Introduction
Speaking at a recent literary festival, the former President of the Supreme Court, Lady Hale, expressed regret over the way in which her spider brooch had been sensationalised following Miller 2.[i] The case attracted immense controversy as the UK Supreme Court (UKSC) unanimously quashed Boris Johnson’s advice to prorogue Parliament at the height of Brexit negotiations. Lady Hale claimed, “the spider brooch was a mistake” because it detracted public attention from the overall exercise, which was “to uphold constitutional principle and the rule of law and to say to the government there are things you cannot do.” She claimed that there aren’t very many of these things, but that it is the “job” of the courts to set red lines. So what prominent limits have the courts placed on the use of executive power? I suggest that in general, the courts have stood in the way of three broad forms of overreach: 1) the overuse and misuse of prerogative powers; 2) executive interference with common law and statutory rights without a clear parliamentary mandate and 3) attempts to exclude certain governmental decisions from being subject to judicial review through ouster clauses.
Executive overuse and misuse of prerogative powers
The courts have gradually limited both the scope and exercise of prerogative powers, with the broad aim of empowering Parliament instead. The very first example of this is the Case of Proclamations, which opined on whether King James I could, by proclamation alone, prohibit new buildings from being constructed in London, and prevent the production of wheat starch.[ii] Sir Edward Coke held that the prerogative could not be used to “change any part of the common law, or statute law, or the customs of the realm”, or create a new criminal offence – these far-reaching aims could only be achieved by an Act of Parliament.
The courts have also held that prerogative powers go into abeyance when Parliament legislates on a certain topic. During the First World War, officers of the crown took possession of De Keyser Hotel to house members of the Royal Flying Corps. They claimed that they were acting under wartime legislation and did not compensate the hotel owner for his losses. When challenged by the hotel owner, the Attorney General claimed that the crown had seized this property, relying on the royal prerogative. However, this argument was rejected by the House of Lords, who held that prerogative powers are suspended once Parliament legislates on a specific issue.[iii]
This principle was reapplied in 1976 in Laker Airways.[iv] There, a minister unsuccessfully relied on the prerogative to revoke an airline’s licence to operate transatlantic flights, even though the original licence was made pursuant to parliamentary legislation. More recently, in Fire Brigades Union, the House of Lords held that the Home Secretary could not rely on the prerogative to introduce a tariff scheme that was inconsistent with an adjacent Criminal Injuries Compensation Scheme set out in primary legislation.[v] As Lord Brown Wilkinson explained, it would be most surprising if, at the present day, prerogative powers could be used to “frustrate the will of Parliament”. [vi]
Despite being associated with controversy, both Miller cases were actually about the extent to which the government could rely on the prerogative to circumvent parliamentary scrutiny and accountability. In Miller 1,the Supreme Court accepted that the executive could generally make and break treaties by relying on the prerogative, but that it could not be used to change domestic legislation or remove rights that had been created by EU Law.
Miller 2 followed circumstances described by the Supreme Court as a“one-off” and “unlikely to ever arise again.” During the first six months of 2019, the Conservative Prime Minister, Theresa May repeatedly failed to secure parliamentary approval for the Brexit agreement, leading to her resignation. Shortly after becoming Prime Minister, Boris Johnson advised the Queen to prorogue Parliament for an unusually lengthy period, during which Brexit negotiations were to be finalised, presumably without parliamentary approval. The Supreme Court unanimously held that this advice was unlawful, “null and of no effect” because it frustrated Parliament’s ability to hold the executive to account without any justification in constitutionally unprecedented circumstances. This outcome is merely consistent with a long line of cases where the courts have insisted that the executive cannot use prerogative powers to override the will of the democratically elected legislature.
Protecting rights from executive interference
Turning to executive encroachment on rights, the most famous historical example involved a claim in private law, rather than a judicial review. In 1765, four royal messengers stormed into the writer, John Entick’s, house “with force and arms” searching for proof that he had authored a seditious, anti-government pamphlet. Entick v Carrington – the damages case that arose – was about the right to individual freedom from tortious interreference.[vii] Lord Camden found against the messengers and declared their warrant to be meaningless because Parliament had not positively authorised trespassing and invading private property.
In the modern context, before the Human Rights Act 1998 was even passed, the courts have tried to protect both rights in legislation and those established at common law by relying on the principle of legality. This principle is a judicially-derived rule of interpretation which prevents public authorities from interfering with rights unless Parliament explicitly authorises the inference. Because of this principle, judges automatically presume that vague and ambiguous legislative provisions do not generally authorise rights-related restrictions. As Lord Hoffman explained, the courts presume that “even the most general words were intended to be subject to the basic rights of the individual”.[viii] Not only does the principle of legality make it harder for public authorities to encroach upon rights, but it means that “that Parliament must squarely confront what it is doing and accept the political cost.” In practice, the principle of legality has been applied to protect a wide range of rights, such as access to justice, prisoners’ rights to due process, asylum seekers not being left destitute, and even the right to property of a UN-designed terrorist.
