Democratic dialogue and the constitution

336 Pages·2017·1.888 MB·English

by  Young, Alison L

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DEMOCRATIC DIALOGUE AND
THE CONSTITUTION
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Democratic Dialogue and
the Constitution
ALISON L YOUNG
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For Mycroft, Muse, and Mornington Crescent
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Acknowledgements
The research for this book was most generously funded by The Leverhulme Trust, to
whom I owe my largest debt of gratitude. Without their Research Fellowship award,
this book may never have come to fruition. I was able to use their funding to teach
part- time for two years from 2013 to 2015, which enabled me to complete a first draft
of the book. The fact that it took me a further year to finalize this draft, whilst teaching
full- time, provides a clear exemplification of how this book would have taken consid-
erably longer to complete without their generosity. Being able to take part-t ime leave
would also not have been possible without the support of my colleagues at Hertford
College. I owe particular thanks to Stephen Dimelow, who tirelessly took over my
undergraduate tutorial teaching in both constitutional and administrative law for two
years. I also owe special thanks to my esteemed colleague Alan Bogg for his unceasing
support, especially in the second year of my part- time leave. He was, is, and I’m sure
will ever remain the epitome of civic virtues.
I have been extremely fortunate to benefit from a supportive academic community,
who have listened to my vague ramblings, encouraged my search for new ideas, and
read many a badly written draft. Foremost in this regard, I owe an extremely large
debt of gratitude to Paul Craig. Space really does preclude a proportionate expression
of my thanks, so I’m afraid that Paul will have to make do, for now, with words that
barely scrape through an application of the Wednesbury unreasonableness standard of
scrutiny. I will limit myself to two points. Not only did he read the entire book in
draft form, graciously pointing out errors and hostages to fortune, but also he has
been a constant source of support and encouragement. I am also grateful to Graham
Gee, Hayley Hooper, and Menelaos Markakis for their comments on earlier drafts. It
is always problematic to provide a list of all who have listened to arguments or acted
as a sounding board for my, often strange, ideas on public law which then somehow
made their way into this book, or were rightly rejected. I can only endeavour to try my
best (and hope anyone I miss off the list realizes that this is due to exhaustion and my
own forgetfulness). With that note of disclaimer, I would like to thank: Farrah Ahmed,
Trevor Allan, Merris Amos, Nicholas Bamforth, Nick Barber, Sophie Boyron, Paul
Craig, Richard Danbury, Stephen Dimelow, Mark Elliott, Carolyn Evans, Liz Fisher,
Stephen Gardbaum, Andrew Geddis, Graham Gee, Les Green, Carol Harlow, Janet
Hiebert, Hayley Hooper, Grant Huscroft, Aileen Kavanagh, Tarunabh Khaitan, Jeff
King, Roger Masterman, Danny Nicol, Jane Norton, Sebastian Payne, Adam Perry,
Gavin Phillipson, Rick Rawlings, Kent Roach, Ewan Smith, Adrienne Stone, Stephen
Tierney, and Grégoire Webber.
I am also fortunate to benefit from working with extremely bright and enthusiastic
students, many of whom have suffered these ideas sneaking into tutorials and BCL
seminars. To that extent, I would like simultaneously to thank, and apologize to, the
undergraduate law students at Hertford, Merton, Balliol, and Keble, in addition to
anyone attending the comparative public law seminars. Whenever I mentioned ‘it’s
all about the dialogue …’, or muttered darkly about being a ‘dialogue theorist’, this is
what I meant.
There are also those who have supplied tea, coffee, and a friendly face to help
me through what have been some dark and difficult times whilst writing this book.
Without their support, I’d not have made it to the end of the book. My thanks go to
Alan Bogg, Oliver Butler, Richard Danbury, Stephen Dimelow, Hayley Hooper, Jieun
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viii Acknowledgements
Kiaer, James Lazarus, Graham May, Dana Mills, Rebecca Sitsapesan, and Felix Wardle.
I would also like to thank ‘the mothership’— Grace, Jill, Laura, Shelly, and Tina—
Hannah, and the rest of my Springboard group. I also need to thank my family—
Duncan, Imogen, Bagheera, and Roo.
Alison L Young
Oxford
July 2016
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Table of Contents
Table of Authorities  xiii
Introduction 1
I. A Brief Introduction to Democratic Dialogue: Panacea
or Placebo?  2
II. Prisoner Voting: A Franchise too Far?  11
III. Defining Dialogue— A Distinct Constitutional Model?  16
IV. Inevitable Collapse?  22
A. Unstable democratic dialogue  23
B. Unstable legal and political constitutionalism  27
V. Outline of the Argument  30
1. The Problem with Control 37
I. Parliament or the Courts?  41
II. No Middle Ground?  44
A. Practical impossibility  44
B. Normative impossibility  48
III. Overlap  51
A. Core cases for and against strong judicial protections
of human rights  52
B. Legal constitutionalism, political constitutionalism,
and control of the executive  56
IV. Conclusion  66
2. Democratic Dialogue and the Dynamic Approach 69
I. Democratic Dialogue is Dynamic  70
II. Dynamic Legal Constitutionalism  74
III. Dynamic Political Constitutionalism  80
IV. Conclusion  82
3. Re- defining Democratic Dialogue 83
I. Constitutional Foundational Assumptions  85
II. Does Democratic Dialogue Rest on a Different Constitutional
Foundational Assumption?  90
A. Re- evaluating the difference between legal and political
constitutionalism  92
B. Democratic dialogue: occupying the middle ground?  94
III. Re- visiting Inter- institutional Interactions  100
A. Dynamic legal and political constitutionalism re- visited  101
B. Dialogue and the culture of justification: a stable middle ground?  104
C. Is democratic dialogue defunct?  110
IV. Conclusion  115