frustration of statutory purpose.
The Government’s case on appeal, however, appears to have followed certain academic commentators in thoroughly pursuing this particular red herring. The confusion caused by it is evident in a post by David Feldman, in which he summarise the principle at stake as being that, ‘the prerogative ought not to be exercised in a manner inconsistent with an Act of Parliament which occupies the same field as the prerogative’ – a particularly clear example of the conflation of two, separate principles.
But a similar conflation is apparent in the Government’s case. Thus it asserts that: ‘the principle to be applied is De Keyser’s – ‘whether the [prerogative] power has been removed’ (at [14], my emphasis). The Government also argues (at [14] and [33]) that both the ECA and ‘other parts of the relevant legislative scheme’ (including the 2015 EU Referendum Act) ‘indicate that the Government’s power to give the Article 50 notice has not been abrogated expressly or by necessary implication’ (see also [72)) as if the claimants needed to show that it had been. Paragraph 57 is particularly striking in echoing almost exactly Feldman’s conflation of the two principles noted above:
‘The principle properly stated…is that prerogative powers can be used to change domestic law and to deprive individuals of rights in the UK if the power is part of the prerogative and if the change is not inconsistent with the requirements of an Act of Parliament which occupies the field in question’ (emphasis added).
The pervasiveness of this error in the Government’s case may be seen in the fact that several pages of analysis appear under the heading THE APPLICATION OF DE KEYSER’S PRINCIPLES (pp 35-43). But it is perhaps most seriously apparent in the misleading analysis of the leading decision in ex parte Fire Brigades Union [1995] 2 A.C. 513 – which appears under this heading, despite the fact that, as shown below, their Lordships stated in express terms that the De Keyser’s principle did not apply.
In this case, the House of Lords found unlawful a decision by the Home Secretary not to bring into force statutory provisions dealing with criminal injuries compensation (ss 108-117 of the Criminal Justice Act 1988) and instead to use the prerogative to introduce an inconsistent (and cheaper) scheme. The case is a clear example of the frustration principle; the provision that was frustrated by the Home Secretary was the in-force commencement clause (s 171), which (as is common) simply gave the Minister the power to bring into force the various provisions of the Act by order. Sections 108-117 (which had never been brought into force) were only relevant insofar as the commencement clause laid a continuing duty on the Minister to decide when to bring them in, and the proposed use of the prerogative would have made it hard, if not impossible, to do so. Moreover, since the provisions were not in force, there was no question of Parliament having (yet) ‘occupied the field’.
Feldman’s analysis of the case is therefore, with respect, erroneous. He writes:
In those circumstances, there was no doubt that the statute had directly occupied the ground… On that basis, a majority of the House of Lords held that the provisions of the Act, even if they were not yet a source of directly enforceable law, were nevertheless sufficiently law-like to make the use of the prerogative for an inconsistent purpose an abuse of power.
On the contrary, as Craig points out, the relevant substantive statutory provisions would have occupied the field, and sent the prerogative into abeyance, had they been in force. Since, they were not in force, the case was one of frustration: but what was frustrated was not the substantive provisions, but the in-force commencement clause.
This seems clear enough. But, remarkably, the Government’s case likewise presents FBU as an application of De Keyser’s principle – as a situation in which Parliament had legislated so as to occupy the field and thus ‘exclud[ed] a continuing prerogative power’ (at [67]). What is extraordinary about this is that their Lordships go out of their way throughout the judgment to say explicitly that, given the legislation was not in force, De Keyser’s did not apply. Thus Lord Keith writes at 545:
‘‘If sections 108 to 117 of the Act of 1988 had been brought into effect these provisions would have subsumed the prerogative, under the principle of…De Keyser’s…’ (my emphasis).
Lord Browne-Wilkinson (at 553) discussing the judgment of Hobhouse LJ in the Court of Appeal said:
‘He held, in my judgment correctly, that the De Keyser principle did not apply to the present case: since the statutory provisions were not in force they could not have excluded the pre-existing prerogative powers. Therefore the prerogative powers remained.
