THE SOVEREIGNTY OF LAW Freedom, Constitution, and Common Law This page intentionally left blank Th e Sovereignty of Law Freedom, Constitution, and Common Law T. R. S. ALLAN 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © T Allan 2013 Th e moral rights of the author have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. 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Preface Th is book has been written during my tenure of a Leverhulme Major Research Fellowship, 2010–2012, and I am very grateful for the opportunity for uninterrupted research and refl ection that the Fellowship provided. I am indebted to many friends and colleagues for their help and advice during this period, but most especially to John Allison, Peter Cane, David Dyzenhaus, David Feldman, Andrew Hillam, Jeff King, Stuart Lakin, Nick McBride, Alistair Mills, Nigel Simmonds, and Mark Walters for kindly reading and commenting on particular chapters. Andrew Hillam has generously read many chapters and given me invaluable advice on making my text more readily accessible to undergraduates as well as more experienced scholars. I am also grateful to Alex Flach and Natasha Flemming at Oxford University Press for their effi cient and friendly assistance. I have learnt much from the critical literature provoked by my previous writings on constitutional theory and public law. My critics have prompted me to think harder about my own conception of common law constitutionalism (as it is usually called); and I have taken the present opportunity to respond to their objections when it has seemed helpful to do so in order to advance or clarify my argument. My principal aim has been to explore some basic questions of method in the analysis of public law, attempting to lay bare the theoretical grounds of some of the major debates and controversies within the subject. I hope at least to clarify the jurispru- dential roots of my own position, in respect of many of these controversies, even if I fail to bring all readers round to my own conclusions. I have been very fortunate to enjoy the discussion of legal and constitutional theory with my friends John Allison, David Dyzenhaus, and Nigel Simmonds over many years; I have benefi ted greatly (if not greatly enough) from their scholarly wisdom. A great sadness during the writing of this book, however, has been the loss of my friend Amanda Perreau-Saussine de Ezcurra, after serious illness. A very fi ne common lawyer and legal theorist, Amanda was always both a generously appreciative reader and my most perceptive critic. Th e book would no doubt have been much improved if she had been able to scrutinize my draft chapters; I can only hope she would not have been too disappointed by the fi nal text. I dedicate the book to her memory. T. R. S. A. Cambridge January 2013 This page intentionally left blank Contents Introduction 1 1. Constitution and Constitutionalism 17 2. Constitutional Convention: Practice and Principle 55 3. Th e Rule of Law: Freedom, Law, and Justice 88 4. Parliamentary Sovereignty: Authority and Autonomy 133 5. Legislative Supremacy and the Rule of Law 168 6. Constitutional Foundations of Judicial Review 208 7. Judicial Review and Judicial Restraint 241 8. Democracy, Fundamental Rights, and Common Law 286 Appendix: Public Law and Political Th eory 333 Index 351 This page intentionally left blank Introduction I A student of British constitutional law is confronted by an intimidating series of antinomies; and it is quickly apparent that there is great scope for argument about fundamental ideas and doctrines. A doctrine of absolute ‘parliamentary sovereignty’ appears to make the principle of the ‘rule of law’ subservient to a fl uctuating legisla- tive majority. Yet the rule of law is normally understood by its defenders to provide the foundations for government according to law—the bedrock of liberal democratic constitutionalism. Th e paradox is deepened by what is sometimes presented as an opposition between the rule of law and democracy. If the former is broadly represented, in practice, by judicial enforcement of established legal principle, the latter consists (on that view) in the right of the people’s representatives to override such principles in the larger public interest. For example, basic rights of fair trial for certain types of criminal defendant—perhaps suspected rapists or terrorists— might have to give way to considerations of public safety, as determined by elected members of Government or Parliament.1 Th e sense of paradox or contradiction is further deepened by an overarching confl ict between so-called legal constitutionalism and its political counterpart. Whereas the former emphasizes the role of the judiciary in defending basic liberties, the latter gives pride of place to the ordinary political process, giving maximum weight to the popular voice on any issue, as refl ected by opinions expressed and votes cast. A legal constitutionalist typically concentrates on the legal framework of the constitution, treating the judiciary as the ultimate guardians of a system of law designed to regulate the exercise of power and protect individual liberty. Th e political constitutionalist usually treats the legal framework as a transient and temporary arrangement of rights, duties, and powers, vulnerable to change at the will of a current political majority acting in the name of the people at large. If the content of fundamental rights is sometimes controversial, making it hard to dis- entangle lawyerly disagreement from political dispute, it is not clear (on that view) why judges should be entrusted with resolving the controversy rather than elected politicians. 2 1 Th e capital G of ‘Government’ indicates the executive (ministers and civil servants) by contrast with ‘government’, which I use as to encompass all main branches of the state (including Parliament, Government, and the judiciary). 2 For a particularly robust defence of political constitutionalism and critique of its legal coun- terpart, see Adam Tomkins, Our Republican Constitution ( Oxford : Hart Publishing , 2005). See also Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy ( Cambridge : Cambridge University Press , 2007).