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Mikolaj Barczentewicz: Uses and Misuses of the Rule of Recognition in Miller

Mikolaj BarczentwiczThe jurisprudential concept of the rule of recognition featured several times during the Miller hearings at the Supreme Court. In this short note, I discuss three uses of the concept of the rule of recognition during the Miller hearings and propose one other way in which the concept is relevant to Miller, that was not expressly mentioned in the case. First, I discuss Lord Mance’s point on how Parliament is constituted. Next, I criticize the misuse of the concept of the rule of recognition by the Lord Advocate and by Helen Mountfield QC on the point of sources of UK law. Subsequently, I consider the Lord Advocate’s point on the status of the Sewel convention. Finally, I consider how the concept of the rule of recognition may help structure inquiry into the legal source of the prerogative power of the Crown. This is not intended as a summary of the arguments in Miller (for that I recommend my recent paper), but as a (partially) cautionary tale on using legal theory in a courtroom.

What is the rule of recognition? As described by HLA Hart, the rule of recognition is the ultimate rule of any sophisticated municipal legal system. It confers on legal officials a duty to recognize certain things as valid law of their legal system. It may do so by pointing to sources of law (‘whatever the Queen in Parliament enacts is law’) or to specific rules (‘eo nomine’, as Hart said, perhaps applicable to the famous 1966 Practice Statement on precedent). Importantly, the rule of recognition is a form of custom (social practice) of legal officials. It is not something created by precedent or statute, though its change may be affected by them.

Lord Mance on what constitutes the Westminster Parliament

On the third day of the Miller hearings (7 December 2016), there was an exchange between several justices on Dominic Chambers QC on the topic of what kind of parliamentary involvement will be required if the government loses. Lord Carnwath, Lord Neuberger and Lord Reed explored, perhaps playing devil’s advocate, the point that it may seem odd that resolutions of the House of Commons and of the House of Lords will be insufficient and that an Act of Parliament will be necessary. Lord Mance responded, employing the concept of the rule of recognition (at 107):

Lord Carnwath: … to say that his is all in the name of parliamentary sovereignty does seem a little odd. It seems to me a vitally important legal point, but it is not about parliamentary sovereignty.

Lord Mance: It is about what Parliament is, and I don’t think that either Professor Dicey or Professor Hart would have been very surprised to find our rule of recognition defined in the way you are defining it.

Lord Mance is correct. According to the rule of recognition only acts of the Queen in Parliament, the tri-partite legislative authority, constitute an inherent (self-standing) source of legal change. If adopted without statutory authority, even unanimous resolutions of the two Houses of Parliament purporting to change an Act of Parliament would be against parliamentary sovereignty (and without legal effect), because such resolutions would not be an instance of Parliament acting. (Those interested in this subject will benefit from reading Richard Ekins’ ‘Acts of Parliament and the Parliament Acts’).

The Lord Advocate and Helen Mountfield QC on the sources of law in the UK

Several references to the rule of recognition, by the Lord Advocate James Wolffe QC and by Helen Mountfield QC, betray a misunderstanding either of this theoretical concept, or of the foundations of UK law.

The Lord Advocate said on the third day of the Miller hearings (at 144-145) that withdrawing from the EU will alter ‘the sources of law and not simply the law itself’. It would be so because withdrawal would ‘deprive [EU] legislative, executive and judicial institutions which currently exercise power as regards the United Kingdom of that power’ and because ‘none of the legislatures and public authorities of the UK would operate within the framework … of European Union law’. He introduced those remarks as a point on the ‘constitutional consequences the effect which withdrawal from the European Union would have on the rule of recognition which applies in the United Kingdom’.

Helen Mountfield QC said on the fourth day of the hearings (8 December 2016) that despite a ‘common ground on the rule of recognition, the appellant’s case is that EU law rights are nonetheless not domestic rights’ (at 87). She also made the point on the alleged change of the sources of law in the UK (at 65, 69, 70, 84, etc.).

The correct position was presented (though with some simplification) by Lord Mance in Pham (at [80]). The rule of recognition of any legal system, as understood by Hart, provides only for ultimate sources of law. Being ‘ultimate’ means only that those sources of law have no other ground for being sources of law (of this legal system) other than the rule of recognition itself. There are several ultimate sources of law in the UK, provided for by the rule of recognition. The supreme among them is legislation by Parliament, but there are others, the common law being an uncontroversial example.

If we want to frame the basic point that UK law has a dualist approach to international law, including EU law, in terms of the concept of the rule of recognition we must say the following: EU law is not among the sources of UK law identified in the UK rule of recognition. The UK version of dualism simply is the situation where international law is given domestic effect by statute. In terms of the length of the chain of legal validity, this places EU law one level below the level of actual sources of UK law, on par with UK delegated legislation (they both derive authority from a statute, which in turn is valid law because of the rule of recognition).