Lord Lloyd (at 573) noted that:
…reference was made in that connection to… de Keyser’s…I agree with Hobhouse L.J. that the principles established in that case do not touch directly on the present problem.’
Lord Mustill dissented, but on this point agreed with the majority (at 564):
The case does not fall within the principle of…de Keyser‘s… If in the present case [ss 108-1178] had been brought into force there would have been no room left for the exercise of…the prerogative…Once the superior power of Parliament has occupied the territory the prerogative must quit the field. In the present case, however, the territory is quite untouched.
The Government case specifically cites 554E-G and 578F of the judgment; but in fact both passages confirm the analysis above. It is at 554E-G that Lord Browne-Wilkinson states:
The Secretary of State could only validly exercise the prerogative power to abandon the old scheme and introduce the tariff scheme if, at the same time, he could validly resolve never to bring the statutory provisions and the inconsistent statutory scheme into effect. For the reasons I have already given, he could not validly so resolve to give up his statutory duty to consider from time to time whether to bring the statutory scheme into force. His attempt to do so, being a necessary part of the composite decision which he took, was itself unlawful (my emphasis).
The other passage cited by the Government (578E-F), per Lord Nicholls, is equally clear:
The inescapable conclusion is that the Home Secretary has effectually “written off” the statutory scheme and that once the tariff scheme has been introduced, there would be no realistic prospect of him being able to keep the exercise of the commencement day power under review. By setting up the tariff scheme the minister…has struck out down a different route and thereby disabled himself from properly discharging his statutory duty in the way Parliament intended (my emphasis).
The Government’s case thus comprehensively misstates FBU. It does so seemingly in order to erect in front of the claimants the extra barrier of having to show that Parliament has clearly ‘occupied the field’ before the frustration principle can apply. As seen from the speeches of their Lordships quoted above, the opposite was in fact the case: precisely because Parliament had not occupied the field, the case turned on the frustration, and not De Keyser’s principle.
Thus the overall impression of the Government’s case is that it simply conflates these two principles. In one place however, it seems to be suggested that the Government concentrates on abrogation because its view is that the frustration argument cannot apply, since these are not statutory rights as we know them (see esp. [64]). It is to that argument that we now turn.
The European Parliamentary Elections Act 2002 does not grant ‘statutory rights’
Barber and King’s recent post concentrates on the argument that triggering Article 50 will frustrate the central purpose of the 1972 Act. Here I consider instead the 2002 Act, with which they deal much more briefly. This Act, which governs the rights to stand as, and vote for, MEPs in elections to the European Parliament (‘EP’), is important for two reasons. First, the rights it affords will certainly be lost, whatever form UK withdrawal takes; they are therefore example of so-called ‘Category 3 rights’ (as the High Court classified them, following the taxonomy suggested by Dominic Chambers QC. Second, critics of Miller argue that the 1972 Act never afforded any specific set of rights but only such rights as exist ‘from time to time’ by virtue of the Treaties (thus making them ‘ambulatory’ in the novel language of the Government’s case). But this argument too does not apply to rights under the 2002 Act, which are fixed and discrete, not generic and variable.
Given the above, critics of Miller have advanced two related contentions on the 2002 Act, both of which have been taken up by the Government: that these rights are not really statutory rights at all; and that they were only ever granted contingently on EU membership I take them in turn.
Not statutory rights
Finnis devoted his main post entirely to an argument about the ECA and his favoured analogy with double taxation treaties. Perhaps realising that he had not addressed the powerful 2002 Act point, Finnis added a couple of brief paragraphs about it in a ‘supplementary note’. His first argument – about the relevance of Article 50 – has already been considered by Robert Craig. As to his second, he begins by asserting that:
the 2002 Act discloses no intention that there be elections in the UK to the European Parliament, but rather the intention that if and when under EU law there arises an obligation or opportunity for Member states to conduct elections to that Parliament, then such elections shall be conducted in the UK in the manner specified in the 2002 Act.
