THE CONSTITUTION OF LAW Part 9 pdf

But if that challenge can be met in a legal order where thereare no explicit constitutional constraints, it can all the more easily bemet by a legal order in which constraints of the rig

if there is such provision, the limits on emergency powers are detailedand clear But if that challenge can be met in a legal order where thereare no explicit constitutional constraints, it can all the more easily bemet by a legal order in which constraints of the right sort are explicitlyconstitutionalized.

Indeed, it is important to rescue Dicey from Ferejohn and Pasquinoprecisely to fulfill the ambition if not the structure of their own argument.While they wish to claim that responses to emergencies require a dualistlegal order, one divided between ordinary law that responds to the normalsituation, and emergency law which responds to the exceptional situation,they also seem to favour the idea that the emergency legal system should

be a legal order – a rule of law order, to the extent possible.67And theyimply that any derogation from the rule of law requires a justification.68

So while they concede both limbs of Schmitt’s challenge, they try toblunt its force In particular, they want to resist his suggestion that asovereign who is determined to do so can change a dictatorship by com-mission, one limited in scope and time in order to attempt to ensure areturn to normality, into a constitutional dictatorship, one which is able

to use emergency powers to construct a new kind of order.69My argument

is that in order for that ambition to be realized, one has to resist that kind

of dualism One needs to maintain the idea they associate with absolutismthat legal order is unitary

Put differently, one needs to maintain Hans Kelsen’s Identity Thesis:the thesis that the state is totally constituted by law.70According to thatthesis, when a political entity acts outside of the law, its acts can no longer

be attributed to the state and so they have no authority Dicey, on myunderstanding, subscribes to the same thesis, and differs from Kelsenonly in that he clearly takes the claim that the state is constituted by law

to mean that the law that constitutes the state and its authority includesthe principles of the rule of law, which has the result that a political entityacts as a state when and only when its acts comply with the rule of law.There will of course be thicker and thinner versions of the Identity Thesis,and Dicey’s is much thicker or more substantive than Kelsen’s.71

67 Ferejohn and Pasquino, ‘The Law of the Exception’, 228.

68Ibid., 222. 69See Schmitt, Die Diktatur.

70Hans Kelsen, Introduction to the Problems of Legal Theory A Translation of the First Edition

of the Reine Rechtslehre or Pure Theory of Law, translated by Stanley L Paulson and Bonnie

Litschewski-Paulson (Oxford: Oxford University Press, 1992 ), pp 97–106.

71 But see Lars Vinx, ‘Legality and Legitimacy in Hans Kelsen’s Pure Theory of Law’, PhD thesis, University of Toronto ( 2005 ) for the argument that Kelsen’s understanding of the rule of law is far richer than commonly supposed.

Not only was Dicey concerned about the implications of describing anyextraordinary powers in emergency situations as prerogative powers, hewas in general deeply opposed to the claims of the royal prerogative, justbecause those claims purport to stand above or beyond the law.72In otherwords, his conception of constitutional order rejects the idea that the statecan operate qua state in a legal black hole and so does not tolerate either

an extra-legal power or a constitutional or statutory power to create such

a black hole But as we also saw in chapter1, he accepts that in a commonlaw legal order, a statute, rule by law, can achieve whatever ends legislatorsdesire It seems to follow that a statute can create a legal black hole – rule

by law can do away with the rule of law

From this perspective, there is no prerogative attaching to any tution of state to act outside of the law Put differently, one can concedethat there is an outside to law without being a dualist so long as one alsodenies that that there is authority, within or without the law, to authorizethe state to act outside of the law The Identity Thesis denies the existence

insti-of the prerogative or its analogues and requires resistance to attempts touse political power to install the analogues within the law Thus, if theexecutive is given the equivalent of such a prerogative either by the con-stitution or by statute, it is the duty of judges to try to understand thatdelegation of power as constrained by the rule of law To the extent thatthe delegation cannot be so understood, judges must treat it as, to use ter-minology developed by Ronald Dworkin, an embedded mistake This is alegal fact that judges have to recognize, but which they must try to limit tothe extent possible by refusing to concede to it ‘gravitational force’ or theability to have any legal effect beyond what is absolutely necessary.73Theyare entitled to do this because they should adopt as a regulative assump-tion of their role that all the institutions of government are cooperating

in what we can think of as the rule-of-law project, the project which tries

to ensure that political power is always exercised within the limits of therule of law

As we have seen throughout this book, it is important to depart insome significant respects from Dicey in order to provide a workable ver-sion of the Identity Thesis The regulative assumption just sketched doesnot require that judges are always the principal guardians of the rule

of law Certain situations, and emergencies are one, might require that

72Recall from ch 3 Lord Shaw’s similar remarks in his dissent in Halliday.

