LAW1035 · Week 3

Root
Topic
Theme
Sub-theme
Detail
Case
Parliamentary Sovereignty
The Principle
The King in Parliament
Legislative branch of UK constitution
King, Lords, and Commons
"What the King enacts is law"
Revolution of 1688
British Railways Board v Pickin
Modern Principle
*Case: Miller (No 1)* [2017] UKSC 5
Fundamental principle (following Dicey)
Crown legislates only through Parliament
Bill needs both Houses + Royal Assent
Parliament Acts alternative route
1. Unlimited Legislative Power
Dicey's Formulation
Make or unmake any law whatsoever
No body can override Parliament
R (Jackson) v Attorney General
Lord Bingham at [9]
Unconstitutional but Lawful
Moral/political limits ≠ legal limits
Madzimbamuto v Lardner-Burke
Parliament: legislature + constituent assembly
Three Practical Constraints
Politics
The rule of law
Self-imposed restraints
*Case: Re UNCRC Bill* [2021] UKSC 42
2. No Competing Authority
Westminster Parliament supreme
Overrides common law
Overrides prerogative
Overrides devolved legislatures
Sewel Convention: political not legal
*Case: Miller (No 1)* at [146]–[151]
3. No Body Can Deny Validity
Enrolled Bill Rule
*Case: Pickin v BRB* — finality of enactment
Manuel v Attorney General
Courts must obey and apply
Immunity from Judicial Scrutiny
*Case: Re UNCRC Bill* at [50]
*Case: AXA v Lord Advocate* at [49]
UKSC Protecting Sovereignty
*Case: Re UNCRC Bill* [2021] UKSC 42
Scottish Bill outside competence
Only UK Parliament can limit itself
s.28(7) Scotland Act 1998 preserved
Devolution is creature of statute
4. No Entrenchment
Parliament cannot bind successors
Ellen Street Estates v Minister of Health
*Case: Jackson* at [113] — Lord Hope
Contrast: s.111A GOWA 2006 (Senedd)
Most countries have entrenched constitutions
5. Source
Common law construct
Judges created the principle
*Case: Jackson* at [102] — Lord Steyn
Only common law Parliament cannot change
"Stream cannot rise above its source"
H.W.R. Wade (1955) 13 CLJ 172
Political Constitutionalism
Self-Correcting Democracy
P.P. Craig's theory
Representative body reflects people
Free to undo political mistakes
Predicated on conventions, press, elections
Constitutional Conventions as Restraint
Parliament won't legislate oppressively
Geoffrey Marshall (1984)
Convention favouring international law compliance
R (FDA) v Minister for Cabinet Office
*Case: Hirst v UK (No 2)* — ECHR Art 46
Parliament Acts 1911–1949
Redefines Parliament for legislation
King + Commons bypass Lords
Political reality entrenches the change
*Case: Jackson* at [113] — Lord Hope
Sewel Convention
Westminster "not normally" legislates on devolved matters
s.28(7)–(8) Scotland Act 1998
*Case: Miller (No 1)* at [146]
Judges observe, not enforce, conventions
Referendums
Character
Creatures of statute
Advisory vs self-executing
Advisory Referendums and Sovereignty
Political force, not legal force
*Case: Miller (No 1)* at [124]
Political vs Legal Sovereign
*Case: Scottish Independence Referendum Bill* [2022] UKSC 31
Democratic voice ≠ legal power
Dangers of Political Constitutionalism
Elective dictatorship (Lord Hailsham)
Executive dominance of Commons
Conventions depend on good faith
Populism and short-termism
No counter-majoritarian safeguards
Legal Constitutionalism
Sovereignty Under Law
Rule of law: ultimate controlling factor
*Case: Jackson* at [107] — Lord Hope
Parliament supreme because law says so
Courts apply techniques, not values
Principle of Legality
The Core Rule
Clear words needed to curtail rights
*Case: Ex parte Simms* — Lord Hoffmann
*Case: Ex parte Pierson* — Lord Steyn
Parliament must confront political cost
Broader Rule of Law Presumption
R (Evans) v Attorney General
Executive veto must be express
AXA v Lord Advocate
Devolved bodies presumed lawful
Judicial Review
Nature of Judicial Review
Common law supervisory jurisdiction
Secures accountability to rule of law
R (Exolum Pipeline) v Crown Court
Ouster Clauses
Restrict court review of public bodies
Courts interpret restrictively
*Case: Privacy International* [2019] UKSC 22
Lord Carnwath at [131]
*Case: Anisminic* — foundational authority
Modern Constitutional Settlement
Courts reconcile sovereignty and rule of law
Ouster clauses cannot exclude fundamentals
Courts are final arbiters
Constitutional Statutes
Thoburn v Sunderland City Council
Two-limb test (Laws LJ at [62])
Citizen-state relationship
Fundamental constitutional rights
Cannot be impliedly repealed
Approved in *Case: Miller (No 1)* at [66]
Category A: Magna Carta, Bill of Rights, etc.
Category B: HRA, Representation of People Acts
EU Law Challenge
Pre-Brexit
Direct effect: *Case: Van Gend en Loos*
Supremacy: *Case: Costa*; *Case: Simmenthal*
ECA 1972 as conduit pipe
*Case: Miller (No 1)* at [65]
Disapplication of UK statute
Factortame (No 2)
Voluntary limitation (Lord Bridge)
Post-Brexit
ECA repealed; EU supremacy ended
EU(W)A 2018 s.5 and s.7A
Retained/assimilated EU law
Northern Ireland: WA can disapply UK Acts
Re NIHRC's Application
Human Rights Challenge
HRA 1998
s.3: reading down statutes
Ghaidan v Godin-Mendoza
s.4: declarations of incompatibility
A v Home Secretary
Parliament qualifies own sovereignty
*Case: Re UNCRC Bill* at [50]
Clash: Rwanda and PS
*Case: R (AAA) v Home Secretary* [2023]
Safety of Rwanda Act 2024
s.1(4): Parliament is sovereign
Disapplies HRA s.4
R (FDA) v Minister for Cabinet Office
Lawful but Unconstitutional
R (Reilly) No. 2 v SSWP
Retrospective Act validated sanctions
Incompatible with Art 6 ECHR
s.4 declaration: no legal remedy
Remedies are political