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«Judicial Review at the Margins: Law, Power, and Prerogative Thomas Poole LSE Law, Society and Economy Working Papers 5/2010 London School of ...»

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Judicial Review at the Margins:

Law, Power, and Prerogative

Thomas Poole

LSE Law, Society and Economy Working Papers 5/2010

London School of Economics and Political Science

Law Department

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Judicial Review at the Margins:

Law, Power, and Prerogative Thomas Poole * Abstract: This essay on judicial review approaches its subject obliquely. It focuses on a particular site of constitutional abnormality: prerogative power. An analysis of the various iterations, historical and contemporary, between law and prerogative in its specific, rooted setting provides the basis for a more general account of the contemporary nature and role of judicial review, at a time when we appear to be entering a new ‘age of prerogative’ based on the politics of security and fear.


Legal scholarship seems to thrive these days on the production of intense and apparently Manichaean oppositions. So, one of the contributors to this collection confidently divides the world between ‘judicial review lovers’ and ‘judicial review haters’.1 Yet what is striking about the judicial review debate today is not so much the surface sturm und drang which, in as much as it does exist seems no more extensive and probably less intense than in many other disciplines, but rather its curiously dispassionate quality. This sanguine attitude fits the object of inquiry, * Law Department, London School of Economics and Political Science. I would like to thank Adam Tomkins for the invitation to present a draft version of this paper at the symposium in Glasgow University, and all the participants at that symposium, but especially David Dyzenhaus and Janet McLean, for their comments.

1 A. Kavanagh, ‘Constitutional Review, the Courts and Democratic Scepticism’ (2009) 62 Current Legal Problems (forthcoming).

5/2010 grounded as it is in the measured language of Enlightenment Rationalism and rooted in a basic opposition of ‘passions’ to ‘reason’: the structuring and tempering, that is, of the dynamic and creative impulses of politics with the inherent reasonableness of settled law.2 The contemporary judicial review debate, uncommonly rich in certain regards, takes place within a narrow range. Scholarship is reduced temporally.

Relentlessly focused on the present, it largely ignores – storybook Whig narratives aside – even its own origins and development. It is also reduced in range and ambition, in that it too readily assumes an easy umbilical connection between judicial review and individual rights. This double reduction may relate to background politics. We may not have witnessed an end to history in Fukuyama’s sense, but the intense ideological conflicts that fuelled debates on judicial review a generation or so ago are now a distant memory.3 We all seem to be, in some sense or other, liberals now. It may also relate to the normalization of the practice of judicial review, which has established itself just about everywhere as a fixture of the political landscape. This process of entrenchment tends to undercut ‘firstorder’ debates about the legitimacy of judicial review, giving root-and-branch critiques an abstract, even antique, feel.4 A return to a lost Eden – or, depending on your point of view, that ‘place of utter darkness, fitliest called Chaos’5 – where minimalist (‘sporadic and peripheral’) judicial review grubbed around in the political undergrowth is no longer a realistic option.6 Apart from anything else, it runs counter to the strong modern instinct to distrust legally unregulated exercises of political power.7 Judicial review has become normal or normalized, then, a basic accoutrement of the rule of law within a constitutional democracy.8 (This does not mean that it has become uncontroversial.9 Public law being a form of politics, it could hardly be so.) But a competing, anti-normalizing tendency is fast becoming a defining theme of 21st century politics. Whether the immediate object is international terrorism, financial meltdown, health epidemics, or environmental disasters, governments See, eg, S. Holmes, Passions and Constraint: On the Theory of Liberal Democracy (New York: Oxford University Press, 1995).

3 cf J.A.G. Griffith, ‘The Political Constitution’ (1979) 42 Modern Law Review 1; or better still Griffith, ‘Why We Need a Revolution’ (1969) 40 Political Quarterly, 383.

4 Even Jeremy Waldron, the sceptics’ current standard-bearer, has developed positions on ius gentium (‘Foreign Law and the Modern Ius Gentium’ (2005) 119 Harvard Law Review, 129) and the illegality of torture (‘Torture and Positive Law’ (2005) 105 Columbia Law Review, 1681) that sit uncomfortably with the anti-judicial review position with which his name is more closely associated. It is worth recalling that this position in any case (a) relates only to ‘constitutional judicial review’ and (b) only applies where there is a properly functioning democracy in operation. See, eg, J. Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal, 1346.

5 Milton, Paradise Lost, Book I: The Argument.

6 M. Tushnet, ‘New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries’ (2003) 38 Wake Forest Law Review, 813, 814.

7 See, eg, J. Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 ICLQ 1.

8 Compare, for instance, how Joseph Raz’s thinking has changed on this subject from his ‘The Rule of Law and its Virtue’ (1979) 93 LQR 195 to ‘The Politics of the Rule of Law’ in Raz, Ethics in the Public Domain (Oxford: Oxford University Press, 1996).

9 See, eg, D. Nicol, ‘Law and Politics after the Human Rights Act’ (2006) Public Law 722.

–  –  –

everywhere talk about the need to agglomerate and streamline power to meet immediate or predicted crises. This phenomenon relates no doubt to our tendency to think in terms of risk. Giddens and other risk society theorists speak of ‘manufactured risk’: risks that result from processes of modernization, especially in the fields of science and technology, that create risk environments that have little or no historical reference and are as such largely unpredictable.10 There may also be a connection between the ‘neurotic style’ of contemporary politics and what Marquand calls the ‘bland, almost narcotic populism’11 that drives it. Political commentators worry that Tocqueville’s nightmare is poised to become reality: a society conditioned by individualism in which isolated citizens are easy to manipulate, their will softly bent and shaped by charismatic leaders, and where ‘each nation is reduced to a flock of timid and industrious animals of which the government is the shepherd’.12 Government calls for exceptional powers and atypical legal frameworks are often defended on grounds of security, where ‘security’ embraces not only the traditional Hobbesian categories of defence against internal and external threat,13 but also protection against anti-social behaviour,14 perhaps even the nutritional health of citizens.15 However sceptical we are and however we might fear Tocqueville’s dystopian vision of the decline of democracies, we cannot in all instances dismiss these claims out of hand as straightforward power-grabs by rent-seeking politicos.