73Ronald Dworkin, ‘Hard Cases’ in Ronald Dworkin, Taking Rights Seriously (London:

Duck-worth, 1977 ), pp 81–130, at p 121.

Parliament or the executive, play the lead role The rule-of-law projectdoes not require allegiance to a rigid doctrine of the separation of powers

in which judges are the exclusive guardians of the rule of law Nevertheless,judges always have some role in ensuring that the rule of law is maintainedeven when the legislature and the executive are in fact cooperating in theproject, and they have an important role when such cooperation wanes

or ceases in calling public attention to that fact

It is in seeing that judges are but part of the rule-of-law project thatone can begin to appreciate the paradox which arises when rule by law,rule through a statute, is used to do away with the rule of law, to create

a legal black hole There is a contradiction in the idea of legal black holecreated by the fact that one cannot have rule by law without the rule oflaw But, as I have shown, precisely because judges are but part of therule-of-law project, one cannot conclude that judges are always entitled

to resist statutes that create legal black holes Whether they are so tled will depend on the constitutional structure of their legal order Butwhatever that structure, they are under a duty to uphold the rule of law.Even if they are not entitled to invalidate a statute that creates a legalblack hole, it is their duty to state that the legislature has made a deci-sion to govern arbitrarily rather than through the rule of law In doingthis, they take up the weatherman role I sketched in the Introduction –the role of alerting the Commonwealth to storm clouds on the horizonwhen the rule of law which secures the fabric of civil society is put understrain

enti-In chapter1, I mentioned the ambiguity in the idea of the rule of lawbetween, on the one hand, the rule of law, understood as the rule ofsubstantive principles, and, on the other, rule by law, where as long asthere is a legal warrant for what government does, government will beconsidered to be in compliance with the rule of law Only if one holds to

a fairly substantive or thick conception of the rule of law will one thinkthat there is a point on a continuum of legality where rule by law ceases

to be in accordance with the rule of law But the point I want to extractfrom Dicey goes beyond this thought It is that a thick conception ofthe rule of law is committed to the conclusion that it is possible to userule by law to take one right off the continuum of legality One does nothave rule by law let alone the rule of law Here it is important to see that thedifference between a statutory creation of a legal black hole in anticipation

of officials acting in violation of the law and an Act of Indemnity which,

to use Dicey’s phrase in the epigraph to this section, ‘legalises illegality’retrospectively, is not just a question of timing

The closest Dicey comes to acknowledging the existence of tively created legal black holes is in his discussion of Habeas Corpus Sus-pension Acts – statutes which suspended habeas corpus for those chargedwith treason during periods of ‘political excitement’.74But he says that,while they are popularly thought of as Habeas Corpus Suspension Acts,this name is inaccurate All such a statute can do is to make it impossiblefor a detainee ‘to insist upon being discharged or put on trial’ But it ‘fallsvery far short of anything like a general suspension of the right to the writ

prospec-of habeas corpus’ and does not ‘legalise any arrest, imprisonment, or ishment which was not lawful before the Suspension Act passed’.75It thusfalls far short, Dicey claims, of a constitutional suspension of guaranteesand this is illustrated by the fact that before the Act runs out its effect

pun-is ‘almost invariably, supplemented by legpun-islation of a totally differentcharacter, an Act of Indemnity’.76