Notably, Finnis cites no specific textual evidence in support of this contention. In fact the Act has provisions that seem to point to the opposite conclusion. Section 1, for example states: ‘there shall be MEPs elected for the United Kingdom’. Barber and King highlight section 8(1), which states:
A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).
Despite appearing hardly compelling, Finnis’s argument has been taken up at greater length both by Mark Elliott and the Government. Elliott’s argument is in essence that, while the rights in the 2002 Act look different from those under the ECA – in being set out specifically in an Act, rather than merely passing through the ‘conduit’ of s 2(1) ECA – they are nevertheless still very much EU law-dependent. Thus Elliott claims that the 2002 Act:
‘does not require the UK to hold elections to the EP or otherwise guarantee that any such elections will take place. [Rather] if, pursuant to the UK’s international obligations, there is to be an election of UK members of the EP, then the 2002 Act governs various aspects of election’.
Elliott contends that it would be ridiculous to read the 2002 Act as giving individuals the right to stand and vote in elections to the EP ‘come what may’. Rather the Act is contingent upon there being EU law that creates and regulates the relevant institution – the EP and elections to it. This is because the UK Parliament:
is not — and cannot be — in any position to create such an entitlement. The most that the UK Parliament can do is to make arrangements for the exercise of such EU electoral rights as are provided for by EU law.
The Government’s appeal case makes exactly the same argument: at [63d].
However, it is not clear why the fact that certain rights, given effect in domestic law by a UK statute, are also dependent upon the existence and operation of certain international institutions and international laws should prevent them from being recognised as rights in domestic law. If a provisions of an Act of Parliament states, ‘a person is entitled to vote’ in an election, why does the fact that those elections also require the operation of another system of law stop that right from being considered part of UK law? Put another way, on what authority does the derivation of rights from outside the domestic order prevent them from functioning as rights in domestic law?
The rights are ‘contingent’
Finnis says of the 2002 Act:
its operation and the machinery it provides were always intended to be wholly contingent on arrangements made on the international plane, arrangements well understood to be terminable for all purposes by prerogative actions.
But this argument – which, let us recall, is seeking to establish that the prerogative may be used to terminate these rights – evidently simply assumes what it must prove. Notably Finnis provides no textual evidence in the long title or elsewhere. Neither does he cite any Pepper v Hart statement from the relevant minister.
Elliott seeks to put the argument more convincingly, arguing that:
If the relevant condition — namely, the existence of Treaty obligations that call for the making of arrangements for the exercise of EU electoral rights — no longer applies, the purpose of the Act is not thereby frustrated. Rather, the Act is, in effect, spent…’.
The contention is thus that the statute gives effect to rights that are contingent upon a prior condition – the relevant EU law obligations – and that if that condition ceases to apply, the statutory purpose falls away. Elliott thus seeks to avoid the evident circularity of Finnis’s argument, by contending that the rights are contingent not on use of the prerogative to remove them, but rather on the existence of the relevant Treaty obligations more generally.
The Government’s case makes a very similar argument, repeatedly referring to EU-law rights as ‘contingent’ and adding:
‘If the Member States had…agreed a treaty which abolished the European Parliament, s 8 of the [2002] Act, conferring the right to vote in elections to the EP, would be otiose for lack of underpinning international law’ (p. 25, fn 12).
And an analogous argument is made at para 51 – that if (e.g.) Greece left the EU, UK citizens would lose the right to move the Greece – without any legislative intervention by Parliament.
