II. Hart's claim – a uniform internal point of view

Hart's claim, to be more specific, is that it is ‘crucial … that there should be a unified or shared official acceptance of the rule of recognition’ (Hart, Reference Hart2012, p. 115). That idea breaks down into two elements: that officials should have a shared view of the secondary rules and that they should ‘accept’ those rules. The first element is reasonably clear. ‘As a guide’, Hart says, officials' view of the secondary rules has to be ‘uniform’ (Hart, Reference Hart2012, p. 258; and see also pp. 266–267: ‘the rule of recognition is treated in my book as resting on a conventional form of judicial consensus'). For a legal system to persist, the rules of recognition, adjudication and change accepted by officials have to be the same rules, uniformly interpreted. That is because otherwise the system will generate contradictory instructions to the population at large.

The second element – acceptance – is less clear. Hart distinguished between the external and internal aspects of following a rule. The external aspect of rules concerns what can be observed by others: the extent to which behaviour appears to conform to the rule. The internal aspect relates to a person's attitude towards the rules, in particular whether they understand and accept them (Hart, Reference Hart2012, p. 60). Hart claims that a difference exists between ordinary citizens and officials in what is required of them. External following of the rules is required of both, but taking the internal point of view is required only of officials (Hart, Reference Hart2012, pp. 116–117). This is not simply a matter of having to be an expert to understand the rules (Hart, Reference Hart2012, p. 60). Understanding the rules is not enough. Hart is concerned with something else:

The most straightforward explanation for this requirement is that officials correcting one another in cases of non-compliance helps to maintain uniformity. The point of view is ‘internal’ in the sense that it is used in the internal social interaction among officials.Footnote ⁵ No similar need exists for the general public to accept the secondary rules, presumably because Hart thinks that no confusion about which rules are authoritative can arise from variation in the views of non-officials.Footnote ⁶ In an extreme case, Hart says, the internal point of view might be confined exclusively to officials – producing a society, he comments, that might be ‘deplorably sheeplike’ (Hart, Reference Hart2012, p. 117) and ‘the sheep might end in the slaughter-house’, but one which would still have ‘a legal system’.

It makes no difference, however, why officials use the rules as standards to criticise other officials. Officials need not accept the secondary rules through feeling ‘morally bound to do so’, although, Hart goes on to say, ‘the system will be most stable when they do so’ (Hart, Reference Hart2012, p. 203). He continued:

The internal point of view is not ‘internal’ in the sense of being related to one's deepest convictions or in the sense of ‘authentic’. An official who disapproves of the constitution maintains the internal point of view by refraining from making that disapproval public. Successful simulation of approval is just as much taking the internal point of view as enthusiastic endorsement.Footnote ⁷

III. Preliminary objections

Two sorts of objection might immediately be made to a project of investigating whether Hart's claim is true. First, is Hart's claim really empirical? Although Hart famously characterised Concept as an exercise in ‘descriptive sociology’ (Hart, Reference Hart2012, p. vi), he later regretted it (Lacey, Reference Lacey2006, p. 949). Instead, one can read it as a purely philosophical work, arguing for a view of what law must be, not of what it happens to be. Nevertheless, as John Gardner points out, Hart, in his unfinished Postscript to the book, continued to insist that his work was ‘descriptive’ (Gardner, Reference Gardner2012, p. 275, discussing Hart, Reference Hart1994). In particular, Hart says he is providing a description of others' practices and, although that description involves interpretation of those practices in a ‘hermeneutic’ sense (Hart, Reference Hart1983, pp. 13–14),Footnote ⁸ it does not draw him into evaluating them (Hart, Reference Hart2012, pp. 239–244). That remains the case, says Hart, even though the practices themselves might be evaluative.

Gardner raises a different version of this objection. He says Hart's theory, regardless of what Hart intended, cannot be empirical. Gardner claims that one has to know what law is before one can make empirical statements about it. Hart's theory is about what law is. It tells us what to look for if we want to make empirical statements about law. Thus it must be prior to those empirical statements (Gardner, Reference Gardner2012). The problem with Gardner's objection is that it makes a claim very difficult to justify about the relationship between philosophy and empirical sociology. A social phenomenon does not need to make philosophical sense for it to be a possible object of empirical study. If, for example, people use the word ‘law’ in many different and incompatible ways, that is an empirical fact we can report without needing the permission of philosophers to use the word ‘law’. No doubt sociologists can benefit from philosophical reflection about their methods, and the concepts at the heart of their methods do have to be coherent. But that is very different from claiming that the objects of empirical study must make sense.

A more refined and powerful version of Gardner's point, however, is that Hart was engaged neither in a purely philosophical forging of concepts nor in empirical study, but in a third activity – that of constructing out of existing social practices concepts for use in future empirical study. Hart remarked: ‘What I should have said is that it provides the tools for descriptive sociology, not that it is descriptive sociology’ (Hart and Sugarman, Reference Hart and Sugarman2005, p. 291). Denis Galligan has pointed out the striking similarity between Hart's method of drawing upon existing social practices, specifically those around creating and following rules, to develop his ‘concept’ of law and Max Weber's method of ideal types (Galligan, Reference Galligan2015). Weber's ideal types are analytically useful constructs built out of one-sided accentuations of existing social practices to help the observer understand social action (Weber, Reference Weber, Shils and Finch1949, p. 90). The parallel is not exact, since Weber's ideal types are not required to be philosophically coherent, only ‘adequate at the level of meaning’ – that is, make sense at the level of the individual whose actions they help the observer to understand. Consequently, ideal types can encompass inconsistent and ‘irrational’ action, not just ‘rational’ action (Weber, Reference Weber, Roth and Wittich1978, pp. 19–22). Hart, in contrast, strenuously tries to make his concepts coherent. Also, whereas Weber, having constructed a set of ideal types, would then compare them with the empirical world, the better to understand that world through a process of assessing where the ideal types work and where they fail to work, Hart only carries out the first phase. He constructs an ideal type or ‘concept’ but does not go on to apply it.