Dicey’s point is that without such an Act of Indemnity, the officialswho imprisoned detainees would likely be guilty of a number of unlawfulacts Indeed, the ‘unavowed object of a Habeas Corpus Suspension Act is

to enable government to do acts which, though politically expedient, maynot be strictly legal’.77It follows that the combination of a Suspension Actwith the prospect of an Indemnity Act does ‘in truth arm the executivewith arbitrary powers’.78 However, the relief the Indemnity Act will infact grant is ‘prospective and uncertain’, dependent on its terms, and it

is unlikely that it will cover acts of ‘reckless cruelty’.79Moreover, despitethe fact that an Act of Indemnity is an ‘exercise of arbitrary sovereignpower’ it is, Dicey insists, still legislation and so ‘very different fromthe proclamation of martial law, the establishment of a state of siege,

or any other proceeding by which the executive government at its ownwill suspends the law of the land’.80It thus ‘maintains in no small degreethe real no less than the apparent supremacy of law’.81

But a legal black hole is very different from a suspension of habeascorpus followed by an Act of Indemnity, no matter how confidently thelatter can be predicted For a legal black hole comes about through animmediate statutory combination of the two It creates a zone in whichofficials can act unconstrained by the rule of law and in advances declareswhat they do to be legal It declares, that is, that official decisions are bydefinition either necessitous or made in good faith

74Dicey, Law of the Constitution, p 229. 75Ibid., p 230. 76Ibid., p 232.

77Ibid., p 234. 78Ibid., p 236. 79Ibid. 80Ibid., p 237. 81Ibid.

In contrast, a Suspension Act does not suspend the law but only theremedies to which the person would otherwise be entitled It is not, that

is, a total derogation from law, but a temporary denial of access to certainparts of the law Moreover, when the Act of Indemnity is enacted it doesnot remove from the illegal acts that were done the substantive quality

of illegality It merely immunizes the officials from criminal and civilliability for what they did The substantive law to which the officials wereaccountable is, in other words, unaffected and moreover the law thatgives them immunity does not come about by executive fiat but throughlegislation While the two occasions of rule by statute law, suspensionfollowed by indemnity, do introduce arbitrariness into the legal order,the arbitrariness is contained, and so the statutes do not wholly do awaywith the rule of law

It is for this reason that Dicey says that it would be erroneous to supposethat the Acts of Indemnity which follow Suspension Acts merely substitutethe ‘despotism of Parliament for the prerogative of the Crown’ ‘[T]hefact that the most arbitrary powers of the English executive must always

be exercised under Act of Parliament places the government, even whenarmed with the widest authority, under the supervision, so to speak, of thecourts.’ In his view, the judges would exercise a control on executive actioninformed by their understanding of the ‘general spirit of the common law’.And he claimed that in England ‘Parliamentary sovereignty has favouredthe rule of law [T]he supremacy of the law of the land both calls forththe exertion of Parliamentary sovereignty, and leads to its being exercised

in a spirit of legality.’82In other words, the rule of law is preserved to theextent that the officials who acted illegally are still accountable to a statuteand because judges will interpret that statute to ensure that the officialsacted in good faith and in a fashion that did not amount to reckless cruelty.However, the extent to which the rule of law can be preserved is obvi-ously dependent on the terms of the Act of Indemnity An Act of Indemnitycould make it clear that any acts, including acts done in bad faith and actsthat are recklessly cruel, were covered, and that judges were not entitled

to review official action during the emergency to see whether it fell withinthe terms of the Act And Dicey might conclude that just as in the case of

a statute that ordered that blue-eyed babies be put to death, judges would

be powerless in the face of such a statute This Act of Indemnity wouldestablish a legal black hole – a zone of illegality – retrospectively and Diceywould surely have no hesitation in labelling it despotic

82Ibid., pp 412–13.

But even if judges are powerless before such a statute, Dicey’s legaltheory is not Rule by law and the rule of law are for Dicey two sides

of the same coin, which is why he claimed that the two features of theEnglish constitution are the sovereignty of Parliament and the rule orsupremacy of law.83So when the rule of law is under stress, a question israised about whether we even have rule by law We might have, that is, thetrue legalization of illegality, a state of affairs brought about by law butone in which there is neither the rule of law nor rule by law If suspensionand indemnity are combined in the same statute, whether prospectively

or retrospectively, not only is the rule of law done away with but also rule

by law For law – even on a very thin conception of law – no longer guidesthe officials who are given power by the statute My claim is not that law’sfunction should be taken to be exclusively about providing guidelines.Rather, it is that even for those who hold this to be law’s main or exclusivefunction there comes a point where rule by law subverts itself