The UK doctrine of limited primacy of EU law is not part of the UK rule of recognition. As Adam Tucker rightly argued, even if we do not know too much about the content of the rule of recognition (epistemology of social rules is a tricky thing), we do know that it is that stage in legal analysis where we stop asking questions of the source of validity. And we do ask questions of the source of validity of the UK doctrine of primacy of EU law. In fact, we know that it is legally grounded in the European Communities Act 1972 (again, not in the ultimate rule of recognition, but in a statute validated by the rule). When the UK leaves the EU, this fact alone will entail no change whatsoever among the sources of UK law to be found in the UK rule of recognition.

It does not help the Lord Advocate that ‘[a]t a constitutional level, withdrawal from the European Union will effect a significant change on the legislative competence of the Scottish Parliament and the executive competence of the Scottish Government’ (Wednesday at 151). Neither is a part of the UK’s ultimate rule of recognition. Legislative powers of the Scottish Parliament are, strictly speaking, only available in law because of a rule of change contained in a Westminster statute and hence are not a source of law on the ultimate level (of the ultimate rule of recognition). They are, in a sense, one level below, just like EU law.

The conclusion is that the point on ‘the change of the sources of UK law’ is really just another instance of the frustration argument to be addressed on the level of statutory interpretation. It does not come close to touching the rule of recognition.

The Lord Advocate on the status of the Sewel convention

The second use of the rule of recognition by the Lord Advocate was to assert that ‘… in a legal system where the basic rule of recognition is that what the Queen in Parliament enacts as law, that has transformed the juridical status of the rule from a convention into a rule of law’ (7 December, at 155).

The Lord Advocate was too quick. Just because something is in a statute it is not necessarily ‘a rule of law’ (see David Feldman’s recent ‘Legislation Which Bears No Law’). It may be that the Queen in Parliament did not intend for it to change anyone’s legal situation (by imposing duties, liabilities or by giving rights, powers, etc.). In other words, not everything in a statute is, strictly speaking, enacted to change the law.

The Lord Advocate submitted further that because s. 28(8) of the Scotland Act 1998 ‘satisfies our rule of recognition … the question of its effect and then of its meaning, are matters of law for the court’ (7 December, at 161-162). The point is then that everything found in a statute may be interpreted by the courts. The Lord Advocate was correct in that, at least in principle, there may be a question for the courts to answer as to whether the words of s. 28(8) do express a decision to change the law (i.e. the question of effect).

However, the Lord Advocate took this point too far. It is not for the courts to interpret the meaning and scope of an alleged rule (or convention) if that alleged rule is not a rule that Parliament intended to have any legal effect. Hence, as Lord Mance suggested (8 December, at 5-6), given that the Lord Advocate accepted that ‘it doesn’t lead to anything’ (viz. has no legal effect) it would be ‘a pretty odd exercise’ for the courts to say any more.

This does not mean that the courts are necessarily prohibited to venture outside of the law and to investigate the requirements of the non-legal part of the constitution. Famously, the Supreme Court of Canada considered itself competent to make declarations of unconstitutionality with no legal effect (in Re: Resolution to amend the Constitution from 1981 cited in the Lord Advocate’s written submission at para. 22). The point is that a power to make such determinations is not entailed by the general power to interpret the law. At least in the UK, the law does not currently give judges the additional power to interpret the non-legal constitution, even if it does not prohibit them from doing so either. As Lord Mance’s reaction showed, it would be a constitutional innovation for the UK Supreme Court to go the Canadian way.

The unanswered question about the rule of recognition: prerogative

Interestingly, one very relevant question about the ultimate rule of recognition was not addressed during the Miller hearings, the question of the legal source of the prerogative. The judges are notorious for seeing all law as ultimately created by the judges, something that Hart encouraged to an extent by slipping into describing the rule of recognition as a practice of the courts. Hart’s considered view was that it is the ‘legal officials’, not just the judges, who by their social practice constitute the rule of recognition.

There is a categorical difference between, on one hand, Lord Steyn’s claim in Jackson that ‘the supremacy of Parliament … is a construct of the common law’ (and that judges created it) and, on the other hand, the correct view that legislative supremacy of Parliament is grounded in the ultimate rule of recognition. The core of the doctrine of Parliament’s legislative supremacy is not dependent on the common law and is not something that can be changed simply by the way the common law changes (see, e.g., Christopher Forsyth’s recent response to Sir John Laws).

What about the prerogative? Did the judges really create it? The dearth of positive judicial authority for the scope of prerogative powers that Helen Mountfield QC stressed in her submissions suggests that it is not judicial authority where we should look for the legal source of the prerogative. What remains is statute or the fundamental legal custom: the rule of recognition. That the prerogative is grounded directly in the ultimate rule of recognition would be consistent with it being inferior in the hierarchy of sources of law to (but not derivative of) Acts of Parliament and the common law. It would be consistent with statute and the common law qualifying the scope of the prerogative. But, and this is potentially a big one, it would mean that to discern the outer limits of the prerogative we would need to investigate something other than statute or the common law.

