Parliamentary Sovereignty

What are the 3 limbs of DICEY’s definition of Parliamentary Sovereignty?

1. P can legislate without limitations on the matter.

   • CHALLENGE = ECA 1972

2. P cannot bind its successors.

   • CHALLENGE = Devolution, Scot Act 1998, Govt of Wales Act 1998, Arguably restricts/limits power of future Ps BUT legislated in a way that does not limit Westmintster’s power to legislate for UK.

   • HEUSTON = P cannot put substantive limits on itself but can put procedural.

3. No one can question the validity of an act of P.

   • CHALLENGE = HRA, ECtHR.

   • HOWEVER = s3 does not limit power only imposes a requirement to interpret legislation in a convention rights-compliant manner wherever possible.

What is the importance of Jackson (2005)? (3)

1. Issue = whether Hunting Act 2004 is valid or if it has been invalidly delegated from powers that did not exist in the Parliaments Acts 19911 and 1949.

2. Held = Act was valid.

3. IMPORTANT = Courts have jurisdiction go decide whether an instrument used in litigation is an Act of P or not.

What does HS2 show about Factortame? (2)

1. HS2 proves that Factortame has not irrevocably removed PS because P can still derogate from EU law “provided it makes its intentions sufficiently clear” (Lord Reed).

2. HS2 and Thoburn (incapable of impliedly repealing constitutional legislation) show there is a hierarchy of constitutional principles. → This is merely a manner and form limitation, and so does not limit PS.

What does WADE - ‘The Basis of Legal Sovereignty’ say about Parliamentary Sovereignty? (5)

1. ECA 1972 is not an easy fit with Parliamentary Sovereignty.

2. Act of one Parliament cannot bind its successor. → Supports orthodox view. → The latest will of Parliament must predominate.

3. Only one limit to Parliament’s legal power = cannot detract from its continuing sovereignty.

4. Parliament cannot pass any legislation that is only repealed through special safeguards. → Means not allowing a govt to repeal the Bill of Rights would technically be illegal.

5. Only common law rule that Parliament cannot change = rule that courts recognise AOP as law. → “If no statute can establish the rule that the courts obey Acts of Parliament, similarly no statute can later or abolish the rule”.

6. “Revolution” in Factortame

What does WADE say about Factortame? (3)

• “Revolution” in Factortame.

• Judges have departed from PS without having the legal authority to make this change.

• HOL should have concluded that ECA 1972 is repealed.

What does CRAIG say about Parliamentary Sovereignty and Factortame? (2)

1. By passing the ECA 1972, Parliament voluntarily accepted a limitation of PS, making it clear that community law was accepted as dominant for future and present Ps, binding successors.

2. Reasoning in Factortame accords better with Heuston’s manner and form’ understanding of PS, which had the effect of allowing Parliament to limit itself.

Who came up with manner and form theory?

HEUSTON

What does BARBER - ‘Afterlife of Parliamentary Sovereignty’ say about Parliamentary Sovereignty? (4)

1. Possible to redefine sovereignty in 2 ways post-Factortame:

   • (1) Sovereignty = A rule that gives legal supremacy to Parliament — final say in the event of a constitutional crisis.

   • OR

   • (2) Sovereignty = A capacity an institution enjoys in certain areas. → Discrete area of lawmaking power, with P enjoying sovereign authority in one area, even if limited in other respects.

2. Even if Parliament did repeal ECA 1972, sovereignty would not be resurrected in its old sense.

3. Heuston’s manner and form analysis does not allow Parliament to place substantive limits on itself, as it had in ECA 1972.

   • No attempt in that statute to redefine what constitutes Parliament or what counts as legislation.

4. PS was abandoned in Factortame but has enjoyed an afterlife. → PS is no longer part of UK Constitution.

What does EKINS say about Parliamentary Sovereignty? (4)

1. PS is still a thing post-Factortame.

2. Devolution Acts, ECA, ECHR, HRA, Parliament Acts = do not legally qualify Parliament’s legal power to legislate, but they impose constitutional or practical limits on that power.

