Hasan Dindjer: Sources of Law and Fundamental Constitutional Change

The majority’s reasoning in Miller may appear to turn on the proposition that the European Communities Act 1972 (‘ECA’) introduced a new source of law in the UK ([60]-[66]). The majority argue that, since there is no prerogative power to change UK law ([50]-[59]), and hence none to effect the loss of a source of UK law ([83], [86]), serving notice under Article 50 (said to undo the effect of the ECA) cannot be accomplished using the prerogative.

The success of this argument—call it the source argument—depends in large part on how to understand a ‘source of law’, a notion not free of difficulty. The majority refer to EU law as an ‘independent’ source of UK law ([65], [68], [80])—an infelicitous description, since, as they also acknowledge, EU law’s effect in UK law is dependent on the ECA ([61]). EU law is not, then, an ultimate source of UK law. But it hardly follows that it is no source at all. There is nothing odd in the idea that legal systems can introduce—through their ultimate sources of law—further, derivative legal sources. Of course, UK law gives effect to all sorts of rules which do not thereby become sources of UK law. Something more is surely needed—hence the majority’s appeal to special features of EU law as it operates in the UK: its capacity to be directly effective ([60]), precedence over other sources of UK law ([60]), and its being subject to authoritative rulings by the CJEU ([80]).

While the source argument is central to how the majority see the case—Mark Elliott says it is ‘pivotal’ to their analysis—at points, they make an importantly different argument: that the prerogative cannot be used to effect ‘fundamental’ or ‘major’ changes to the UK’s constitutional arrangements ([78], [82]-[83]).

Whether or not one agrees that this proposition finds support in ‘basic concepts of constitutional law’ [82] (if not direct authority), it at least has the attraction of sidestepping the vexed notion of a source of law. It is true that the majority treat the loss of a source of law as the constitutional change at issue. But the important point is that the fundamental constitutional change argument can stand even if the source argument falls, for a constitutional change can be major or profound without being a change to the sources of law. Indeed, the unique status of EU law in the UK constitutional order, pressed into the service of the source argument by the majority ([60]-[61]), can equally be seen as an explanation of why notification would effect major constitutional change.

Shifting emphasis away from the source argument does not resolve every contentious issue in Miller. The majority’s argument from constitutional change relies on a rather generous reading of the case law. Nevertheless, by focusing less on the distracting question of how to demarcate sources of law, the basic issue—what role the executive can have in shaping the British constitution—comes more clearly into view.

Hasan Dindjer is an Examination Fellow at All Souls College, Oxford.

(Suggested citation: H. Dindjer, ‘Sources of Law and Fundamental Constitutional Change’, U.K. Const. L. Blog (27th Jan 2017) (available at https://ukconstitutionallaw.org/))

4Comments

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1

Sean Feeney on January 27, 2017 at 4:40 pm

The qualification “source” in the phrase ” a new source of law” is otiose.

It is sufficient to note the 1972 Act in tandem with such of the EU Treaties as are recognised under the procedure in the Act are new domestic law, and new law of a sui generis kind being both supreme to domestic law and governed by foreign principles enunciated by the Court of Justice of the European Union.

The majority’s reasoning was inevitable (if one excludes the majority’s wholly incorrect treatment of the referendum) given that use of the prerogative to change the law has been statute-barred since the constitutional settlement of 1688/9.

At least Hasan Dindjer recognises that the Supre court majority’s reasons in Miller was were multiple, unlike some other commentators.
2

Sean Feeney on January 28, 2017 at 2:47 pm

Professor Elliott’s analysis recognises “The disagreement between the majority and minority Justices may appear to — and to some extent does — turn upon differences over technical matters such as the construction of the text of the ECA and other relevant legislative instruments.”

https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/

Given the Courts’ exclusive jurisdiction and public-duty to interpret statute, “construction of the text of the ECA and other relevant legislative instruments” seems to me rather “pivotal”.

For my part, I am currently more convinced by the long-title argument (scope of the Act is enlargement not withdrawal) and the conclusions the majority draw from application of the phrase “from time to time”, or its absence.

However, the majority’s conclusion on a partial transfer of law-making powers at [68] seems to me to be conclusive on the sui generis nature of the 1972 Act and the scale of the constitutional change: “The 1972 Act effectively operates as a partial transfer of law-making powers, or an assignment of legislative competences, by Parliament to the EU law-making institutions (so long as Parliament wills it), rather than a statutory delegation of the power to make ancillary regulations – even under a so-called Henry the Eighth clause, as explained in the Public Law Project case, cited above, paras 25 and 26.”

I think the claimants have made good their claim that EU membership is an exception to the domestic dualist system and now needs to be viewed as a constitutional settlement that alters the separation of powers for as long as the 1972 Act is on the statute book and is capable of implementing the Treaties.
3

Rodger Harris on February 6, 2017 at 6:08 pm

I don’t think that any commentator has go so far as to say, yet, that European Union Law remains for the moment, a Bulwark of our legal system at least of the same order as the elusive common law, which is a constitutional element and is capable firstly of standing against executive prerogative to the extent that that exists, and of resisting general as opposed to specific statutory amendment.
The comparison and then the contrast may be of interest, as the conduit argument relies upon statutory “plumbing”, and clearly not the basic albeit unelectrifying building of the common law.
4

Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on February 8, 2017 at 7:38 pm

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