Perhaps, the rule of recognition identifies as the source of the prerogative the historical instances of its usage. Saying in effect something like: whatever the historical scope of the prerogative that the Crown got away with after 1689, that is the content of the legal rule conferring the prerogative power. This would explain why the historical practice of exercising the prerogative powers is of legal relevance (as opposed to merely relying on judicial and statutory authority). Naturally, I cannot hope to address this properly here.

To conclude, employing the concept of the rule of recognition is unlikely to solve, by itself, any burning legal question. However, when used properly, it helps to provide a clear structure to thinking about the foundations of our law.

The author is grateful to John Adenitire and to Jeff King for their comments.

Mikołaj Barczentewicz, University College, University of Oxford, @MBarczentewicz

(Suggested citation: M. Barczentewicz, ‘Uses and Misuses of the Rule of Recognition in Miller‘, U.K. Const. L. Blog (12th Jan 2017) (available at https://ukconstitutionallaw.org/))

5 comments on “Mikolaj Barczentewicz: Uses and Misuses of the Rule of Recognition in Miller

  1. Rodger Harris
    January 12, 2017

    Like most practitioners, I am less than learned in the fundamental jurisprudential issues raised here. However I am loath to leave this in the hands of those holding a degree in jurisprudence from Oxford.
    The issues raised in Miller actually do little to address the scope of the Crown Prerogative as exercised by HMG. It is not, contrary to Jeremy Corbyn’s assertion royal or even regal. I understand that to have been settled a long time ago after the Stuarts were ejected – thank anything etherial – by the Glorious and incidentally bloodless Revolution, with an end to the despotism practiced by the Stuarts and in effect by Cromwell in a more secularised form.
    How is it that definition of the Prerogative as such falls outside the common law?
    It is a fundamental common law issue, and has been defined at least in relation to its scope by the judiciary. Is The Bill of Rights, whether as an Act of Parliament or a statement of an existing conventional agreement between the demos and the then invited Monarch and his successors not a statement as to the scope and exercise of the prerogatives of overall governance previously exercised by the Sovereign but allocated over a period of time to Government and Parliament who took over the respective allocation of the various attributes of Sovereignty and their exercise? To my limited mind, is that not essentially an issue of the common law, as a constitutional element, which is determined by the judiciary, if not as a universal jurisdiction, then by reference to the doctrine of recognition, at least to the scope of its legal, as opposed to executive, competence?
    Lady Hale made a significant statement of law, unqualified by her peers, in the Ingenious judgment: “28. It is a cardinal error to suppose that the public law remedies and principles associated with judicial review of the exercise of administrative power, developed by the common law from the ancient prerogative writs, occupy the entire field whenever the party whose conduct is under challenge holds a public position. It is important to emphasise that public bodies are not immune from the ordinary application of the common law, including in this case the law of confidentiality. The common law is multi-faceted and remains the bedrock of the English legal system.” I am unable to distinguish this bulwark from the Constitution: others may be. As usual constitutional matters are generally hatched out disputes over tax, and the manner of their extraction from the taxpayer. The English Civil War and Boston Tea Party being but two examples.
    British Constitutional theory deals with the evils addressed by Montesquieu’s separation of powers by an evolutive process using the Crown as the central point of Sovereignty, rather than an arbitrary civil law distinction between the judiciary, the executive and the legislator. Montesquieu’s trite political equation fails to take into account the influence of Roman law and its subsequent evolution into continental customary law, which the common law attribution handles almost imperceptibly with a limited amount of constitutional “scripture”.
    I have always had some difficulty with the overreliance upon American theorists such as Hart and Dworkin outside their home constitutions. They have not had the fundamental instinctive training in the British historical passage from regal monarchy to constitutional monarchy, which is based upon a common thread of the development of the Crown’s responsibility to act as no more than an agent for its subjects, rather than as a despot having power as to the life or death of its subjects. That notion of responsibility was as inherent in the initial Norman approach as it may have been in the prior British environment. [Hence my distaste for the Stuarts who might better have been left to rot in Dol de Bretagne rather than being invited back in to fill the lack of a real succession to the secular despotism of the Great Protectorate. The beheading of potential opposition shows little else but common spite in the abuse of power].
    Can some kindly academic put me out of the misery of ignorance on these issues?

  2. Florian
    January 12, 2017

    Parliamentary supremacy can be irreversibly limited and successive Parliaments can be perpetually bound when Parliament voluntarily qualifies its power to legislate outside England.

    For an example of this see the Statute of Westminster 1931, s4: “No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.”

  3. Pingback: Europarecht, Prärogative und Devolution: Der UK Supreme Court entscheidet über den Brexit | Verfassungsblog

  4. Pingback: Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association

  5. Pingback: Locating the Place of the Royal Prerogative After Miller – AUSPUBLAW

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