the executive Flashcards
De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL)
Key point
In any area where government power is regulated by statute, the royal prerogative does not operate
The Crown must pay compensation for taking possession of the land or building of its subject while defending the realm
Facts
The Crown, purporting to act under the Defence of the Realm Regulations, took possession of a hotel during WWI for the purpose of housing the headquarters personnel of the Royal Flying Corps. The owners yielded up possession.
The Defence of the Realm Regulations were an amendment of the Defence Act 1842
The owners asked for compensation which they were entitled to under the Defence Act 1842
The Crown argued that the owners were not entitled to compensation on the basis that the hotel was requisitioned using the royal prerogative, which was not subject to the restriction of compensation
Issue
Was the Crown bound to pay compensation under the Defence Act 1842?
Held (House of Lords)
Appeal dismissed; the claimants were entitled to compensation in the manner provided by the Defence Act 1842
Lord Dunedin
‘[I]f the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of [Swinfen Eady M.R.] is unanswerable. He says: “What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?”‘: p.526
‘The prerogative is defined by a learned constitutional writer as “The residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.” Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed.’: p. 526
Lord Parmoor
“The constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.”: p. 575
Commentary
This case has been referred to in the later cases including Laker Airways Ltd v Department of Trade (1976), R v Secretary of State for the Home Department, ex p Fire Brigades Union (1995), and Miller I & II
Dey Keyser principle did not apply in Fire Brigades Union (1995), but it was held that “the existence of such legislation basically affects the mode in which such prerogative powers can be lawfully exercised”. (p.12 per Lord Browne-Wilkinson)
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)
Key points
The royal prerogative is subject to irrationality review; however, it is likely to be excluded due to the policy judgement involved
This case established the three traditional grounds of judicial review under common law: illegality, irrationality and procedural impropriety
Facts
Margaret Thatcher, holding the office of Minister for the Civil Service, decided that employees of the British Intelligence Agency (GCHQ) would not be permitted to join trade unions on the grounds of national security
Thatcher relied on the royal prerogative power to regulate the terms of service, issuing the new rule through an Order in Council
CCSU applied for judicial review of the decision
In the Court of Appeal, the appeal was dismissed on the grounds that it would be inappropriate for the courts to intervene on matters of national security
Issue
Was the decision to exercise prerogative power justiciable by courts?
Was it lawful to prevent GCHQ employees from joining trade unions?
Held (House of Lords)
Appeal dismissed; while the decision was justiciable, it was reasonable to prevent British Intelligence employees from joining trade unions in the interests of national security
Lord Diplock
Justiciability of prerogative
To qualify as a subject for judicial review, a decision must affect a person either by:
altering rights or obligations which are enforceable for or against him in private law; or
depriving him of a benefit or advantage which he had i) previously had or ii) legitimately expected to have: p. 408
There is no reason why because a decision-making (prerogative) power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review: p. 410
Ground of judicial review
Judicial review of the executive is made on three separate grounds: “illegality,” “irrationality” and “procedural impropriety”: p. 415
The first ground of illegality is refers to ‘where the authority concerned has been guilty of an error of law in its action as for example purporting to exercise a power which in law it does not possess’: p. 414
The second ground of irrationality refers to ‘where it exercises a power in so unreasonable a manner that the exercise becomes open to review upon what are called, in lawyers’ shorthand, Wednesbury principles’: p. 414
The third ground of procedural impropriety refers to ‘where it has acted contrary to what are often called “principles of natural justice.”‘: p. 414
Current case
Prima facie, the civil servants who were part of national trade unions had a legitimate expectation that they would continue to enjoy the benefits of membership and representation by the unions and would thus have a right to be consulted before a decision to withdraw that benefit under the head of ‘procedural impropriety’: p. 412
However, the decision is based on national security, which is for the executive government to assess and not the courts as the judicial process is inept to deal with these problems: p. 412
The government decided not to consult the civil servants as advance notice to the national unions of the executive government’s intention would attract the very disruptive action prejudicial to the national security: p. 413
Lord Roskill
Justiciability of prerogative
The justiciability of an exercise of prerogative on the three grounds of judicial review Lord Diplock described, is not unqualified as it depends on the subject matter of the prerogative power which is exercised: p. 418
‘Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process’: p. 418
The exercise of prerogative in the current case does not fall into the ‘excluded categories’: p. 418
Commentary
The theoretical prospect of judicial review of prerogative power is countered by the unlikelihood of a successful judicial review claim since prerogative powers are often exercised in areas of national security or fall into the excluded category listed by Lord Roskill
Furthermore, Lord Diplock’s judgment reveals the reluctance of the courts to intervene when they are ill-equipped to assess executive decisions
At p. 410, Lord Diplock foresaw the present debate on the adoption of proportionality into common law: ‘I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.’