It is obviously the case that particular statutes may be rendered otiose because of what other states do. Indeed one might add that other external events, like natural disasters, could have this effect: if a freak tidal wave wiped out Northern Ireland, it could be said to have removed a vital condition precedent (the existence of Northern Ireland) for the operation of the Northern Ireland Act 1998. But this misses a vital distinction. The frustration argument is directed solely at what the British Government may, and may not lawfully do. The fact that the actions of foreign states could have the same or similar effects is nothing to the point: the frustration principle has never applied to the actions of other states or foreign governments.
Thus establishing that rights to vote in the EU Parliament are ‘contingent’ upon the actions of other states not abolishing that Parliament (or bringing the EU itself to an end) establishes nothing relevant. It certainly comes nowhere near to establishing that Parliament intended those rights to be contingent on a unilateral decision by the UK Government to withdraw from the EU. Notice how swiftly Finnis segues above from the general notion that the rights in the 2002 Act are ‘contingent upon arrangements made on the international plane’ to the much more specific contention that they were intended to be contingent upon those arrangements being ‘terminable by prerogative actions.’ The segue illustrates the problem: to say that the rights are contingent upon membership simply begs the question of who can validly terminate that membership, leaving Finnis to assert but not establish Parliament’s acquiescence to termination by prerogative power.
It is worth, finally, stepping back to consider this argument in the round, discounting the easy confidence with which these distinguished academics put it; once this is done, it may be seen how novel and exotic an animal it actually is. First, as we have seen, it invokes no specific textual anchor for the interpretation it seeks to place on an Act of Parliament. Second, it cites no authority for the proposition that apparent rights in an Act of Parliament may be downgraded to the status of merely ‘contingent’ rights. Third it appears to produce a novel category of statutes – what the Government’s case dubs ‘subsidiary statutes.’ We have become accustomed to the idea of constitutional statutes as a higher class of statutes; this argument seems to urge the courts to recognise a lower category of statutes – those that merely give effect to EU-law (or presumably other international law) rights in domestic law. Their status may be considered ‘lower’ under this argument precisely because they are said to be statutes that, unlike others, may be rendered ‘spent’ or ‘otiose’ by Executive fiat. In other words, their provisions, unlike those of other statutes, are not superior in the constitutional hierarchy to the prerogative, but rather exist, precariously, subject to its exercise.
Finally, we may recall that, under this approach the same inferior status applies to the 1972 Act: it too is to be interpreted as not really granting statutory rights at all, but something lesser – mere contingent entitlements, again removable via the prerogative. But if we accept this argument, we must then attempt to reconcile this inferior status with the fact that Parliament gave the ECA an elevated status – one above those of ordinary Acts of Parliament. Its higher status was very real, in that it could override – and displace – even the provisions of future Acts of Parliament. I say the 1972 Act ‘could’ do this; in fact it did, famously, override the subsequent provisions of the Merchant Shipping Act 1988. As the House of Lords unanimously found in Factortame Ltd v Secretary of State (No 2) [1991] 1 AC 603, the 1988 Act did not impliedly repeal the earlier ECA 1972, but rather was ‘set aside’ by virtue of the superior force of the ECA. And that superior force came directly from Parliament’s enacted intention, as expressed in s 2(4) of that Act, which provides that subsequent legislation is to be ‘construed and have effect subject to’ those foregoing provisions of s 2 ECA that give EU law direct effect in UK law.
