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Two Doctrines of the Unwritten Constitution

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United Kingdom Supreme Court – Brexit – European Communities Act 1972 – British unwritten Constitution – Theories of the unwritten Constitution – Royal prerogative – Constitutional instruments – Higher law – Process of withdrawal from the European Union – Rule of recognition – H.L.A. Hart – A.V. Dicey – John Finnis – ‘Rule of recognition’ – Theory of sovereignty – Common law Constitution – John Laws

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Associate Professor of Law and Fellow and Tutor in Law, Mansfield College, University of Oxford.

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1 R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583.

2 For the various ways in which Art. 50 is supposed to work, see Ava Maria Poptcheva, ‘Article 50: Withdrawal of a Member State from the EU’, Brussels: European Parliamentary Research Service, February 2016 and House of Lords European Union Committee, The Process of Withdrawing from the European Union, 11th Report of 2015-2016 session. For the background to the referendum and its effects see Craig Paul, ‘Brexit: A Drama in Six Acts’, 41 European Law Review (2016) p. 447 .

3 This argument was first made a few days after the referendum in a blog post by three leading academics in constitutional law Barber Nick, King Jeff, Hickman Tom, ‘Pulling the Article 50 ‘trigger’: Parliament’s Indispensable Role’, United Kingdom Constitutional Law Blog, 27 June 2016, <wp.me/p1cVqo-19p>, visited 10 July 2017.

4 R (on the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

5 R (on the application of Miller) [2016] EWHC 2768 (Admin), para. 94 (Lord Thomas CJ, Sir Terence Etherton MR, Lord Justice Sales).

6 The subsequent parliamentary Bill to authorise notification met with the very wide approval of the House of Commons, since both main parties, the Conservative party and the Labour party, voted in favour. At the time of writing the Bill is being debated in the House of Lords.

7 For further analysis of the judgment see Young Alison R (Miller) v Secretary of State for Exiting the European Union: Thriller or Vanilla?’, 42 European Law Review (2017) p. 280 and Paul Craig, ‘Miller, Structural Constitutional Review and the Limits of Prerogative Power’, Oxford Legal Studies Research Paper No. 32/2017, available at SSRN, <ssrn.com/abstract=2955011>, visited 10 July 2017.

8 R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513.

9 Although the government’s case does not go that far, one could interpret this construction as follows. When the UK participated in EU law-making processes, when for example the UK Commissioner voted in the Commission, or when government ministers voted in the Council or when members of the European Parliament voted in parliament, their actions were always a manifestation of the ‘royal prerogative’. Although only ministers acted in the name of the British government, both Commissioners and MEPs must have been acting on the condition that the government tolerated their actions and accepted the resulting EU laws.

10 See, for the place of EU law in the UK, the recent cases Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591, where Lord Mance said (at para. 76) that EU law is part of the law of the UK because Parliament legislated, in the European Communities Act 1972, that it should be. See also R (on the Application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324; Assange v Swedish Prosecution Authority [2012] 2 AC 471.

11 John Finnis, ‘Brexit and the Balance of Our Constitution’, Policy Exchange, 2 December 2016, available at <policyexchange.org.uk/judicial-power-project-john-finnis-on-brexit-and-the-balance-of-our-constitution/>, visited 10 July 2017.

12 Finnis, supra n. 11, p. 13. The statement runs contrary to the statutory record. Section 1 of the European Communities Act 1972 lists 18 different treaties and agreements that are given effect through Acts of Parliament in the UK, in order for the UK to continue being a member.

13 Finnis, supra n. 11, p. 13. The government’s appeal also referred to similar arguments made by Professor Adam Tomkins in a post on Verfassungsblog.de on 6 November 2016, where he said that ‘the legal basis of the rights and obligations we enjoy under EU law is EU law not the European Communities Act. The ECA is merely the vehicle by which those rights and obligations are translated into enforceable rights and obligations…’ Finnis Johnreading of EU law is similar to the view expressed by Richard Ekins in ‘Constitutional Principles in the Laws of the Commonwealth’, in John Keown and Robert P. George (eds.), Reason, Morality, and Law: The Philosophy of John Finnis (Oxford University Press 2013) p. 397 . For Ekins (at p. 398): ‘at no time have the criteria for legal validity in the EU been accepted on their own terms by the political community of the UK. Rather, that community, by way of a particular rule valid by reference to its criteria (in relevant part; what the Queen in Parliament enacts is law), made provision for the content of another legal system to have effect within its own legal system. The rules of European law were not made in accordance with criteria of validity in force in the UK at the time of making’.

14 Thoburn v Sunderland City Council [2003] QB 151 at 186-187, paras. 62-63.

15 R (Buckinghamshire County Council) v Secretary of State for Transport, supra n. 10. The case was known as HS2 Action Alliance, by the name used during the proceedings, but the Supreme Court judges refer to the case – as is conventional – by the name used in the official law reports.

