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The Nuanced Constitution: An Essay on Common Law Constitutional Rights

Lienen, Eva Christina; (2020) The Nuanced Constitution: An Essay on Common Law Constitutional Rights. Doctoral thesis (Ph.D), UCL (University College London). Green open access

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Abstract

This thesis argues that the examination of judicial reasoning in public law cases shows that the UK constitution is best described as ‘nuanced’, rather than by reference to either political or common law constitutionalism. One manifestation of the nuanced constitution is the concept of common law constitutional rights, i.e. human rights under the English common law, which have recently been revived by the UK Supreme Court in cases such as UNISON v Lord Chancellor. I examine these rights with a view to portraying the inner workings of the nuanced constitution as well as its shortcomings. Drawing on the historical development and the contemporary characteristics of common law constitutional rights, I contend that the latter have been negatively impacted by the ambiguities underlying the wider constitutional framework. As the Privacy International litigation shows, the senior Judiciary is in significant disagreement about some of the core aspects of the UK constitution. Indeed, we cannot detect a principled constitutional philosophy guiding decision-making; the nuanced constitution is torn between the irreconcilable tenets of political and legal constitutionalism. Due to this tension the range and scope of common law constitutional rights remains unclear, and their legitimacy contested. Furthermore, given the continued role of Parliamentary Sovereignty, common law constitutional rights are at constant risk of being abrogated by clear statutory language. Having found that the nuanced constitution - despite the resurgence and increased weight of common law constitutional rights - is unable to adequately protect essential constitutional values, I advance an alternative approach to constitutional rights protection. Abandoning Parliamentary Sovereignty, which is riddled with conceptual and normative shortcomings, I propose a more principled framework that effectively protects those rights that are constitutive of a liberal democracy, properly understood.

Type: Thesis (Doctoral)
Qualification: Ph.D
Title: The Nuanced Constitution: An Essay on Common Law Constitutional Rights
Event: UCL (University College London)
Open access status: An open access version is available from UCL Discovery
Language: English
Additional information: Copyright © The Author 2020. Original content in this thesis is licensed under the terms of the Creative Commons Attribution 4.0 International (CC BY 4.0) Licence (https://creativecommons.org/licenses/by/4.0/). Any third-party copyright material present remains the property of its respective owner(s) and is licensed under its existing terms. Access may initially be restricted at the author’s request.
UCL classification: UCL
UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10093496
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