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Stuart Lakin: The Sovereignty of Law: Freedom, Constitution and Common Law by Professor Trevor Allan: Some Preliminary Thoughts

stuart1 Most readers of this Blog will undoubtedly be familiar with the work of Professor TRS Allan.   It is difficult to think of anyone who has made a more significant contribution to UK public law scholarship in recent decades.  For the uninitiated, Allan is best known for his radical challenge to constitutional orthodoxy in Britain.    Over the course of several impressive books – with suitably grand titles – he has set about dismantling just about every last (supposedly) well established doctrine, distinction and conceptual dichotomy.   In their place, he advances a fluid vision of the constitution in which the rights, duties and powers of individuals and institutions depend on moral argument about the rule of law, freedom, justice and due process.  Allan is arguably the pioneer of ‘common law constitutionalism’ (not to be confused or conflated with ‘legal’ constitutionalism – more on that below).

In his latest book,The Sovereignty of Law (2013) (hereinafter ‘Sovereignty’) Allan takes both his critique of orthodoxy and his own rule of law thesis to a new level of cogency and philosophical   rigour.  Whether or not one agrees with his arguments, it is a tremendous accomplishment.   The aim of this post is to provide a short, preliminary review.  I shall divide my thoughts into four sections: general observations, methodology, substantive claims, and potential objections.    Where I refer to the book directly, I shall use numbers in brackets.

1.  General observations

 There are eight chapters in total, all around the 30-40 page mark, plus an appendix.   As Allan explains (15-16), the chapters are closely interconnected and can be read in any order.   Broadly speaking, they cover: 1. constitutionalism, 2. constitutional convention, 3. the rule of law, 4. parliamentary sovereignty, 5. legislative supremacy and the rule of law, 6. constitutional foundations of judicial review, 7. judicial restraint, 8. democracy, rights and the common law.   Such is the close link between the themes and arguments within chapters, Allan breaks his discussions up with Roman numerals rather than specific sub-headings.   Each chapter begins with a clear and accessible introduction, aimed especially at students.  The appendix pursues some of Allan’s more abstract methodological arguments in greater detail.

Sovereignty as a whole reads rather like a set of colloquium-style ruminations.   Allan continually refers backwards and forwards to different aspects of his argument, restating, refining and anticipating his central claims.  For every abstract argument, he gives numerous concrete illustrations.  Indeed, the defining strength of Allan’s work, I think, is his ability to weave together complex debates in legal and political theory with detailed doctrinal analyses of cases, statutes and contemporary constitutional developments.   That strategy, we shall see below, is central to his methodological and substantive commitments.    Readers who lack the time or will to read Sovereignty from cover to cover will get a very good sense of Allan’s thought-world just by focusing on some of his excellent case studies.  Here are some particularly good examples: Liversidge v Anderson (21-25), Prolife (25-31), Factortame and Thoburn (146-150), Jackson (150-153), R v A (186-88), Bellinger (319-321), and **Bancoult (ch 8 generally).

Every leading thinker inevitably has their own intellectual heros.  Allan’s are (principally): Kant, Hayek, Fuller and Dworkin. Rather surprisingly, given the progressive nature of Sovereignty, Dicey also features prominently (see, for instance, 31-36).   Here, as elsewhere, Allan seems determined to enlist Dicey’s work to his own cause.

2.  Methodology

It is striking that Allan gives far greater coverage to questions of constitutional methodology in Sovereignty than in his earlier books.    Legal philosophers endlessly debate the nature of their own discipline: is it descriptive, evaluative, conceptual, interpretative or whatever?  The same sort of debates are slowly creeping into the work of constitutional theorists (alongside Sovereignty, see also, for instance, Nick Barber, The Constitutional State (2010), ch 1).

Allan attacks a ‘positivist’ approach to constitutional argument, one that involves describing the constitution without making any evaluative argument about why it – and the content of English law – should be understood in a particular way.    People who take this approach, he claims, mistakenly adopt the ‘external perspective’ of a political scientist, anthropologist or historian, rather than the ‘internal perspective’ appropriate to legal reasoning (chapters 1, 2 and the appendix are particularly good on this distinction). Their error is to suppose that there is a ‘fact-of-the-matter’ about the constitution and questions of public law (6-7).     Allan returns to this external/internal distinction again and again during Sovereignty.  His running contention, we shall see below, is that many of the different doctrines, distinctions and labels that public lawyers use make little sense once we abandon the positivist perspective.

