‘Bias’ and the judge’s role

Judicial disqualification (‘recusal’)


The question of whether or not Lord Neuberger should sit in the Supreme Court on the appeal from the EU withdrawal case (R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)) has recently arisen. His wife is believed to have made comments supporting the United Kingdom remaining in the European Union (http://www.telegraph.co.uk/news/2016/11/18/supreme-courts-most-senior-judge-urged-to-stand-down-from-articl/).


On a binary question (IN or OUT as it was put in the referendum) as to whether or not to remain in the EU the Supreme Court judges are likely all to have a view. They are voters. That does not mean they cannot adjudicate. There are many cases where the judge will have a personal view about a person s/he must deal with in court – a judge, personally, may take an intense dislike to a defendant; but the court’s decision may go in an opposite direction from that personal view. Judges will be well-insulated against that sort of personal bias.


In the case of Lord Neuberger, his wife’s views – and even his own – are irrelevant. He is being asked to decide a point of law; and whichever way he decides, he would not be the first judge who has had to decide one way whilst his/her personal preferences go in the opposite direction. Whatever his own sympathies, he may find that the law requires him to go in an opposite direction.


‘Bias’ – for this is what we are speaking of here – is a technical term in law; and if it is found to exist, a judge must take him/herself off the case. The immediate problem – which I personally do not see as an issue over Miller in the Supreme Court, either in respect of Lord Neuberger or of Lady Hale (her comments on the case in Kuala Lumpur) – is that it is the judge who is the arbiter of whether or not bias arises, and therefore whether or not s/he should be disqualified (‘recused’, the technical term) from hearing the case.


‘Actual’ bias: automatic disqualification


Judicial impartiality, says the Court of Appeal, is ‘the fundamental principle of justice, both at common law and under European Convention 1950 Art 6’ Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 at§[6]. If it is breached a judge is disqualified from hearing a case (recused). It is not a matter for a discretionary case management decision.


‘Actual’ bias gives rise to automatic disqualification by the judge or other tribunal by him/herself from continuing to deal with the case. This occurs where the judge has a personal interest – however dispassionate s/he may be about it – in the case. For example, in Dimes v Proprietors of Grand Junction Canal (1852) 3 HLCas 759, 793–794 orders made by the Lord Chancellor, Lord Cottenham – a shareholder in the company concerned – were set aside:


No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest….


‘Actual’ bias is not limited to a financial interest. In R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2)) [1999] UKHL 1; [2000] 1 AC 119 Lord Hoffman was disqualified and the House of Lords disposal of the case set aside, because of his undisclosed interest in Amnesty International, a party to the House of Lords appeal. Lord Browne-Wilkinson (at 135) explained this – a point which could, just conceivably, be argued against Lord Neuberger):


The rationale of the whole rule is that a man cannot be a judge in his own cause…. If, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.


‘Apparent’ bias


The judge must recuse him/herself if it is accepted that the judge is, or appears to be, biased; but a decision on the point is a matter for the judge on the particular facts of the case. The test for bias of either category is whether the ‘fair-minded and informed observer’ would conclude that there was a real possibility of bias (per Lord Hope in Porter v McGill (orse McGill v Weeks) [2001] UKHL 67):


[103] The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.


This form of bias is less easy to define or to detect than ‘actual’ bias; for it may occur – when it does – in a variety of forms. This is not because judges may fail to detect their own possible bias when it is drawn to their attention. It is because two particular and separate factors combine: first, that the judge must adjudicate on the issue of which he is the subject (as mentioned above); and, secondly, that in doing so the judge will be conscious that it is a principle of judicial administration that a party may not chose or reject the judge who is to deal with his/her case. If judges gave in too easily to every application before them for recusal it would undermine this second principle.


In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004, [2000] QB 451 the Court of Appeal – in which sat the then Lord Chief Justice (Lord Bingham), Lord Woolf MR and Sir Richard Scott VC – gave a judgment of all three senior judges which, at the time, was intended to deal with the question of bias. It concluded, on the subject of perceived bias and of the question of categorising types of perceived bias, as follows:


[25] It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge….


The court considered a number of instances where perceived bias would be unlikely to be found. They went on to suggest circumstances where it might be found:


[25] …By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind….