3. Judges did not create doctrine of PS.

   • PS = “Part of the rule of recognition, part of the fundamental social rule that grounds the legal system, which officials and citizens jointly accept”.

   • Incorrect for Lord Hope and Lord Steyn to say PS is a construct of common law and that courts are free to qualify PS if necessary.

4. Parliament has NOT placed manner and form restrictions on itself as of yet.

What does EKINS say about the effect of EU law/ECA on Parliamentary Sovereignty? (5)

1. In enacting ECA, Parliament did not legally limit its lawmaking powers.

2. s.2 ECA does NOT articulate limits on the authority of P to legislate as it sees fit.

3. Parliament is free to change the law as it sees fit BUT it frames its lawmaking acts in relation to the existing law + the existing constitutional order.

4. Leaving EU = restoration + revitalisation of PS. → Lifts practical and constitutional restrictions.

5. Decision in Miller I was not required or justified by PS, even if it was a welcome reaffirmation.

What does EKINS say about the effect of Devolution on Parliamentary Sovereignty? (3)

1. Lord Steyn is WRONG in saying that the Scotland Act 1998 “points to a divided sovereignty”.

2. s.28(7) provides that Westminster remains competent to legislate on all and any question of Scottish law.

3. “Permance” of Scottish govt + Parliament = political and constitutional commitment but NOT a legal limitation.

What does EKINS say about the effect of the ECHR and HRA on Parliamentary Sovereignty? (2)

1. Point of the HRA was to give domestic effect to ECHR without compromising PS.

   • s.3(2)’s provision that inconsistency with ECHR rights does not invalidate primary legislation.

   • s.4(6)’s provision that DOIs do not invalidate legislation.

   • No legal obligation to change legislation following s.4 DOI.

2. Judicial review is not itself antithetical to PS.

What does EKINS - ‘Legislative Freedom in the UK’ say about the effect of the Parliament Acts on Parliamentary Sovereignty? (2)

1. NOT a limit on the lawmaking authority of Parliament.

2. It is Parliament’s own provision concerning how and when it is to act.

AXA General Insurance on Parliamentary Sovereignty (2)

1. Lord Steyn — believes a govt elected with a large majority in Parliament could be dangerous.

2. Judicial Review = constitutional fundamental that even a sovereign Parliament cannot abolish.

HS2 case on Constitutional Statutes (2)

1. Confirmed existence of ‘ordinary’ and ‘constitutional’ statutes.

   • Clash was between 2 constitutional statutes, thus ECA 1972 cannot implicitly repeal the Bill of Rights (Art9 says that Parliament should be free to debate and pass legislation).

2. HS2 seems to abandon the formalistic categorisation suggested in Thoburn and replaces it with a more evaluative test of constitutional significance.

   • Suggests there exists an additional hierarchy of constitutional norms.

3. ELLIOT = significance of the HS2 case is that it recognises a hierarchy of constitutional norms, which to an extent constrains absolute Parliamentary sovereignty (except through express action).

   • Calls for a more nuanced view that recognises that there are fundamental constitutional principles.

   • Conflict between 2 constitutional principles/statutes can be resolved by evaluating their relative constitutional significance.

What does ELLIOT say about the HS2 case? (3)

1. ECA 1972 does NOT conclusively establish that EU law prevails over everything except an explicitly-inconsistent Act of Parliament.

2. HS2 is un-Diceyan because it suggested an evaluative hierarchy of statutes rather than a formalistic one (i.e. simply that AOPs prevail over the common law, primary legislation over secondary).

3. Lord Mance + Lord Neuberger = does not follow from Factortame that ECA 1972 requires national courts to accord primacy to EU law over ALL domestic law.

   • ECA changed domestic law BUT UK constitution had other constitutional principles that Parliament did not intend to abrogate when signing ECA>

Benkharbouche [2017] on Parliamentary Sovereignty

By being part of ECA and having to conform to EC laws, Parliament is not sovereign and has essentially bound future Parliaments.