If this account of Hart is correct, and it is certainly more than plausible, the project proposed in this paper should be taken as a contribution to supplying Hart's concept with its missing second phase. It applies Hart's concept, his ideal type of officials, to some of the empirical facts to see to what extent it explains those facts.Footnote ⁹ If the concept does not explain all of the empirical facts, the concept and not the facts will stand in need of revision.

The second objection to our project is that, although certain well-known examples exist of UK judges musing about whether they will always accept the doctrine of parliamentary supremacy,Footnote ¹⁰ no evidence appears in their judgments that they accept anything else,Footnote ¹¹ still less that they disagree about the power of parliament to change the law or their own right to adjudicate on what the law is. One might be able to tease out subtle differences about, for example, how the law might change through common-law adjudication or the extent to which courts' deference to other decision-makers involves an abrogation of their own powers to adjudicate, but ultimately these are minor differences of little practical importance. The objection is therefore that too little variation exists for any such empirical study to be interesting.

But, even if that is so, what judges believe does not exhaust what ‘officials’ believe. What about civil servants, military officers, police officers or local government officials? What do these officials believe to be the rules of recognition, adjudication and change? Do they treat them as common public standards? It is potentially just as destructive to stability to receive contradictory instructions from civil servants, military officers, police officers or local government officers as from judges. These are, as far as we know, questions never before asked and ones where variation in the answers is entirely possible given that other researchers have found that our executive consists not of a ‘compact monolith, but a loosely structured conglomerate’ (Daintith and Page, Reference Daintith and Page1999, p. 8; see also Bevir and Rhodes, Reference Bevir and Rhodes2010, p. 198). This study therefore starts to investigate the views of non-judicial officials – senior civil servants, senior military officers, chief constables and local government chief executives – about Hart's secondary rules.Footnote ¹² In 1999, Daintith and Page made great strides in addressing the ‘long-term neglect’ of the executive as a subject of academic study (Daintith and Page, Reference Daintith and Page1999, p. 1). As they correctly observed, it is ‘bizarre’ to overlook the constitutional importance of the executive branch (Daintith and Page, Reference Daintith and Page1999, p. 2; an in-depth study of the executive in the context of making delegated legislation was carried out in Page, Reference Page2001). This study seeks to add to the correction of that omission.

An objection to studying non-judicial officials might be that their views are not important for the existence of a legal system or for understanding constitutional law. Our view, however, is that, in constitutional law, as in many areas of law, the courts play a very limited role. In private law, contracts are drafted, concluded and carried out all the time without judges getting anywhere near them; companies are formed and operated on the basis of their founding documents without any help from the High Court. Similarly, in public law, regulations on myriads of topics are applied, both by government agencies and by private parties (the latter often applying the law to themselves) without any court pronouncing on how they should be interpreted. If one wants to know how the law operates in these fields, one has to look at how it is applied every day in reality. Indeed, the appearance of a court decision involving UK constitutional law is an event rare enough to be commented upon for its very existence, and yet the constitutional system operates every working day. As Yong has noted, if we only study the courts and parliament, we cannot see ‘how the Executive regulates itself internally’ (Yong, Reference Yong2013, para. 1.4). If one wants to know how the constitution works, one needs to know the views of the officials who operate it.

The seniority of the officials is, nevertheless, important (see Goldsworthy, Reference Goldsworthy2001, p. 238, n. 4). They are in a position to affect the ‘operativeness’ of the system from the top down. Cabinet secretaries, permanent secretaries, chiefs of the defence staff and senior generals control considerable resources and, more importantly for our purposes, act as gatekeepers between political leaders and effective power – that is, between political decisions being taken and citizens being given instructions about what to do or how to do things. The scope of investigation should also extend to the views of chief constables and local authority chief executives – officials who, although limited in terms of geographical jurisdiction, are subject to no administrative superiors and who also act as gatekeepers between politics and effective power.

Admittedly, it is possible that ‘street-level bureaucrats’ – those charged with the exercise of discretion in individual cases – might be able to restore the operativeness of the system at the bottom, by incorporating into their decisions values and judgments from beyond the law or by selective inattention to it, constructing coherence out of incoherence (Lipsky, Reference Lipsky1980; Maynard-Moody and Portillo, Reference Maynard-Moody, Portillo and Durant2010, pp. 253–277, especially at pp. 269–270; Mashaw, Reference Mashaw1983; Howarth, Reference Howarth, Gross and Harrison1992, pp. 29–53, deriving from Garfinkel, Reference Garfinkel1967, pp. 76–103). But a situation in which senior officials differ about fundamental questions of authority would pose a much bigger challenge for lower-level officials than the usual problem they face of individual policies being unclear or incomplete. Each gap in a policy or each unclear statutory provision affects only a subset, usually a small subset of lower-level officials, so that one can see how a common street-level view might emerge (even though divergence is also a distinct possibility). Constitutional incoherence, however, would be more difficult to confine to small subsets of officials. For lower-level officials to be able to restore constitutional coherence, one would have to imagine a situation in which they all shared a single understanding of the constitution and that shared single understanding was unaffected by the views of senior officials. That is possible, but, we believe, unlikely.Footnote ¹³

