From unwritten to written: transformation in the British common-law constitution.

• Author: Jenkins, David

ABSTRACT

This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the ultra vires doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition endorsing judicial review, this expressive function of constitutions democratically legitimizes constitutional texts as positivist expressions of popular will that bind Parliament. Therefore, courts may constitutionalize statutes or treaties coming over time to represent shifting norms through common-law adjudication. Furthermore, the Author illustrates that such a "quasi-written," common-law constitution is already emerging in the United Kingdom by examining cases based upon the Human Rights Act and the European Communities Act.

TABLE OF CONTENTS I. INTRODUCTION II. THE COMMON-LAW FOUNDATIONS OF LIMITED GOVERNMENT AND JUDICIAL REVIEW A. Blackstone and Dicey: Theories of Parliamentary Sovereignty B. Foundational Principles as a Restraint upon Parliament C. Judicial Review in Common-Law Thought D. The Ultra Vires Doctrine as Common-Law Judicial Review E. Summary III. THE CONSTITUTIONALIZATION OF WRITTEN TEXTS A. Characteristics of a Constitutional System 1. Paradigmatic and Definitive Constitutions 2. Flexible and Rigid Constitutions B. Positivist Foundations for a Written Constitution 1. An Alternative Positivist Model 2. Written Constitutions as Expressions of Popular Sovereignty C. Common-Law Adjudication and the Constitutionalization of Written Texts D. Overview: The United Kingdom's Quasi-Written Constitution 1. The Human Rights Act 1998 2. The European Communities Act 1972 and European Community Law E. Summary IV. CONCLUSION I. INTRODUCTION

In recent years, the British Constitution has undergone remarkable changes due to further integration into the European Union, the passage of the Human Rights Act 1998, and devolution. (1) These developments have affected the constitutional order of the United Kingdom by demanding that Parliament conform to substantive limitations on its exercise of legislative authority. For example, the Human Rights Act protects certain fundamental individual rights from government infringement by implementing the European Convention on Human Rights into domestic law. (2) European integration and devolution also create other sources of law in the United Kingdom, thus potentially threatening the unitary state. While this constitutional reform has occurred through treaty or domestic legislation, which theoretically remain subordinate to Parliament, the written instruments mentioned above have special status and significance in the British Constitution. Those documents reflect changing notions about the proper extent of parliamentary authority and the institutional role of the judiciary in enforcing accepted norms. The written instruments, along with unwritten principles, are developing into a "quasi-written" constitution that restrains Parliament and is enforceable by the judiciary. Constitutional change is not a break from British legal tradition, but instead represents a transition to an alternative, albeit previously rejected, path of constitutional development. The incorporation of written texts into this framework is compatible with the alternative constitutional model and can take place through a gradual process of common-law adjudication.

This Article suggests that the shift from a completely unwritten to a partially written constitution occurs on two levels. Part II argues that orthodox constitutional theory, as articulated by Blackstone and Dicey, already has embedded within it strains of thought conducive to the idea of a limited Parliament with a judiciary capable of exercising review over primary legislation. Blackstone and Dicey, therefore, emphasized positive law and political processes, rather than judicial process, without completely undermining counterarguments that support a limited Parliament. (3) These alternative arguments have a long history in the common-law tradition. Blackstone's natural-law theory contains ideas found in other places such as the judicial opinions of Edward Coke. (4) Blackstone's theory accordingly offers a solid foundation upon which to assert a common-law power of judicial review to ensure that Parliament does not legislate contrary to higher legal principles. Dicey, in justifying parliamentary power by virtue of its moral accountability to the electorate, replaces the concept of natural law with democratic principles. (5) As Dicey justifies parliamentary supremacy on this account, he too invites counterarguments for legal restraints upon legislative actions that are contrary to democratic norms. Ironically, Blackstone and Dicey's orthodox theories offer a starting point for shifting to an alternative common law constitutional arrangement: parliamentary authority may be restrained by fundamental, democratically-based principles enforceable in some effective manner by judicial review. Independent, common-law review power already exists in the ultra vires doctrine, which allows courts to restrain executive action. This doctrine illustrates how courts can limit government action based upon common-law principles, and suggests that they may soon claim to exercise such review power against Parliament itself.

Part III illustrates how the common-law constitution can incorporate written principles. It explains that constitutions may be either paradigmatic or definitive. In particular, the former provides a legally unenforceable model for governance, while the latter imposes strict rules subject to judicial review and beyond which the government cannot act. A constitution can also be flexible or rigid in form. The flexible constitution requires no special amending procedures, while a rigid constitution establishes significant procedural obstacles to its alteration. Those concepts are not exclusive, however, and constitutions may exhibit mixed characteristics existing upon a sliding scale. A constitution's existence depends upon its normative force in the system rather than its means of judicial enforceability or mode of change. Furthermore, texts can express some fundamental principles in writing, leading to a mix of written and unwritten norms. These written norms have a positivist aspect as reflecting the will of the popular sovereign. Moreover, in a democratic system, this popular will has supreme authority over the subordinate legislature.

The judiciary can also exercise dual sovereignty with Parliament in representing the electorate. Written constitutional texts are just a manner of expressing the popular will, and judicial review exists as a democratically endorsed means to enforce it against government encroachment. The democratic role of the judiciary also means that courts can assess the normative value of certain documents within the community. As certain statutes or treaties increasingly represent foundational assumptions about good governance, courts can constitutionalize them as legally enforceable limitations upon Parliament. Courts can do this through a gradual process of common-law adjudication sensitive to Parliament's legislative functions and broader political assumptions within the community. That process can result in varying degrees of entrenchment and judicial enforceability. Constitutional change is already occurring in the United Kingdom, as illustrated by judicial treatment of the Human Rights Act and the European Communities Act. That kind of change represents a transition to an alternative common-law, "quasi-written" constitution that effectively limits Parliament's exercise of, if not formal claim to, sovereignty.

2. THE COMMON-LAW FOUNDATIONS OF LIMITED GOVERNMENT AND JUDICIAL REVIEW

   A. Blackstone and Dicey: Theories of Parliamentary Sovereignty

   The doctrine of parliamentary supremacy, as A. V. Dicey wrote, is the "very keystone" of the British Constitution. (6) Parliament itself is unable to bind or restrict its own future actions, courts cannot question or refuse to give effect to its enactments, and all other law-making bodies in the United Kingdom are subordinate to it. (7) While Parliament remains supreme in theory up to the present time, there exists an alternative conception of the unwritten, common-law constitution that is a basis for reform and a foundation for a new constitutional settlement in the United Kingdom. Arguments for such a constitution have historical precedent, support contemporary ultra vires judicial review, and are embedded within the orthodox theory of parliamentary sovereignty itself. George Winterton states, "[n]owhere is the development of this doctrine [of parliamentary sovereignty] demonstrated more clearly than in the writings of Blackstone and Dicey." (8) An initial examination and comparison of Blackstone and Dicey's ideas, however, show that they can support counterarguments promoting judicial review and limited legislative authority based upon natural law or democratic conceptions of the public good.

   William Blackstone, like Dicey later, recognized the supreme legislative power of Parliament. He described Parliament's authority in the following way:

   [Parliament's authority is] so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.... It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament. (9) An act of Parliament was thus the supreme law of...