9 limits of prerogative PDF

Preview

Summary

first class exam revision notes with caselaw, problem questions, lecture summaries, readings...

Description

9. The limits of the Prerogative? A Case Study Miller     







Blackstone-and Dicey’s def Powers that are recognised at common law that are exercisable only by the Crown. They are often considered to be necessary for government and they can be exercised without the prior consent of Parliament Vast and uncertain- no set limit No agreed definition Implications o Rule of law- government acting within legal powers but if we don’t know what the law is becomes complicated o Separation of powers- who does what o Effective accountability- hard to know if that something is being accountable Personal powers- Monarch o Should not be seen as discretionary powers they are circumscribed constitutional duties to be carried out on the advice of the PM o PM appoint, o appoint M, o Royal Ascent o Monarch on advise of PM- cardinal convention Political powers- PM o Vast powers o Enter into treaties o Controlling machinery of government o Keeping peace o War power Limits on the prerogative o Conventions  Non legal but binding of constitutional behaviour  Jennings quote- flesh of dry law- make legal constitutional work  Vital- ministerial accountability to Parliament, between House of Parliament who Monarch appoints as PM  How do they come into existence  No definitive test but Jennings- first what are the precedents (has it happened before), secondly did the actors in the precedents believe that they were bound by a rule and thirdly is there a reason for the rule?(legitimate justification for why it should happen)  Tribunal in Evans accept this test  This doesn’t say what happens when the convention is modified o Statutes  Parliament has unlimited legislative power and can pass laws on any subject  In principle no limit – including prerogative  Can abolish or restrict prerogative powers – Fixed Term Parliaments Act 2011 took away dissolution of Parliament power  They can govern the exercise of prerogative powers  Constitutional reform and governance Act 2010- treaty making  AG v De Keyser’s Royal Hotel (1920)- statutory power and prerogative power that is the same. Statutory power because Parl is sovereign and statute are the highest legislative instrument  gov rely on statute and cannot use prerogative to avoid fulfilling statutory duty  In WW1 army took over a hotel to house troops to contribute to war effort. Statute and prerogative to do this. State took prerogative because statute entitled to compensation. Court said you cannot take prerogative to avoid statute requirement, here compensation

o Courts through judicial review  Rule on the existence or extent of a prerogative power BBC v Johns [1965] Determine in judicial review proceedings whether a prerogative power has been exercised lawfully CCSU v Minister for the Civil Service [1985] – HoL in principle the court can test the legality of the exercise of a prerogative power like statutory powers, but the power in question has to be justiciable( meaning suitable for the court to take a decision) Prerogatives and conventions  Prerogative are legal powers recognized at common law and discretionary  Conventions are non legal but binding, if applicable must be followed  Conventions often regulate how a prerogative power should be exercised o Power to give royal ascent, in law there is discretion but convention regulating sovereign must act on advise of PM

Miller  Questions the ability of Gov to trigger 50 without the involvement of Parl  Determining the scope of a prerogative power on treaty making  Not the merits of leaving the EU but only the SCOPE of the prerogative power 1. What is the role of the courts in regulating the prerogative power?  Prerogative powers are treated like primary legislation  The rule of law requires that these powers are grounded in law and not outside or above the system of law administered by the courts  Court can consider issues when the prerogative affects the rights of an individual- Entick v Carrington [1765]  1964 Diplock- the power of Crown to restrict individual acts is laid down at common law and cannot be extended  Court cannot question whether the Crown has wisely used its prerogative powers  Statutory power of the Crown where the Courts has to decide if they have been applied with the rule of law 2. How can Parliament act as a limit on the prerogative?  Fixed-Term Parliament Act 2011 ended prerogative power  The Act can be repealed by any other Act, so limit the incumbent PM as long as future are prepared to accept the limitation  17th century constitutional settlement- no powers of the Crown which cannot be taken away by statute  Ministers responsible to Parl when acting on prerogative and can be asked questions about their acts  Certain prerogative powers could be exercised only if the gov was confident that it would have the support of Parl when should this be necessary  Treaty ratification power only effective if Act of Parl comes about  Convention- armed forces cannot be deployed without Parl having debated on it-> followed with 2013 troop withdrawal in Syria after having lost in debate at Commons  Executive cannot act under prerogative power if it would derogate from the fulfilment of a statutory duty- R v HS ex p Fire Brigades Union [1995]  If statute that restricted the prerogative is repealed than prerogative would re appear according to the words of the new Act What is the role of Parliament in the ratification of treaties  Signing does not require Parl approvement but is meaningless unless enacted by Parl  No treaty may be enforced in the domestic courts until formally implemented by legislation

o Treaty only has foreign affair symbol with prerogative, but the actual internal impact on society comes from Parl  Convention of Ponsonby Rule- treaty laid down 21 days before Parl before ratification Moved to CR and G Act 2010 gives Commons veto over gov’s treaty making power 3. Identify the arguments put forward by the Claimants and Defendants in Miller Secretary of State representing the Crown and presented by AG Me Eadie QC and Coppel QCDefendant Range of people represented by Lord Pannick QC, Chambers QC(Parl Sovereignity) Mountfield QC (EU citizenship, Scotland and devolution impact), Green QC (Free movement), Gill QC (children and carers)-Claimant Law Claimant Defendant High Court Me SC if withdrawal S20 S20 does not agreement is involve enactment made it will of primary require legislation and so ratification to be D’s reliance on submitted for CRAG 20 meets review to Parl D’s submission acting separately under S 20 of CRAG 2010 ECA

