Abrogation in public law

In public law, abrogation is the proposing away of a right, power or value, by a public body in delegating power or failing to carry out a responsibility or duty.^[1][2] The abrogation of such a responsibility or duty, unless required by primary legislation^[3] would amount to an unconstitutional delegation of power to a foreign government or other sovereign power.^[4]

It is a protected value at Common Law that Parliament has legislative supremacy^{[note 1][6]} even to the point that the sovereign power extends to the breaking of treaties, if need be.^[7][8]

Delegation of responsibility

In the judicial review R (on the application of Andrew Michael March) v Secretary of State for Health which challenged the UK Department of Health's decision not to implement Recommendation 6(h) of the Archer Independent Inquiry ,^[9] there was reference to abrogation in the 2009 legal papers of both the defendant and the claimant which led up to the hearing the following year. The claim form, dated 18 August 2009, originally included the additional ground that Government took into account irrelevant considerations. The claimant suggested that Government had abrogated their responsibility: ″In basing the Decision on its own assessment of fault the Government has taken an irrelevant consideration into account and thereby abrogated its responsibility to the victims to compensate them adequately for living with HIV and/or Hepatitis C.″^[10]

In contrast, the Defendant's Summary Grounds of Defence claimed that implementing Recommendation 6(h) would be impractical and unworkable, and asserted that: "...It would require the Defendant to abrogate decision-making responsibility for the level of ex gratia payments in the UK and defer to the resourcing decisions by the government of another sovereign state operating under different fiscal constraints and policy circumstances. This would itself be irrational and would constitute an unconstitutional delegation of power to a foreign government."^[11]

Constitutionality

The fundamental right of the British people to be governed by an elected legislature and the executive of the United Kingdom should not be violated by anything more than a vesting of law-making responsibility in a delegate power through an Act of Parliament. Parliamentary governing power and the responsibility for law-making should not be abrogated by the transfer of responsibility away from the United Kingdom.^[12]

In McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2003], at [17], Lady Justice Arden suggested that the principle that it was not permissible to transfer responsibility for law making and government away from the United Kingdom did not necessarily vitiate Parliamentary supremacy.^[13] The reasoning given for the dismissal of this application suggests that abrogation of power^{[note 2]} may be permissible in certain situations. A possible scenario may arise where Parliament may choose to implement prospective legislation that may not be fully in accordance with existing statute;^[14] such as the European Communities Act 1972 or the European Communities (Amendment) Act 2002, and as such, Parliament′s unfettered law–making power will not have fully transferred all rights to European bodies under the respective statutes.

Scope of constitutional right

Within the United Kingdom, the notion of a constitutional right exists despite there being no written constitution.^[15] The scope of such a constitutional right is particularly narrow and the State cannot abrogate their power except where a specific piece of legislation or regulation specifically provides for the power to abrogate. As observed in Witham, R (on the application of) v Lord Chancellor [1997], Laws J made it clear that ″General words will not suffice.″^[16] This was applied in Cullen v Chief Constable of the Royal Ulster Constabulary [2003].^[17]

Principle of legality

Under the principle of legality Parliament must not abrogate fundamental rights or values at common law by using ″general or ambiguous words″ and it cannot bestow power upon another body to abrogate such rights or values using similarly nonspecific words.^[3][18] The right to vote, as mentioned in Watkins v Home Office & Ors [2006], is an accepted example of a ′constitutional right′, and as such, in explicating legislation where such a right may have been ″proposed away″ it follows that the principle of legality would become engaged.^[19]

Prerogative powers and abrogation

″However, while acknowledging the force of Lord Reed′s powerful judgment, we do not accept that it follows from this that the 1972 Act either contemplates or accommodates the abrogation of EU law upon the United Kingdom’s withdrawal from the EU Treaties by prerogative act without prior Parliamentary authorisation.″

— UKSC judgment in Miller^[20]

In R (Miller) v Secretary of State for Exiting the European Union [2017], it was held that an Act of Parliament would need to be in place before triggering the UK′s exit from the EU under Article 50 of the Treaty on European Union.^[21] There would needed to have been specific, clear wording for any exiting legislation to be interpreted as affording ministers the authority to withdraw from the EU under section 2 of the European Communities Act 1972 (UK).^[22] The abrogation of powers came up in the UKSC′s reasoning since the government were not at liberty to use prerogative powers to change domestic law, nor were they able to use such powers to undermine any existing rights enshrined in primary legislation. If UK statute had been altered as a result of withdrawing from European Union, it would most likely have caused a fundamental change to the constitutional arrangements of the United Kingdom.^[23]

See also

• Unconstitutional actions (Constitutionality)
• R (March) v Secretary of State for Health
• R (Miller) v Secretary of State for Exiting the European Union
• Westphalian sovereignty (exclusive state sovereignty)
• Parliamentary sovereignty (a concept in the constitutional law of some parliamentary democracies)

Notes

1. According to Laws J in R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 at [12], ″Parliament's power to make any law of its choosing is unconfined.″^[5]
2. Parliament′s responsibility for law making and government.