Elan-Cane on Parliamentary Sovereignty (2)

1. Interpretation of Art3 in Ghaidan [2004] = significant encroachment of PS. → Expands judiciary’s constitutional power at the expense of Parliament.

2. Following Ghaidan’s approach, courts can ‘modify’ the meaning of unambiguous legislation, even if that goes beyond Parliament’s original intentions, where they think P’s approach fails to comply with Convention rights (even though ECtHR would itself accept P’s assessment as legitimate).

What does WADE think about “Can Parliament bind its successors”? (6)

1. Factortame led to an AOP being disapplied, a term that was invented to describe the circumstances that had arisen.

2. ECA 1972 provided the subordination of English law to EC law through s.2(4). → Construction and Revolution views disagree on the effect this has had on UK law.

3. CONSTRUCTION VIEW = CRAIG = A rule of interpretation to the effect that Parliament is presumed not to intend statutes to override EEC.

   • When inconsistencies arise, they are resolved in favour of EEC law, except for express statements of Parliament.

   • Preserves Diceyan orthodoxy and does not enforce courts to limit PS.

4. REVOLUTION VIEW = it is for judges, not Parliament, to explain the effect of an AOP.

   • If Judges recognise that there must be a change that causes parliament to be fettered that would be a technical revolution.

5. By disapplying MSA 1998, clear that 1972 Parliament had bound its successors. → Contrary to orthodox doctrine, ECA had fettered the sovereignty of future parliament, by virtue of s.2 stipulation that “any enactment passed or to be passed” should take effect subject to Community law.

6. Rule of recognition = political fact that judges can change when a situation so demands.

What does ALLAN think about “Can Parliament bind its successors”? (4)

1. Contrary to Wade, ALLAN = revolutions occur only when new authorities are acknowledged or fundamental rule is adopted which is not justified by the legal order from which courts withdraw their allegiance.

2. Rule of unconditional obedience to statutes = common law rule, not just political fact.

3. Since this is subject to modification in later decisions, judges can change how the rule is applied.

4. The alteration to this rule is not a political revolution but instead has been altered through legal considerations.

What does Factortame No.2 say about “Can Parliament bind its successors”? (5)

1. Lord Bridge = Parliament STILL soveregin = Whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was “entirely voluntary” as the supremacy of Community law was “well established in the jurisprudence of ECJ long before UK joined”.

2. Does not represent actual limitation on PS as “entirely voluntary”.

3. Lord Bridge’s argument in isolation = very logical. → Constraints which are accepted and rejected voluntarily do not present any real problem to PS.

4. BUT in broader constitutional context = Lord Bridge’s argument = flawed because it presupposes that Parliament can accept constraint on its sovereignty, which is not necessarily true if we take PS as “continuing”, i.e. P cannot bind successors (Dicey).

5. Lord Bridge’s conception of PS means that PS is “self-embracing”, i.e. P can bind its successors.

What does Thoburn say about “Can Parliament bind its successors”? (4)

1. ECA = constitutional statue.

2. PS has ALWAYS been INTACT because, through ECA 1972, Parliament did not intend to do away with their own constitutional principles.

3. Laws LJ = ultimate basis of EU law supremacy is in domestic powers.

   • Thus supremacy of EU law is subject to recognition by domestic courts.

   • Thus domestic courts could at any time choose not to give EU law supremacy.

4. Thoburn provided further affirmation of the supremacy of EU law that has been incorporated into domestic law by virtue of ECA 1972 over all other domestic laws, which had been laid down in Factortame.

What do BARBER & YOUNG say about Thoburn & the Rise of Henry VIII clauses? (4)

1. Recent growth in number of Henry VIII clauses marks unprecedented rise in the ability of bodies other than Parliament to change statutes.

2. Henry VIII clauses allow another body to limit future Parliament’s freedom to make statutes. → There is tension between such provisions and classical view of P as omnipotent law-maker.