This result of Factortame (No 2) – the disapplication of a later Act of Parliament by an earlier one – was such a remarkable result that it famously led Sir William Wade to describe the result of the case as a (technical) ‘revolution’ ((1996) 112 LQR 568). While this may have been an exaggeration, the rulings of the House of Lords in Factortame (No 1) [1990] 2 AC 85, and Factortame (No 2) read together showed beyond doubt that the ECA, and the EU law it gives effect to, have an elevated constitutional status in UK law – and one that was bestowed by Parliament itself. There are critics (like Elliott and Hooper and David Feldman) who have chided the court in Miller for what they call its erroneous finding that Parliament can give an Act ‘constitutional status’ that sets aside the doctrine of implied repeal; erroneous they say, because contrary to certain well-known obiter dicta of Laws LJ in Thoburn v Sunderland City Council [2002] 1 CMLR 50 that only the common law may bestow such status. This criticism too is echoed in the Government’s appeal case (Appendix, para 2). But no-one has explained how this criticism can be reconciled with s 2(4) ECA and the interpretation and application a unanimous House of Lords gave it in Factortame (Nos 1 and 2). In short, whatever the common law can do, it is clear that Parliament can change the rule of implied repeal – and did so in the ECA. To the extent that obiter dicta in Thoburn suggest the contrary, they have always been simply mistaken.
A related point: EU law is ‘not sui generis’
Mark Elliott and Hayley Hooper accept that John Finnis’s argument comparing EU law rights to double taxation treaties to establish their contingent nature would be wrong if it could be established that EU law rights are sui generis. They claim to have established that they are not. However, they do this having examined only one possible argument in this regard – the notion that EU law rights flow into UK law not just because of the will of Parliament expressed in the 1972 Act but also by virtue of the force of EU law itself. And it is quite correct that dicta in both Thoburn and HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, as well as s 18 of the European Union Act 2011 deny that. But there are two problems here.
First, the fact that those sources of law tell us that EU law rights only take effect in the UK by virtue of an Act of Parliament does not itself tell us anything about whether those rights function as statutory rights in domestic law, notwithstanding their EU law derivation. In fact, rather paradoxically, by emphasising that they have effect in UK law solely by virtue of statute, Elliott and Hooper tend if anything to strengthen the notion that they are, precisely, statutory rights (as Barber and King also pointed out).
Second, there are other ways, not considered by Elliott and Hooper, in which it could be claimed that domestic EU law rights are sui generis – that they are certainly nothing like those arising under double-taxation treaties. One is the special constitutional status they have in UK law under the ECA, as just noted. Another is the nature and scale of those rights: the fact that they form a comprehensive, wide-ranging set of basic social, economic, civil and political rights, extended to all citizens, making them nothing like the specific tax privileges extended to a few through double taxation treaties. Thus Elliott and Hooper, with respect, fail to substantiate their claim that ‘the Court in Miller goes wrong’ by assuming that EU law is sui generis. They can make such a statement only by assuming that there is only one such way of showing this. But there are several others – and they are persuasive.
‘The prerogative may remove domestic rights’: Feldman and the Government
As seen above, a key plank of the Government’s argument is that emptying the 1972 and 2002 Acts of content is not, despite appearances, removing domestic law rights, because these are not really statutory rights at all. However, the Government’s case also contains what is evidently a fall-back position: to argue that, contrary to long-established principle (as seen in Rayner (Mincing Lane), above)), the prerogative may be used to remove domestic law rights. The Government seems to have taken this argument from a recent blog post by David Feldman. In it, Feldman denies that ‘the prerogative cannot be used to take away people’s legal rights.’ Likewise, the Government’s case says the ‘true position’ is that acts of Government by prerogative power ‘can alter domestic law’ (at [10]). It expands on this (at [54]) by attacking the notion that the government does not ‘have power to vary the law of the land or deprive individual of rights, by use of prerogative powers’. [54], referring to what it contends is the High Court’s mistaken contention to the contrary (at [84], and [92] of its judgment).
In support of this proposition, the Government (at [56]) uses three of the four well-known cases discussed by Feldman: De Keysers, Burmah Oil, and GHCQ. As the following analysis will demonstrate, however, none of these cases has any relevance to the situation at issue in Miller.
Feldman first of all cites R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] AC 453, the notorious decision in which the prerogative was used, via Orders in Council, to deny the right of abode of the original inhabitants of the Chagos Islands, and thus deny them any right of return. Feldman uses this case to advance the frankly alarming proposition that, ‘it cannot be seriously argued that the prerogative cannot be used to deprive people of fundamental rights’ (my emphasis).