The ‘fair-minded’ observer


Lord Hope, in Porter v McGill (above), coined the term the ‘fair-minded and informed observer’ to apply in this context; and he has since returned to the same ‘relative newcomer’ in the legal lexicon in Helow v Secretary of State for the Home Department and another [2008] UKHL 62. In that case (at §§[1] and [2]) he further explained. The main points in which the judge, in the guise of the informed observer, should determine the application (generally against his/her own involvement in the case) includes the following:


  • The informed observer will reserve judgment and a decision on the recusal (disqualification) until he or she has seen and fully understood both sides of the argument.


  • The approach to determination of the issue must be distinguished clearly from not be confused with that of the complainant: there must be a clear measure of detachment. The complainant’s assumptions can only be adopted by the observer if they ‘can be justified objectively’.


  • However, the observer must not be complacent if a real complaint is made out: ‘a judge must be, and must be seen to be, unbiased’.


Lord Hope then went on briefly to consider the ‘informed’ observer, stressing the main attribute of this person, as part also of the ‘fair-minded’ observer, is the extent to which this person will take the trouble to be fully informed as to the matters which are relevant to the complaint before the court:


[3] Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.


Informed observer


Where actual bias on established facts is proved, the decision will almost invariably be clear: the personal interest of the judge will disqualify him or her. If perceived bias is alleged the judge must be guided notionally by the ‘informed observer’. The judge will ask: to the ‘impartial outsider’ could my involvement in this case or my comments concerning it, or one of the parties, be seen as being biased one way or the other?


Contempt: administration of justice, and private lives

Interference with administration of justice


The law of contempt applies in all fields of court proceedings: civil and criminal. It requires the alleged contemnor to be responsible in some way with the administration of justice. In this article it comes as civil contempt (moved over very quickly: ie disobedience of court orders); criminal contempt: holding the system up to ‘obloquy’ (see below); and publication of information in relation to private proceedings.


On 3 November 2016 the Divisional Court (Lord Thomas LCJ, Sir Thomas Etherington MR and Sales LJ) handed down a judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’: the EU withdrawal case). Since then there has been some raucous reporting of comment from newspapers whose editorial line supported EU withdrawal. This included the Daily Mail whose headline, the day after the judgment, described the judges as ‘Enemies of the people’.


A dictionary definition of contempt includes references to feelings that a person is worthless or not worthy of respect. Within that it is likely that most people would say the Daily Mail headline was contemptuous of one or more of the judges in Miller. At law more is needed.


‘Fair and temperate criticism is legitimate’


The law of contempt is based on preventing interference with the administration of justice. It was considered fully in Attorney-General v Times Newspapers Ltd (No 1) [1974] AC 1974 where the House of Lords considered whether the proposed publication by the Sunday Times of their heavily disapproving views of the proposals put forward by Distillers (manufacturers of the drug thalidomide) for settlement of litigation on behalf of children effected by the drug.  Lord Reid defined the origins of the law of contempt as follows (at 294E):


The law on this subject is and must be founded entirely on public policy… and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.


He went on (at 296D) drawing attention to the need for balance between justice and freedom of speech: ‘There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations’.


Lord Simon spoke in a similar way of the balancing of rights in Attorney-General v Times (at 319H): that:


[It is not] sufficient to say that, under our constitution, freedom of discussion is itself a creature of the rule of law, and that the administration of justice must therefore be paramount in every situation of actual or potential conflict. Each is a genuine interest of society, and neither can be held to be universally paramount over the other;…


‘Fair and temperate criticism is legitimate’, said Lord Reid (at 297H). ‘Anything which goes beyond that may well involve contempt of court.’


Forms of contempt


So what does freedom of expression permit? Lord Morris (at 302A-C) summarised his view of contempt as against freedom of expression:


The phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits…. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest.


Lord Diplock (at 307H-308) explained the difference between ‘civil contempt’: the disobedience to a court order by one party to proceedings; and ‘criminal contempt’ (at 308C-D) is, he says:


… the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.


And (at 310G)it extends to:


….to conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law, by holding up any suitor to public obloquy for doing so or by exposing him to public and prejudicial discussion of the merits or the facts of his ease before they have been determined by the court or the action has been otherwise disposed of in due course of law.


Contempt: public dissuasion from litigation


In Attorney-General v Times Lord Diplock distinguished between private pressure to discourage litigation (permissible) public ‘obloquy’ to discourage legal action (not permissible: ie criminal contempt). Lord Diplock pointed out that in Merchant of Venice it would have been permissible privately to discourage Shylock from insisting on his bond; but to do so publicly where ‘he was seeking to enforce in a court of competent jurisdiction legal rights to which he was entitled under the law as it existed at that time … would have been a contempt’. Lord Diplock continued (at 313E):


In my opinion, a distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the existing law, and public abuse of him for doing so. The former, so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court, the latter is at least a technical contempt, and this whether or not the abuse is likely to have any effect upon the conduct of that particular litigation by the party publicly abused.