Dicey did not, as far as I know, contemplate how a statute mightprospectively provide for an executive response to a state of emergency in

a fashion that preserved the rule of law.84And that had a lot to do with thefact that, as we have seen, he was averse to any legislative delegation to theexecutive of an authority that would amount to a discretion that could

be exercised free of judicial control He thought that the administrativestate is an affront to the rule of law precisely because he thought that astate in which officials were given vast discretionary powers to implementlegislative programmes necessarily placed such officials beyond the reach

of the rule of law Put more generally, Dicey was deeply opposed to theadministrative state.85

But Dicey’s reflections on Acts of Indemnity open up the conceptualspace for prospective legislative responses to states of emergency whichgive officials authority to act, for example, to detain individuals, but whichrequire that at the time as they act they justify to an independent tribunaltheir decisions as both necessary and made in good faith In order for such

a tribunal effectively to review such decisions, it must be the case not onlythat it is independent but that it has access to all the information which the

83Ibid., pp 183–4.

84 I misinterpreted Dicey on this issue at p 66 of ‘The State of Emergency in Legal Theory’,

pp 66–89 in that I claimed that Dicey clearly expresses a preference (in Law of the

Con-stitution, pp 412–13) that Parliament gives to officials in advance resources to deal with

emergencies in accordance with the rule of law The correct interpretation follows this note in the text.

85See for instance, ibid., pp 227–8.

officials claim support the judgment that the individual detained is, say, athreat to national security In addition, it must be the case that, contrary to

the suggestion of the plurality of the US Supreme Court in Hamdi explored

in chapter1, the state bears the onus of demonstrating that the individual

is a threat Such responses do exactly what Dicey hoped a Suspension Actand an Act of Indemnity could achieve in tandem; they provide a statutorybasis for official decisions and at the same time seek to ensure that thedecisions are made in a spirit of legality And they have the additionaladvantage of rendering each decision, as it is made, testable to see whether

it complies with the regime of legality established by the statute

Now it is important to see that this idea is no mere thought experiment

As we have seen, SIAC is such a tribunal It does have defects, most notably,that when confidential information is tested in closed session before it,the detainee and his lawyer do not have access to the information, buthave to rely on a special advocate to contest the government’s case Butmore important is that it goes much further than the United Kingdom hadgone before in trying to ensure that a rule-by-law response to a perceivedemergency is coupled with the rule of law

Almost as important is that in previous detention regimes created bystatute or under the authority of statute, the government was anxious toavoid appearing to create black holes, to do away with all legal protec-tions Instead, it created grey holes, that is, protections which did not givedetainees anything substantive But even the impulse to create grey holesshows some recognition that rule by law has to be accompanied by therule of law And to the extent that holes created by statute are grey ratherthan black, judges, as long as they are not minimalists, can use the legalprotections provided as a basis for trying to reduce official arbitrariness

to the greatest extent possible In doing so, they challenge the governmenteither to make clearer its intention that detainees should be placed outsidethe protection of the law or to come up with some better way of fulfillingits claim to be committed to the rule of law

As I suggested in chapter1, one must keep a grip on the fact that at onelevel the debate about the rule of law is a theoretical and normative oneand as much about what is appropriate during ordinary or normal times

as it is about the kind of test that emergency situations pose for differentconceptions of the rule of law For if we can keep that grip, we keep alivethe possibility that a substantive conception of the rule of law has a role toplay in legal responses to emergencies And with that possibility vivid, wemaintain a critical resource for evaluating the legal responses to emergen-cies as well as the judicial decisions about the legality of those responses

The solution, in my view, lies in appreciating the paradox that a cession that a statute is a valid one is not necessarily a concession that ithas legal authority Dicey is helpful here because he can help us, despitesome of his own contrary views, to avoid what I called in chapter1thevalidity trap – the trap we fall into if we think that a sufficient conditionfor the authority of particular laws is that they meet the formal criteria

con-of validity specified by a legal order It follows from the trap that if thelegal order provides no institutional channel to invalidate a law, then nomatter how repugnant we might think its content, it has complete legalauthority The better position, as I have suggested, is to see that a lawmight be both valid and yet have only a doubtful claim to legal authoritybecause it overrides explicit fundamental principles of the rule of law.Instructive here is Robert Alexy’s example of a constitution whichdeclares in its first provision that the political entity it creates is unjust.86Alexy rightly thinks that whatever our theoretical position about law, such