Claims for exceptional powers have become part of the basic script of contemporary politics, and are problematic for judicial review. (Even more so in a climate where judicial review has become more prominent within public life, if only for the simple reason that more is now expected of it.) The claims usually relate to events that are likely to happen – or so we are told – in near future. As well as being about the selection of what current preferences will count as priorities, arguments about risk and about security are attempts to tame the future.16 They sketch (in Pascal’s phrase) a ‘geometry of hazard’ to be played out in the domain of a necessarily unknowable future. They are, as such, structurally dismissive of the past. Past solutions tend to be presented as failed solutions, inadequate to meet novel demands. Judicial review, by contrast, looks to the past for sustenance and normative content. Its principles and its guiding sense of what

A. Giddens, ‘Risk and Responsibility’ (1999) 62 Modern Law Review 4. See also U. Beck, Risk Society:

Towards a New Modernity (London: Sage, 1992).

11 D. Marquand, ‘Democracy in Britain’ (2000) 71 Political Quarterly 268, 269.

12 A. de Tocqueville, Democracy in America (London: Everyman, 1994), vol 2, book 4, ch 6. Compare John Gray’s notion of ‘agonistic liberalism’: Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (London: Routledge, 1996), ch 6.

13 See, eg, I. Loader and N. Walker, Civilizing Security (Cambridge: Cambridge University Press, 2007).

14 See, eg, P. Ramsay, ‘The Responsible Subject as Citizen: Criminal Law, Democracy and the Welfare State’ (2006) 69 Modern Law Review 29; ‘Vulnerability, Sovereignty and Police Power in the ASBO’ in M.

Dubber and M. Valverde (eds), Police in the Liberal State (Stanford: Stanford University Press, 2008).

15 See, eg, F. Furedi, Politics of Fear (London: Continuum, 2005).

16 See, eg, F. Ewald, ‘Insurance and Risk’ in G. Burchell, C. Gordon and P. Miller (eds), The Foucault Effect:

Studies in Governmentality (Chicago: University of Chicago Press, 1991). For analysis of risk in the context of public law, see E. Fisher, ‘The Rise of the Risk Commonwealth and the Challenge for Administrative Law’ (2003) Public Law, 455.

5/2010 counts as ‘reasonable’ are largely derived from the past, either by way of incremental development over time,17 or else through reflection on erroneous past behaviour (‘social learning’).18 The cognitive disjunction between a risk-framed and security-driven politics and the historically shaped and grounded matrix of law means that the latter tends to experience difficulty when confronted with situations presented as exceptional or abnormal.19 The cases decided in this ‘red zone’ where security politics and ‘settled, standing law’20 collide often involve courts having to answer searching questions about the legitimacy of judicial review. The answers that they give to these questions will, in turn, have an impact (unpredictable no doubt) on the general standing of the court. In parallel situations in the past, usually in the context of war or serious civil unrest (eg martial law), the law’s response has often been muted.21 But the response has been somewhat different in some recent terrorism cases, where courts have reaffirmed established values and the court’s own role in policing them, often invoking in so doing the spirit of nationalism.

The US Supreme Court in Hamdi v Rumsfeld applied overarching principles, derived from American history, to justify its ruling that an enemy combatant must be given an opportunity to contest their detention.22 And more bombast, Lord Hoffmann in the Belmarsh case23 ignored European and international legal sources and mounted a parochial defence of the legal control to emergency powers that was rooted in the specifics of British history.24


This paper deliberately seeks out the constitutionally abnormal, presenting an analysis of judicial review on the margins. Its focus is the prerogative, a zone high in the constitutional stratosphere where passions tend to run high and the legal air thin. The prerogative (in its strict sense) refers to those powers left over from The classic account in the contemporary era is that of Ronald Dworkin, whose theory of ‘law as integrity’ requires the development of legal and constitutional principles through moral/political reflection on past practice, especially legal practice: see, eg, Law’s Empire (London: Fontana, 1987).

18 M. Tushnet, ‘Defending Korematsu? Reflections on Civil Liberties in Wartime’ (2003) Wisconsin Law Review, 273.

19 A theme explored in T. Poole, ‘Courts and Conditions of Uncertainty in ‘Times of Crisis’’ (2008) Public Law 234.

20 J. Locke, Second Treatise on Government (1690), § 137.

21 See, eg, D. Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006).

22 542 US (2004) 1, 25 (O’Connor J): ‘during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.’ 23 A v Secretary of State for the Home Department [2004] UKHL 56.

24 T. Poole, ‘Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case’ (2005) 32 Journal of Law and Society 534.

–  –  –

when the monarch was directly involved in government, powers that now include making treaties, declaring war, deploying the armed forces, regulating the civil service, and granting honours and pardons. Prerogative powers are exercised today by government ministers, or else by the monarch personally acting in almost all conceivable instances under direction from ministers.25 This basic definition shows that the prerogative has two faces – ordinary and extraordinary. The special and emergency powers it contains come mixed up with far more ordinary powers (eg over the civil service) and there is nothing formal or procedural separating one from the other. We might say, then, that the elements of constitutional abnormality within the prerogative exhibit a banal quality.

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