Introduction

Contemporary constitutional theory in the United Kingdom is marked by a series of debates that have deeper roots in legal and political theory. Competing theories of legal and political constitutionalism place rather different emphases on the central­ity of legal or political accountability.

Within the legal constitutionalist fold there has been a vibrant debate about the constitutional foundations of judicial review; accepting the present scope and legitimacy of judicial review, opinions have differed, nonetheless, over the best char­acterization of its place within the larger constitutional order.¹ That debate, however, has exhibited a rather uncertain relationship with more immediate questions of legality: the connection, if any, between preferred conceptual foundation and public law doctrine has been hard to discern.

For the most part, controversy over the constitutional role of the courts vis-a-vis other branches of government takes the nature of law for granted: law is treated, implicitly, mainly as a tool for the translation of political initiatives into law. On that view, the ‘rule of law' is a value related to the supposed instrumental nature of law: it makes a demand for published, prospective general rules, sufficiently clear and consistent to serve as a guide for people to follow, thereby making the law's prescriptions more effective. Compliance with the rule of law enhances the law's efficiency, as sharp blades improve the instrumental value of knives; if such compliance enhances human dignity, it is only in the ‘negative' sense that the rule of law is a safeguard against the law itself, which may be deployed in high-handed or oppressive ways.^[277] The rule of law, on that account, should not ‘be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man'.^[278] If, then, English law embraces fundamental rights, preserving a sphere of individual autonomy grounded in respect for human dignity, such rights depend on continuing parlia­mentary support; and their judicial protection and enforcement similarly depend on whatever remedies are for the time being approved by current legislation, which is always subject to repeal.

Common law constitutionalism, which accords the courts a place of honour alongside the legislature in the distribution or exercise of sovereignty, is best understood as repudiating that instrumental conception of law. The common law practice of judicial review is rooted in an avowedly moral concept of law, related to fundamental ideas about liberty and justice. On this approach, the values of indi­vidual autonomy and human dignity are internal to law, basic assumptions critical to its meaning and application in specific cases. And so far from the rule of law being merely a safeguard against the abuse of law itself—a shield against a political oppression imposed by assertion of law—it is, on the contrary, a basic protection against arbitrary power from whatever quarter it appears.^[279] The rule of law is the ideal of government according to law, insulating the individual citizen against the unfettered discretion of officials, on one hand, and the depredations of other persons or private organizations, on the other. The familiar distinction between the concept of law and the ideal of the rule of law—between law as a tool and legality as a constitutional value—is one better designed to bolster legal positivism than illuminate our understanding of law.^{[280] [281]}

In recent debate over the constitutional foundations ofjudicial review, Parliament and the common law courts have been juxtaposed as rival sources of authority and legitimacy. The emphasis of the ultra vires doctrine on legislative intention, as at least an implicit basis for the enforcement of judicial standards of administrative legality, has been challenged by those who locate the basis of judicial power in the common law. Either the courts are servants of a sovereign legislature, enforcing the standards of legality sanctioned by Parliament, or they are authors of principles of legality independent of any parliamentary sanction (though subject to express contrary legislative command).

The whole debate makes more sense, I suggest, if reconstructed as an argument over the nature of law itself and, hence, over the connections between legality, liberty and justice. Like the debate between legal and political constitutionalists, it is in essence an exploration of the roots of the constitution in moral and political principle. We cannot detach our grasp of the role of the common law from our broader inquiries into the nature of law itself. In enforcing principles of legality the common law courts seek not to usurp the powers of other branches (even if that is sometimes the effect of dubious reasoning in particular cases) but rather to identify the boundaries of legitimate state power. The various legal tests of reasonableness or rationality or proportionality are not fundamentally judicial creations, adopted as a political strategy to out-manoeuvre government or Parliament; they are rather the implications of a general principle of legality, understood as a moral ideal of respect for the equal dignity of independent citizens, united by loyalty to a broadly just and democratic regime.

The contests between statute and common law, as a foundation for judicial review, and between law and politics, as a foundation for constitutional democracy, reflect a similar opposition between parliamentary sovereignty and the rule of law, understood as competing constitutional principles. In each case, the familiar oppo­sition is substantially false—largely the consequence of a misguided philosophy of legal positivism.

Self-styled political constitutionalists have acknowledged the links between legal and political theory; so they cannot ignore the jurisprudential questions pertinent to constitutional law. The alleged ‘descriptivism' of J A G Griffith's account of the ‘political constitution' has been superseded by avowedly normative accounts; but their appeal to republican values comes at a price.^[283] The fundamental value prized by republicans is freedom, understood as non-domination or independence— independence from the power of another. A republican who celebrates freedom in that sense must embrace the concept of law to which it is tied, repudiating legal positivism. Law is necessarily connected to liberty in the sense that it secures the conditions of non-domination; the true republic must be an ‘empire of laws', constraining all unjustified interference with people's exercise of their autonomy.^[284] Liberty is not the mere absence of constraint; it is the assurance given by enjoyment of an independent sphere of decision and action, impervious to other people's demands or disapproval.^[285] Providing the conditions of liberty for all, law cannot be treated as merely an instrument of governmental power for the attainment of specific ends.

In affirming, in Jackson, that the ‘rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based', Lord Hope took a step towards acknowledging the interdependence of the rule of law and legislative supremacy—each doctrine embracing and qualifying the other.^[286] And his observa­tion that the ‘principle of parliamentary sovereignty which... has been created by the common law is built upon the assumption that Parliament represents the people whom it exists to serve' can be understood as further recognition of the interde­pendence of legality and democracy.^[287] Legislative supremacy is a common law doctrine that embodies the value of democracy as a means to equal liberty and justice; it would not apply to measures that could not reasonably be understood as advancing those ends. If, as Lord Steyn warns,^[288] the courts may under certain circumstances (such as an attempt to curtail or abolish judicial review) have to ‘qualify' the doctrine of legislative supremacy, the qualification would only be an elaboration of existing commitments to legality and democracy, appropriately inte­grated and explained. There would, however, be no divorce (as Lord Steyn asserts) between ‘strict legalism' and ‘constitutional legal principle'; that distinction is a relic of legal positivism with its false dichotomy between law, on one hand, and the rule of law, on the other.^[289]

From the perspective of legal positivism, the rule of law is a safeguard against the abuse of powers conferred by law; the accountability of public officials and agencies consists in their answerability to independent courts for breaches of jurisdictional limits. If very broad powers are conferred by explicit legislation, legal accountability will be correspondingly weak. Even fundamental rights may be overridden (on that view) in pursuance of public policy objectives whose importance has been clearly signalled by statute. I am defending a contrasting theory of accountability, repudiating positivism. There must be respect not only for explicit statutory conditions of jurisdiction, but also for the process of law itself. The rule of law is a moral ideal that regulates all governmental interference with liberty; it cannot be extinguished without destruction of the moral foundations of British liberal democracy. It requires not only the supervision of executive officials by independent courts, but the application of principles of legality that secure due process and a reasonable balance, in particular cases, between public ends and private sacrifice. Accountability to law is ultimately a matter of conformity to the constitution, treated as the charter of a free society. In defining the limits of executive power, in doubtful instances, we interpret our constitutional tradition; we read statutory grants of power in the light of that tradition. We expose the meaning and implica­tions of our concepts of law and legality in our deliberations over the justifiability of concrete examples of governmental action.

B.