In Joint Council for the Welfare of Immigrants, the Court of Appeal quashed “draconian” regulations that had severely restricted asylum seekers’ rights to receive income support. Although the Parliament had conferred upon the minister broad discretion to decide the content of the regulations, it was clear that the restrictive effect of the regulations would discourage asylum-seekers from applying or leave them to become destitute.[ix]The Court held that Parliament could not have implicitly authorised leaving asylum-seekers in a desperate state with no food or shelter, and accordingly regulations were therefore unlawful. By contrast, the most contentious example of the principle of legality in practice is HM Treasury v Ahmed, where a Treasury Order freezing the assets of UN-designated terrorists was judicially invalidated because Parliament had not authorised such an action.[x]
Ousting ouster clauses
Perhaps the clearest judge-made red line concerns ouster clauses. Ouster clauses are provisions in primary legislation which have been deployed by governments and parliaments to exclude a decision from being challenged in court. This example is particularly significant because courts have proved willing to deviate from Parliament’s clear intention – in order to protect the place of judicial review and the rule of law.
Historically, the leading authority on interpreting ouster clauses is Anisminic which was a dispute over financial compensation that occurred following the Suez crisis.[xi] A mining company (Anisminic) had partly sold its shares to the Egyptian government but reserved the right to receive financial compensation. Litigation arose following a tribunal’s refusal to remunerate the company on the basis that it was not British. According section 4(4) of the Foreign Compensation Act 1950, this determination was not to be “called into question by any court of law”. By a slim majority, the House of Lords went around the ouster by stating it only applied to determinations of the Foreign Compensation Commission that were real and legally valid.[xii] However, if an apparent determination was made following an error of law, it would be legally invalid and amount to a “nullity”. In the eyes of the law, this decision would not exist in the sense of being a valid determination, and therefore, the ouster clause could be not applied. . Since only the courts can judge legal errors, this ouster clause could not completely abolish the possibility of judicial review.
This creative approach has been relied on to “read down” expansive ouster clauses, even in the context of national security, as evidenced by Privacy International.[xiii] In 2019, an NGO dedicated to protecting the right to privacy (Privacy) claimed the GCHQ had breached ECHR rights in its use of powers to issue warrants to interfere with property, including hacking operations (interference with wireless telegraphy). This case was heard by the specialist Investigatory Powers Tribunal (IPT) which deals with complaints about the use of covert powers by the intelligence services. Although the IPT dismissed the claim, the NGO appealed to the Supreme Court. But the appeal was complicated by the fact that s.67(8) of the Investigatory Powers Act 2000 states that IPT decisions, including decisions relating to jurisdiction “shall not be subject to appeal or be liable to be questioned in any court.” The UKSC held that this provision did not entirely prohibit judicial review of IPT decisions. [xiv] The High Court was not precluded from reviewing whether an IPT decision amounted to a nullity, as a result of being made based on an error of law. Again, this judgment makes it clear that the courts will oppose any efforts to prevent judicial review even if a clear ouster clause has been approved by Parliament.
Conclusion
In 1610, Sir Edward Coke declared that the “King hath no prerogative, but that which the law of the land allows him.”[xv] As demonstrated above, the courts have applied the same principle to executive power, especially during times of parliamentary inertia, and often in spite of controversial facts. Since the 17th century, they have prevented the executive from exercising prerogatives powers to undercut Parliament. These historic examples are consistent with Miller, where the government’s attempt to shut down Parliament amidst Brexit negotiations should not be seen as judicial activism. The courts also used their canons of interpretation to create the strong presumption that ministers cannot use delegated legislation to arbitrarily interfere with common law or statutory rights. Finally, they refused attempts to make government decisions immune from judicial review by relying on creative reasoning concerning the relationship between legally valid and invalid decisions. Cases like these show that the courts have acted fairly consistently to protect the rule of law, our rights and parliamentary democracy – none of these red lines amount to judicial activism.
Tasneem Ghazi.
Tasneem is a PhD student at the UCL Faculty of Laws. Tasneem previously completed the Barrister Training Course while working part-time as a research assistant at the Constitution Unit. In 2021, she interned at the Institute for Government and at the UK in a Changing Europe. Tasneem holds an MA in History from King’s College London, and an LLB in Politics, Philosophy and Law.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[i] R (Miller) v Prime Minister & Ors [2019] UKSC 41
[ii] Case of Proclamations [1610] EWHC KB J22
[iii] Attorney-General v. De Keyser’s Royal Hotel Ltd [1920] AC 508
[iv] Laker Airways v Department of Trade [1976] EWCA Civ 10, [1977] QB 643
[v] R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513 (HL)
[vi] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61
[vii] Entick v Carrington [1765] EWHC J98 (KB)
[viii] R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 (HL) 131 (Lord Hoffmann)
[ix] R v Secretary of State for Social Security Ex parte Joint Council for the Welfare of Immigrants & Ano [1996] EWCA Civ 1293
[x] HM Treasury v Ahmed [2010] UKSC 2 [2010] 2 AC 534 [61]
[xi] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL)
[xii] ibid
[xiii] R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22,[2020] AC 491 Lord Carnwath [144]; Lord Lloyd-Jones [211]
[xiv] ibid
[xv] Case of Proclamations [1610]