Significance: It had always been the case that courts would determine the existence and extent of prerogative powers, but CCSU extends to its exercise.
R v Secretary of State for the Home Department, ex parte Fire Brigades’ Union [1995] 2 AC 513 (HL)
Key point
It is an unlawful use of royal prerogative to create a scheme different to that prescribed in an Act of Parliament even where the Act gives the executive branch the discretion to decide the date on which the provisions in the statute come into force
This case suggests that where statute covers a particular area of policy, even if it leaves it open to the government as to when the policy should be implemented, such area of policy is not outside of the scope of prerogative powers, pursuant to the principle in Attorney-General v De Keyser’s Royal Hotel [1920] UKHL 1, [1920] AC 508
Facts
ss.108-117 of the Criminal Justice Act 1988 (the “CJA”) contained provisions for an injuries compensation scheme which pursuant to section 171(1), will only be brought into force at such date decided at the Home Secretary’s discretion – in other words the scheme is in suspension until the Home Secretary decides otherwise
The Home Secretary announced in a white paper that:
the statutory scheme in the CJA would be indefinitely suspended as it was too expensive for the nation to afford; and
a new non-statutory ‘tariff scheme’ would be implemented using prerogative powers in place of the statutory scheme in the CJA
The Fire Brigades Union (F) challenged this decision on the grounds that:
it was unlawful to have not implemented the statutory scheme in the CJA; and
it was unlawful to create a new tariff scheme using prerogative powers
The Court of Appeal granted a declaration that it was unlawful to create a new tariff scheme whilst the CJA was still in force, and that the Home Secretary had a duty to bring into force the statutory scheme in the CJA and to keep the implementation of the scheme under review, but that it was inappropriate to compel Home Secretary to bring the scheme into force
The Home Secretary appealed the declaration that the tariff scheme was unlawful; F cross-appealed, seeking a declaration that it was unlawful to have not implemented the statutory scheme in the CJA and order should be granted compelling its implementation
Issue
Was the Home Secretary’s decision to have not enforced the statutory scheme in the CJA unlawful, and was the tariff scheme unlawful?
Held (House of Lords)
Appeal and cross-appeal dismissed
The Home Secretary has a continuing duty to bring about the statutory scheme in the CJA at some point of time, and creating a new scheme using royal prerogative was unlawful
However, it was not for the court to compel the Home Secretary to bring about the statutory scheme in the CJA at any particular time
Lord Browne-Wilkinson (Majority)
‘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.’
‘It is the decision of the Home Secretary to renounce the statutory scheme, and to surrender his power to implement it, which constitutes the abuse of power in the present case, not the substitution of an interim measure. In any event, it is clear from the White Paper that the tariff scheme is not an interim measure.’
‘By introducing the tariff scheme he debars himself from exercising the statutory power for the purposes and on the basis which Parliament intended. For these reasons, in my judgment the decision to introduce the tariff scheme at a time when the statutory provisions and his power under section 171(1) were on the statute book was unlawful and an abuse of the prerogative power.’