The ECA 1972 and other statutes providing EU law effect in domestic law leave no room for the Crown to have any prerogative power to give notice under Article 50 It would offend the constitutional principle of The Zamora, Crown altering domestic law and depriving rights on individuals through prerogative If the prerogative does allow to trigger art 50 through constitutional law, ECA 1972 has taken away that power

ECA 2(1)

nothing done by Parl in ECA 1972 to remove prerogative power of the Crown to take steps to remove the UK rom the EU by giving notice under Art 50 Relies on De Keyser’s Royal Hotel [1920]and say that there was no express words or necessary implication of Parl to remove power from executive to trigger art 50

EU rights defined by EU treaties -> Parl intended the existence of EU

If D is right then no violation of The Zamora principle- Parl provided EU

rights to have effect on domestic law as part of EU membership-> intended that Crown impacted domestic law through its treaty prerogative

rights in domestic law vulnerable to removal by executive Answer would be for C to point intention of Parl expressly in ECA 1972 to remove prerogative power BUT D goes to far to say that The Zamora principle in the light of De Keyser leads to under ECA 1972 the Crown retains prerogative. Overglosses important starting point and wrong that onus on C to point express language to remove prerogative power

EUA 2011 made to limit restriction on Parliamentary Sovereignty and not on the increase of it Right to withdraw

Vienna Convention of the Law of treaties art 54withdrawal could only have been achieved by agreement with the other parties. So UK can only give a unilateral notice to withdraw with art 50

(i)Rights capable of replication

Art 50 would remove cat (i) rights as enacted by Parl in ECA 1972

EU directives and others have been implemented by domestic

Not significant here—Uk would be able to withdraw from Treaties Issue is whether Parl intended that this should be something the Crown would be able to do with prerogative powers and without Parl’s intervention Yes can re-enact them but differencenational courts no obligation

Who would chose if they are preserved? If only Parl has the choice then does

legislation will stay unless repealed as free standing enforceable domestic legislation Great Repeal Bill to re-enact ordinary rights into primary legislation

(iI) rights enjoyed in other MS

Remove Parl to decide to maintain (ii) rights

(iii)Rights not cable of being replicated

Automatically abrogate (iii) and rights under 2002 Act

(ii)the main content of these rights (british citizen relying on free movement) is not product of ECA 1972 but product of the operation of EU law combined with domestic law The benefit comes from ratification of the Crown and the reciprocal ratification by other MS on the international planes Rights flowing from membership at EU club

reference to CJEU for interpretation and individuals would not be able to seek CJEU interpretation (i) C is right that ECA is principal legislation to give effect to these rights. No answer to say that some might be preserved Objection remains that prerogative power can deprive individuals of rights Removal of ability to seek authoritative judgment of CJEU is material change in domestic law

Formalistic way D’s argument is true but divorced from reality—Parl knew and ratified the treaties to

not make a dif if Crown gets to take it away because Parl could bring it back But review power is unchallengeably a loss

Rights as part of an agreement so logic to lose them if agreement is gone, and part of

provide British citizens rights under EU law that would be enforced in courts of other MS. C right to say that withdrawal would undo (ii) rights which Parl intended to bring into effect and did so by enacting ECA 1972. Not rights enforceable in courts but rights of major importance created by Parl Would be suprising to allow Crown to take them away by prerogative Effect of withdrawal on rights

Crown Parliament sequence

ECA Parl intended to give effect to all 3 categories—great extent of the change from withdrawal and so Crown could not effect such changes through prerogative

Whatever the extent of the changes Parl has left the Crown with prerogative power to give notice under art 50 Claimant exaggerates extent of effect cat (i) an (ii) would not change only cat (iii) would be lost

Fundamental principle of constitution that prerogative power cannot be used by executive to diminish rights under UK law unless Parl has given authority to the Crown Ratification by Parl of the withdrawal treaty would not

Parl could chose to leave prerogative power in hands of Crown even if change would result in common law

Ratification would have to be enacted by

prerogative power to be able to take away power from treaties. Parl intended to give these but since they have no impact on domestic law cannot be an issue for Parl to deal with. Prerogative has the power on these as they are on international plane agree with D

