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The rule of recognition and sources of law in Miller

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.
0033-3565
61-81
Hameed, Asif
bc8f8a30-8bf7-4efd-839f-ef14ba95da09
Hameed, Asif
bc8f8a30-8bf7-4efd-839f-ef14ba95da09

Hameed, Asif (2019) The rule of recognition and sources of law in Miller. Public Law, 2019 (January), 61-81.

Record type: Article

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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More information

Accepted/In Press date: 3 October 2018
e-pub ahead of print date: 4 December 2018
Published date: January 2019
Additional Information: 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 .

Identifiers

Local EPrints ID: 426173
URI: https://eprints.soton.ac.uk/id/eprint/426173
ISSN: 0033-3565
PURE UUID: 83a8fc4c-2a75-46b6-a2e9-528c3e92e8c9
ORCID for Asif Hameed: ORCID iD orcid.org/0000-0002-1032-5832

Catalogue record

Date deposited: 16 Nov 2018 17:30
Last modified: 21 Aug 2019 00:21

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Author: Asif Hameed ORCID iD

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