This disparagement of a litigant is what happened in Attorney-General v Hislop [1991] 1 QB 514. Two articles had been published in Private Eye about Sonia Sutcliffe (SS; wife of the ‘Yorkshire Ripper’). When the hearing of SS’s action was imminent, two further articles defaming her were published. After she had been awarded damages in the first action the Attorney-General issued committal proceedings. The judge considered that the articles did not cross the contempt line: there was no risk of prejudice to the jury. The Attorney-General appealed.


The Court of Appeal said there had been a ‘serious contempt’, which went ‘beyond fair and temperate criticism’ (at 527D and 528D). Its content was plainly intended to put pressure on SS to give up her litigation. Nicholls LJ (at 532C-D) echoed the words of Attorney-General v Times:


Part of the mischief of this particular type of contempt is the impact which publication of articles of this nature can be expected to have on other litigants. As Lord Reid said in Attorney-General v Times … (at 295): “Of course parties must be protected from scurrilous abuse: otherwise many litigants would fear to bring their cases to court.” Likewise Lord Diplock said, at p. 310: “If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy … potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established.”


Contempt: privacy of court proceedings


A third form of contempt was envisaged by the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 as exceptions to the open justice principle (though in Scott the House very clearly rejected privacy – and therefore that contempt could arise for private proceedings – in that divorce case). Privacy may be directed by the court or required by court rules (eg Civil Procedure Rules 1998 r 39.2(3); Family Procedure Rules 2010 r 27.10). This includes proceedings in relation to children and individuals who lack capacity (Mental Capacity Act 2005; ‘protected parties’ as explained below). Viscount Haldane in Scott v Scott (at 437) said of these exceptions:


In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic.


The exceptions to the open justice principle where privacy may be ordered are reflected in CPR 1998 r 39.2(3) setting out when the open justice principle (all proceedings to be in open court: and see r 39.2(1)) may be overridden and the hearing may be in private (an emphasis on the ‘may’: the court still has a discretion). A hearing may be in private if:


(3)(a) publicity would defeat the object of the hearing;…

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party; or…

(g) the court considers this to be necessary, in the interests of justice.


This article is concerned primarily with children and protected parties (ie ‘a party, or an intended party, who lacks capacity to conduct the proceedings’: CPR 1998 r 21.1; FPR 2010 r 2.3). Prominence is given to them under Administration of Justice Act 1960 s 12(1) which – in negative terms – is (as relevant here) as follows:


12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a)where the proceedings –

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b)where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;…

(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).


It is not necessarily a contempt to publish information as to proceedings in private, save in the excepted cases (including civil proceedings) in s 12(1); and even then it may not be contempt if it was not a contempt before s 12 was in force (Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370 per Lord Brandon at 420F): for example, if there is a defence in law such as that the publisher did not know of the of the existence of the proceedings (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA).


A third form of contempt


Concern for children and contempt come together in Re F (orse A) (a Minor) (Publication of Information) (above) in the Court of Appeal (Lord Denning MR, Scarman and Geoffrey Lane LJJ) heard Waite LJ (as he became) leading Lord Wilson (as he then was not) for the Official Solicitor; Leon Brittan represented Slough Daily Mail; and Sir Peter Rawlinson QC for the Daily Telegraph. The application was by the OS to commit ‘Dear Bill’ Deedes and the editor of the Slough Mail in relation to a ward of the court.


Lord Denning introduced the facts of the case as follows:


This is about a distressed father and mother. They have an errant daughter who has worried them greatly. Last year, 1975, when the daughter was only 15, and still at school, she got into the clutches of a man much older than herself. He was about 28. He was a very bad character. He had a long criminal record with 18 convictions. He took drugs and wore long hair. He was one of a “hippy” gang who did no work but squatted in empty premises. He gave this young girl drugs. He had sexual intercourse with her, knowing that she was only 15. She thought that she was in love with him.


F’s parents made her a ward. An outcome of those proceedings was that the girl was provided with a home by the local authority; but they (with support from the Official Solicitor) wanted to allow her still to see the man. The parents were extremely unhappy and contacted the Telegraph. The journalist was told by the parents that the wardship order was only temporary. He contacted the Official Solicitor and was told the same.  The Telegraph published a story which was also picked up by the parents’ local paper.


