Sources of Law

What is a source of law? To be a source is to be the originator. The source of a stream comes before the stream. The source of a leak is a necessary condition of a leak. The source of an idea is anterior to the idea.

An Act of Parliament is a source of law. An Act is constituted where a Bill passes both the House of Commons and the House of Lords and receives the Royal Assent from the sovereign. But how do we know this is so? What tells us that this is a source of law?

A beginner might naively think that there ought to be a yet further more foundational document that tells us what the sources of law in a State are. In the United States, Article 1 of the Constitution stipulates that legislative powers are vested in the Congress, which consists of the Senate and the House of Representatives. Copies of this document are on reverential display in the National Archive in Washington.

But why is the US Constitution a source of law? Is there a still yet higher document, kept in an even more secure glass box, that tells us that? If there were we would hit an infinite regress problem.

HLA Hart in The Concept of Law postulated that any system of positive law must have a Rule of Recognition at its base. This rule has as its primary function the provision of a test for the validity of a law. Examples of such rules are that a Bill that passes both Houses and receives Royal Assent is good law, or that the Constitution of the United States is valid. Such rules as they are a necessary condition of what constitutes a positive law cannot, as a matter of logic, themselves be posited. Where then do they come from?

Hart suggested, plausibly, that they arise by Convention among officials (usually judges) whereby they accept such rules. Conventions are a matter of fact and can change overtime. It is a Convention that men do not wear a hat in church. This Convention has not been posited anywhere. Although Hart was the greatest exponent of legal positivism, his account is dependent upon a rule that is not posited by authority at all.

This account works less well in relation to international law. Often there is no official or judge available to determine what international law is as no formal court has been set up to adjudicate on the matter. How did we know in, say, 1648 that the Treaty of Westphalia was legally binding? Because States by Convention treated, and treat, agreements entered into between them as binding.

Where there are multiple sources of law, the Rule of Recognition should (must?) also have rules for determining a hierarchy between them in cases of conflict. The common law, judge made law, is a source of law in the United Kingdom. It is not dependent for its validity upon any Act of Parliament. What happens when the common law says X and an Act of Parliament says not-X? The answer is that the legislation prevails. As a matter of logic, the legislature itself could not have alone validly stipulated that its Acts were to prevail. Further fine tuning is possible. So, the judges now seem to have recognised a special category of ‘Constitutional Statutes” that did not exist when I was young, which seem to have some kind of interpretive priority over other more humdrum Acts.

In the Miller decision the majority seek to meet the interpretive objections of the minority, by postulating that EU law is a source of law, and as such cannot be removed by ministerial action alone. This suggestion first came from Lord Sumption (see transcript at page 40). This seems plausible. After all, UK legislation is without doubt a source of law, and EU law has priority over it within our domestic legal order. EU law can be directly effective as soon as it is posited and is not dependent upon new legislation for its validity. It would be, to say the least, startling if ministers could, by their decisions, remove legislation or the common law as a source of law, so how could they do so with any other source?

Further, describing EU law as a source of law seems to circumvent Lord Reed’s nitpicking legalistic objections based upon the words of the European Communities Act. If EU law is a legal source it is anterior to the positive law itself, and is not determined by it.

Unfortunately, this characterisation of EU law is wrong. If the legislature passed an Act stipulating that the rules of the game Monopoly as they exist “from time to time” were henceforth to be legally enforceable, and to take priority over other rules, would that make those rules a ‘source of law’? They would not. The source would be the rule that Acts of Parliament are valid. The incorporation of the rules of the game would be wholly dependent on that rule.

Precisely the same is true of EU law within UK domestic law. It is only valid because of the European Communities Act. That Act in turn is dependent upon our Rule of Recognition in the UK. EU law is directly effective because the Act says so, and has priority over UK legislation because that is what the Act says and the judges have given effect to that. If EU law had its own freestanding validity it could not be removed even by an Act of Parliament overturning that Act.

