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  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  UKHL 33,  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  UKHL 21,  1 AC 563,  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:
 … 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:
 … 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  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).
 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:
 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  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:
 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)….
 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  UKHL 56;  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:
 [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  AC 539 at 573G, 575B-G (Lord Browne-Wilkinson) and R v Secretary of State for the Home Department, ex p. Simms  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:
 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  UKSC 39). Only Parliament can enact primary legislation; and only Parliament, not the executive, can repeal existing primary legislation:
… As Lord Browne-Wilkinson put it in R v Secretary of State for the Home Department, ex p Fire Brigades Union  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:
 … 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:
 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:
 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.