TITLE: THE MORAL READING OF THE BRITISH CONSTITUTION Candidate: Stuart James Lakin College: University College London Degree: PHD 1 DECLARATION OF AUTHENTICITY ‘I, Mr. Stuart James Lakin 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……………………………………………………………….. Date…………………………….. 2 ABSTRACT This thesis investigates the philosophical assumptions which underpin established theories of the British constitution, paying particular attention to the influence of traditional (and sometimes outdated) theories of legal positivism. I atte mp t to identify, analyze and challenge these assumptions, exploring how recent developments in legal theory can inform and enrich our approach to British constitutional theory. Drawing, in particular, on the anti-positivist theory of Ronald Dworkin, I contend that an understanding of the British constitution must begin with an understanding of the principle of legality: tha t is, the principle that government may only exercise coercive force in accordance with standards established in the right way before that exercise. The principle of legality (properly understood as reflecting the value of integrity), I argue, shapes or controls the many other principles that underpin British constitutional practice, principles such as the separation of powers, democracy and individual human rights. Once it is appreciated that each and every fact about British constitutional practice must be justified by arguments of political morality, there is little difference, I argue, between the so-called ‘unwritten’ British constitution and the ‘written’ constitution of, say, the United States. In particular, there is no plausible philosophical basis for ascribing unlimited legislative powers to the Westminster Parliament. The extent of Parliament’s legislative powers (and the extent of the powers of the executive branch of government), I suggest, must depend on how we conceive of the le ga l principles that justify Parliamentary power, most notably the principle of democracy. Democracy, properly understood, I argue, mea ns that Parliament (or government) has a duty to treat each member of the British community as an equal; or, to state the right which corresponds to that duty, democracy means that individuals have a moral right against government to be treated as an equal. 3 INDEX Introduction Ch. 1 – Debunking the Idea of Parliamentary Sovereignty: the Controlling Factor of Legality in the British Constitution 1. In Search of the Philosophical Foundations of Parliamentary Sovereignty A. The Structural C laim B. The Empirical C la im 2. The Stuctural and Empirical Claims Considered A. Jackson v Her Majesty’s Attorney General 3. Legality as the Controlling Factor in the British Constitution Ch. 2 – Understanding the Principle of Legality 1. Disagreement about the Meaning of Legality A. Formal and S ubstantive Conceptions of Legality 2. Two Threshold Objections A. The Moral Neutrality Objection B. The Epistemic Objec tio n 3. Two Conceptions of Legality A. The Values of Certainty and Predictability. B. The Value of Integrity or Equality Before the Law Cha pter 3 – Principles of English (Administrative) Law 1. The ‘Intentions’ Theory 4 A. Unpacking the Idea of a Parliamentary Intention B. The Inadequacy of the Common law Critique of the Intentions Theory C. Legislative Intent 2. Two Alternative Models of (Administrative Law) Adjudication A. A Rule-Based Model of Administrative Law Adjudication B. Administrative Law as Integrity C. Administrative Law as Integrity and the ultra vires debate Cha pter 4 – Democracy, Human Rights and the Proper Role of Judges 1. Justifying the Powers of Parliament A. The Majoritarian Conception B. A Rights-Based Conception of Majority Decision-Making C. Rights Against the Majority 2. The Proper Role of Judges (in the British Constitution) 3. Adjudication Under the HRA 1998 A. The Nature of Rights Under the ECHR B. The Proper Role of Judges under the HRA 1998 4. Conclusion Cha pter 5 – Law, Constitutional Conventions and Political Principles 1. Why Distinguish Between Law and Convention? 2. Two Attempts to Distinguish Legal Duties from Political Duties A. Enforcement/Enforceability B. Legal and Constitutional Duties as Har tia n ‘Social Rules’ 3. The Moral Foundations of Legal and Constitutional Duties 5 Cha pter 6 – Conclusion: In Defence of the Moral Reading of the British Constitution 1. A Thesis O verview 2. The Political Objec tio n A. The ‘Unwritten’ British Constitution B. Democracy or Juristocracy? 