a provision looks crazy It confronts judges and others with what looks like

a contradiction installed by law within the legal order Judges, I suspect,would have to deal with such a provision by ignoring it More pertinent

in the present discussion are constitutional or statutory provisions whichseem to give the executive the authority to act outside the rule of law – aprovision which does not exclude justice at large but the justice of the rule

of law Such provisions create, in my view, even more severe tensions forjudges, if they adopt the regulative assumption that all the institutions oflegal order are by definition committed to the rule-of-law project.Such issues arise in a situation in which the executive or the legislature orboth have ceased to cooperate in the rule-of-law project But an answer toSchmitt need not accept the terms of his challenge Indeed, my critique ofpositions which seem to accept part or all of Schmitt’s line on emergenciescan be summed up in just this fashion One succumbs to that challengewhen one accepts that a substantive conception of the rule of law has noplace in a state of emergency, whether this is because one thinks that it

is appropriate only for ordinary times or because one thinks that a thinconception is appropriate across the board To answer that challenge oneneeds to show that there is a substantive conception of the rule of lawthat is appropriate at all times The issue is not how governments andofficials should react to an emergency situation for which there is no

86Robert Alexy, ‘A Defence of Radbruch’s Formula’ in David Dyzenhaus (ed.), Recrafting

the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing,1999 ), pp 15–39 at

pp 27–8.

legislative provision Rather it is whether, when there is the opportunity

to contemplate how the law should be used to react to emergencies, it

is possible to react in a way that maintains the rule-of-law project, anenterprise in which the legislature, the government and judges cooperate

in ensuring that official responses to the emergency comply with the rule

of law

It is thus, as I suggested in chapter1, a mistake to take regimes ofconstitutional dictatorship as a test for a substantive conception of therule of law, for such regimes have already conceded defeat to Schmitt

by embedding the potential to create a black hole in the constitutioneven as they try to confine it Similarly, it is a mistake to take as the testlegislative regimes which explicitly announce an intention that officialsmay do more or less as they please in responding to an emergency Suchregimes establish a dual state in the sense used in the first chapter, whereone has alongside the rule-of-law state a state that governs by law, in effect

by delegating analogues of prerogative power to officials.87But it does notfollow from the fact that such dualism has existed that it is necessaryand hence that Schmitt’s challenge is unanswerable The real test for hischallenge is whether legislative responses to emergencies necessarily createblack holes or grey holes which are in substance black but, as we haveseen, in effect worse because they give to official lawlessness the fac¸ade oflegality

As we saw in chapter2through the comparison of the majority

judg-ments with Latham CJ’s dissent in the Communist Party case, this kind of

illegality retains its character only if one’s conception of the rule of law isthe aspirational one that holds that the rule of law is the rule of principles.But it is quite consistent with such an aspirational conception to hold thatthere can be a zone of illegality, a space where arbitrary power and not lawrules Thus I wish to add a refinement to Murray Hunt’s recent argumentthat English law took a ‘false doctrinal step’ when it introduced ‘spatialmetaphors into the language of judicial review’ by presupposing that thereare certain areas within which public officials are ‘simply beyond the reach

of judicial interference’.88

Hunt’s argument is correct but the refinement I think it needs is thatspatial metaphors become apt when the law is used to put officials beyondthe law, into, that is, a legal black hole If law is a matter of rule-of-lawprinciple, there are no holes within legal order, since a hole is by definitionoutside the reach of law

87Fraenkel, The Dual State. 88 Murray Hunt, ‘Sovereignty’s Blight, p 338.