Objectors might come back with the argument that even these very senior appliers of the law are themselves subject to the courts and so their views are ultimately subordinate to those of judges. That argument, however, assumes too much. Although other actors might be aware of the possibility of judicial intervention, it is an empirical matter whether that possibility makes any difference to how they act. Even in terms of public perception and ultimate loyalties, it is not obvious a priori whether, were a conflict to break out between the courts and non-judicial officials about the most basic rules of the constitution, the public would side with the judges.Footnote ¹⁴

A mirror-image objection might be to claim the law does not much matter for the operativeness of government. Where government operates through contracting out, for example, the legal enforceability of the relevant contracts might matter less for whether they are carried out than long-term reciprocal relationships between the parties. Where government operates through co-ordinating its activities with those of other organisations, that is where ‘governance’ operates through ‘policy networks’ (Rhodes, Reference Rhodes1997; Reference Rhodes2007), its relationships with those other organisations might have no legal force at all. But Hart is not interested in government (or ‘governance’) in general. He is interested in the legal system. Admittedly, if the legal system were completely ineffective, questions about how it worked would be of no interest, but it would be surprising if theorists who point to other ways in which government operates were making such an extreme claim.Footnote ¹⁵

One final objection is that, no matter how inherently interesting the views of non-judicial officials are, studying them will give us no purchase on Hart's views because, when Hart referred to ‘officials’, he meant only ‘judges’. This interpretation is, however, inconsistent with the text of Concept. Hart himself referred numerous times to ‘courts or other officials’ (Hart, Reference Hart2012, p. 101, emphasis added).Footnote ¹⁶ In fact, Hart's own usage seems deliberately wider than ordinary usage, not narrower. At one stage, for example, Hart says ‘laws … give powers to officials, e.g. to a judge to try cases, to a minister to make rules, or a county council to make by-laws’ (Hart, Reference Hart2012, p. 26).Footnote ¹⁷ Given Hart's own text and the breadth of his own usage, we can be reasonably sure that, when he said that it is a necessary and sufficient condition for the existence of a legal system that ‘officials’ accept rules of recognition, change and adjudication, he was not exempting non-judicial officials (see also Goldsworthy, Reference Goldsworthy2001, pp. 240–241). Of course, other writers, in particular Joseph Raz, have sought to restrict the relevant set of ‘officials’ to judges, but Hart himself, we believe, did not.Footnote ¹⁸

IV. A pilot study

With these preliminaries out of the way, we can now turn to how we might investigate Hart's claim empirically. The hypothesis we want ultimately to test is that UK non-judicial officials adhere to a uniform internal point of view towards the UK's rules of recognition, adjudication and change. That means (1) having a uniform view of what those rules are and (2) uniformly taking an internal point of view towards them.

Both questions involve issues of interpretation and nuance. It is not the case that only one way exists of stating the same rule. A difference in the precise formulation of a rule does not entail a difference about the content of the rule. Similarly, agreement about a verbal formulation does not in itself entail uniformity in how it is applied. In addition, the hypothesis we want to test is not that officials agree with a specific formulation of the rules of recognition, adjudication and change, but that they hold the same view of those rules as one another, whatever view that is. As a result, a method that imposed or presupposed ‘correct’ views of the rules would be inappropriate. Officials need to be able to speak for themselves.

All this suggests that the appropriate method for approaching the question is qualitative and interactive. For our pilot study, we chose to carry out semi-structured interviews, using a standard series of prompts but allowing conversations to develop around them.Footnote ¹⁹ The prompts themselves consisted of putting to respondents two or three recent examples of UK constitutional rules coming under stress.Footnote ²⁰ We chose to use specific real-life examples of problems of recognition, change and adjudication, rather than to address those issues abstractly, for two reasons: first, just as in the case method of legal education, at least when done well, discussion of specific cases is less likely than abstract discussion to elicit merely formulaic ‘acceptable’ answers; and, second, as in behavioural interviewing of candidates for jobs, information elicited from examples in the interviewees’ own experience and knowledge are likely to be a better guide to behaviour than purely hypothetical situations.

The main risk of this method is that the specificity of the examples might draw attention away from important ideas and practices not relevant in those situations but relevant in other cases. Asking interviewees for their own examples to some extent mitigated that risk, as did providing a variety of examples to each interviewee. We cannot, however, pretend that our method reveals the whole range of constitutional ideas and practices within government. What it can do, however, is to illustrate the existence of certain ideas and practices.

One other potential risk in this method should be mentioned. In accordance with normal ethical principles for this kind of research, all interviewees were guaranteed anonymity. The specificity of the examples, however, heightens the risk that reporting their remarks might tend to identify them. We have endeavoured to ensure that we have not reported views in any way that might identify individuals. To achieve that, however, we have had to edit quotations and to leave out altogether some highly relevant observations and examples.

V. The rule of recognition

It is usually taken as axiomatic that, in the UK, the rule of recognition provides that ‘what the Queen in Parliament enacts is law’ (Hart, Reference Hart2012, p. 107). It is less clear, however, what else one might include in the rule of recognition. Hart argued that the existence of the rule of recognition was demonstrated when, for example, the courts ‘assert the supremacy of Acts of Parliament over other sources or suggested sources of law’ (Hart, Reference Hart2012, p. 101). Hart, however, at least later, also admitted the possibility that a rule of recognition could in principle contain substantive elements, for example rules that deny the quality of law to provisions that fail a test based on values or law from multiple sources (Hart, Reference Hart2012, pp. 250–254). It has been established elsewhere that the executive has its own sources of normativity (such as minutes, informal guidance and letters) which are ‘no less part of our constitutional law’ than statutes (Daintith and Page, Reference Daintith and Page1999, p. 398; see also p. 20). Our research therefore concentrated on different, less-studied aspects of what might be contained within the rule of recognition, such as human rights standards and international law.