3. Laws LJ + Courts = favour subject-matter model of implied repeal over conflict-of-norms view, allowing prospective Henry VIII clauses to operate without risk of repeal by general inconsistency.

4. Subject-matter model of implied repeal poses no issue to PS.

   • Possible for limited fetter to be placed on future Ps, but P can still amend/repeal the empowering Act if needed.

Jackson on Parliamentary Sovereignty (5)

1. Obiter comments indicated that PS was subject to limitations.

2. AOP can be disapplied by courts if it conflicts with ROL.

3. First express statements from judges in an official capacity that courts might consider striking down legislation if it contradicts constitutional principles.

4. Based on judgments, it is clear that judges now consider PS to be subject to limitations imposed by the ROL.

5. Baroness Hale = emphasised the usage of the principle of legality in statutory interpretation + didn’t take as radical a stance as Lord Hope + Lord Steyn in endorsing the outright disapplication of AOP.

Lord Hope in Jackson on “Can Parliament bind its successors” (4)

1. “Parliamentary sovereignty is no longer, if it ever was, absolute”.

2. “Factortame has introduced a further qualification as it directs courts to read and give effect to legislation in a way that is compatible with Convention rights”.

3. ROL “enforced by the court is the ultimate controlling factor on which our constitution is based”.

4. “Courts have a part to play in defining the limits of Parliament’s legislative sovereignty’.

Lord Steyn in Jackson on “Can Parliament bind its successors” (2)

1. PS is “still a general principle of our constitution, but the pure and absolute version is out of place in the modern UK”.

2. 1949 Act could even be used to abolish HOl. → PS is a principle of common law and since judges created this principle they could also change it.

Baroness Hale in Jackson on “Can Parliament bind its successors” (2)

1. “Parliament can do anything, there is no reason why Parliament should not decide to redesign itself, either in general or for a particular purpose.”

2. “If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the HOL, it may very well be that it can also redefine itself upwards, to require particular parliamentary majority or popular referendum for particular type of measures”.

What does EKINS say about Jackson [2005]? (4)

1. Ekins REJECTS manner and form theory in general and in particular that Parliament Acts impose manner and form restrictions on Parliament.

2. Steyn + Hope in Jackson are wrong to say that judges created the rule that whatever Parliament enacts is law. → Jurispudentially absurd to insist the rule must be a common law rule.

3. Agrees that 1911 Act changes how P may legislate - similar to manner and form theory. → Point of difference = decision-making procedure that supplements joint assent, so that when the procedure applies, the assent of two counts as the act of all.

4. So Parliament Acts do NOT limit Parliament and are consistent with continuing authority.

Pickin on whether judges can review the validity of AOP (3)

1. Common law (judges) CANNOT question an AOP.

   • No legal authority to do so, no capacity to do so.

2. If done, it would generate tension between Courts and Parliament.

3. Whatever Queen in Parliament enacts is law, and the judges must apply the law without looking behind the law. → This is not the job of the courts.

Privacy International [2021] on Parliamentary Sovereignty & Rule of Law (3)

1. Upholding PS will uplift ROL.

2. Lord Carnwath = ROL means everyone should follow the law. → Parliament makes the laws so Courts need to make sure Parliament’s word is taken seriously.

3. Carnwath = ROL, to the extent that it empowers courts to enforce the law, is necessary if PS is to be given meaning.

What is the issue in Privacy International? (5)

1. Ouster clause = tells Courts that they cannot interfere (this body will not be subject to JR).

2. BUT courts tend to ignore ouster clauses on the grounds of Principle of Legality — “may look like Parliament is telling the courts to not interfere, but it cannot be what they intended”.

3. With RIPA 2000, Parliament was more clear on the ouster clause and it was debatable whether courts could still use this justification to justify JR.

4. Majority said language of the statute CAN be read in such a way to preserve JR.

5. Even if the language could not be read in such a way, courts could nonetheless impose JR and defy the language of an AOP.

