Dicey in action

One certainly does not want to sound like an old broken record, particularly when the objective of this segment is to provide an update. Moreover, your average person may be feeling a little Brexit fatigue since 23 June 2016. However, it goes without saying that one of the most constitutionally significant judicial review challenges has been decided by the courts in the Brexit aftermath.

Those reading will be no stranger to the ex post facto reporting of the decision that sparked the Bar Council to call upon the Lord Chancellor to condemn the words used by the Daily Mail in describing three High Court judges as ‘Enemies of the People’. As such, the ruling in Miller & others v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) was inevitably going to feature in this edition. The nuts and bolts of the challenge will be well known. Ms Miller challenged the power of the government to give notice of the UK’s withdrawal from the EU without first consulting parliament.

The court’s judgment provides a summary of fundamental principles of British constitutional law that will be a welcome crib sheet for many a law student to come. The succinct but comprehensive framework laid out in the ruling reads as a court conscious of the sheer breadth of readership – pity though it is that a percentage of the readership struggled, either wilfully or otherwise, to understand and communicate the protective mechanisms described within that framework and the court’s function in interpreting it.

In the judgment, the court notes the categorisation of rights arising out of the European Communities Act 1972:

• Rights capable of replication upon withdrawal, such as those conferred under the working time directive;
• Rights enjoyed by UK citizens in the EU; and
• Rights that cannot be replicated upon withdrawal, such as having references to the Court of Justice of the European Union.

In relation to the second category of rights, the secretary of state suggested that they did not arise out of the ECA but rather were conferred by the functioning of the EU. The court batted back the argument by concluding that in reality the ECA allowed proper engagement with the EU, which gave UK citizens the requisite underpinning to go onto enjoy their EU rights in other member states.

At the forefront of the argument was the submission that parliament had enacted the ECA, which conferred rights upon the people of the UK in domestic law, and as such only parliament can take those rights away (the loss of those rights being the net effect of an exit from the European Union). By contrast, the secretary of state argued that the prerogative power allows the government the authority to give notice under article 50, because of the typical ascribed rights to enter into treaties abroad, and there is nothing in the ECA that removes that power.

In rejecting the secretary of state’s submissions, the court considered that they had failed to acknowledge:

• The assumption that parliament legislates in conformity with background constitutional principles. That assumption has a proportionate correlation with the importance of the background principle: the stronger the principle at stake, the more likely parliament has acted in line with it, and by corollary the greater the need for explicit abrogation of such constitutional principle. That is the starting point;
• Further, the Crown cannot use the prerogative power to alter domestic law; and
• The Crown’s prerogative power operates on an international plane.

The court concluded that in light of the constitutional background referred to it considered parliament intended to legislate by the ECA so as to introduce EU law into domestic law and this could not be undone by the Crown’s prerogative power. The Crown could not effect a withdrawal without the approval of parliament. It will come as no surprise that the government intends to appeal the decision and the Supreme Court has carved out time for the consideration of the arguments by the full 11 justices before the end of the year.

Frankly, it does seem surprising that parliament would not have intended to have the final say when the 2015 Referendum Act explicitly indicated that the result was purely advisory and MPs are presently complaining that the government is not engaging them in discussion over when article 50 should be triggered and with what intention and in what circumstance.

But perhaps it is not so clear cut when one considers that the Supreme Court in hearing the case will take into account the decision in Northern Ireland in McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016), which was decided between the High Court hearing the challenge and handing down judgment. There Mr Justice Maguire considered that there were no hard and fast rules about whether a particular statute affected prerogative powers, which is perhaps on its own not entirely inconsistent with the decision of the High Court.

What further appears to have been an influential factor was the conclusion that notification under article 50 does not itself alter the law of the UK, because the rights of citizens the day after notification will be left unchanged. In this conclusion, little weight to the altered duration of the right is given. Whereas rights prior to notification are enjoyed indefinitely, after notification they are given a two-year expiry date. It seems to fundamentally alter the appreciation of the right. Nevertheless, we will see how the Supreme Court analyses these arguments.

The relevance of residence in judicial review was not only limited to consideration of whether UK nationals could enjoy the benefits of free movement abroad. The residence test took its final blow in this quarter when the Supreme Court ruled on the judicial review claim made by the Public Law Project v Lord Chancellor [2016] UKSC 39.

Another of Chris Grayling’s heavily criticised initiatives concerned the imposition of a 12-month residence test which meant that, if 12 months’ residence could not be met or proved, applicants were prevented access to legal aid so they may receive assistance to bring legal challenges (regardless of merit). The measure was introduced by order of Grayling through delegated legislation; such legislation must be created within the confines set down by parliament in granting such power. In this case, the relevant statute was LASPO. Early this summer, the Supreme Court overturned the Court of Appeal’s decision and considered that the draft order introducing the residence test was ultra vires of LASPO. In coming to the conclusion, the Supreme Court considered section 9(2) of LASPO and considered on a basic reading of that provision that the power endowed to the Lord Chancellor was that of being able to ‘vary or omit services’ provided under specific parts, rather than hinder access to those services. Thus it was not recipient orientated, but product orientated.

Reading section 9 alongside section 11, which was recipient orientated by reference to an applicants’ personal characteristics, made it less plausible that parliament sought to give the Lord Chancellor powers to deal with personal characteristics of applicants. It is apparent that the logical home for such a power would be under section 11. The case was settled after day one of the scheduled two days of argument. It is doubtful we will see a repetition in December in Miller.

The balance of power between parliament and government, and the apparent inclination of the executive in testing that boundary, is front and centre of these decisions. Certainly the court’s role in defining that boundary is also being tested, perhaps in a more present way than the legal community are accustomed to seeing in the UK, not just in a legally intellectual manner but also by the media. The law student’s diet of Dicey on the separation of powers and parliamentary sovereignty is playing out and in action. We can only hope that the reporting reminds the wider public of the reason those concepts exist.

Saara Idelbi is a barrister at 7BR Chambers

@7BedfordRow www.7br.co.uk