It was argued that to grant relief in this case would ‘an intrusion by the courts into the legislative field’, on the contrary, in granting relief the court ‘is ensuring that the powers conferred by Parliament are exercised within the limits, and for the purposes, which Parliament intended’
Lord Lloyd (Majority)
‘By renouncing the statutory scheme, the Home Secretary has exceeded his powers, and thereby acted unlawfully. It is the paramount duty of the courts to say so.’
‘Ministers must be taken at their word. If they say that they will not implement the statutory scheme, they are repudiating the power conferred on them by Parliament in the clearest possible terms. It is one thing to delay bringing the relevant provisions into force. It is quite another to abdicate or relinquish the power altogether. Nor is that all. The Government’s intentions may be judged by their deeds as well as their words. The introduction of the tariff scheme, which is to be put on a statutory basis as soon as it has had time to settle down, is plainly inconsistent with a continuing power under section 171 to bring the statutory scheme into force.’
Lord Nicholls (Majority)
‘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 set his face in a different direction. He has struck out down a different route and thereby disabled himself from properly discharging his statutory duty in the way Parliament intended. For this reason the new scheme is outside the powers presently vested in him. I would dismiss both the appeal and the cross-appeal.’
Lord Keith (Dissenting)
‘At the present time the prerogative in this field exists unimpaired. 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 Attorney-General v De Keyser’s Royal Hotel [1920] UKHL 1, [1920] AC 508. Compensation payments for crimes of violence would have become capable of being made only under the statute. But since these sections have not been brought into effect the prerogative power remains the only source of power to make such payments.’
‘The Secretary of State must at least be under a duty, so it is said, to keep under review from time to time whether to bring sections 108 to 117 into force. I would accept that the Secretary of State is under such a duty, but in my opinion it is one owed to Parliament and not to the public at large.’
‘On the other hand it does not seem to me that operating the proposed new tariff scheme would rule out any reasonable possibility of the statutory scheme ever being introduced. The decision not to introduce it at the present time is a political one and it is entirely predictable that political views might change, if not under the present administration then under a future one.’
‘To grant the respondents the relief which they seek, or any part of it, would represent an unwarrantable intrusion by the court into the political field and a usurpation of the function of Parliament.’
Lord Mustill (Dissenting)
There was no duty to implement the original scheme at any point, s.171(1) stipulated that the minister “may” implement the scheme, rather than “shall” when they see fit: [22]
Using the prerogative to create a new scheme in no way nullifies Parliamentary intent in creating the original scheme. There is no Parliamentary dominion over criminal injuries.: [23]
Until the original scheme is actually activated, there is a “legislative void” [23]
The new scheme cannot be declared unlawful simply because of its incompatibility with a provision that is not yet in force: [24]
Commentary
This case concerns the scope of prerogative powers and the extent to which their boundaries are prescribed by statute, but delving deeper, it also concerns the constitutional competence of the courts to adjudicate on matters of a political nature. The majority had a more expansive view of the jurisdiction of courts to decide matters of a political nature while the minority had a more restrictive view.
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
Key point
Orders in Council made under prerogative power are susceptible to the ordinary principles of judicial review, in this case, an order was held to be invalid by the House of Lords
Facts
Following the Cuban Missile Crisis, the UK allowed the US to take up residence in the British Indian Ocean Territories (BIOT), including the Chagos Islands
The Immigration Ordinance of 1971 required non-permit holding former-residents to be removed from the Islands. Between 1968-1973 Chagossians were duly relocated from the Islands
In 2000, Mr. Bancoult brought forth the first Order in the High Court, quashing the relevant section in the Immigration Ordinance. This led the then Home Secretary to temporarily lift the measures prohibiting settlement, as well as, enabling the second stage of the feasibility study to continue allowing resettlement
In 2002, the feasibility study concluded that the islands were to remain for defence purposes and that resettlement would not be feasible
The 2004 Order reinstated the prohibition of settlement
In 2008, Mr. Bancoult brought judicial review proceedings to the House of Lords challenging the 2004 order
The appeal concerned the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004 (“the Constitution Order”), which was made by prerogative Order in Council
The government argued that the 2004 Order was not susceptible to judicial review on the ground that a prerogative order was a form of Primary legislation, in particular, under the HRA 1998, it is classified as primary legislation under s21(1), which means that it cannot be overridden by Convention rights and the court can only make a declaration of incompatibility under s4
Issue
Were the Orders in Council made under prerogative power valid? Was it susceptible to judicial review?