Lord Carnwath in Privacy International on whether judges can review the validity of AOP (2)

1. Court held that the “ouster clause” of s.67(8) of RIPA 2000 was not sufficiently “explicit” to justify excluding the judicial review by High Court of the decisions of the Investigatory Powers Tribunal.

2. Obiter = does not think that JR can be limited by Parliament.

   • “It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude judicial review”.

Lord Sumption (dissenting) in Privacy International on whether judges can review the validity of AOP

“If s.67(8) when read as a whole does not exclude a challenge to the merits of the Tribunal’s decisions by way of judicial review, then what else can it mean?”.

What does HOOPER say about whether judges can review the validity of AOP? (3)

1. HOOPER = role of exceptional circumstances review is best understood as a development and progression of the common law approach to judicial review of legislation that can be traced to the end of c20th.

2. Not covert march towards rule by judges or ‘juristocracy’.

3. Deliberately avoids the framework of ‘common law constitutionalism’ which seeks to justify HR in general terms as a mechanism to vindicate ROL.

UNISON on Parliamentary Sovereignty (2)

Lord Reed

1. PS CANNOT be understood in isolation.

2. PS requires cooperation fo external institutions, e.g, courts, and respect for other constitutional principles, e.g. ROL, for Wesminster’s legislation to have a meaningful effect.

Does PS still exist? Give an intro/thesis statement/conclusion(6)

1. PS still exists because it clearly influences Parliamentary and judicial conduct.

2. BUT Dicey’s definition of PS as entirely unlimited is an inaccurate reflection of modern constitutionalism.

3. Can’t view PS through a purely ‘legal lens’ and must take a more realistic approach when analysing the evidence.

4. CONCLUSION: Parliament is limited due to the emersion of ideas such as hierarchy of statute, and the political entrenchment that many statutes possess.

5. Limits placed by Parliament on its own sovereignty arise NOT from the specific provision of the legislation it passed, but rather the subject-matter and far-reaching effects of such legislation, as well as changes in attitudes that are reflected within common law.

6. Parliament’s ability to make or unmake any law it wants is thus most limited by factors external to Parliament, not limitations found within Westminster itself.

PS and EU membership (4)

1. s18 EU Act 2011 reinfroces idea that P is legally acknowledged as sovereign,

2. BUT BARBER = post-1991 constraints on sovereignty are greater than before 1991.

3. BARBER’s distinction is interestingly based on Factortame, and not between pre-ECA 1972 and post-1972.

4. Supports SALMOND’s idea = “If no statute can establish the rule that courts obey AOP, similarly no statute can alter or abolish that rule. The rule is above and beyond the reach of statute”.

   • Therefore,we must consider sovereignty beyond its statutory prescriptions.

What does ECA 1972 provide? (3)

1. ECA 1972 provided a mechanism through which EU law could be incorporated into British law without further legislation from Parliament.

2. s2(1) and s2(4) give effect to EU law in UK.

3. s3 allows judiciary to take into account ECJ rulings.

   • Reflects idea that EU expects a high level of deference from its member states.

   • s3 could be presented as authorising a transfer of judicial alliance from UK P to ECJ.

PS and Factortame (5)

1. Confirmed supremacy of EU law.

2. s2(4) and s3(1) of ECA 1972 had the combined effect of obliging courts to disapply legislation which is inconsistent with EU law.

3. Lord Bridge = “Whatever limitation of its sovereignty Parliament accepted when it enacted the ECA 1972 was entirely voluntary”.

4. WADE = Amounts to a voluntary action by the judiciary which fettered PS.

5. ALLAN = merely an evolutionary change. → P’s constitutional limits have been revised, as is allowed by the uncodified nature of our constitution, but P’s legal powers are unchanged.

   • Still able to legislate contrary to judicial decisions.

   • Still able to repeal legislation enacted by previous Parliaments.