Tudor Evans J found that there had been contempt. The Court of Appeal disagreed. They said that Administration of Justice Act 1960 s 12(1) was a codification of existing law. It must be treated as a clarification of the pre-existing law (as Scarman LJ (at 99) and Geoffrey Lane LJ (at 105) read s 12(4)). A contempt was only committed if the newspapers knew that their reports contained information relating to children proceedings (per Scarman LJ at 100), which – said the court – they did not.


The court’s view of the law in Re F was considered by Lord Bandon in Pickering v Liverpool Echo (above). P was convicted of manslaughter with sex offences and had been detained in a mental hospital. To secure release he must apply to a tribunal. He suspected that newspapers might publish information about his application; and he applied for an injunction to stop them. The judge rejected his application. The Court of Appeal by a majority made a reporting restriction order but gave the newspapers leave to appeal.


Lord Bridge (at 421D-422G) explained Re F and its assessment of AJA 1960 s 12 – and approved what Scarman LJ had said – as follows:


[The court] rejected the view that the effect of the exceptions in section 12(1) was to constitute the publication of information relating to proceedings in the excepted categories an absolute offence of contempt. Scarman LJ said, at 99: ‘I cannot read the words ‘of itself’ in subsection (1) as implying that in the five excepted cases contempt is necessarily committed if the court sits in private. The words, in their context, need mean no more than that there is a contempt in the absence of a defence recognised by law.’ I agree with this.


He then went on to look at the question of ‘material protected from publication’ (at 422A). On this subject, Lord Bridge refers to two statements. First Scarman LJ:


As I read the section, what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. If the information published relates to the ward, but not to the proceedings, there is no contempt: …


In support of this proposition Scarman LJ, in Re F, cited Re Martindale [1894] 3 Ch 193 where Ford Madox Ford (then ‘one Hueffer a young poet and novelist’: he changed his name after the 1914-1918 war) had married a ward. He told a journalist friend of it; and ‘allowed, I am sorry so say, an element of fiction, with which he was, of course, professionally familiar, to creep into his account of the proceedings’. The contempt was not that the journalist’s paper had published the name or the fact of the bride being a ward, but that what was published would be understood as ‘what took place in my private room’ and what ‘the judge had decided’ (per North J).


Publication of ‘information in proceedings’


What may not be published? Lord Bridge quotes Geoffrey Lane LJ (at 105) in Re F, where he explained what was included as part of ‘information relating to proceedings’ in s 12(1):


‘Proceedings’ must include such matters as statements of evidence, reports, accounts of interviews and such like, which are prepared for use in court once the wardship proceedings have been properly set on foot. Thus in the instant case the reports of the Official Solicitor and the social worker were clearly part of the proceedings and were protected by section 12.


Publication of such documents (passing them to a journalist (as in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142) invites an application based on this breach of privacy contempt. In Re B (above) Munby J gave a summary of his view of the operation of AJA 1960 s 12(1) (at §[82]).


Others will decide whether any of the journalists responsible for disparaging comment should be brought back to court. In the private proceedings context, the extent to which documents can be released from (say) children proceedings, depends on the view of the court and on what can be proved against a contemnor.

Philip Allott: Fundamental Legal Aspects of UK Withdrawal from the EU: Eight Stages on the Way to a New Relationship

UK Constitutional Law Association

philip-allottThe exceptional complexity of the legal aspects of UK withdrawal from the EU is due to the fact that it involves the interaction of three legal systems – international law, EU law and national law. The constitution of the EU is contained in treaties, taking effect under international law. EU law is made and administered by three classic organs of a constitution – legislative, executive and judicial. EU law is an external source of law integrated into the national legal systems of the member states. It can override national law in case of conflict.

It follows that the legal aspect of each stage of constructing a new legal relationship between the UK and the EU must be examined separately, in the light of law coming from the three interacting legal systems.