The constitutional lawyer who takes the internal perspective, Allan explains, necessarily interprets statute and common law in the sense of ‘presenting reasons of justice or political morality for reading them in one way rather than another’ (6).  In this way, ‘legal analysis cannot be detached from…constitutional theory’ (22), and ‘legality is always connected to legitimacy’ (23).     Allan is careful to deny that he is inventing a new (ideal) constitution rather than elucidating the existing one.  The interpreter of the constitution, he insists, cannot bring any moral theory to their task.  They are constrained by the particular scheme of principle latent within current legal and political practice (340-346).   Allan draws heavily on the work of Dworkin in making these arguments.  However, there may be a fundamental methodological difference between the Dworkin and Allan, one which calls into question Allan’s external/internal distinction.   I shall return to this point below as a potential avenue for criticism.

3. Substantive Claims

Allan’s interpretative/internal approach generates a raft of bold, unconventional claims about the constitution.   Let me attempt to summarise some of them, roughly in the order that they appear.   Needless to say, I cannot do justice to the detail and nuance of Allan’s arguments here.  At best, I hope to capture their general spirit.    As you work through these claims, keep in mind the methodological distinction above.   In general, the view under attack is incorrect, according to Allan, because it is made from an external, descriptive perspective; and the correct view is correct because it is made from an internal, morally engaged perspective.   It is this ‘all or nothing’ stance that I think separates Allan from Dworkin.   More on this in section 4 below.

a)  There is no a priori distinction between law and constitutional convention, justiciable and non-justiciable powers, the ‘political’ and ‘legal’ constitution.  Whether a particular aspect of governmental practice raises questions of legal principle better enforced by courts, or questions of ‘good governmental practice’ better enforced by politicians will depend on a judgment about all of the relevant facts, reasons and values that apply in the specific context (ch 2).

b) The British constitution is founded on a model of rule of law that invokes the idea of   ‘liberty as independence’ (12).   This is ‘ultimately a principle of equal citizenship, precluding arbitrary distinctions between persons, irrelevant to any legitimate public purpose’.  The principle ‘…imposes a requirement of justification, connecting restrictions on liberty to a public or common good, open to fearless public debate and challenge’ (91).  (ch 3)

c)   Parliament does not possess absolute, sovereign legislative power.  Legislative supremacy (Allan’s preferred term) ‘may [only] operate within the constitutional framework of the rule of law‘ (133).   ‘Parliament’s authority is confined by the limits of our ability (in any concrete context) to interpret its enactments as contributions to the public good’ (12).   It follows that a statute is only recognisable as such if it can be read in a way that is compatible with the principle of equal citizenship (33).  (ch 4)

d)  Statutes do not mean what parliament intended, in the sense of communicating a ‘speaker’s meaning’ (193).   The interpretation of a statute instead requires us to construct the intent of the ‘ideal or representative legislator’ who seeks to reconcile ‘current policy and overarching legal principle’ (194).  There is then no conflict between Parliamentary supremacy and the rule of law.   These ideas are interdependent, embodying the twin imperatives of democracy and respect for individual dignity and autonomy (168). (ch 5)

e)  The traditional judicial review debate is loaded with positivist assumptions, notably that Parliament may abrogate fundamental rights using express language, and that there are discrete heads of judicial review which separately address issues of procedure and substance.   For Allan, fundamental rights ‘can be ‘overridden’ [i.e. defined] only in circumstances that justify curtailment‘   (258); ‘Judicial review…enforces standards of due process, which resist any neat division between procedure and substance’ (242); and the principles of legality, rationality and proportionality are all subsumed within a general right to fair treatment (260). (chs 6 and 7)

f)    There is no independent doctrine of judicial deference.   ‘The relevant considerations of constitutional legitimacy and institutional expertise are already implicit constraints on judicial review – reflected in ordinary legal reasoning…’ (241).   (ch 7)

g)  Section 3 of the HRA merely replicates the pre-existing common law order.  Common law reasoning involves precisely the same balancing of relevant considerations (176). It should not have mattered in the ex parte Smith case that the ECHR had not been incorporated (245).    ‘The court’s appraisal… fell short of what was necessary to protect the basic rights in issue (255).    If Parliament were to repeal the HRA, ‘the underlying common law constitution would remain untouched…’ (324) (chs 7 and 8).

h)  There is no distinction between the ‘legal’ and ‘political’ constitution: every account of the constitution is both legal and political in so far as it must include some coherent account of the separation of powers (305).  Nor is there any meaningful distinction between ‘weak’ and ‘strong’ judicial review.  The common law constitution is distinct from both arrangements.  Courts have a duty to interpret statutes in line with basic common law rights, and so it will rarely be necessary to quash a provision (as exemplified in Anisminic). (230) (323).  (ch 8)

4. Potential Objections

Every reader of Sovereignty will find in it their own points of interest and controversy.    The book is bursting with provocative claims and arguments.    I shall pick out two areas where I think Allan may be vulnerable to criticism.   I shall use small letters in brackets to refer back to the substantive claims above.