Spatial metaphors, Hunt says, express a vision of ism which embraces ‘competing’ but irreconcilable ‘supremacies’, thesovereign Parliament and the sovereign individual, whose guardian isthe courts So one gets in the same package two ‘radically opposed narra-tives’, political positivism89and liberal constitutionalism To make thingsworse, as Hunt points out, one finds that adherents of this view tend to fliparbitrarily from one narrative to another.90And, as I have shown in thisbook, issues such as emergency or security legislation, or immigration,tend to push judges away from a Dworkinian or liberal constitutionalismtowards the version of political positivism I have called constitutionalpositivism, the stance of positivist judges who work within a legal order

constitutional-in which their positivism is not at home

Sovereignty thus casts, according to Hunt, a ‘double blight’ on the mon law grasp of constitutionalism It hides the fact that Parliament issubject to constitutional constraints as well as the fact that Parliament ‘has

com-an importcom-ant role in both the definition com-and protection of fundamentalrights and values’ In addition, it gets in the way of the ‘proper articulation

of what may be perfectly legitimate reasons for deferring’ either to ment or to its delegates, ‘obscuring them behind a vocabulary of spacesand boundaries which are asserted as if the underlying assumptions aboutthe constitutional division of powers were not contentious’.91

Parlia-The view that there are such legitimate reasons presupposes, as I haveargued, that the rule-of-law project is a common one, so that, as long asthe judgments of the legislature and the executive are either justifiable orjustified as interpretations of the relevant rule-of-law values, judges shoulddefer to these judgments The kind of deference here is not deference inits primary meaning of submission to an order of a superior, deference

understood as ‘abasement’, to repeat Lord Rodger in Belmarsh Rather,

as we have seen in chapter3, it is deference as respect – respect for asuccessful attempt at justification.92

When a statute is challenged, it might contain a preamble that makessuch an attempt, but often the justification will be offered only when

a judge hears a challenge With administrative decisions, often the verypossibility of there being a challenge to a decision turns on whether reasons

89Hunt calls this kind of positivism ‘democratic positivism’, ibid., p 370, a label I also used

to find apt For reasons explained in chapter 2, and to which I will return at the end of this chapter, I think ‘political’ is more appropriate than ‘democratic’.

90Ibid., pp 343–4. 91Ibid., p 339.

92 For my most detailed attempt to elaborate this distinction, see Dyzenhaus, ‘The Politics

of Deference’, pp 279–307 For Hunt’s account of what follows from the same distinction, see Hunt, ‘Sovereignty’s Blight’, pp 351–4.

were offered justifying the decision; hence, the growing recognition incommon law countries of a duty on public officials to give reasons for theirdecisions Imposing such a duty does of course have costs But whateverthe result of a cost-benefit analysis of a general imposition, it is important

to see that its imposition may be understood as a kind of compliment to theadministrative state, rather than as an intrusion performed in order tofacilitate judicial colonization of the administration

Consider, for example, the fact that until the 1960s and 1970s judges

in the common law world held the view that delegations of authority

to officials that gave them ‘administrative’ as opposed to ‘quasi-judicial’authority neither attracted the requirements of natural justice nor weresubject to review on the basis of the content of the discretionary judg-ment, except in quite exceptional situations In Hunt’s terms, it was one ofthe areas treated as if it were ‘beyond the reach of legality, and within therealm of pure discretion in which remedies for wrongs are political only’.93One of the indicia of a delegation of administrative authority was that theofficial was given authority to act by a subjective, ‘if satisfied that ’provision, instead of the more objective sounding ‘if the minister has rea-sonable cause to believe ’ That is, a subjective delegation of discretionwas regarded as both a substantive and a general privative clause, as aclause which told judges not to review on the basis of rule-of-law princi-ples and that their review authority was in any case excluded When com-mon law judges held that there is a general duty at common law for publicofficials to act fairly unless the constitutive statute expressly indicated oth-erwise, one reaction was that they were illegitimately usurping legislativeauthority

But, as I have argued in chapter3, the thought that the administrativestate is not lawless but subject to the rule of law, including the legal value offairness, is a thought that goes further than including the administrativestate into the legal order in a way antithetical to the rigid doctrine ofthe separation of powers It also supposes that the administrative state

is legitimate in part because it is answerable to the fundamental values

of legal order And that thought goes beyond the claim that bodies thatare not courts must make decisions in accordance with values that werepreviously thought to apply only to courts or court-like, quasi-judicialbodies.94 As indicated above, it should include the further claim that,

93Ibid., p 339.

