PANEL SESSIONS III TUESDAY JUNE 26 2018 11.00 AM – 12.30 PM

Room: CYTT 5.25

  • THE SCOPE AND NATURE OF NON-STATUTORY EXECUTIVE POWERS AFTER MILLER: A CONCEPTUAL AND COMPARATIVE INQUIRY
    The purpose of this panel is not to rehash doctrinal controversies around the Article 50 Miller decision of the UK Supreme Court. Instead it will move the academic debate forward by considering some fundamental questions about prerogative powers in light not only of that case but also comparative judicial treatment of non-statutory executive powers (‘NSPs‘), including the so-called ‘third source‘ powers. It will ask in particular: can statute shrink the scope of the prerogative or merely render particular exercises of it unlawful? Does statute replacing a prerogative abolish the latter or merely place it in (temporary) abeyance? Is the prerogative best conceived of as a broad residual power or a bundle of discrete powers – and how does that compare with NSPs in other jurisdictions, such as the US, Israel and France? How does UK case-law determining the existence and scope of particular prerogative powers compare to that identifying and delineating NSPs elsewhere?
  • The Prerogative and Non-Statutory Powers: A Comparative Analysis
    In this first paper, Margit Cohn will provide a broad perspective for the panel by considering UK prerogative powers, argued in Miller and elsewhere, in light of comparative law and the looser concept of “non-statutory“ powers, sometimes considered in the UK as “third source“ or “new prerogatives“. The questions addressed in the panel will be reconsidered in the context of US and Israeli law (with some references to France). Are NSPs equivalent to prerogative powers in other systems? How are NSPs recognized and treated? How does the residuality principle apply and what is the relationship between statute and NSP? Are there constraints on the invocation of NSPs when interfering with individual rights? And would Miller have been decided differently in other systems?
  • ‘Royal Prerogative: Exploring the conceptual architecture‘
    In the second paper, Robert Craig will address a particular conceptual puzzle raised by Miller: the existence or otherwise of the prerogative to withdraw from the EU. He will argue that, even where statute has put the prerogative into abeyance (following De Keyser‘s), the prerogative is best understood, not as having been abolished, but as sitting below statute – with the possibility of revival. When not in abeyance, it cannot be used to frustrate the intention of Parliament. Thus, in Miller, the prerogative to withdraw had always existed as part of the broad treaty making prerogative – and still exists. The abeyance principle did not apply. However, it could not be used because that would frustrate, inter alia, the right to vote in the European Parliamentary Elections Act 2002. He will argue that to conceive of permanently ‘abolishing‘ the prerogative misunderstands the legal architecture of the UK constitution as well as breaching the principle of Parliamentary Sovereignty.
  • Reconceptualising prerogative powers after Miller
    In the third paper, Gavin Phillipson will address some key questions raised but not resolved by the decisions in Miller and Bancoult (which concerned the exile of the Chagos Islanders). He will argue that, contrary to the traditional ‘residual‘ view, the prerogative is best seen today as a bundle of discrete powers, that this view best fits Miller itself and would have led to a different approach in Bancoult. It is further, not only preferable on Rule of Law grounds, but also resolves more satisfactorily the debate Miller raised about whether and when prerogative action may remove common law or statutory rights. He will contend that this conception, together with basic elements of the doctrine of parliamentary sovereignty, also leads to the view that prerogative powers can be permanently abolished by legislation. He will explain how its adoption would require some modification of the most sophisticated model of the prerogative so far proposed (the Williams ‘Four Es‘ approach (2018)).