No dif in the argument

Lord BrowneWilkinson Fire Brigades Union

True that it is the normal process of

and powers

Referundu m Act 2015

cure the preemption as the effect of giving the 50(2) notice would remove the real decision from Parl

Parl and this follows the proper sequencing of respective functions of Crown and Parliament

[1995]constitutional history of the country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body

Crown and Parl BUT here the Crown’s action would not leave choice to Parl ( or would it) and have greater impact on domestic law

Referendum Act 2015 is silent on whether legislation is required before notice should be given, meaning prerogative power remains unaffected

4. What did the High Court rule in this case? 1. Challenge to decision to withdraw 50(1) or to give the notice 50(2)  Have to be read together  Notification of 50(2) is of a decision under 50(1)  Prerogative power does not allow to give notice of 50(2) thus under 50(1) cannot act only on its prerogative powers decide to withdraw in accordance with UK constitutional requirements  This legal challenge is about 50(2) since giving notice is what leads to 50(30 and the exit 2. The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional duty law in the same way as the courts enforce other laws  Court called to determine if Crown has prerogative power to give notice under 50 to trigger withdrawal 3. Court only for England and Wales but no one has said that Scotland and Ireland have any relevant law on prerogative power on this topic a. So court will rule on UK constitutional law not just England and Wales 4. Prerogative powers constitute the residue of legal authority left in the hands of the Crown a. Lord Reid- only available for a case not covered by statute b. Primary legislation is not subject to displacement by the Crown through prerogative power c. The crown has only thse prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised d. The king has no prerogative, but that which the law of the land allows him- Coke 1610 e. Prerogative power does not allow to create or take away any law, so Crown cant alter law of EU treaty f. The Zamora [1916]- various branches of the executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power

5. Crown power to make and unmake treaties is within the constitutional principle that the Crown cant through prerogative power change domestic law a. The prerogative power to make and unmake treaties is outside preview of the court b. Prerogative power creates legal effect on the plane of international law but does not change domestic law- Crown cannot confer or deprive rights on individuals without intervention of Parl c. A treaty is not part of English law unless and until it has been incorporated into the law by legislation 6. The legal issue here arises in a statutory context with direct link between the obligations arising from international plane and the content of domestic law a. Result of EU law direct effect and ECA 1972 7. So long as EU law is accepted and applied by the national courts of a MS, a form of law superior to domestic law a. National courts obliged to apply EU law as interpreted by CJEU- supreme over Parl as long as Parl agrees to let it act. b. Parl needed to give effect to EU law in domestic law of the juriidiction in the UK 8. If the legislation has not first been put in place, ratification of the Treaties by the Drown would immediately have resulted in the IL being in breach of its obligations under them, by reason of the absence of provision for direct effect of EU law in domestic law 9. Same section 2(2) also deprived as says that subordinate legislation can be promulgated to address non directly applicable EU law, to put in place Directives JUDGEMENT 1. Statutory interpretation must proceed having regard to background constitutional principles which inform the interferences to be drawn a. Where background constitutional principles are strong there is a presumption that Parliament intended to legislate in conformity with them and not to undermine them b. Question to ask- can it be interfered that a Parl aware of such constitutional principle and respectful of it intended nonetheless to produce effect at variance with it? 2. Strong presumption against Parl being taken to have intended retrospective effect 3. Strong presumption against Parl intended to preclude access to the ordinary courts for determination of disputes – Anisminic Ltd v Foreign Compensation Commission [1969] 4. Principle of legality- Parl does not intend to legislate in a way which would defeat fundamental human rights – R v Secretary of State for the Home Department ex p. Pierson [1998], Simms[2000] 5. Presumptions can be overridden if Parl wants to but the stronger the constitutional principle the stronger the presumption that Parl did not intend it. The stronger the principle the more readily can it be inferred that words used by Pal were intended to carry a meaning which reflect the principle 6. Constitutional statute makes ECA 1972 exempt from the operation of implied repeal by enactment of later inconsistent legislation- only repealed if Parliament makes it especially clear that it wants to do so—thus even less possible that it would allow the Crown to alter it 7. Conclusion on intention of Parl a. Intend to introduce EU law into domestic law in a way that could not be undone by the Crown’s prerogative power b. The Crown has no prerogative power to effect a withdrawal from Community Treaties on whose exitense the EU law rights introduced into domestic law depend and on whose wider rights of British citizens depend c. The Crown has no prerogative power to effect a withdrawal from the Treaties by giving notice under Art 50 of the TEU i. Enforceable EU right – what Parl wanted, not just as a result of treaties so out of the prerogative power to withdraw from them Do you agree with this decision?

5. The High Court decision in Miller is now the subject of an appeal to the UK Supreme Court. IN your view, what does the law require in terms of the appropriate role of Parliament in the Article 50 process? a. Demands Parliament to first repeal ECA and from there demand to exit...