PS and Constitutional statutes (2)

1. Thoburn = reflects limitation on Parliament not just through declarations of EU but also principles inherent to the British common law system irrespective of EU membership.

2. Thoburn = confirmed constitutional nature of ECA 1972. → Constitutional statute so cannot be impliedly repealed. → Fetter on Parliament resulting from ECA 1972, as well as the general fetter that has been established within the common law.

PS and Prospective Henry VIII Clauses in ECA 1972 (3)

1. Thoburn = “s2(2), read alongside s2(4), empowers the executive to alter statutes in order to bring UK laws into line with Community obligations”.

2. Allows a “limited fetter to be placed on further Parliaments, though it remains open to the legislature to alter the empowering act”.

3. Limitations by the judiciary imply that P can only “make or unmake” any constitutional law whatsoever if they do so expressly.

PS intact despite Devolution (3)

1. ELLIOT = Devolution should be considered a sharing, rather than a sacrifice, of legislative power.

2. Lord Hope in AXA = “Devolution is an exercise of its law-making power by the UK Parliament at Westminster”.

3. Devolved bodies’ authority is dependent on the authorisation of Parliament via the Acts which established the bodies and Parliament is legally entitled to repeal whatever legislation it wants (albeit expressly, not impliedly).

PS is limited by Devolution (4)

1. ELLIOT = legal entitlement does not mean that Parliament is constitutionally entitled.

2. Not unthinkable that any attempts by Parliament to act as such could result in, e.g. second and far more convincing call for Scottish independence.

3. Majority in Miller on Sewel Convention = confirmed P’s maintenance of legal sovereignty despite devolution as well as regarding EU membership.

   • Judgment indicated an opinion against the submissions of the devolved legislatures in Miller.

   • Reference to lack of legislative motions in regard to “legislation which implements changes to the competences of EU institutions and thereby affects devolved competences”.

4. Parliament is legally entitled in accordance with Dicey’s doctrine, but in reality is more limited than the doctrine would allow.

PS and Parliament Acts 1911 and 1949 (4)

1. Jackson = Upheld validity of 1949 Act and 2004 Hunting Act on the basis that s2(1) of 1911 Act indicated its scope and allowed its use for expansion of its own powers.

2. YOUNG = Jackson decision could be seen as an indication that the Parliament of 1911 bound its successors in manner and form.

   • “Parliament wishing to overturn” the provisions of s2(1) 1911 Act can ONLY do so by adopting a specific manner and form legislation that has HOL’s consent, as opposed to legislation passed without its consent.

   • Thus departs from Dicey’s concept of PS.

3. Bizarre conclusion because whilst P is technically bound in manner and form, that manner is merely the original procedure for passing legislation.

   • Thus seems that YOUNG thinks that Dicey’s conception of PS is potentially violated by a mandatory reversion to the standard manner and form implemented by Parliament in Dicey’s time.

   • YOUNG = same practical effect of entrenchment can alternatively be achieved whilst preserving supremacy, through modifications of the Rule of Recognition.

4. Unconvincing in light of Miller = the effect of ruling on the Rule of Recognition was a point of contention between majority and dissenting opinions.

   • Majority = “would not accept that the fundamental rule had been varied by the 1972 Act, as PS prevails”.

   • Unlikely that Rule of Recognition was not varied by the 1972 Act, but was varied by the 1911 Act.

   • Jackson refused the argument that 191 Act created a delegated legislative body, BUT Miller denied the same argument.

   • This is even more significant in Miller, because while the legislation enacted via PA 1911 and 1949 is equal to an AOP, those laws drawn into UK law via ECA 1972 are considered to be superior to AOPs.

PS and ROL & Legality/Rights (7)

1. Lord Hope in Jackson = “PS is no longer, if it ever was, absolute” and “ROL enforced by the courts is the ultimate controlling factor on which our constitution is based”.

2. DICEY’s definition of PS could never have been accepted in isolation because the ROL is an equally defining constitutional feature.

   • ROL ensures P’s sovereign power could never have been considered truly unlimited.