1. Conservative Party General Election Manifesto, May 2015, page 72

‘It will be a fundamental principle of a…

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Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer

UK Constitutional Law Association

richard-langI’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the parties at least were in agreement on the point after all: it is not (they say) reversible: R (Miller) v Secretary of State for Exiting the EU, para 10 (hereinafter “Miller”).  However, I believe that there is a far simpler, and so far as I can see compulsory, route from the Supreme Court to Luxembourg in this matter, assuming that the Crown does indeed appeal today’s ruling to that court, and that is that (a) the case turns on the interpretation of the phrase “in accordance with its own constitutional requirements” from…

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Nick Barber and Jeff King: Responding to Miller

UK Constitutional Law Association

barber-kingThe most surprising thing about the decision in R (Miller) v Secretary of State for Exiting the European Union is that so many people have found the decision surprising.  The reasoning in the case – essentially, that the executive is unable to use the prerogative to remove statutory rights – rests on a clear line of case-law going back four hundred years, and turns on a foundational principle of constitutional law. It is unremarkable that three of the country’s leading judges – the Master of the Rolls, the Lord Chief Justice, and the leading public law judge in the Court of Appeal – were able to produce a unanimous, clear, judgment restating this orthodoxy.  The only remarkable thing about the judgment is how such quality was produced under such extraordinary time and political pressure.

We, along with Tom Hickman, have discussed the reasoning adopted by the court in an earlier…

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Our rights: the Miller Brexit case explained

What follows is a layperson friendly version of my earlier note at https://dbfamilylaw.wordpress.com/2016/11/05/rights-and-the-miller-brexit-case/


On 3 November 2016 the High Court (in this case, three senior judges: the Lord Chief Justice Lord Thomas, the Master of the Rolls Sir Thomas Etherington and Lord Justice Sales) handed down their judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’; http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html). For me the central question is: what are the court’s views on the question of a UK citizen’s rights (ie not only rights under Human Rights Act 1998); and how should Parliament deal with them?


The case concerned whether the Government – the ‘executive’ – could decide on its own to trigger leaving the European Union (Art 50); or whether the UK constitution requires that Parliament is consulted on the process; and that it considers the options and makes the decision as to triggering Art 50.


In what follows the terms ‘executive’, ‘government’, ‘Crown’ and ‘Secretary of State’ are used interchangeably and mean the same thing. They are the executive and exercise ‘prerogative’ power. They are to be contrasted (so far as possible under the UK constitution) from Parliament (ie the legislature) under the theory of separation of powers.


It is clear that, from the start, Parliament proceeded on the assumption that it could only be advised by a referendum, not bound by its result; and MPs had a House of Commons briefing paper to this effect before they voted. Nothing in the judgment affects the fact that a UK referendum has said that a majority of those who voted want to leave the EU. It is a question of the legislation to achieve this which the case was all about.


In English law rights are mostly defined by our common law – that is judge-made law; or they are created or restricted by statute. Thus what might once have been a right – for example, to carry a gun or to drive a car at whatever speed the driver chooses – are banned, restricted or regulated by Act of Parliament.


The question the court dealt with in the Miller case was: who defines the extent to which rights can be restricted, changed or withdrawn? Is it the Government (Crown prerogative, ie the executive); or is it Parliament (ie the legislature)? The examples given were two actual cases: a hotel which was requisitioned by the Army in the First World War; and a scheme for compensation of victims of crime. In both cases statute law said that the hotel could claim compensation, where the Army (ie the Government) said it need not pay; and that the victim could claim more than the Government department allowed, when setting up a later scheme.


Of both of these cases the courts said: if Parliament had said the claimant was entitled to more it was not for the Government by its unilateral dictat to say less. If something different was to be setup than what the original law allowed for, only Parliament could say so. The hotel and the victims both were entitled to compensation as Parliament intended.


Applied to EU withdrawal (‘Brexit’) these legal principles mean that if rights are to be withdrawn then only the legislature (Parliament) can do it. It cannot legally be done by the executive (the Government) alone under any prerogative powers. What is more, if Parliament is to withdraw rights effectively, it must be done in clear and specific terms by Act of Parliament. It is only fair that we should know our rights. And even more is this so if our rights are to be taken away.


So how does all this affect the Miller claimants? It affects them because, as a result of UK joining the EU in 1973 (under European Communities Act 1972 (ECA 1972)) various rights were, said the judges, created by Parliament. These rights depended upon UK being part of Europe. The rights include:


  • (i) Rights which are ‘capable of replication’ in English law. If Parliament choses it can redefine or recreate these rights. As yet it has no clear plans to do so, beyond reference by the Government barristers to a ‘Great Repeal Bill’. The judges were sceptical on this point. The rights which could be lost include UK workers’ rights in the EU and benefits and health rights of UK nationals living elsewhere in the EU.


  • (ii) The rights of UK citizens and companies in relation to their activities in other EU countries.


  • (iii) Rights which have an effect in UK domestic law, but which would be lost on withdrawal from EU. These rights include, said the court, the right to seek a reference to the Court of Justice of the European Union and to seek to persuade the EU Commission to take regulatory action over environmental protection legislation occurring within UK and grant a remedy in relation to it.