In some respects, a uniform view emerged. Just under half of the interviewees expressed views on whether human rights violations, whether in the form of retrospective legislation (prompted by discussion of the Poundland case)Footnote ²⁹ or prisoners denied the vote or hypothetical situations such as passing Acts of Attainder, might deprive parliament of the power to make law. Twelve clearly supported unlimited parliamentary sovereignty. Even those who expressed distaste at, for example, retrospective legislation would remark that parliament was still entitled to do what it wanted or that the Human Rights Act 1998 was specifically designed to retain parliamentary sovereignty. The only respondent who expressed a view that came close to breaking uniformity was a former civil servant who declared that ‘retrospective legislation is wrong and dictatorial’. Significantly, however, he prefaced that remark with the phrase ‘as a citizen’. As a civil servant, he implied, his job was to uphold parliament's will.Footnote ³⁰

The result was quite different, however, when we looked at what officials thought about the status of international law. Is it included in the rule of recognition and, if so, is domestic or international law supreme? Our interviews took place before the Ministerial Code was amended to remove the explicit mention of the need for ministers to comply with ‘international law and treaty obligations’ – the Code now simply refers to ‘the overarching duty to comply with the law’.Footnote ³¹ Responses to questions on the status of international law were elicited by asking respondents about a celebrated incident involving Admiral Sir Michael (later Lord) Boyce, Chief of the Defence Staff (‘CDS’) at the outset of the second Iraq War in 2003 (see Chilcot, Reference Chilcot2016, section 5, pp. 4, 91, 123, 125–126, 166).Footnote ³² Boyce told the Iraq Inquiry (the Chilcot Inquiry) that, before committing his troops, he sought reassurance from the Attorney General as to the ‘legal base’ of the war.Footnote ³³ Boyce revealed that he was ‘really quite strongly against’ taking military action against Iraq.Footnote ³⁴ In requiring confirmation from the Attorney General, he noted specifically that he wanted to ‘pursue a UN route’,Footnote ³⁵ thus emphasising the importance he placed on international law. After the Attorney General published his legal advice on 7 March 2003,Footnote ³⁶ Boyce was still unhappy and asked, on 11 March, for an ‘unambiguous black-and-white statement saying it would be legal for us to operate if we had to’.Footnote ³⁷ A parliamentary vote on the legality of the war was held on 18 March.Footnote ³⁸

Responses were far from uniform as to whether and how parliamentary supremacy was affected by international law. The military, without exception, saw international law as a superior source of law. One former CDS said that he was ‘bound by international law’ because it was the source of his permission to use lethal force. Another former CDS stated that international law was what ‘define[d]’ the military. When asked what would happen if parliament passed a statute requiring the government to go to war, contrary to international law, yet another former CDS hesitated – the idea was clearly inconceivable to him – but then he replied: ‘I don't think it's possible for parliament to do that. Parliament could pass a Bill, but there would be very serious problems if it was contrary to international law.’ One former Army General was confused as to why parliament appeared to be unable to get to grips with international law, considering that he could ‘get a Private to understand it’.Footnote ³⁹

The police and local government chief executives were generally more domestically focused. One former chief constable commented that ‘international law doesn't really come up in UK policing’. Another former chief constable expressed uncertainty, but eventually concluded that he thought ‘parliament would have been sufficient authority’. One current local authority chief executive was similarly uncertain, but eventually concluded differently:

Responses from civil servants were not uniform. One former permanent secretary said in relation to the Boyce example:

Another former permanent secretary said that parliament could not ‘do what it likes’ when international law was involved. If parliament attempted to ignore international law in something like the Boyce example, he felt that soldiers could refuse to fight. Another former permanent secretary said that ‘Parliamentary sovereignty is one of the cornerstones of our constitutional arrangement’, but went on to say that ‘it's harder if you've got something where the position looks against international conventions or international law’. Another former permanent secretary said that international obligations are taken seriously ‘since we believe in the Treaties we sign’.

A very different view, however, was expressed by other civil servants. Two former permanent secretaries drew a distinction between international treaties ‘and what we might call vague international law’. The former, because of their specificity, should always be followed, whereas the latter was less binding. Another former permanent secretary, who admitted to being ‘ignorant’ about international law, expressed a similar view in emphatic terms. He was scathing about the Foreign Office's reliance on international law, and especially the fact that they ‘seem to have a view that international law takes precedence over our own law’. Another former permanent secretary noted that, while we ‘abide by international law and [do] not overrule it, there is no such thing as international law being binding’. He noted that his ‘guiding star’ was the sovereignty of parliament and that he had ‘always assumed that national law can override international law’ even if ‘you have to jump through a hell of a lot of hoops to get there’.

Perhaps most striking of all was a view expressed by a former civil servant in the course of a discussion about the relationship between international law, parliament and the government. This respondent was one of the few prepared to criticise Boyce. He did so on the basis that the most important organ for deciding what international law required was not a court, but the Cabinet. His underlying rule of recognition was equally stark: ‘I think that the constitution can be changed by the Cabinet.’ That view might be extreme and at odds with those of other officials. It is nevertheless consistent with the executive's long-standing practice of adopting its own sources of normativity.Footnote ⁴⁰ It amounts, perhaps, to an executive branch riposte to the lawyers’ theory that the constitution is a creature of the common law (see e.g. Allan, Reference Allan2013).