Were the orders against the resettlement of Chagossians an abuse of power?
Held (House of Lords)
Appeal dismissed on a 3-2 majority
Acts of the Executive cannot be immune from judicial review
The orders were not an abuse of power, see case note on legitimate expectations
Lord Hoffmann
Prerogative legislation compared to primary legislation
“It is true that a prerogative Order in Council is primary legislation in the sense that the legislative power of the Crown is original and not subordinate. It is classified as primary legislation for the purposes of the Human Rights Act 1998…But the fact that such Orders in Council in certain important respects resemble Acts of Parliament does not mean that they share all their characteristics. The principle of the sovereignty of Parliament, as it has been developed by the courts over the past 350 years, is founded upon the unique authority Parliament derives from its representative character…An exercise of the prerogative lacks this quality; although it may be legislative in character, it is still an exercise of power by the executive alone.”: [34] – [35]
Until the House of Lord decision in CCSU, there was an assumption that prerogative powers were “immune from judicial review.”, however that objection has been removed and it is now clear that prerogative powers were subject to judicial review under the “ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action”: [35]
The CCSU case was not concerned with the validity of a prerogative order but with an executive decision made pursuant to powers conferred by such an order, but Lord Hoffmann stated: “I see no reason for making such a distinction”: [35]
Lord Bingham of Cornhill
Validity of the BIOT Constitution Order
He supports Lord Hoffman and Mance’s conclusions that the Orders are not valid
“Section 9 was given effect in exercise (or purported exercise) of the royal prerogative to legislate by order in council. The royal prerogative, according to Dicey’s famous definition ( An Introduction to the Study of the Law of the Constitution (8th ed, 1915, p 420)), is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”. It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent”: [69]
Commentary
The House of Lords has been criticised as, at the very least, ensuring only “a dismally modest check on the Executive’s extra-territorial exercise of prerogative power.” (M. Elliott and A. Perreau-Saussine, ‘Pyrrhic Public Law: Bancoult and the Sources, Status and Content of Common Law Limitations on Prerogative Power’ [2009] PL 692, 722).
R (Sandiford) v Foreign Secretary [2014] UKSC 44
Key point
Judicial review for illegality due to fettering of discretion does not apply to prerogative powers
Thus, blanket policies enacted under prerogative powers do not necessarily have to include exceptions to be lawful
Facts
S had been sentenced to death in Indonesia, after a conviction for drug trafficking
In pursuing options to avoid the death penalty, S needed legal representation, and while the UK advised her substantially, it declined to give her financial aid, relying on its blanket policy in relation to British nationals facing criminal proceedings abroad
S challenged this policy, relying on Art.6 of the European Convention for Human Rights 1950 and the common law (the right to a fair trial)
Issues
Was S within the jurisdiction of the UK for the purposes of Art.1 of the European Convention for Human Rights 1950 (So that Art. 6 could apply)?
Was the blanket policy an unlawful fetter on discretion or irrational?