  • (iv) The judges also stressed that ‘it is important to bear in mind that there are other substantial areas of EU law such as the schemes of regulation which take effect as part of the law of the United Kingdom’ which – for good or ill – will be lost. For example, in my area of law, the conformity provided for children law and maintenance enforcement will be lost to UK nationals, and this will be to their additional expense and disadvantage.


In all these cases – especially (i) – domestic law rights created by ECA 1972 will be lost. Category (ii) rights depend on membership of the EU so cannot be recreated by Parliament without reciprocal agreement from member states.


So what power rests with the Government – prerogative rights – to alter an individual’s domestic law rights? There is no power to alter the law, save where Parliament says so by clearly expressed statute. This, as the court stressed, is the constitutional principle argued for by Parliamentarians against the king in the 17th century; and it was resolved in Parliament’s favour – in favour of democracy – by the Glorious Revolution settlement in 1688. The principle enabled Tom Paine in 1776 to assert that the law was king, not the king law. And it was these principles which underlay the resolution of the claims for the hotel and the criminal injuries claimants.


So what did Parliament intend when it passed the original ECA 1972? Can Parliament then be taken to have left everything to the Government? No said the court. It is especially unlikely that Parliament ‘intended to leave [changes in domestic law] in the hands of the Crown through the exercise of its prerogative powers’ (ie to the Government unchecked by Parliament). Parliament had ‘taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972’, the judges refused to believe that Parliament ‘intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again’.


Any change to the law and to regulation of UK citizen’s rights should only by Parliamentary approval. Triggering Art 50 notice to leave the EU would, as night follows day, affect personal and commercial rights. That could not be provided for by Government action alone.  Certain rights were created for UK citizens by Parliament by ECA 1972. If they are to be removed, this must be done by Parliament and not by the Government (executive, Crown etc). That is the way English law operates. And it has done so since the 17th century.


The judges’ decision does not mean UK will not leave the EU; but if their decision remains after any appeal to the Supreme Court, the result is that the referendum was only the first step in that direction. Parliament – not the vague answers of the referendum or the dictat of Mrs May or her Government – must control the next steps as our law has required, at least since the late 17th century.

Rights and the Miller Brexit case

Parliament or the prerogative?


Much has been written of the Divisional Court decision in the Brexit case on 3 November 2016; and much more will be written, no doubt, before and after any Supreme Court appeal. The judgment was of the court (ie a combined effort of all judges, consisting of Lord Thomas LCJ, Sir Terence Etherington MR and Sales LJ) in the case of R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’; http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html). I want to enter the debate only to ask what the court’s views are on the question of a UK citizen’s rights in all this; and by this I mean not just rights under Human Rights Act 1998 but the much wider range guaranteed by laws which derive from European legislation and law-making (see Categories of rights considered at §§57-66 and below). The question of rights, it seems to me, is the central question in the debate about Miller.


But first some preliminary points: in what follows the terms ‘executive’, ‘government’ and ‘Crown’ or ‘King’, ‘King in Council’ (Queen doesn’t crop up) ‘Secretary of State’ are used interchangeably and mean the same thing. They exercise ‘prerogative’ power and are to be contrasted (so far as possible under the UK constitution) from Parliament or the legislature.


Next: nothing in what follows, or which derives from the judgment affects the fact that a United Kingdom referendum has said that a majority of those who voted want to leave the EU. It is a question of the legislative mechanism by which this is to be achieved with which Miller was concerned.


‘Express language’ to override statute


Finally, a thread which must run through this note where legislation over rights is concerned, is the House of Lords (now Supreme Court) case of R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115 – which is referred to in passing by the Divisional Court at §83. There the House found that an indiscriminate ban on a prisoner’s contact with journalists ultra vires (outside the powers of) the Secretary of State under the existing primary legislation. In a short speech Lord Hoffman made three points. First on ‘sovereignty of Parliament’ he said:


I add only a few words of my own about the importance of the principle of legality in a constitution which, like ours, acknowledges the sovereignty of Parliament. Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.


Secondly, he explained the effects of legality on law-making; and he makes the same point in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563, [2002] 2 WLR 1299: that if Parliament is to interfere with fundamental rights it must do so in clear terms, that is ‘express language’:


…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.


Thirdly he emphasises that this principle applies equally to subordinate, as to primary, legislation: it might be said, even more so.


