In Defence of the Legal Constitution

The constitution ... is seen to consist of two different parts; the one is made up of understandings, customs, or conventions which, not being enforced by the courts, are in no true sense of the word laws; the other part is made up of rules which are enforced by the courts, and which, whether embodied in statutes or not, are laws in the strictest sense of the term, and make up the true law of the constitution. This law of the constitution is, as we have further found, in spite of all appearances to the contrary, the true foundation on which English polity rests, and it gives in truth even to the conventional element of the constitutional law such force as it really possesses.¹

I The United Kingdom's new liberal constitution

The modern concept of 'public law' formed no part of English law until Lord Diplock introduced it in a case decided in 1970.² Its introduction was portrayed as a significant break with the Diceyan orthodoxy that England has no public law and that the law of the constitution – in so far as there is one – is simply the private law that has successfully adhered itself to the great edifice of politics. A third of a century later, the United Kingdom certainly has its own constitution. In June 2003 the United Kingdom's constitution was formally accorded a department of government: the Department for Constitutional Affairs. Furthermore, this new constitution is largely a liberal one, a point displayed by its department's self-styling tag: the department for 'justice, rights and democracy.'³ The central pillar of this new constitution is the Human Rights Act, 1998 (HRA), which gives effect to the European Convention on Human Rights in domestic law. The HRA establishes the foundation of th

e constitutional order in a regime of positive rights, binding upon all public authorities.⁴ It also establishes the foundation of the constitutional order in posited law. Thus, it requires not only that interferences with Convention rights be justified but also that, contrary to the common law position, such interferences be 'prescribed by law.'⁵ This extension of legal protection against government is further bolstered by the fact that when Convention rights are applicable to conduct of government, every aspect of that conduct is justiciable and subject to judicial review.

The HRA is intended, however, not only to bolster judicial supervision but also to inculcate a wider 'culture of human rights.' By this is meant a culture in public life in which 'fundamental principles are seen as central to the design and delivery of policy, legislation and public services.'⁶ This culture is intended to permeate the decisions of central government, local authorities, schools, hospitals, police forces, and other organs and agencies of the state. To assist in this project Parliament has established a Joint Parliamentary Committee on Human Rights to scrutinize proposed primary and much secondary legislation, as well as to consider all matters relating to human rights in the United Kingdom. In response to pressure from the committee, in October 2003 the government agreed to put forward further legislation to establish a Commission for Equality and Human Rights in an additional effort to ensure that the HRA will 'come alive.'⁷ The English constitution is therefore in the process of being reinvented as part of a wider program of reconfiguring the relationship between citizens and their representatives along liberal lines.

The enactment of the HRA represented the crowning achievement of a group of legal scholars whose intellectual impetus was the publication of John Rawls's A Theory of Justice.⁸ These scholars advocated the judicial deployment of active devices to protect rational liberal principles, even to the extent that Parliament itself should be subject to them.⁹ Furthermore, many of those who had been critical of the judiciary's newly acquired 'public law' became so disenchanted with the heavy dose of Thatcherism...