3. Closing Refle ctio ns Bibliography 6 ACKNOWLEDGMENTS There are many people whom I would like to thank for their support and encouragement during my time at UCL. Above all, I owe an enormous debt of gratitude to my two research supervisors Jeffrey Jowell and Dawn Oliver who have been exceptionally helpful and generous towards me over many years, both in relation to my doctoral research and my academic career. My P hD project has changed its shape more times than I care to admit, yet Jeffrey and Dawn have shown enormous confidence in me, gently guiding me, yet always encouraging me to follow my instincts and intuitions. I have been extremely fortunate during my time as a PhD student to meet some wonderful and talented friends who have opened my eyes to many different cultures and different ways of thinking. Thank you, in particular, to George Letsas who has been a constant friend, mentor, and unwavering source of encouragement to me. Without the benefit of his deep knowledge and patience, I could not hope to have produced this thesis. Thank you too to my good friends Emmanuel Voyiakis, Riz Mokal and Octavio Ferraz. From the academic staff at UCL, I would like to thank Rodney Austin who kindly helped me through the first six months of my research, and who has since become a good friend and golfing companion. Stephen Guest has been hugely supportive of my attempt to bring Dworkinian jurisprudence to public law debates, and he has similarly become a good friend and occasional violin sonata partner. Thank you to Eric Barendt who supported me in my upgrade interview, and who has since taken an active interest in my work. Finally, a big thank you Sylvia Lough, the long-time secretary of Jeffrey Jowell, who has repeatedly dragged me back from the depths of academic despair. I would like to dedicate my thesis to my mother, Pamela Lakin, and to the memory of my fa ther, John Michael Norman Lakin, who was diagnosed with multiple myeloma in 2004 and died in late 2006. 7 Introduction In this thesis, I set out to hold a mo ra l le ns up to British constitutional theory and practice. My central argument is that a theory of the British constitution must begin with an understanding of what it means for officials to exercise power in accordance with law; the theory must begin, that is, with an understanding of the principle of legality. It is only once we have settled the meaning of legality, I will argue, that we can make sense of the many other political principles that underpin British constitutional practice, principles such as the separation of powers, democracy and individual rights. While the primary aim of this thesis is to recommend the argumentative framework for British constitutional theory just described, my secondary aim is to propose a particular mo ra l reading of the British constitution, one based on the Dworkinian conception of legality as integrity (or equality under the law, properly understood). It will be argued that the value of integrity best explains and justifies the way in which the different political principles (of the sort referred to above) figure in the scheme of the British constitution. I will advance the central argument of this thesis by way of an attack on a cluster of idea s, derived from different versions o f le ga l po s itivis m, which I take to represent the orthodoxy in British constitutional theory. Most prominent amongst these are the twin id eas that Parliament is sovereign and that, given Parliament’s sovereign powers, the role of judges must be to give effect to Parliament’s intentions. In spite of the increasing vigour with which several judges and leading academics have sought to qualify the idea of Parliamentary sovereignty, I will suggest that this idea continues to impede the development of British constitutional theory. Once it is appreciated that neither the idea of Parliamentary sovereignty, nor the ide a that judges give effect to Parliament’s intentions can withstand philosophical scrutiny, a very different picture of Br itis h constitutiona l theor y emerges. What are, on their face, rather arid, conceptual debates on such questions as the possible limits on Parliamentary sovereignty and the meaning of Parliamentary intentions, may be recast as a set of rich debates in political morality about the proper powers of Parliament and courts, and the rights of individuals in a Western liberal democracy. 8 Be fore outlining the arguments of individual chapters, it will be helpful to lay down three caveats about the general ambitions of this thesis. My principal aim, I have said, is to offer a fresh perspective on British constitutional theory and practice. Given the centrality of the principle of legality to this project, it will be necessary to enter into a range of controversial questions in legal philosophy, most notably the age-old question about the nature and meaning o f the concept of la w. While I endeavour to justify my position on this question and others, this thesis is not intended as a work in legal philosophy, and so no attempt is made to explore all (or even most) of the arguments which may be made either in favour of or against the positions that I adopt.