VI. Rules of change

Rules of change govern how laws are modified, added to or removed (Hart, Reference Hart2012, pp. 95–96). The standard method of such change is ‘legislative enactment and repeal’ (Hart, Reference Hart2012, p. 95). Views were sought as to whether votes or debates in the House of Commons alone sufficed to change the law.Footnote ⁴¹ Relevant remarks sometimes flowed from the discussion of the Boyce incident. Other respondents were asked about Theresa May's motion in the House of Commons in June 2012Footnote ⁴² :

May intended that the motion should influence judicial interpretation of Article 8Footnote ⁴⁴ and the motion was unanimously passed. It did not, however, make a big impact on the courts. For example, the Immigration and Asylum Chamber of the Upper Tribunal refused to be bound by what it considered a ‘weak form of Parliamentary scrutiny’.Footnote ⁴⁵

Many respondents agreed that, unlike legislation, parliamentary motions did not change the law. One former permanent secretary dismissed May's view that her motion on Article 8 could alter the law as ‘wishful thinking’. A current civil servant agreed, but added that he doubted whether May really expected to change the law. He surmised that she aimed merely to ‘send a message’ and to give ‘political cover’ rather than to influence the judiciary. Other than that, he thought, the debate had ‘achieved nothing’. He added that civil servants had blocked ‘quite a few’ similar attempts by ministers. Another current civil servant said it would make him ‘unhappy’ if a minister tried to change the law in his area by means of a motion rather than by legislation. Another former permanent secretary expressed his opposition even more strongly, arguing that the current trend for ‘less extensive and consultative means’ of changing the law was ‘pathetic’. A former CDS was equally hostile, stating that any belief that a debate or vote in the Commons could change the law was ‘arrant nonsense’. A former chief constable said simply that a parliamentary resolution did ‘not chang[e] the law’. A local government figure was similarly succinct in rejecting votes or debates as sources of legal change because ‘that's not how the constitution works’. Two former permanent secretaries claimed that ministers employ May's tactic ‘at their peril’ because, in their view, public opinion was generally more favourable to the courts than to politicians, and that a conflict with the judiciary would not ‘end well for government’.

Complete uniformity, however, was not achieved. Another current permanent secretary remarked that, although votes and debates did not have the same status as legislation, ‘there is a point in trying’ if they might ‘sway’ a court. A former CDS expressed the same view. A former Cabinet secretary thought that ‘judges should take [votes and debates] into account, but they should not be bound by [them]’.Footnote ⁴⁶ Those views do not challenge the current rules of change directly, but they do amount to trying to work around them. One former permanent secretary, however, went much further, asserting straightforwardly that the Commons motion on Article 8 should count as having changed the law: ‘If the resolution has been voted on and approved by the House and it is clear that they are serious about it then I think judges should follow it.’

Perhaps the most extreme example of the view that a Commons resolution might change the law came in a discussion of what would happen if the courts had ruled unlawful the invasion of Iraq despite a Commons resolution in favour of it. A current civil servant queried the legitimacy of any such judicial decision:

This was not merely the conventional point that the courts should defer to the judgment of the political branches in matters of national security.Footnote ⁴⁷ Rather, it was being asserted that, if the courts fail to defer to the political branches’ primacy, the courts’ view of the rules of change could be ignored and the Commons’ view should prevail.

VII. Rules of adjudication

Rules of adjudication provide a mechanism for determining what the rules require in specific cases when disagreement or uncertainty appears (Hart, Reference Hart2012, pp. 96–98). The function is typically performed by judges and courts (Hart, Reference Hart2012, p. 97). That, indeed, is the view of adjudication we found among local government chief executives. They regularly mentioned judicial review as one of the main adjudicatory options open to the authority when faced with adverse central-government decisions, although one chief executive bemoaned the fact that it was not a popular choice with the public. Another chief executive, when asked how he would find out the legal position on an issue, immediately responded that it would be through judicial review, especially ‘[i]f something had a real adverse effect on [this area]’. Another current chief executive noted that, where the law is unclear, her tactic is usually to ‘take a reasonable position and ultimately leave it to the courts’.

We also found frequent mention of subsidiary or additional methods of determining what the law requires, including reference to counsel and consultation among colleagues. One former permanent secretary noted that he would engage counsel (rather than using his own internal lawyers) on ‘sensitive’ issues, but that external advice was not restricted to such issues, and was therefore quite common. Daintith and Page noted in the 1990s that the Attorney General had issued guidance to curtail the contracting out of legal services (Daintith and Page, Reference Daintith and Page1999, pp. 213–214), but the situation seems to have changed, possibly because of the continuing growth of judicial review (Yong, Reference Yong2013, paras 1.1–1.3; see also Windsor, Reference Windsor and Feldman2013, for other reasons this might have happened).

Consultation among colleagues was also prevalent in all sectors, and particularly within the civil service and local government (Yong, Reference Yong2013, para. 4.6 also noted that informal advice from government lawyers was ‘very common’). One former permanent secretary was quite clear that ‘[w]hat you do when you don't know what to do is sit down and talk to each other’. A current permanent secretary agreed, noting that his first point of contact any time he has a question or a difficulty are his predecessors. A former Cabinet secretary remarked that people simply talk to one another to ascertain the law and that it was ‘an utterly British way of doing it’.Footnote ⁴⁸ Similar patterns of using professional and personal networks appeared in the military and local government respondents.