However one needs to be extremely careful at this point. Bancoult concerned a distinct and very unusual prerogative –the power to legislate by way of Order in Council for a ceded colony. The whole point of this peculiar, colonial prerogative is that it conferred upon the Crown, uniquely, the power to entirely supplant any other law in the territory by bestowing upon it not just new laws, but a new constitution, which then became the fons et origo (‘source and origin’) of all law and rights in that territory thereafter. In providing that new constitution, the Crown was thus exercising a power to legislate that was, as Lord Rodgers said, ‘equal in scope to the legislative power of Parliament’ (at [109]). That was why, according to the majority, this prerogative could achieve the startling result of removing even fundamental common law rights like as the right of abode.
But that particular prerogative does not apply even to non-ceded territories. It is plain beyond any doubt that it has no application whatever to what may be done by the prerogative power in the UK; indeed, as Campbell McLachlan QC has pointed out on this blog, Lord Hoffmann was explicit on this point:
‘…since the 17th century the prerogative has not empowered the Crown to change English common law or statute law. In a ceded colony, however, the Crown has plenary legislative authority. It can make or unmake the law of the land.’ [44].
Not only therefore does the case have no possible relevance to Miller, but Lord Hoffmann’s dicta uphold the very point that Feldman appears to be trying to put in doubt.
Both Feldman and the Government (at [56]) also cite the cases of Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, and De Keysers’. Once again, however, neither case is of relevance to Miller: each involved a very different power – the war powers prerogative and its use, in time of war, to take or destroy property in order to contribute to the defence of the realm. Thus Burmah Oil concerned the actions of the retreating British army during WW2 in destroying an oil refinery in Singapore, to prevent it from falling into the hands of the Japanese Army – and even in those extreme circumstances the UK Government was found to be obliged to pay compensation (a decision controversially reversed by the War Damages Act 1965). In De Keyser’s, it was doubted whether there had ever been, or still was then, a prerogative of taking or destroying property in war time without compensation in the UK; in any event the court found that any possibly pre-existing prerogative to that effect had been abolished and replaced by the Defence Act 1842 (as later consolidated and extended by the Defence of the Realm (Consolidation) Act 1914). The key point, then is that both of those cases concerned the extraordinary, emergency powers the Government had in war time, whose use in the UK was found to have been anyway excluded by statute by the mid-19th century. (See further on these and similar cases, the excellent analysis of Campbell McLachlan QC on this blog).
Despite this, Feldman uses these cases to conclude, ‘the claim that the prerogative cannot be used to deprive people of rights…is untenable as a matter of law’ – and the Government (at [56]) claims likewise. Such propositions are evidently advanced with the idea that they have some relevance to the arguments made in Miller – else why make them? But they are quite misleading. Old cases concerning colonial and War Powers prerogatives cannot be applied to a 21st century case concerning the use of the foreign affairs prerogative during peace-time to remove EU-law rights from citizens of the UK.
Feldman and the Government both then use a further, famous example, GCHQ (Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374), as evidence that the Government can use the prerogative to ‘alter domestic law and remove individual rights’ (Government case at [56]). Again, however the case did not concern the foreign prerogative affairs prerogative. It was concerned solely with the internal management of government, specifically the power to manage Crown servants – the Civil Service – then governed by the Civil Service Order in Council 1982, which at that time provided the whole legal underpinning for the civil service. Importantly, under constitutional doctrine at that time, members of the civil service were, as Crown servants, in a sui generis class, regarded as dismissible at will (see e.g. Lord Diplock at 412A-E, explaining that civil servants had no contractual relationship with the Crown and thus no remedy in private law for dismissal). Note that this did not mean that the prerogative had removed those pre-existing rights even of that particular class of people: Crown servants had never had such private law rights in relation to their employment (ibid, 419)).