Held (Supreme Court)
The appeal was dismissed, as S was not within the jurisdiction of the UK for the purposes of Article 1 ECHR
The policy was also neither unlawful nor irrational
Lord Mance
Jurisdiction under Article 1 ECHR
’If one asks, by reference to any common-sense formulation, under whose authority or control she [S] is, the answer is: that of the Indonesian authorities. It is they who ought to be ensuring her fair trial. If they were party to the Convention, it would be their duty to do so, and to provide appropriate legal assistance in a case of impecuniosity, under article 6.’: [32]
Fettering of discretion
‘The issue which divides the parties is, in short, whether there exists in relation to prerogative powers any principle paralleling that which, in relation to statutory powers, precludes the holder of the statutory power from deciding that he will only ever exercise the power in one sense.’: [60]
‘The basis of the statutory principle is that the legislature in conferring the power, rather than imposing an obligation to exercise it in one sense, must have contemplated that it might be appropriate to exercise it in different senses in different circumstances. But prerogative powers do not stem from any legislative source … They are intrinsic to the Crown and it is for the Crown to determine whether and how to exercise them in its discretion.’: [61]
Therefore, ’[t]here is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power.’: [62]
Irrationality
’The department… [was] able to put the appellant in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis… It was hardly irrational to think that it was a sum which the family should be able to raise for themselves, as indeed turned out to be the case.’: [72]
’In the event the problem at the appeal was not the lack of competent legal representation, but the apparent unwillingness of the court to take any notice of it… This cannot be laid at the door of the Secretary of State.’: [72]
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
Key point
Government lacks the authority, through use of prerogative powers, to bring about the removal of EU law as an independent source fundamental constitutional change
EU law, by virtue of section 2 of the European Communities Act 1972, had become a source of domestic law, to give notice under Article 50 would entirely remove this source of domestic law, a significant constitutional change that requires the consent of Parliament
Background
Under the dualist legal system in the UK, the authority to enter and break treaties is a prerogative power exercised by ministers on behalf of the Crown and treaties only have effect in international law – to have effect in domestic law they must be implemented by an Act of Parliament
The EU Treaties including the TEU, however, are exceptions as they took effect in domestic law through the European Communities Act 1972, through s.2, which incorporated EU law and rulings from the European Court of Justice, into domestic law
Facts
In 2017, following the 2016 Brexit referendum, the UK Government announced its intention to trigger Article 50 of the Treaty on European Union (TEU) to withdraw from the EU
Miller and others sought in the High Court to bring an action for judicial review, claiming that the Government did not have the right to give the notice under article 50 without a vote in Parliament permitting it.
The High Court considered that the Government did not have the authority to issue the notice under article 50, but allowed appeal to the Supreme Court.
This was the first case to ever be heard en banc by the Supreme Court – i.e. with the full contingent of justices (11 in this case, with one vacancy).
Held (Supreme Court)
Appeal dismissed; the Government could not issue a notice under article 50 without the approval of Parliament.
Lord Neuberger (Majority Judgment)
Nature of the ECA
The ECA ‘authorises a dynamic process by which, without further primary legislation…EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes’, but it does not change the ‘fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated)’: [60]
The ECA is not the source of EU law itself, rather it established various EU institutions as sources of UK law: [61]
The ECA merely acts as a ‘conduit pipe’ for EU laws to enter domestic law: [65]
Can the ECA be repealed by Parliament?
The ECA is a constitutional statute and thus cannot be implicitly displaced by legislation inconsistent with it: [66]
However, Parliamentary Sovereignty still remains in place, thus the ECA can be expressly repealed by Parliament at any time, even if the legislation is inconsistent with EU law: [67]
Removal of EU as a source of law
Withdrawal from the Treaties through notice by the executive alone had not been contemplated by s2(1) ECA 1982 as withdrawal is fundamentally different from variations in the content of EU law arising from further EU Treaties or legislation: [78]