None of this is perhaps particularly different from what happens outside government. When we look more closely at central government, however, we find something else: a rival to the courts in making adjudications – a rival whose authority goes beyond that of references to counsel or informal consultations with colleagues. That rival is the Attorney General. For several civil servants and for some of the military, whatever the Attorney General says is law is law. As Daintith and Page noted, for many inside Whitehall, the description of the Attorney General as the government's chief legal adviser is misleading. As they found, his role is ‘broader’ than the word ‘adviser’ might suggest, having a ‘special quality and status’ (Daintith and Page, Reference Daintith and Page1999, p. 297). A succession of central government figures told us that the Attorney determines what the law is.Footnote ⁴⁹ For example, one former permanent secretary noted that, when Admiral Boyce wanted to go to the Attorney General, ‘The Attorney General was being asked “what is the law”, not “[what is] the likelihood of being sued”’. Another said: ‘The PM and the Foreign Secretary must seek the opinion of and obey the law officers.’ Yet another said, referring to the legality of the war in Iraq:

A further perhaps paradoxical indication of the binding nature of the Attorney's determinations was that respondents reported occasions on which the prime minister knew he would not like the Attorney General's view and so ‘he made sure not to ask him’. Yong noticed a similar process, remarking that the delay in seeking the Attorney General's advice on the second Iraq War was ‘possibly because the Prime Minister feared it would not support his chosen course of action’ (Yong, Reference Yong2013, para. 6.24). Why take active steps to avoid taking the Attorney's advice, especially since evasion can itself cause problems,Footnote ⁵⁰ unless its effects once given are ‘final and determinative’ (Yong, Reference Yong2013, para. 4.4)?Footnote ⁵¹

There is no uniformity on this point, however. About half of our central government respondents made comments that can be interpreted as attributing an adjudicatory role to the Attorney General, but the other half did not, most of them indicating support for a mere ‘advisory’ role.

Another interesting aspect of the Attorney General's role is that, although central government officials did not deny that the courts were entitled to interpret the law, those interpretations were not universally and invariably treated as automatically applicable within government without further confirmation from the Attorney General. As has been observed elsewhere, the Attorney General functions as ‘a buffer’ between politicians and lawyers (Yong, Reference Yong2013, para. 4.8). The degree of that buffering can, however, go too far for the courts. In 2015, in R (Evans) v. Attorney General,Footnote ⁵² Lord Neuberger found it necessary to repeat Lord Templeman's condemnation in M v. Home Office Footnote ⁵³ of ‘the proposition that the executive obey the law as a matter of grace and not as a matter of necessity’. We heard what appeared be an echo of that proposition when a former permanent secretary, on being asked about the effect of a European Court of Human Rights decision on prisoner voting, commented that, rather than complying, he would seek the Attorney General's advice. He suspected that ‘[t]he Attorney General will say “I'm afraid you have got to comply”’, but he would be unwilling to comply immediately without seeking such validation. Admittedly, that example arose in the context of a decision by an international court, not the domestic courts involved in Evans and M, and we did hear a rival story that, although officials often very much resent judicial decisions, they nevertheless comply without further ado,Footnote ⁵⁴ but it at least suggests an area for further investigation. The executive preference to keep the courts ‘out of its “own affairs”’ is well known,Footnote ⁵⁵ but the view condemned by Lord Neuberger and Lord Templeman goes further. It treats the courts as an alien force and would help to justify the executive setting up its own rival ‘insider’ process of adjudication.Footnote ⁵⁶

VIII. The internal point of view

The test devised for whether officials maintained an internal point of view was whether there were circumstances in which, on political instruction, they would refuse to comply with what they knew to be the law.Footnote ⁵⁷ Evidence of officials adhering to the internal point of view was not lacking. Many civil servants indicated that, in a situation in which they were being asked to do something unlawful, they would not comply. The situation was different from one in which they had doubts about a policy's wisdom or value for money, in which they might go along with their minister's wishes or, in extremis, resign. In Page's research, only two civil servants reported an objection to a particular policy they had to implement. They nevertheless thought it would be ‘unprofessional’ not to publicly defend the policy as ‘a very good idea’ (Page, Reference Page2001, p. 114). But, for several officials, legality was a different matter. One former permanent secretary told us that ‘there is the expectation that the Permanent Secretary sometimes draws lines and says he cannot do that’. He remarked, using the Pergau Dam case as an example,Footnote ⁵⁸ that he did not think he ‘could have been directed to do something illegal or unlawful’.

Another former permanent secretary described as ‘nonsense’ the suggestion that civil servants should view disagreement on policy and legality in the same way and either comply or resign. He explained that ‘if it's not lawful, you can't instruct an official to do it’. Two former permanent secretaries asserted that, specifically ‘in matters of war and peace’, resistance to illegality was a viable option and that officials did not face the forced choice of complying or resigning.

The view of the military was similar. One officer drew a line between issues of ‘dubious legality’ and proposals he simply disagreed with. With regard to the former, he felt that he could refuse to carry out the order. With regard to the latter, however, he felt that the military had to ‘either salute and get on with it or, if you wouldn't be able to live with yourself, you resign’. He concluded that ‘The military does not just do whatever it wants. And we don't just do everything we're told’. A former General agreed, saying ‘as a General, I shouldn't obey illegal orders, so I have every reason to question it. That was taught to me from the beginning’.

Local government officials were clearer still that they would refuse to obey unlawful orders. One current chief executive said:

The legal protection offered to the Head of Paid Service in local authorities gave them some basis for that position,Footnote ⁵⁹ but they recognised that the practical political consequences of defiance might well be a conflict they would in the end lose.Footnote ⁶⁰ Chief executives typically noted that ‘if the relationship between the Leader [of the council] and the chief executive goes wrong, it's the chief executive who has to leave, not the Leader’.Footnote ⁶¹ Nevertheless, refusal was usually seen as correct behaviour.Footnote ⁶² Another current chief executive continued:

She continued to say that she would not resign under such circumstances: ‘Standing up, not resigning, is the right thing to do.’

