The rule of recognition and sources of law in Miller
The rule of recognition and sources of law in Miller
The UK Supreme Court’s judgment in Miller renews attention in the sources of law, particularly treaty-based sources. The Court held that the UK Government was not permitted to use the foreign affairs prerogative to notify the European Council of its intention to withdraw from the EU under Article 50(2) TEU without authorisation from an Act of Parliament.
The majority’s reasoning has been criticised, including its twin claims that EU law is a direct, independent and overriding source of law and that UK membership of the EU did not alter the UK’s rule of recognition. I will begin by arguing that these twin claims are defensible.
At the same time, Miller does leave unresolved important questions of constitutional law. Is Miller a one-off case, not to be repeated again in our lifetimes, or might it have implications for other treaty-based sources that are given effect under domestic legislation? The paper’s second aim is to explore this question, and also to offer proposals to address some key uncertainties that remain.
61-81
Hameed, Asif
bc8f8a30-8bf7-4efd-839f-ef14ba95da09
January 2019
Hameed, Asif
bc8f8a30-8bf7-4efd-839f-ef14ba95da09
Hameed, Asif
(2019)
The rule of recognition and sources of law in Miller.
Public Law, 2019 (January), .
Abstract
The UK Supreme Court’s judgment in Miller renews attention in the sources of law, particularly treaty-based sources. The Court held that the UK Government was not permitted to use the foreign affairs prerogative to notify the European Council of its intention to withdraw from the EU under Article 50(2) TEU without authorisation from an Act of Parliament.
The majority’s reasoning has been criticised, including its twin claims that EU law is a direct, independent and overriding source of law and that UK membership of the EU did not alter the UK’s rule of recognition. I will begin by arguing that these twin claims are defensible.
At the same time, Miller does leave unresolved important questions of constitutional law. Is Miller a one-off case, not to be repeated again in our lifetimes, or might it have implications for other treaty-based sources that are given effect under domestic legislation? The paper’s second aim is to explore this question, and also to offer proposals to address some key uncertainties that remain.
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The rule of recognition and sources of law in Miller
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Accepted/In Press date: 3 October 2018
e-pub ahead of print date: 4 December 2018
Published date: January 2019
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This is a pre-copyedited, author-produced version of an article accepted for publication in Public Law following peer review. The definitive published version is available online on Westlaw UK or from Thomson Reuters DocDel service.
Date Written: November 9, 2018
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Local EPrints ID: 426173
URI: http://eprints.soton.ac.uk/id/eprint/426173
ISSN: 0033-3565
PURE UUID: 83a8fc4c-2a75-46b6-a2e9-528c3e92e8c9
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Date deposited: 16 Nov 2018 17:30
Last modified: 16 Mar 2024 07:17
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