Shaped by the Nuanced Constitution : A Critique of Common Law Constitutional Rights

There is growing judicial, academic and political interest in the concept of common law constitutional rights. Concurrently, significant public law judgments, including R (Miller) v The Prime Minister , R (Begum) v Special Immigration Appeals Commission and R (Privacy International) v Investigatory Powers Tribunal , continue to sustain and enrich the academic debate on the nature of the UK constitution. Bringing these two highly topical themes together, the book argues, firstly, that neither common law constitutionalism nor political constitutionalism adequately captures the nature of public law litigation because neither is fully able to account for the co-existence and interplay between parliamentary sovereignty and the rule of law. Advancing the idea of a 'nuanced' constitution instead, the book then provides an in-depth analysis of common law constitutional rights, looking at their history, conceptual foundations, contemporary characteristics, coverage and resilience. In doing so, this book highlights and re-conceptualises the dynamics and mechanisms of constitutional law adjudication and provides the first comprehensive critique of common law constitutional rights jurisprudence. It is centred around extensive case law analysis which focuses predominantly on recent Supreme Court judgments. Contents Table of Cases Table of Legislation Introduction I. The Constitutional Context II. The Leading Two Theories on Public Power and an Alternative Reading of the Constitution III. The Nuanced Constitution IV. Common Law Constitutional Rights V. The Questions this Book Sets Out to Answer VI. The Structure, Style and Chapters of this Book PART I: A THIRD ALTERNATIVE – THE NUANCED CONSTITUTION 1. An Introduction to the Nuanced Constitution I. The Two Competing Forms of Constitutionalism II. Not One or the Other, but Both: Thesis and Methodology III. Why the UK Constitution is not Political in Nature IV. Why is the Nuanced Constitution not the Common Law Constitution? V. Taking Stock VI. How Did We Get Here? VII. A Closer Look at the Constitution and Common Law Constitutional Rights 2. A Closer Look at the Nuanced Constitution Through Four Case Studies I. R (Privacy International) v IPT II. R (Miller) v Prime Minister III. The Common Law Constitutionalist Side of the Spectrum: Themes, Characteristics and Vulnerabilities IV. R (Begum) v Special Immigration Appeals Commission V. R (O (A Child)) v Secretary of State for the Home Department VI. Rights, Reasoning and Precedent on the Political Constitutionalist Side of the Spectrum PART II: COMMON LAW CONSTITUTIONAL RIGHTS 3. A Short History of Common Law Constitutional Rights I. Three Famous Antecedents: A Tale of Precedents, Mythmaking and Common Law Legacy II. The First Modern Phase of Common Law Constitutional Rights Jurisprudence III. Phase Two: In the Shadow of the Human Rights Act? IV. Contemporary Common Law Constitutional Rights Jurisprudence in the Supreme Court: Putting the Common Law Back on the Map 4. The Nature and Characteristics of Common Law Constitutional Rights I. The Positive and Negative Dimensions of Common Law Constitutional Rights II. The Six Characteristics Stemming from Five Leading Cases: Approach, Summary and Facts III. The First Characteristic: Rights Specific Conceptualisations of Jurisdiction to Develop Domestic Rights Jurisprudence IV. The Second Characteristic: The Principle of Legality V. The Third Characteristic: Turning to the Common Law First (but not Exclusively) VI. The Fourth Characteristic: A Fluid Notion of Precedent and the Influence of Non-Legal Sources VII. The Fifth Characteristic: Domestic Validation Through Legal Comparativism VIII. The Sixth Characteristic: Proportionality Review IX. Taking Stock PART III: RIGHTS UNDER THE NUANCED CONSTITUTION 5. The Shortcomings of the Nuanced Constitution: Rights Protection, Unlimited Legislative Power and the English Common Law I. The Uncertainties Underlying Common Law Constitutional Rights Jurisprudence: Theories, Sources and Values II. The Trump Card: Parliamentary Sovereignty and Fundamental Rights III. The English Common Law: Simultaneous Facilitator and Impediment IV. Where We are at: A Snapshot of the Constitutional Rights Recognised under the Nuanced Constitution V. The Constitutional Legacy of UNISON and Privacy International VI. Where Does this Leave Us? Rights Protection, Unlimited Legislative Power and the Question of Legitimacy VII. The Way Forward Bibliography Index "This book presents an alternative reading of the dynamics of constitutional law adjudication by developing the concept of the "nuanced" constitution. It shows that the study of common law constitutional rights enables a direct exploration of the nature of the UK constitution. There is growing academic interest in the concept of common law constitutional rights, which have been at the centre of several recent ground-breaking UK Supreme Court judgments, such as Unison v Lord Chancellor and Privacy International . Concurrently, other significant public law judgments, such as R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41 sustain and contribute to the academic debate about the nature of the UK constitution more broadly, which is typically either referred to as political or common law constitutionalist in nature. Drawing on the historical development and the contemporary characteristics of common law constitutional rights, the book considers the way the latter have been negatively impacted by the theoretical ambiguities inherent in the nuanced constitution. It presents a strong and compelling argument that the nuanced constitution - despite the resurgence and increased weight of common law constitutional rights - is unable to adequately protect essential constitutional values. Abandoning the concept of Parliamentary Sovereignty, it sets out a more principled framework for the protection of constitutional rights which is nonetheless distinguishable from common law constitutionalism."-- Provided by publisher "This book highlights and re-conceptualises the dynamics and mechanisms of constitutional law adjudication and provides the first comprehensive critique of common law constitutional rights jurisprudence. It is centered around extensive case law analysis which focuses predominantly on recent Supreme Court judgments, There is growing judicial, academic and political interest in the concept of common law constitutional rights. Concurrently, significant public law judgments, including R (Miller) v The Prime Minister, R (Begum) v Special Immigration Appeals Commission, and Privacy International v Investigatory Powers Tribunal continue to sustain and enrich the academic debate on the nature of the UK constitution. Bringing these two highly topical themes together, the book argues, firstly, that neither common law constitutionalism nor political constitutionalism adequately capture the nature of public law litigation because neither is fully able to account for the co-existence and interplay between parliamentary sovereignty and the rule of law. Advancing the idea of a 'nuanced' constitution instead, the book then provides an in-depth analysis of common law constitutional rights, looking at their history, conceptual foundations, contemporary characteristics, coverage, and resilience"-- Provided by publisher