At an international level, EU law is not dependent upon any UK legislation. But on that plane it takes its validity from the agreement between member states. It is not a new sui generis form of law.

Lord Sumption’s clever move of describing EU law as a ‘source of law’ has a strong rhetorical attraction. He was the best advocate of his generation. It is a sleight of hand.

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The Vibe of the Constitution

One day I will provide a review of films for lawyers. One of the very best, that should be better known in the UK than it is, is the Australian movie, The Castle. The most famous scene is when a lawyer is asked to explain why his client should win. He cites “the Constitution.” When pressed on which particular provision of the Constitution he relies upon, he is unable to point to any specific section, but instead relies upon “the vibe of the thing”

In his dissent in the Miller decision, Lord Reed (at [177]) makes an argument that I have made repeatedly on this blog since last June

“the effect which Parliament has given to EU law in our domestic law, under the 1972 Act, is inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU. The Act imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU. It does not, therefore, affect the Crown’s exercise of prerogative powers in respect of UK membership… Further, since the effect of EU law in the UK is entirely dependent on the 1972 Act, no alteration in the fundamental rule governing the recognition of sources of law has resulted from membership of the EU, or will result from notification under article 50. It follows that Ministers are entitled to give notification under article 50, in the exercise of prerogative powers, without requiring authorisation by a further Act of Parliament.”

It is good that this argument, that was astonishingly not made before the High Court (see para 11) was at least put. It is based upon the express words of the 1972 Act. What is the response of the majority to it? It is on this that the result of the case turns. The key part of their reasoning is at paragraphs 78 to 81. What do they say?

The first claim is that there is a “fundamental difference” between variations in the content of EU law and withdrawal from the European Union, This is because the latter involves a unilateral action by the UK that changes UK constitutional law, whilst the former does not. If EU law were eliminated save for one directive on banana curvature, that would be fine, whilst its reduction to nothing at all would not.

This is very difficult to understand. It has no textual support as a distinction in the European Communities Act itself. The change in the application of EU law to the UK by withdrawal is mandated by EU law itself (article 50). There was and is nothing unilateral about that, it was agreed between the Member States. EU law changes in many different ways. Why is this change ‘fundamentally different’ from the others? Appeals to the long title and the side notes (para 88) of the Act might be justifiable if the words of the sections (which are the law) were ambiguous or could plausibly be said to have a meaning that they do not have on their face. They do not, and no reliance is placed upon the words of the Act. As Lord Reed states, no section in the Act states “the UK shall be a member of the European Union” or any equivalent.

Second it is said that EU law is a source of law, and not just law. It would be “inconsistent with long-standing and fundamental principle” for such a change to a source of law to be brought about by ministerial decision.

Again, this is difficult to understand. EU law has its status within UK law only because of the European Communities Act. It has no independent force in our domestic law. By contrast the common law, which is judge made, has no statutory basis. If EU law really were a source of law independent of an Act of Parliament, how could an Act of Parliament remove it from UK law? Legislation could not, for example, provide that future legislation ceased to be a source of law, nor could the legislature provide that what judges decide is no longer legally binding upon the parties without abolishing law within our legal system altogether. EU law within our domestic legal order is simply not like that. It is not an independent source of law, but is wholly dependent upon UK legislation. It is because it is not a source of law (ie anterior to posited law) that it can be removed by law.

The truth is that EU law is only effective within UK domestic law because the European Communities Act says so. It is, politely, surprising that the majority base their decision not upon the words of the Act, which in the key paragraphs they ignore, but on a rather more abstract enquiry into what they feel the right answer ought to be.

In the end, the case will probably be of little practical significance. We will leave the EU, and the dispute about what was once EU law’s constitutional status within the UK will become an historical curio. That said, and despite several attempts, I see no answer to Lord Reed’s dissent in the reasoning of the majority, and have consequently found it difficult to articulate what they are saying. Vague statements about ‘fundamental principles’ and basic ‘sources of law’ are little better than appeals to the vibe.