Since this prerogative was the law governing civil servants, it naturally included the setting and altering of their terms and conditions of employment, but the first key point to grasp is that it gave no power at all to alter either the general law of the land or the rights of ordinary citizens. The second crucial point is that the case makes clear that the Prime Minister would have been unable to use this prerogative to remove civil servants’ statutory rights to belong to a Trade Union, were it not for the fact that she was empowered by specific provisions in the relevant statutes (s 121(4) Employment Protection Act 1975 and s 138(4) Employment Protection (Consolidation) Act 1978) to issue certificates based on national security which did precisely that. Finally, as is well known from the case, the claimants did not even have a public law ‘legitimate expectation’ of consultation before their trade union membership rights were removed, given the national security considerations in play.
Far then from demonstrating that the prerogative may be used to remove general domestic law rights, the case demonstrates the opposite. It did not concern general domestic law and could not have been used to remove statutory rights even of the limited class of people whom it governed had not statute specifically provided for this. Feldman’s conclusion – the case shows that the Crown ‘may, by legislation under the prerogative, alter domestic law…when doing so is not inconsistent with an Act of Parliament’ – is therefore inapt and, in a piece devoted to Miller, misleading. The same may be said of the Government’s use of the case (at [56]).
Finally, the Government’s case add the example of passports, which are still issued and withdrawn under the prerogative, as a further example of a prerogative power whose exercise ‘may have a radical effect on the freedom of individuals’ ([56]). As the decision it cites (R (XH) v SSHD [2016] EWHC 1898) found, there has been no comprehensive legislation on passports to replace the prerogative – and so it still exists. But equally plainly, that prerogative may not be exercised in a way that removes the fundamental right of freedom of movement granted by EU law – that is obvious both from the XH case and another decision it cites: MR v Secretary of State for the Home Department [2016] EWHC 1622 (Admin). Thus both those case demonstrate the opposite of what the Government is seeking to argue: they show that this prerogative may not be used so as to frustrate the ECA by removing EU law rights enjoyed in domestic law.
Overall then, none of the cases discussed in this section are capable of casting any doubt on the claimant’s case in Miller, for none are relevant to it.
Conclusion
The arguments I have addressed in this post do not just bear on the Miller case; indeed my real concern with them is precisely their wider significance. Were we to accept as a general proposition that the prerogative may take away even people’s ‘fundamental rights’; that statutes giving effect to rights derived from international law are for that reason merely ‘subsidiary’ and liable to be rendered ‘otiose’ through prerogative action; were we to accept that the prerogative may only frustrate a statutory purpose if that statute has already ‘occupied the field’, thus conflating two important principles and misreading a leading case in order to do so; were we to accept these things, then in my view, we could cause real damage to the progress our public law has made over many years in bringing the prerogative – truly I believe, ‘one of the central problems of the UK constitution’ – under parliamentary and judicial control. But this post, along with those by Barber and King, Campbell McLachlan, Kieron Beal and many others, has suggested that we have good reasons to reject these propositions and by doing so avert the prospect of such damage.
The author would like to thank Alison Young, Jeff King, Tom Poole and Robert Craig for their comments on earlier drafts or parts thereof and Mark Elliott for discussion of the 2002 Act issue. The usual disclaimer applies.
Gavin Phillipson is Professor of Law at Durham University.
(Suggested citation: G. Phillipson, ‘The Miller Case, Part 1: A Response to Some Criticisms’, U.K. Const. L. Blog (25th Nov 2016) (available at https://ukconstitutionallaw.org/))
Filed under: Europe, European Union, Judicial review, UK government, UK Parliament Tagged: Article 50 TEU, Brexit, Brexit judgment, De Keyser, European Communities Act 1972, European Parliamentary Elections Act 2002, European Union Referendum Act 2015, Miller v Secretary of State for Exiting the European Union, prerogative powers, Royal Prerogative, statutory rights and prerogative 