16 R (Buckinghamshire County Council) v Secretary of State for Transport, supra n. 10, para. 207.

17 Miller, supra n. 1, para. 60.

18 Miller, supra n. 1, para. 60.

19 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603 and (No 5) [2000] 1 AC 524.

20 Miller, supra n. 1, para. 60.

21 Miller, supra n. 1, para. 65.

22 Miller, supra n. 1, para. 98.

23 Miller, supra n. 1, para. 84, see also paras. 52, 53 and 79.

24 Miller, supra n. 1, para. 61.

25 Miller, supra n. 1, para. 90.

26 Miller, supra n. 1, para.194.

27 Miller, supra n. 1, para. 177.

28 Miller, supra n. 1, para. 228.

29 One of the main defenders of the theory calls it ‘this simple English theory of parliamentary sovereignty’ in Wade William, ‘The Basis of Legal Sovereignty’, 13(2) Cambridge Law Journal (1955) p. 172 at p. 184.

30 Dicey A.V., Introduction to the Study of the Law of the Constitution, 8th edn. (Macmillan 1915 reprinted Indianapolis, IN: Liberty Fund, 1982), henceforth ‘Introduction’ . For a sophisticated defence of this view see Goldsworthy Jeffrey, The Sovereignty of Parliament: History and Philosophy (Clarendon Press 1999). For the logical and doctrinal problems with Dicey’s account see Eleftheriadis Pavlos, ‘Parliamentary Sovereignty and the Constitution’, 22 Canadian Journal of Law and Jurisprudence (2009) p. 267 and Eleftheriadis Pavlos, ‘Law and Sovereignty’, 29 Law and Philosophy (2010) p. 535 .

31 Dicey, supra n. 30, p. 25, n. 48. On Dicey’s views see the extremely helpful analysis by Allison John, The English Historical Constitution: Continuity, Change and European Effects (Cambridge University Press 2007) p. 103-126 . For the history of the doctrine of parliamentary sovereignty and Dicey’s role in formalising it see Goldsworthy, supra n. 30.

32 Wade, supra n. 29, p. 172.

33 Wade, supra n. 29, p. 174.

34 Wade, supra n. 29, p. 174.

35 Wade, supra n. 29, p. 189.

36 Wade, supra n. 29, p. 187.

37 Wade, supra n. 29, p. 187-88. At p. 189 he also said, confusingly, that the doctrine lies in the keeping of the courts’ and cannot be altered ‘by any authority outside the courts’. For discussion of this question see Goldsworthy, supra n. 30, p. 243 and 244 at n. 34. Goldsworthy explains that the Hartian doctrine of the rule of recognition as an extra-legal rule works only if the rule is the result of pre-existing and diffuse social behaviour, not a matter of discretion for judges to create as they see fit. Wade’s mistake is repeated by John Gardner who writes that: ‘In the UK, to recap, what determines the status of certain law as constitutional law is its reception into constitutional law by certain law‐applying officials, principally the courts’ in J. Gardner, ‘Can there Be a Written Constitution’, in Green Leslie and Leiter Brian (eds.), Oxford Studies in Philosophy of Law: Volume I (Oxford University Press 2011) p. 176 .

38 Wade H.W.R., Constitutional Fundamentals (Stevens 1980) p. 26-27 . Strictly speaking Wade is wrong. Under the Hartian model of a rule of recognition, no one is sovereign. Everyone is subject to a rule of ultimate law-making.

39 Hart H.L.A., The Concept of Law, 2nd edn. (Clarendon Press 1993) p. 100-110 and p. 149-154.

40 Hart, supra n. 39, p. 148.

41 Hart, supra n. 39, p. 149.

42 Hart, supra n. 39, p. 150. Ronald Dworkin explained the serious flaws in Hart’s idea of a rule of recognition under a ‘model of rules’ in Dworkin R., Taking Rights Seriously, revised edn. (Duckworth 1978) p. 39-45 .

43 Miller, supra n. 1, para. 224.

44 Wade, supra n. 29, p. 189.

45 Miller, supra n. 1, para. 223.

46 Miller, supra n. 1, para. 224.

47 Thus disagreeing with Wade William, ‘Sovereignty: Revolution or Evolution?’, 112 Law Quarterly Review (1996) p. 568-575 .

48 Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591, para. 80.

49 Miller, supra n. 1, para. 225.

50 The majority said: ‘So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law’; Miller, supra n. 1, para. 65.

51 Miller, supra n. 1, para. 228.

52 It is not entirely clear to me that this is Lord Reed’s actual view, or whether it is the view that he assumes to be the case in order to examine and ultimately dismiss Helen Mountfield’s arguments. It is possible to read paras. 222-230 of Lord Reed’s judgment as an (effective) response to counsel’s self-contradictory use of the idea of an Act of Parliament changing the ‘rule of recognition’ (which was not part of the lead applicant’s submissions or part of the majority’s reasoning) and nothing more.