Crucially, however, some civil servants indicated that they would follow a ministerial order even if they knew that order to be unlawful. One former permanent secretary said he had asked for a ministerial written direction where he was ordered to do something that had ‘no legal base’. Despite being sure that the action would be struck down if judicially reviewed, after receiving a written instruction, he was happy to go ahead. It was enough that the minister went ‘into it with his eyes open’. Another former permanent secretary agreed that a written direction was the correct ‘mechanism’ where ‘government is intent on policy which is illegal under domestic law’. Having received a written instruction to carry out an illegal order, he was quite clear that he would have to ‘either carry it out or resign’. Some police officers also thought that they had to follow orders. In relation to the Boyce example, one former chief constable noted that, regardless of the legality of the war, if Boyce had refused to go to war, it would have amounted ‘mutiny’.Footnote ⁶³

Such views might be surprising, but they are consistent with the response we recorded to the ‘Poundland’ case that some civil servants felt comfortable with refusing to follow a court judgment if their minister's view, having the support of the House of Commons, was that the court should be resisted. More generally, a former permanent secretary said that it was ‘not uncommon that legal advice says the chances of a court striking [the decision] down are high’ yet ‘ministerial decisions might still go ahead’, apparently without protest from civil servants.Footnote ⁶⁴

IX. Is there a uniform internal point of view?

What can we say, bringing the evidence together, about whether UK officials have a uniform internal point view of the UK's rules of recognition, change and adjudication?

As we laid out above, that question has two parts: are views uniform and are they uniformly internal? In some respects, views are uniform. We found very little evidence, for example, that UK officials are currently tempted by any substantive restrictions on parliamentary supremacy. Whatever the views of certain judges, and whatever the hopes of certain theorists, we found only the beginnings of uncertainty and hesitation about the effect of the human rights thinking on what counts as law. Both on retrospectivity and on human rights, officials turned to a straightforwardly hard positivist view of the supremacy of parliament in domestic law.

In other respects, however, even in our small sample (which itself might be biased towards uniformity), official views were very far from uniform. The most striking is the status of international law. The military and some officials associated with defence and foreign policy tended to say that parliament could not alter or relieve the obligations of international law. They felt bound directly by international law regardless of what parliament or the government thinks. Other officials distinguished between treaty obligations, which were binding, and ‘vague’ international law, which was not. Others still distinguished between international law about war and peace and other types of international law. In sharp contrast, others, both in central government and in local government, believed international law to be entirely subordinate to domestic legislation, or even to the democratic will of the House of Commons as expressed in a resolution.Footnote ⁶⁵

Lack of uniformity also appeared about adjudication. Outside central government, the conventional view holds sway, namely that the courts provide the only authoritative interpretations of the law, although there might be other more informal methods that work better from day to day. But, inside central government, a different theory has supporters, according to which the Attorney General gives authoritative interpretations of the law. In an extreme variation on that theory, the Cabinet itself, on the advice of the Attorney,Footnote ⁶⁶ is taken to be the highest interpreter of the law.

Moreover, the conventional view of the rules of change – that parliament can change the law only by means of acts of parliament or authorised secondary legislation – is fraying at the edges, with support being found for the view that, whatever the House of Commons votes for, even if merely in the form of a resolution, should be capable of changing the law. Many still take the older view but strict uniformity does not exist.

Lack of uniformity is perhaps unsurprising given that, as Daintith and Page observed, the autonomy of individual government departments is ‘central’ to our constitution (Daintith and Page, Reference Daintith and Page1999, p. 58). That autonomy includes differing departmental attitudes as to when and how legal advice is sought (Daintith and Page, Reference Daintith and Page1999, p. 333). Furthermore, Daintith and Page found that the Government Legal Service at that point in time lacked ‘co-ordination and coherence’, so that the legal advice given was not centralised (Daintith and Page, Reference Daintith and Page1999, p. 322; see also Yong, Reference Yong2013, Chapter 2, although it is important to note his comments on attempts to ensure ‘some consistency and coherence in legal advice across Whitehall’ by way of informal groups (executive summary para. 7, Chapter 2 and para. 4.14) and his observation that the finality of the Attorney General's advice may provide some consistency (para. 4.4)). But, for lack of uniformity to break out on a question about which lawyers, as far as we know, would not themselves disagree is surprising.

Moving on to the internal point of view, it is very striking that some senior civil servants regard their duty to support their minister as superior to any duty to comply with the law. That view seems more common among civil servants than among local government officials, who start from a different legal base, though not necessarily from a different practical one, and the police, though it is not entirely absent even there. It is difficult to see how these officials are taking the internal point of view. One cannot even say they are giving a false impression of accepting the rules. All they might argue is that their defiance is not public and so not necessarily a direct threat to stability.

X. Implications

On their face, these results, albeit derived from a small study, seem to suggest that Hart's account is at least seriously incomplete. If we accept that the UK does have a legal system, we seem to need more than Hart's account of what officials believe to explain its persistence. We concede, however, that an argument from tolerance might be made in each of the examples we have identified. The argument would be that the degree of official disagreement we have found about the status of international law, the role of the Attorney General, the status of Commons resolutions and on whether civil servants are prepared to break the law does not add up to a threat to the operativeness of the legal system. These examples, the tolerance argument would claim, are minor perturbations that pose no threat to the system as a whole. For practical purposes, Hart's theory would remain intact.

One objection to taking a complacent view is the high salience of the issues associated with the areas of lack of uniformity. In particular, the relationship between international law and domestic law lies at the heart of a series of immensely important issues in early twenty-first-century British politics: the relationship between the UK and the EU, the future of human rights legislation and lessons of the second Iraq War. The options a state faces on that relationship are no more difficult to grasp than any other issue in elementary constitutional law, but disagreement about them potentially affects not only issues of political strategy, but also everyday decisions about such matters as prisoner voting rights and economic policy.