Categories of rights


The Divisional Court categorises the rights which they see as relevant to the case at §§57-66. They do so in three listed categories; and also by reference to a fourth important bundle referred to as (iv) below. And, it must be recalled, that the applicants in the case were all those affected by the triggering of Art 50 (§7), including British citizens exercising free movement rights in EU, and children and their carers whose immigrant status under EU law may be affected by leaving the EU.


The categories of rights are:


(i)            Those which are ‘capable of replication’ in English law (§58); but as yet – beyond a ‘Great Repeal Bill’ – which are not on the government’s ‘replication’ agenda. These rights include UK workers’ rights in the EU and, presumably, benefits and health rights of UK nationals living elsewhere in the EU.


(ii)            The rights of UK citizens and companies in relation to activities in other EU countries (§60).


(iii)            Rights which have an effect in UK domestic law, but which would be lost on withdrawal from EU. These rights include, said the court (§61) (and if this was all, I accept, they would not have clinched the case):


  • to stand for selection or, later, for election to the European Parliament and the right to vote in such elections
  • to seek a reference to the CJEU
  • to seek to persuade the EU Commission to take regulatory action in relation to matters within the United Kingdom, such as to investigate a violation of EU competition law or of EU environmental protection legislation occurring within UK and grant a remedy in relation to it.


(iv)            In the introduction to this section the judges pointed out (at §57) that ‘it is important to bear in mind that there are other substantial areas of EU law such as the schemes of regulation which take effect as part of the law of the United Kingdom’ which – for good or ill – will be lost. For example, in my area of law, the conformity provided for children law and maintenance enforcement, in particular, throughout all EU member states is a right which will be lost to UK nationals, and to their potential additional expense and disadvantage.


The Secretary of State accepted that category (iii) rights would be lost (§62). Of the remaining categories (i) and (ii), the court agreed with the applicant that rights might be lost. Of category (i) rights the court said that, without the Government having any draft legislation (eg its ‘Great Repeal Bill’) to replace these rights:


[65] … The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 [European Communities Act 1972] of effect. We also consider that the removal of the ability to seek authoritative rulings of the CJEU regarding the scope and interpretation of such rights would itself amount to a material change in the domestic law of the United Kingdom.


Of category (ii) rights, the court said that Parliament had in 1972 deliberately created rights which withdrawal from EU would undo:


[67] … The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament. Accordingly, the claimants are entitled to say that it would be surprising if they could be removed simply through action by the Crown under its prerogative powers (italics supplied).


And so, in the passage above, the discussion comes back – especially in the italicised passage – to Lord Hoffman’s comments in exp Simms. The court had already drawn attention to the earlier Divisional Court decision that ECA 1972 was not open to any principle of ‘implied repeal’ (§44). It could only be repealed by ‘express language in a subsequent statute or by necessary implication from the provisions of such a statute’ (per Laws LJ in Thoburn v Sunderland City Council [2003] QB 151 (at §62; QB Divisional Court): ‘It may be there has never been a statute having such profound effects on so many dimensions of our daily lives’).


The executive and fundamental rights


The Divisional Court started its review of the law under the heading: ‘principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown’. The court explained how these principles were balanced one against the other, starting from the 1688 constitutional settlement: that the executive (‘the Crown’) is subordinate to the law (or as Tom Paine stated in 1776, as he saw it then: ‘In United States the law is king’ not the other way around).


[26] This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between the Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since.


This was expressed by Coke at the time of Charles I’s developing absolutism (over which – to a substantial degree – the Civil War was fought, and which the 1688 settlement sought to correct) as follows:


[27] Sir Edward Coke reports the considered view of himself and the senior judges of the time in The Case of Proclamations (1610) 12 Co. Rep. 74, that: ‘the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm’ and that: ‘the King hath no prerogative, but that which the law of the land allows him.’


The court cited the first two parts of the Bill of Rights 1688: that the suspension of laws by the Crown without Parliament’s consent is ‘illegal’; and the suspension of laws by the Crown, by the same token, is ‘illegal’ (§28). In support of this proposition the court cites in The Zamora [1916] 2 AC 77 at 90:


The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution.


The first part of this article can conclude with Prof AV Dicey, with whom – not surprisingly – the above quotes from Lord Hoffman accord. Said the court:


[22] In what is still the leading account, An Introduction to the Law of the Constitution by the constitutional jurist Professor AV Dicey, he explains that the principle of Parliamentary sovereignty means that Parliament has: ‘the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.’ (p 38 of the 8th edition, 1915, the last edition by Dicey himself; and see chapter 1 generally)….