3. Dicey = ROL + PS = twin pillars of constitution. → Can assume his definition of PS operated within the sphere of ROL. → Would be an overly ambitious criticism of Dicey’s doctrine of PS to conclude otherwise.

4. BUT developments in ROL, e.g. need to ‘afford adequate protection of fundamental human rights’, show how the principle is departing from Dicey’s conception.

5. Alterations to PS can’t be overstated because PS has always operated within the ambit allowed to it by ROL. → Can observe a narrowing, but not fundamental change, to the doctrine of PS.

6. Pickin shows the court’s understanding of their own limitations + so do the justifications of the court’s adjudication in Jackson.

7. Courts have control over PS BUT any such change is indicative of a more general trend which could be considered self-imposed by Parliament.

Can PS be understood as a Statutory rule? (5)

NO — Lord Salmond = summary of the flaws of viewing PS as a statutory rule.

1. If PS was seen as a statutory rule, it would be conferring Parliament authority on the basis of the very authority it was attempting to confer.

   • Circular logic. → Does not lend itself to intellectual honesty.

2. PS could be removed at will by a Parliamentarian majority, albeit likely requiring express repeal, given the introduction of constitutional statutes by Laws LJ in Thoburn.

   • Ludicruous concept because of the controversy raised in Factortame 2 regarding the subjugation of Parliament-made statute to EU law.

3. Factortame decision = Lord Bridge’s “Nothing novel in any way to according supremacy to community law in areas which they apply” + Subsequent issuing of injunctive relief for Spanish Fishermen.

   • Seen by HEUSTON & JENNINGS as a “manner and form” binding of sovereignty.

4. Jackson = PA 1911/49 seen to create a new “manner and form” for Parliament to pass primary legislation without HOL’s consent by suspending HOL’s veto powers.

5. BUT these are generally moderate alterations to the doctrine, if they are to be accepted as such at all, and tor.

   • Merely help us understand minor “manner and form” alterations to its own sovereignty P may make from time to time, if judiciary approves.

Can PS be understood as a Political fact? (6)

WADE = PS is a political fact.

1. WADE = Factortame 2 triggered “constitutional revolution” triggered by entry of UK into EU.

2. Commentators refer to principle of devolved autonomy when discussing political constraints which devolution settlements placed on Parliament.

3. Notion that political factors can affect Hart’s rules of recognition. → Can they create the initial rule of recognition?

4. Applying Wade’s reasoning, we may understand origins of PS and tracks its evolution in early stages.

   • PS has its origins through the poltical struggle of people for self-determination.

5. BUT understanding PS as a political fact makes it relatively inflexible. → Does NOT account for the development of the PS through common law, e.g. Thoburn, HS2, Factortame, Jackson.

6. Complete understanding of PS can only be achieved through dualist one.

Can PS be understood as a Common Law rule?

1. ALLAN = understanding of PS is a common law rule stems from fact that its nature and scope are questions to be resolved by courts in contested and doubtful cases.

   • Lord Steyn in Jackson = PS is a “construct of the common law”.

   • See this through development of hierarchy of laws.

   • Laws LJ in Thoburn’s invention of constitutional statutes which require express words to repeal.

   • HS2 case = strictly obiter but judges alluded to higher constitutional principles which may take primacy over constitutional statute.

   • Creation of a normative hierarchy of statutes shows a derogation from Diceyan Orthodox view that all statutes are equal in measure and ultimate in authority.

2. CRAIG = highlights courts’ role in determining PS in his commentary over Factortame 2.

   • Legislative supremacy of Parliament is to be decided by Courts through normative arguments of legal principle, the content of which can and will vary over time.

   • No reason why Parliament must be regarded as legally omnipotent.

   • A normative consequence of understanding PS as a common law rule is that PS must be justified through well-reasoned normative and legal arguments.

3. Understanding PS as a common law rule has the advantage of accommodating the changing nature of PS, BUT does not explain its origins — need to also see it as a political fact.