Public Law: Text, Cases, and Materials (2019, 4th edition), page 316:

Moreover, since Wade says that prerogative decisions must affect rights, he argues that a decision by the UK government to commit the United Kingdom to an international treaty would not be an exercise of prerogative power: entry into treaties cannot, by itself, alter rights in domestic UK law. Similarly, according to Wade, the granting of passports is not a prerogative power, because ‘[a] passport has no status or legal effect at common law whatever’.28

Footnote 28 refers to page 58 in Sir William Wade's Constitutional Fundamentals, revised edition (1989, London: Stevens and Sons). The University of Toronto has just one copy, but I don't live near it and it charges $20 for interlibrary loans.

  • 5
    Note that 1989 precedes the Maastricht Treaty, and the EU very much thinks that entry into its treaties alters rights in member state law. Additionally, that UK passport is a valid ID document in other EU member states where possession of such an ID document is mandatory. Wade's logic will likely become valid again in 2021, when the UK passport again has no status or legal effect in the EU.
    – MSalters
    Mar 9 '20 at 11:33
  • @MSalters It will still be valid for identification purposes, which is used to validate the right (and thus the common law), correct?
    – Mast
    Mar 10 '20 at 9:08
  • @Mast: The legal situation changes because Brexit means that admission into the EU no longer is a right. Thus, Wade's logic again holds.
    – MSalters
    Mar 10 '20 at 10:15
  • @MSalters a UK passport does not (and never did) confer the right to enter the EU, just as it does not confer the right to enter the UK. The latter arises from UK law in combination with a person's citizenship of the UK, of which the passport is merely evidence. This is just like the former, which arises from EU law and a person's citizenship of the EU, of which the passport is merely evidence. The point is not whether "entry into EU treaties" alters rights but whether issuing the passport alters rights, which it does not.
    – phoog
    Apr 22 '20 at 6:07
  • @phoog: "Entry into the EU" sounds a bit strange here, since that's controlled more by the Schengen agreement. And while Switzerland is a non-EU Schengen member, the UK was an EU non-Schengen country. The EU did regulate residence in other EU countries, but that is definitely conditional on a passport.
    – MSalters
    Apr 22 '20 at 9:34

Wade writes that a passport

is simply an administrative document. On its face it is an imperious request from the Foreign Secretary that all whom it may concern shall allow the bearer to pass freely without let or hindrance and shall afford him assistance and protection. In reality it is an international identity card, certifying that a traveller is accepted by this country as one of its nationals. A United Kingdom national's passport does not have the slightest effect upon his legal rights, whatever they may be, to go abroad and return. Those rights are a matter of common and statute law, which the Crown has no power to alter.

Basically, Wade's argument is that all citizens of the kingdom have the right at common law to leave the kingdom and return to it freely. Since the issuance of a passport does therefore not affect the citizen's rights (as they already have that right), it does not count as an exercise of legal power, and cannot, therefore, be an exercise of prerogative power.


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