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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.

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    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, 2020 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, 2020 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, 2020 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, 2020 at 6:07
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    @MSalters the EU has gone out of its way to establish that the right of free movement exists independently of any document, that it arises automatically from the treaties for all EU citizens by virtue of their citizenship. One manifestation of this principle is the explicit requirement in the free movement directive that countries give European citizens the opportunity to "prove by other means" that they are European citizens. The assertion that the right is conditional on the possession of a passport (or identity card) is not correct because the nominal condition is not absolute.
    – phoog
    May 1, 2020 at 5:22

2 Answers 2

28

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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A passport is a document that a country issues to individuals so that individual can show it to other countries and thereby notify them the country claims that individual as theirs. This warns other countries that if they harm the individual they risk the countries displeasure and conversely support given to the individual may gain them favor. That the country considers the individual theirs to protect and punish.

This has nothing to do with an individuals right. For instance the validity of a warrant to search an individual’s house might be valid depending upon whether the individual is a citizen or not, but would not depend on whether they have a passport.

A passport is identification, not a grant of any particular right (and of course if rights are granted they aren’t rights but privileges).

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  • "support given to the individual main gain them favor" "warrant to search an individual’s house might be valid depending upon whether the individual is a citizen or not" ??? These need sources. Jan 22 at 17:00
  • @KeithMcClary: the first has a typo, that should be “may” not “main”, and both are generic and do not identify any particular jurisdiction or timeframe. Just as there’s no specific “if you randomly round up and kill N of our citizens we will declare war”, there’s no specific quid pro quid for helping.
    – jmoreno
    Jan 22 at 23:00
  • Grammar pedantry: it's "quid pro quo." More substantively, I have to agree with @KeithMcClary's implication that the statement about search warrants is questionable. Can you imagine any circumstances in which citizenship would be relevant? As to the political and diplomatic implications of treating foreigners, these exist with or without a passport. The document nominally serves that function, but in practical terms its main purpose is to say "this person one of ours and we'll take this person back if necessary."
    – phoog
    Jan 23 at 7:49
  • @phoog: countries are sovereign, which means that there is nothing requiring them to have just one class of citizen or to act as if non-citizens have the same rights as citizens.
    – jmoreno
    Jan 23 at 11:31
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    @phoog In the US, the definition of "agent of a foreign power" for FISA warrants is more restrictive for US persons than for non-US persons.
    – cpast
    Jan 23 at 13:49

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