94 It is important to signal here my awareness of the fact that judges have not yet found

a general duty at common law for them to give reasons Perhaps judicial resistance to a general duty at common law for officials to give reasons is partly influenced by judges’ supposing that public officials can’t be held to a higher standard of fairness than they

generally speaking, judges should defer to public officials’ interpretations

of the law, as well as to legislative and administrative choice when it comes

to institutional design, including the design of fair procedures

There is, however, a rather large difference between, on the one hand,

a genuine statutory or administrative attempt to design fair proceduresand, on the other, a legislative or administrative declaration that no fair-ness is appropriate Where it is the administration that refuses, clearlyjudges are entitled to review But where the legislature puts in place asubstantive privative clause matters are more complicated Recall that

a substantive privative clause does not remove a judge’s authority toreview, but simply tells her that she may not rely on common law groundsfor review, for example, the principle that officials are under a duty to actfairly And I argued in chapter2that whether judges are entitled to react

to a substantive privative clause by voiding it will depend largely on theirunderstanding of their written constitution, if their legal order has one.Even more complex is the situation where the legislature stipulatessome degree of fairness and is explicit that no more is appropriate, wherethe kind of decision seems to cry out for much more The challenge tothe legality of the military tribunals put in place after 9/11 in the UnitedStates is a challenge in this kind of situation These tribunals do not operate

in a legal black hole, but in grey holes – space which is not adequatelycontrolled by legality And here it is important to recall that SIAC has beenmuch criticized.95In part, this criticism comes about because SIAC’s rolehas been expanded to review the decisions to detain indefinitely foreignnationals who are considered a security threat but who cannot be deportedbecause of the risk of torture Critics are particularly concerned that thesubjects of these decisions play no role in contesting the evidence given

in the closed sessions They thus argue that while SIAC is advertised as

an institution that implements the rule of law, in fact it provides a merecloak for potential abuse of authority

It might seem then that I have just made two fatal concessions Ihave conceded that the question whether judges are entitled to upholdfundamental principles of legality depends on whether there is a writ-ten constitution which permits them to do so, a concession which then

themselves are subject to And their continued reluctance to find that they are subject to such a duty night signal a sense that their independence is compromised through the logic

of accountability that a duty to give reasons unfolds.

95 See for example, Lucy Scott-Moncrieff, ‘Detention Without Trial’ ( 2004) 26 London Review

of Books 22 See also the Seventh Report of Session 2004–05 of the House of Commons

Constitutional Affairs Committee, ‘The Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates’.

undermines the claim that there are such values inherent in legal order.And I have conceded that imaginative experiments which are designed

to uphold the rule of law run the risk of undermining it I do not ever believe that I have made the first concession and the second is not somuch a concession but a fact about risk which has constantly to be borne inmind

how-In respect of the first issue, I have only conceded that there is such aquestion when the legislature very explicitly announces its intention toexclude such a value That condition for excluding fairness is in itself asignificant legal constraint since it requires a clear statement to override it

I have argued that this constraint is constitutional, even though it might

be the case that in the absence of a written constitutional protection of thejudges’ review authority over such matters, the judges cannot enforcethe constraint in the face of a clear legislative statement In fact, the ideathat the non-enforceability of a norm by judges in the face of a clearlegislative statement means that it lacks constitutional status is a product

of the mindset which includes the narratives of competing supremacies.The aspirational view of the rule of law, in contrast, recognizes that any

of the branches of government may fail on occasion to live up to law’saspirations

Consider again s 33 of the Canadian Charter of Rights and doms which permits the federal and provincial legislatures to override bystatute judicial determinations that their statutes violate certain Charter-protected rights and freedoms for a period of five years, after which theoverride must be legislatively renewed if it is not to lapse The overridedoes not render any of the overridable values unconstitutional It merelygives to the legislature a limited opportunity to operate unconstitutionallyfor a period, but on condition that it owns up to that fact The override

Free-is meant to, and does, both incite and renew democratic debate aboutthe government’s decisions to govern outside of the constitutional order.Thus when judges uphold such an overriding statute, they do not uphold

it merely because it is technically valid Rather, they uphold the statutebecause, while it lacks authority from the perspective of Canada’s explicitconstitutional commitments, it has authority from the fact that it is theproduct of a properly conducted democratic procedure In a country withthese explicit constitutional commitments, the government’s decision togovern outside of the constitutional order will put strain on its claim to bedemocratic Moreover, that strain is increased by the fact that the terms

of a valid override require the public to take note of the fact that the stitutional order is at risk I have suggested that the Human Rights Actcreates a very similar structure for the United Kingdom