A complete withdrawal amounts to a ‘fundamental change in the constitutional arrangements’ since it removes EU law, which has become a ‘independent and overriding source of domestic law’ by virtue of the ECA: [78], [80]
Withdrawal without parliamentary approval ‘would be inconsistent with long-standing and fundamental principle for such a far reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone.’: [81]
Alteration of domestic rights by prerogative
EU Treaties not only concern the international relations of the United Kingdom, they are a source of domestic law and domestic legal rights: [86]
Under the dualist system in the UK, the Royal prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form, which the ECA does not provide: [86]
Lord Reed (Dissenting)
Construction of s2(1) ECA
Under s2(1) the application of EU law in domestic law is dependent on the contingency of the UK being part of the EU Treaties, and since s2(1) is silent on whether Parliamentary approval is required to withdrawal from the EU Treaties, if prerogative power is exercised to withdraw the UK, no further Parliament approval is required: [197]
Withdrawal will not alter domestic rights
Withdrawal would also not alter alter EU rights or the effect given to them in domestic law since it is open to Parliament to enact legislation to protect such rights before withdrawal occurs: [218]
Furthermore, since s2 contemplates that withdrawal can be made without parliamentary approval, the alteration of domestic law in the event of withdrawal by notice under Article 50 would be brought about by the ECA rather than prerogative: [219]
Withdrawal does not remove a source of law
The rule of recognition is ‘the foundational rule in a legal system which identifies the sources of law in that system and imposes a duty to give effect to laws emanating from those sources’: [223]
The UK’s entry to the EU did not change the rule of recognition, citing Lord Mance in Pham: [224]
Under the UK’s rule of recognition, the source of law in the UK is Parliament, and the validity of EU law in domestic law depends on an Act of Parliament: [226]
Thus EU law is not an independent source of domestic law: [227]
Commentary
On the fundamental level, this was a case of the prerogative power of the Crown being subjugated to the principle of Parliamentary sovereignty
This case, and Miller 2 two years later, were both incredibly politically charged and were faced with huge political and pubilc reaction, accusing the judges of judicial activism
The opinion of the majority that EU law constituted an independent source of domestic law was consistent with that of the ECJ (see Case 26/62 Van Gend en Loos) while the opinion of Lord Reed that statute was the source of EU law contradicts the position of the ECJ, but is consistent with earlier obiter dicta in UK courts, such as by Lord Mance in Pham
R (Miller) v Prime Minister; Cherry v AG for Scotland [2019] UKSC 41, [2019] 3 WLR 589
Key point
The Prime Minister, exercising the prerogative of the Crown, cannot prorogue Parliament and prevent it scrutinising the Government without reasonable justification
Background
Prorogation is a suspension of Parliament that happens every year to mark the end of the Session (Parliamentary Year)
The power to prorogue Parliament is a prerogative power, exercised by the Government on behalf of the Crown
In late 2019, three years on from the Brexit referendum, the UK was approaching its deadline to leave the EU, with a minority Conservative government wishing to leave on the deadline, and many other parties wishing to delay it
It was widely believed that Parliament would force legislation through, against the will of the Government, to extend the deadline
Parliament had at this point been in session for the longest time in four centuries
Facts
In August 2019 it was announced the Queen, on the advice of the Prime Minister, had given her consent to prorogue Parliament that September.
The planned prorogation was for five weeks – unusually long
This was widely seen as the Government attempting to prevent having their Brexit agenda blocked by Parliament
An application for judicial review was made in the High Court by Gina Miller on the grounds that this violated the principles of parliamentary sovereignty and parliamentary accountability
The case was rejected as non-justiciable in the High Court, but in the Scottish Court of Session, a similar bid was successful.
To resolve these differences, the case was granted an expedited appeal to the Supreme Court, in which he maximum eleven justices heard the case
Issues
Is the lawfulness of PM’s the advice to the Queen justiciable?
If it is, by what standard is its lawfulness to be judged?
By that standard, was it lawful?
If it was not, what remedy should the court grant?
