Questions of legality and legitimacy: Form and substance in British constitutionalism

Abstract

There is a striking gulf between the formal legal doctrine of the British constitution, as usually presented, and the underlying values of legality and equality that underpin judicial decisions in particular cases. The formal doctrine of absolute Parliamentary sovereignty not only authorizes the infringement of constitutional rights, but is supposedly capable of abrogating every requirement of the Rule of Law. In practice, the opposite position obtains: form is largely displaced by substance. Courts interpret legislation in the light of the constraints of legality, protecting fundamental rights by recognizing implicit limitations to Parliament's legislative supremacy. Judicial dicta in the Jackson case (2005) illustrate the tension between form and substance, revealing the inadequacies of standard doctrine. Under the unwritten, common law constitution of the United Kingdom, the courts should, and usually do, uphold the basic requirements of legality on which the protection of human dignity and equal citizenship alike depend. Parliamentary sovereignty is itself a doctrine of common law and, therefore, subject to the principles of legality internal to common law thought.