[23] The principle of Parliamentary sovereignty has been recognised many times in leading cases of the highest authority. Since the principle is common ground in these proceedings it is only necessary to cite the speech of Lord Bingham of Cornhill in R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262 at §9: ‘The bedrock of the British constitution is … the supremacy of the Crown in Parliament …’.


‘Express language or clear necessary implication’


Lord Hoffman picks up the express provision point; and the Divisional Court develops it in its judgment. On this point the judges say that their view is that the Government case is ‘flawed at this basic level’ (§85). They explain:


[83] [There is a] presumption that Parliament does not intend to legislate in a way which would defeat fundamental human rights: see R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539 at 573G, 575B-G (Lord Browne-Wilkinson) and R v Secretary of State for the Home Department, ex p. Simms [2000] 2 AC 115, 131D-G (Lord Hoffmann). All these presumptions can be overridden by Parliament if it so chooses, but the stronger the constitutional principle the stronger the presumption that Parliament did not intend to override it and the stronger the material required, in terms of express language or clear necessary implication, before the inference can properly be drawn that in fact it did so intend….


This point, said the judges, had been ‘glossed’ over by the Secretary of State. He seemed to assume that ‘the onus was on the claimants to point to express language in the statute removing the Crown’s prerogative in relation to the conduct of international relations on behalf of the United Kingdom’. This ‘left out part of the relevant constitutional background’.


The position of the Secretary of State ‘gave no value to the usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers’ (the third constitutional principle referred to by Lord Hoffman above; and see The Zamora (above)).


Domestic law and prerogative powers


So what power resides in the Government – prerogative rights – to alter an individual’s domestic law rights? There is no power to alter the law, save where authorised by statute:


[86] First, [there is] the powerful constitutional principle that the Crown has no power to alter the law of the land by use of its prerogative powers is the product of an especially strong constitutional tradition in the United Kingdom… It evolved through the long struggle (to which we have referred at paragraph 26) to assert parliamentary sovereignty and constrain the Crown’s prerogative powers. It would be surprising indeed if, in the light of that tradition, Parliament, as the sovereign body under our constitution, intended to leave the continued existence of all the rights it introduced into domestic law by enacting section 2(1) of the ECA 1972 (and, in the case of category (ii) rights, which it passed the ECA 1972 to bring into existence) subject to the choice of the Crown in the exercise of its prerogative powers….


A reminder of this principle was provided when the Supreme Court recently explained the legality – or not, in that case – of a Government’s Henry VIII (ie autocratic) powers in relation to legal aid (R (The Public Law Project) v Lord Chancellor [2016] UKSC 39). Only Parliament can enact primary legislation; and only Parliament, not the executive, can repeal existing primary legislation:


[86]… As Lord Browne-Wilkinson put it in R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513 at 552E: ‘It is for Parliament, not the executive, to repeal legislation. The constitutional history of this 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.’


Further, it must be born in mind what Parliament intended when ECA 1972 was enacted:


[87] … The wide and profound extent of the legal changes in domestic law created by the ECA 1972 makes it especially unlikely that Parliament intended to leave their continued existence in the hands of the Crown through the exercise of its prerogative powers. Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again.


Rights and Parliament’s intention


So what did Parliament intend? ECA 1972 introduced rights into UK domestic law (and see §93(4)). Parliament’s intention was explained by the court thus:


[92] Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend (rights in categories (i) and (iii)) and on whose continued existence the wider rights of British citizens in category (ii) also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU (emphasis added).


Therefore in relation to those rights, prerogative powers cannot be used to override those rights:


[94] In our judgment, the clear and necessary implication from these provisions taken separately and cumulatively is that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers…. The ECA 1972 cannot be regarded as silent on the question of what happens to EU rights in domestic law if the Crown seeks to take action on the international plane to undo them. Either the Act reserves power to the Crown to do that, including by giving notice under Article 50, or it does not. In our view, it clearly does not.


Conclusion: rights only to be removed by Parliament


The above passage and those italicised in §92 suggest to me that the basis of the court’s decision is founded in the rights of those affected by UK legislation. Those rights were created by ECA 1972 and, if they are to be removed, this must be done by Parliament and not by the Government (executive, Crown etc). That is the way English law operates, and has done since the 17th century. It does not mean UK will not leave the EU; but that if it is to happen, the referendum was only the first step in that direction. Parliament – not the vague answers of the referendum or the dictat of Mrs May or her Government – must control the next steps as our law has required, at least since the 17th century.