53 See Latham R.T.E., The Law and the Commonwealth (Oxford University Press 1949) p. 522-525 and Heuston R.F.V., Essays in Constitutional Law, 2nd edn. (Stevens 1964) p. 1-3 ; Jennings Sir Ivor, The Law and the Constitution, 4th edn. (University of London Press 1952) p. 146-149 and Marshall Geoffrey, Constitutional Theory (Clarendon Press 1971) p. 35-57 . For more recent accounts see Allan T.R.S., The Sovereignty of Law (Oxford University Press 2013) and Eleftheriadis (2009), supra n. 30, p. 267-290.

54 Factortame Ltd (No 2), supra n. 19.

55 Dicey, supra n. 30, p. 37.

56 Wade, supra n. 47, p. 568.

57 John Laws, ‘Law and Democracy’, Public Law (1995) p. 72

58 Laws, supra n. 57, p. 89.

59 Thoburn, supra n. 14, para. 63.

60 R (Buckinghamshire County Council) v Secretary of State for Transport, supra n. 10, para. 207.

61 Factortame (No 2) [1991] 1 A.C. 603 at p. 658.

62 For this historical development see Goldsworthy, supra n. 30, p. 159-220.

63 R (Jackson) v Attorney General [2005] UKHL 56.

64 Laws John, The Common Law Constitution (Cambridge University Press 2014) p. 70 .

65 This is the answer to Mark Elliot’s question of ‘how EU law can be an independent source of UK law while being dependent for that status upon the 1972 Act’, the answer to which Elliott thinks ‘is never revealed’ in the majority view. In my view, the answer is a matter of trite constitutional law. It is part of the common law Constitution doctrine adopted by the majority, which follows exactly the principles set out in Buckinghamshire, Thoburn and Factortame. See Elliot Mark, ‘Miller and the Modern British Constitution’, Counsel (March 2017) p. 24-26 .

66 For a recent overview of the German law see Hong Matthias, ‘Human Dignity, Identity Review of the European Arrest Warrant and the Court of Justice as Listener in the Dialogue of Courts: Solange –III and Aranyosi ’, 12 EuConst (2016) p. 549 .

67 See, for example, Allan T.R.S., The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press 2015); Sedley Stephen, ‘The Sound of Silence: Constitutional Law Without a Constitution’, 110 Law Quarterly Review (1994) p. 270 .

68 For the deliberative theory of law, which reject’s Hart’s legal positivism and supports the idea of a deliberative law and Constitution, see Dworkin Ronald, Law’s Empire (Fontana 1986), Dworkin Ronald, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1997), Simmonds N.E., Law as a Moral Idea (Oxford University Press 2007) and Eleftheriadis Pavlos, Legal Rights (Oxford University Press 2008). For the precise ways in which Hart’s theory was incapable of accommodating the common law idea of law as a practical judgment see in particular Simpson A.W.B., ‘The Common Law and Legal Theory’, in A.W.B. Simpson (ed.), Oxford Essays in Jurisprudence: Second Series (Clarendon Press 1973) p. 77 . See also Eleftheriadis Pavlos, ‘Hart on Sovereignty’, in Luis Duarte d’Almeida, et al. (ed), 50 Years from H.L.A. Hart’s The Concept of Law (Hart 2013) p. 59 .

69 Miller, supra n. 1, para. 60.

70 Miller, supra n. 1, para. 82.

71 Miller, supra n. 1, para. 82 (emphasis added).

72 Miller, supra n. 1, para. 82 (emphasis added).

73 Miller, supra n. 1, para. 90.

74 This, however, does not resolve the underlying theoretical problem, because the question arises in a different form: ‘where do these processes derive their authority from?’ I discuss these questions in Eleftheriadis Pavlos, ‘Power and Principle in Constitutional Law’, 45 Netherlands Journal of Legal Philosophy (2016) p. 37 .

75 The French Constitution of 1958 contained a reference in its Preamble to the Declaration of Man and Citizens, without, however, making it part of the Constitution. The Conseil constitutionnel decided in the Changes to the Budgetary Provisions of the EC Treaties case of 1970 that it was legally binding as if it were incorporated into the text (see CC decision no. 70–39 DC of 19 June 1970, Rec. 15). See also the Associations Law decision of 1971, which begins: ‘In the light of the Constitution, and especially of its Preamble’. Since then, the texts referred to in the Preamble (besides the Declaration also the preamble of the Constitution of 1946) have been treated as having force of constitutional law (CC decision no. 71–44 DC of 16 July 1971). See Bell John, French Constitutional Law (Oxford University Press 1995) p. 66-67 .

76 Marbury v Madison 5 U.S. 1 Cranch 137 137 (1803).

* Associate Professor of Law and Fellow and Tutor in Law, Mansfield College, University of Oxford.

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