Held (Supreme Court)
Appeal allowed; the advice given to the Queen to prorogue Parliament was unlawful, and the prorogation itself is null
Lady Hale and Lord Reed (giving the judgment of the court)
Justiciability of exercise of prerogative
In considering prerogative powers, it is necessary to distinguish between two different questions (at [35]):
Whether a prerogative power exists and if so its extent, which is always justiciable
Whether the exercise of that power, within its limits, is open to legal challenge on the recognised grounds of judicial review, which is may or may not be justiciable depending on the nature and subject matter of the particular power being exercised
In CCSU, Lord Roskill mentioned at p 418 the dissolution of Parliament as one of a number of powers whose exercise was in his view non-justiciable: [35]
The current case concerns the first question: [52]
Limit of prerogative power
Two fundamental constitutional principles are relevant to determining the limit of the prerogative power: parliamentary sovereignty and parliamentary accountability (i.e. the accountability of the PM and cabinet to Parliament): [41], [46]
Both of these principles would be undermined if Parliament is prorogue for extended periods of time: [42], [48]
On account of these two principles, the legal test for the limit is that it will be unlawful if “the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions”: [50]
In this case, as there was no reasonable justification given, especially given the length of the prorogation during a period where a fundamental constitutional change was about to take place, the advice to the Queen was found to be unlawful: [61]
Parliamentary privilege
The court is not prevented from granting relief by declaring the advice unlawful due to article 9 of the Bill of Rights
Prorogation is not a proceeding of Parliament under Bill of Rights as is imposed upon Parliament from the outside without its participation: [68]
It is not a core or essential business of Parliament, it brings that core or essential business to an end: [68]
Commentary
The political and public reaction to this case was huge and divisive. Many on the right saw it as a violation of the separation of powers for the court to decide on political issues, although this argument was given little attention by the court and summarily dismissed at [31] on account of the fact that the courts have always decided cases concerned with politics
what does the DPRRC recommend regarding the use of skeleton legislation and henry VIII clauses?
- Even when provisions are made for delegated legislation to have limited powers, the majority government can render this protection ineffectual
- Scrutiny provisions – largely ineffectual to actually amend or annul legislation – ‘all or nothing’
- Bill of Rights, Donoughmore Committee 1930s, Select Committee – delegated scrutiny committee 1990s
- Strathclyde review – no involvement, no veto, ‘think again’
- Issues: Henry VIII, skeleton legislation, disguised legislation and tertiary legislation
- Skeleton legislation – should only leave detail to delegated powers and enacted for a good reason, not valuing political expediency over principle
- Guidance must be clearly explained and effective legislative guidance must be set before Parliament
- Possibility of made affirmative procedure for delegated legislation
According to the DPRRC, the government should avoid implementing Henry VIII clauses on a ‘just in case’ basis – they should instead be reserved for specific and ‘controlled’ needs.
young’s argument about prerogative
- Fine distinction between statutory provision to revive prerogative power or statutory power that replicates prerogative power
- Courts have wider scope of review for statutory than prerogative power
- CCSU concerned with exercise and not existence of certain prerogative power, Miller II affirms court can control the existence or exercise of any prerogative power.
tension inherent in Miller as expounded by Elliot in , ‘The Supreme Court’s Judgment in Miller: In Search of Constitutional Principle’ (2017) 76(2) CLJ 257, 273-280
- Difficulty – court asserts it can recognise convention but will not engage with questions regarding their scope or application – inherent tension/incompatibility of this
- Sewel Convention is entrenched in legislation but is a political nicety
Logical Inconsistencies:
The majority simultaneously claimed EU law derived its domestic effect from the ECA but was also an independent legal source.
Lord Reed Dissenting:
EU law operates domestically only through the ECA, which makes it contingent on parliamentary will.
Conclusion:
Elliott: the majority’s dual claims contradictory and insufficient to justify position on prerogative powers.
Prerogative Powers: The court was overly assertive - new constraints without clear precedent.
Devolution: The court was overly cautious, avoiding engagement with conventions despite precedent
negative, affirmative and enhanced scrutiny procedures?
Negative resolution procedure
DL is considered law on the day that a minister signs it into force, unless Parliament rejects it within 40 days
DL cannot be amended by Parl
Affirmative resolution procedure
DL requires approval of Parliament to be law
DL Cannot be amended by Parl
Enhanced scrutiny procedures
No standard template, but generally follows a two-stage process:
1. Proposal for draft order is laid before Parliament and subject to scrutiny → Parliament can amend DL
2. After scrutiny, a revised or amended draft order may be laid before Parliament
No standard procedure for when it’s used, only available if Parl chooses to include it in the parent Act → Has been included in NI Act 1998 and HRA 1998