Interpretation and the Internal v External Perspective

We have seen that, for Allan, the only way to understand the existing British constitution is to interpret legal and political practice from the internal point of view of a lawyer of judge.  This means, he tells us, that legal doctrines can only be defended with ‘arguments of principle… consistently with our commitment to constitutionalism‘ (10).    One cannot simply describe the constitution from the outside.

The thrust of my first criticism is this: while we can agree with Allan that no account of the constitution can be descriptively correct, the various positivist-inspired doctrines, distinctions, labels, and so on that he attacks in Sovereignty need not be understood in this way.   They can instead be understood, in line with the method Allan recommends, as interpretations of British legal and constitutional practice.   It can be argued that a lawyer or judge arguing from the internal point of view may have entirely plausible moral reasons to distinguish between law and convention a), to propound a narrow, formal conception of the rule of law b), to separate the extent of Parliament’s legislative powers from the justification for those powers c), to understand statutes in terms of a ‘speaker’s meaning’ d), to understand judicial review as a set of discrete rules e), to separate questions about the content of the law from question about how judges should decide cases (e.g. to fashion an extra-legal doctrine of deference) f).    Legal theorists such as Hart and Raz strongly resist this moral ‘recasting’ of their theories, but it is central to the interpretative method – as least as developed by Ronald Dworkin – that legal positivism is only intelligible in this form.

By automatically equating the interpretative, internal point of view with his own moral/theoretical approach to legal and constitutional argument, Allan rather rigs the interpretative debate.   In my view, he needs to confront the orthodox positivist account of the constitution – along with every other account – as a rival interpretation rather than dismiss it as belonging to a separate ‘external’ intellectual discipline (sociology, political science, etc).      Both Barber (above) and Goldsworthy (see, for instance, The Sovereignty of Parliament (1999), ch 10) have offered explicitly interpretative bases for their broadly positivist claims.    It may be that Allan can defend his approach as a better interpretation of the constitution than the positivist one, but that aim immediately encourages a far healthier debate than is perhaps envisaged by Sovereignty.

The Impact of the HRA 1998 on the Common Law

Let us grant for the sake of argument that Allan’s interpretation of the constitution is correct: that the content of the law – including the powers of Parliament and courts – depend on the particular scheme of principle embedded within current legal and political practice.  A second criticism of Sovereignty is that some of Allan’s claims pay too little attention, or no attention to the evolution of practice and principle in Britain.   I have in mind the claims contained in g) and h) above.     Allan can be understood as saying, first, that the enactment of the HRA had no meaningful impact on the British constitution; and, secondly, that his favoured model of common law protection of rights by judges is the only legitimate form of institutional protection of rights.     Both of these claims are highly contentious.

In terms of the first claim, whether or not one would ideally support the structure and aims of the HRA, an interpreter of the constitution must adjust their account of the practice in light of that important Parliamentary ‘decision’ (just as they would have to adjust their account in the event of its repeal).  The Act plausibly introduces a novel division of labour in respect of rights protection; or, to put this point in more philosophical language, it contributes a scheme of institutional morality that arguably differs from what went before.   The ‘declaration of incompatibility’ mechanism in HRA s 4 is almost invisible in Sovereignty.   My argument – which I cannot develop here – is that Allan’ account of the constitution must accommodate rather than erase this mechanism.   His discussion of Bellinger (319-321) is particularly revealing on this point.

A similar objection can be made to the second claim.   Whether or not the labels ‘strong’ and ‘weak’ review serve any useful purpose, Allan seems to preclude different forms of rights protection altogether.    He repeatedly tells us that Charters of Rights and Bills of Rights cannot affect the judicial role (e.g. 282, 327): that (his account of) the separation of powers is an ‘essential component of [a] conceptual polity, enshrining the rule of law…’(295).      Despite extensive discussion of the work of Waldron and Bellamy – both of whom wish to make the legislature the primary forum for decisions about rights – (304-329), I think there is greater scope in Sovereignty for argument on whether a political community can protect rights in different ways.

Closing Thought 

These are exciting times for scholars of the British constitution.   What had been a rather arid, doctrinal, area of study is now rich with philosophical interest.   We should be grateful to Allan for spearheading that transformation.    Many public lawyers will feel rather battered and bruised by their treatment in Sovereignty; the ‘externalists’ are a populous group!    But Allan’s aim is undoubtedly to encourage a particular style of debate rather than delivery knockout blows.   It will fascinating to see how that debate unfolds.

Dr. Stuart Lakin is a Lecturer in public law and jurisprudence at the University of Reading.

(Suggested citation:  S. Lakin, ‘Review: TRS Allan’s The Sovereignty of Law (OUP, 2013)’ U.K. Const. L. Blog (4th February 2014) (available at https://ukconstitutionallaw.org/)).

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