THE NUANCED CONSTITUTION: AN ESSAY ON COMMON LAW CONSTITUTIONAL RIGHTS Candidate: Eva Christina Lienen Institution: UCL Degree: PhD 1 DECLARATION OF AUTHENTICITY ‘I, Eva Christina Lienen, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis.' Signed: Dated: 2 ABSTRACT This thesis argues that the examination of judicial reasoning in public law cases shows that the UK constitution is best described as ‘nuanced’, rather than by reference to either political or common law constitutionalism. One manifestation of the nuanced constitution is the concept of common law constitutional rights, i.e. human rights under the English common law, which have recently been revived by the UK Supreme Court in cases such as UNISON v Lord Chancellor. I examine these rights with a view to portraying the inner workings of the nuanced constitution as well as its shortcomings. Drawing on the historical development and the contemporary characteristics of common law constitutional rights, I contend that the latter have been negatively impacted by the ambiguities underlying the wider constitutional framework. As the Privacy International litigation shows, the senior Judiciary is in significant disagreement about some of the core aspects of the UK constitution. Indeed, we cannot detect a principled constitutional philosophy guiding decision-making; the nuanced constitution is torn between the irreconcilable tenets of political and legal constitutionalism. Due to this tension the range and scope of common law constitutional rights remains unclear, and their legitimacy contested. Furthermore, given the continued role of Parliamentary Sovereignty, common law constitutional rights are at constant risk of being abrogated by clear statutory language. Having found that the nuanced constitution - despite the resurgence and increased weight of common law constitutional rights - is unable to adequately protect essential constitutional values, I advance an alternative approach to constitutional rights protection. Abandoning Parliamentary Sovereignty, which is riddled with conceptual and normative shortcomings, I propose a more principled framework that effectively protects those rights that are constitutive of a liberal democracy, properly understood. 3 IMPACT STATEMENT This thesis calls for a more explicitly theoretically grounded analysis of UK public law. It highlights the current low levels of engagement with substantive constitutional values both in the academic literature and in judicial reasoning. Greater coherence in common law constitutional rights jurisprudence could be achieved if scholars and judges were to adopt a less institutional legitimacy-centric approach, focusing instead on the core values of a liberal democracy. In the course of writing this thesis I have sought to contribute to the debate on judicial reasoning in public law adjudication by publishing some of my work in two highly regarded law journals (‘Common law constitutional rights jurisprudence: public law at a crossroads?’ [2018] Public Law 649 and ‘Judicial Constitutional Comparativism at the UK Supreme Court’ (2019) 39(1) Legal Studies 166). Additionally, I have highlighted the significance of this line of jurisprudence by regularly contributing to widely read law blogs, such as the UK Constitutional Law Association Blog (2017), the UCL Constitution Unit Blog (2017) and the IACL- AIDC Blog (2019). I also spoke at numerous conferences about the opportunity the current resurgence of common law constitutional rights jurisprudence offers to re-examine our constitutional arrangements more broadly. In particular, I highlighted the significance of the UK Supreme Court judgment in UNISON at the Public Law Conference co-organised by the University of Cambridge and the University of Melbourne (2018). I was able to further contribute to comparative legal analysis by presenting my research to an audience of academics and practitioners from Canada and other common law jurisdictions at the Unwritten Constitutional Norms and Principles: Contemporary Perspectives Symposium hosted by the University of Ottawa (2019). 4 Going forward, this thesis’ critique of the current lack of a principled approach towards autochthonous case law based human rights protection is likely to influence future legal debate and scholarship. While this research is likely to have the clearest impact within academia, there is a strong potential for it to also benefit judges and politicians. To that end, apart from my ambition to convert this thesis into a monograph, I will explore other disseminating outputs to make my findings and proposals available to a wider audience. For instance, the political ambition to abolish the Human Rights Act 1998 has been unhelpfully bolstered by the mistaken assumption that the English common law offers the same or a highly similar level of human rights protection. This thesis challenges that assumption, and its findings could potentially benefit NGOs that raise awareness about the importance and indispensability of the Act. 5 TABLE OF