References

1. "Definition of abrogate verb". Oxford Learner′s Dictionaries. Oxford University Press. 2020. Retrieved 2020-04-05.
2. "Abrogate English Definition". Cambridge Dictionary. Cambridge University Press. 2020. Retrieved 2020-04-05.
3. Fordham, Michael (July 2012). "<P35>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 402. ISBN 9781849461597. Principle of Legality. Public power may not be exercised to abrogate fundamental common law values, at least unless abrogation is required or empowered by clear primary legislation.
4. R (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46 at para. 39, [2003] 1 AC 837
5. Fordham, Michael (July 2012). "<P7>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 82. ISBN 9781849461597.
6. R v. Lord Chancellor. ex p Witham, 575, 581E (QB 1998) ("Laws J: In the unwritten legal order of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the State save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate...").,
7. [(Serbia) v. The Secretary of State for the Home Department] [2009] EWCA Civ 630 at para. 60, [2010] Q.B. 633
8. Salomon v Commissioners of Customs and Excise, 2 QB 116, 143–144 (1967) ("(Diplock LJ) If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty′s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines v. Murray; White Star Line and U.S. Mail Steamers Oceanic Steam Navigation Co. Ltd. v. Comerford [1931] A.C. 126; sub nom. The Croxteth Hall; The Celtic, 47 T.L.R. 147, H.L.(E.), and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty′s own courts...").
9. R (March) v Secretary of State for Health, 765 BMLR 116, 57 (EWHC (Admin) 2010).
10. Michelmores, LLP (18 August 2009). "Claim form (LNV/jeh/54660/4): For the Personal Attention of Rt Hon Andy Burnham MP". Letter to Secretary of State for Health.
11. Whipple, Philippa; Beattie, Kate (13 November 2009). "Defendant's Summary Grounds of Defence: R (on the application of Andrew Michael March) -v- Secretary of State for Health - CO/9344/09". Letter to Michelmores LLP. p. 10.
12. McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs, 384, 6 (EWCA (Civ) 2003) ("This state of affairs is said to violate basic constitutional principles to be found either in the common law or in a series of constitutional statutes beginning with the Magna Carta. The essence of it is that the British people are to be governed by the legislature and the executive of the United Kingdom under the Queen, and enjoy the fundamental right to participate in government by the electoral process.").
13. McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384 at 17, [2003] EWCA Civ 384
14. "McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384". Casemine. 5 March 2003. Retrieved 2020-08-29. 17. Lady Justice Arden: ...The supremacy of Parliament is not limited by a principle that Parliament cannot transfer or abrogate responsibility for law making and government in respect of the United Kingdom. It is not suggested that Parliament could not, if it wished, enact legislation in the future in contravention of the European Communities Act 1972 or the European Communities (Amendment) Act 2002.
15. Watkins v Home Office & Ors, 17, 59 (UKHL 2006).
16. House of Lords (10 July 2003). "Judgments – Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary". Parliament.co.uk. Parliament of the United Kingdom. Retrieved 2020-05-18.
17. Fordham, Michael (July 2012). "<P14.2>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 156. ISBN 9781849461597.
18. AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46 at para. 152, 2011 SLT 1061, [2011] UKSC 46, (2011) 122 BMLR 149, 2012 SC (UKSC) 122, [2011] 3 WLR 871, [2011] UKHRR 1221, [2012] 1 AC 868, [2012] HRLR 3 (2011), Supreme Court (UK)
19. Watkins v Home Office & Ors, 17, 61 (UKHL 2006) ("Lord Rodger of Earlsferry: "Although embodied in a statute, in a system of universal suffrage today the right to vote would fall within everyone′s notion of a ″constitutional right″. And, doubtless, the principle of legality would apply in construing any statutory provision which was said to have abrogated that right.").
20. R (Miller) v Secretary of State for Exiting the European Union, 5, 77 (UKSC 2017).
21. "Exiting the European Union". Blackstone Chambers. London. 24 January 2017. Retrieved 2020-05-23.
22. Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 at para. 76, [2017] WLR(D) 53, [2018] AC 61, [2017] HRLR 2, [2017] 2 CMLR 15, [2017] UKSC 5, [2017] 1 All ER 593, [2017] 2 WLR 583, [2017] NI 141 (24 January 2017), UKSC
23. Aroney, Nicholas (2017). "R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms". Modern Law Review. 80 (4): 726–745. doi:10.1111/1468-2230.12282. S2CID 157937903. Retrieved 6 August 2022. According to the majority, this entailed the consequence that the prerogative could not be used to make 'fundamental change[s]' to the constitutional arrangements of the United Kingdom without parliamentary approval.