Another objection to the complacent view is that, although each point taken individually might cause only minor ripples in the operativeness of the UK's legal system, if circumstances arose in which they came to be combined, the situation might be far more serious. The Boyce situation itself, if it had gone down a different route, is a case in point – the clash about the status of international law, combined with rulings from the Attorney General possibly at odds with rulings from the courts and claims of high authority made for resolutions of the House of Commons might easily have produced a situation in which UK armed forces were receiving contradictory instructions about going to war and the populace were faced with a military denying the principle of civilian control over the armed forces.

A further point, relating specifically to the results on the internal point of view, is that the situation might deteriorate rapidly if the population became more aware of the views of some civil servants and police officers that they should sometimes defy the law. The lack of an internal point of view would threaten not only their personal credibility, but also the legitimacy of the whole system.

XI. Questions raised for further research

The results here are only suggestive. A full-scale study, qualitative and quantitative, difficult as that might be to organise, might show that the dissident views we found are held by very small minorities and so would not in reality pose much of a threat to the operativeness of the legal system. But what if they are not held only by insignificantly small minorities? What would be the implications if our findings were replicated at scale?

One set of implications, and a justification by itself for more research on these questions, would concern the compatibility of different directions of change in the secondary rules. A move towards incorporating international law into the rule of recognition implies a restriction on the legal powers of domestic majorities, but a move towards allowing simple resolutions of the Commons to change the law implies an expansion of the powers of domestic majorities. Would such changes be contradictory or complementary? They might seem politically to be complementary, but legally they look contradictory and a possible source of future conflict and instability. Moreover, a movement in favour of majoritarianism in the rules of change justified by appeals to democracy might have a knock-on effect on the rule of recognition, for, if a government can change the law by a resolution of the Commons, what is the point of the House of Lords?

Another set of implications justifying further work is more social scientific. We have found some evidence of the existence of a uniform internal point of view, but also evidence of its absence. If larger studies were to confirm our findings, can we say that Hart was wrong? The simple answer to that question seems to be ‘yes’. Hart claimed a wider uniformity than seems to exist. But if, following Galligan's view, we think of Hart's account as an ideal type, the immediate question is whether Hart's view is so wrong that we should discard it completely. We arguably found sufficient uniformity that one might perhaps regard throwing Hart's ideal type out entirely as precipitate. On the Weberian interpretation of Hart, we would need to ask whether we could identify other ideal types, in the sense of analytical constructs built out of one-sided accentuations of social practices, capable of explaining the part of social reality left unexplained by Hart.

One possibility is that we might need an ideal type built around an official who acts according to political imperatives rather than legal rules. Indeed, some of our officials – those who stressed settling constitutional questions by negotiation and mutual adjustment – might themselves serve as the basis of such an ideal type.Footnote ⁶⁷ From a Hartian point of view, the ideal type of the political official represents a form of lawlessness. Many of the civil servants we interviewed were indeed candid about their, and their ministers’, distaste for the courts.Footnote ⁶⁸ But the political official type is more subtle than merely someone who finds the judiciary irksome. It involves ‘balance’ and accommodation between law and politics. For example, a former Cabinet secretary revealed that he had organised private meetings between senior colleagues and the judiciary with the objective of assisting mutual understanding. His summary of the situation was: ‘There has always been tension. The judges quite rightly assert their independence and the politicians their sovereignty. But the relationships were not always bad behind the scenes.’Footnote ⁶⁹

The political official ideal type, however, is not the only possible further explanation that might account for the part of social reality left unexplained by Hart. The evidence suggests that officials might not simply reject the rules of recognition, change and adjudication conventionally accepted by the courts and by textbook writers. They might also have their own different rules or at least their own debates about what the rules should be – for example, whether international law is superior to domestic law, whether Commons resolutions should have legal effect and in case of dispute or uncertainty whether the Attorney General, or even, according to a particularly extreme view, the Cabinet, decides what the law is. That suggests in turn a different explanation based around not a rejection of strict legality or of government through rules, but instead a plurality of such rules. It would be as if a legal system exists formed around and operated by the courts, but another legal system exists based in government and centring on the Attorney General. The two systems would have similar views on many basic matters but they might not entirely coincide and might have different degrees of internal coherence. The degree of conflict between them would have to be managed by their leading participants, in particular the law officers on one side and the senior judiciary on the other. It would still be a matter of ‘balance’ and adjustment, but between different systems of rules rather between law and politics.

The extent to which a plurality of systems of rules exists within the British state is at this stage more a topic for future research than a firm conclusion. One might, however, point to a parallel in the relationship between the courts and parliament in the UK. One can see parliament as attempting through Article 9 of the Bill of Rights to assert a zone of lawlessness. That seems to be the judges’ view of parliamentary privilege.Footnote ⁷⁰ A different view, however, is that parliament, or at least a group of people within parliament, is asserting that it has its own separate legal system – a lex parliamentaria in the literal sense – with its own rules of recognition, change and adjudication.Footnote ⁷¹

Another direction for future research would be to ask whether the situation in the UK is unique. The idea that state officials might not always be inclined to follow the law might be shocking to those who have built their constitutional theories exclusively on the idea the Rechtsstaat, but that by itself does not rule out the possibility. Results similar to those of the British case are far from impossible elsewhere, especially in countries (in Scandinavia, for example) where the concept of judicial supremacy is not universally accepted. Even where that principle is, more or less, accepted, for example in the US, difficulties surrounding locus standi and doctrines limiting justiciability, such as the political question doctrine, leave much scope for officials in the other branches of government to conduct themselves in a Hartian or in a non-Hartian way.Footnote ⁷²

In the end, it might turn out that, to capture the whole range of what is happening, and to explain both long-term stability and change, we will need both the political official ideal type and the idea of competing systems of rules, and that both will supplement rather than replace Hart's ideal type of officials who share the same views and criticise their peers who fail to conform. Social reality does not need to be simple.