CONTENTS ACKNOWLEDGEMENTS p. 11 INTRODUCTION p. 13 1. The Nuanced Constitution p. 13 2. Common Law Constitutional Rights p. 15 3. Exploring the Nuanced Constitution Through the Lens of Common Law Constitutional Rights p.19 4. The Core of this Model: Five Significant Common Law Constitutional Rights Cases p. 20 5. Methodology and Structure p. 25 6. My Argument Summarised p. 27 Chapter 1: The Nuanced Constitution p. 27 Chapter 2: A Short History of Common Law Constitutional Rights p. 28 Chapter 3: The Nature and Characteristics of Common Law Constitutional Rights p. 29 Chapter 4: A Case Study of Privacy International v Investigatory Powers Tribunal p. 31 Chapter 5: The Shortcomings of the Nuanced Constitution p. 31 Chapter 6: Striving Towards a More Coherent Framework: A Template for Rights Protection in a Liberal Democracy p. 32 CHAPTER 1: The Nuanced Constitution p. 34 1. The Need for a Fresh Assessment p. 34 2. The Traditional Description of the UK Constitution p. 36 3. Why the UK Constitution is not Political in Nature p. 39 6 Parliamentary Sovereignty is not Uniformly Endorsed as the Supreme Constitutional Principle p. 40 Value-driven Interpretation of Primary and Secondary Legislation p. 44 The Recognition of Constitutional Statutes and Common Law Constitutional Rights p. 48 4. Enabling Factors p. 51 The Influence of European Law p. 53 What about Brexit p. 55 The Properties of the English Common law p. 60 5. Why is the Nuanced Constitution not the Common Law Constitution? p. 64 6. A Closer Look at Common Law Constitutional Rights p. 70 CHAPTER 2: A Short History of Common Law Constitutional Rights p. 72 1. Three Famous Antecedents p. 74 2. The First Modern Wave p. 80 Examples of Common Law Constitutional Rights p. 82 Enabling and Contributing Factors p. 85 Domestic Public Law Developments p. 85 The ‘ECHR Mirror’ p. 89 The Influence of EU Law p. 91 Influential Writings p. 92 3. The Trough p. 93 Legal Authority and Duty through a Statutory Foundation p. 96 Accessibility and Certainty through a Concrete List p. 97 The Systematised Reasoning Pattern under the HRA p. 98 The New Toy p. 99 4. The Second (and Current) Wave p. 100 Politics, the Role of the Supreme Court and Rights Accustomisation p. 102 7 5. External Influences and Internal Uncertainties p. 108 CHAPTER 3: The Nature and Characteristics of Common Law Constitutional Rights p. 110 1. Why the Distinction between Rights and Residual Freedoms Matters p. 111 2. The Positive and Negative Dimensions of Common Law Constitutional Rights p. 116 3. The Six Characteristics p. 118 The Enabling Power: Inherent Jurisdiction or the Rule of Law? p. 121 The Principle of Legality p. 124 Strasbourg and the Common Law p. 128 Domestic Foundation: A Fluid Notion of Precedent p. 135 Building Substance: Validation through Comparativism p. 138 Proportionality Review p. 142 4. Taking Stock p. 146 CHAPTER 4: A Case Study of Privacy International v Investigatory Powers Tribunal p. 148 1. The Constitutional Significance of Ouster Clauses p. 149 2. Anisminic v Foreign Compensation Commission p. 151 3. Privacy International: the Facts p. 153 4. Three Judgments, Seven Individual Opinions, Two Views of the UK’s Constitutional Dynamics p. 155 The Divisional Court Judgment p. 156 The Court of Appeal Judgment p. 159 Privacy International in the Supreme Court p. 163 The First Issue: Does section 67(8) of the Act Oust 8 the Jurisdiction of the High Court? p. 164 The Second Issue: Can Parliament Oust the Jurisdiction of the High Court? p. 166 5. The Workings of the Nuanced Constitution p. 168 Judicial Disagreement as a Manifestation of the Constitutional Spectrum p. 169 The Nuanced Constitution’s Inherent Tension and its Potential Impact on Judicial Reasoning p. 172 Lord Carnwath’s Conceptualisation p. 172 The Flaws in Lord Carnwath’s Attempted Reconciliation p. 176 6. The Jackson Connection p. 181 7. The Shortcomings of the Constitution Painted in Privacy International: a Prelude p. 186 CHAPTER 5: The Shortcomings of the Nuanced Constitution p. 189 1. Navigating the Spectrum p. 190 In Search of a Justificatory Foundation for Common Law Constitutional Rights p. 192 Procedural Foundations p. 192 Substantive Foundations p. 195 The Unprincipled Nature of the Spectrum and Rights Protection p. 199 2. Parliamentary Sovereignty as the Framework of the Spectrum p. 199 A Predominantly Institutional Focus: How Dicey and Griffith Set the Scene p. 200 The Framework in Practice: Legality and Parliamentary Sovereignty p. 204 3. The English Common Law: Simultaneous Facilitator and Impediment p. 210 4. A Snapshot of the Rights Recognised under the Nuanced Constitution p. 216 An Overview p. 217 9 Contrasting Traditional and ‘Modern’ Rights p. 219 Non-Recognition and Underdevelopment p. 221 Revisiting the Vulnerability of Common Law Constitutional Rights p. 223 5. The Constitutional Legacy of UNISON and Privacy International p. 225 6. Conclusion p. 230 CHAPTER 6: Striving Towards a More Coherent Framework: A Template for Rights Protection in a Liberal Democracy p.