public law parliamentary sovereignty essay

1    Introduction

This book is a collection of essays with four main themes. The first is criticism of the theory known as ‘common law constitutionalism’, which holds either that Parliament is not sovereign because its authority is subordinate to fundamental common law principles such as ‘the Rule of Law’, or that its sovereignty is a creature of judge-made common law, which the judges have authority to modify or repudiate (Chapters 2, 3, 4 and 10). The second theme is analysis of how, and to what extent, Parliament may abdicate, limit or regulate the exercise of its own legislative authority, which includes the proposal of a novel theory of ‘manner and form’ requirements for law-making (Chapters 5, 6 and 7). This theory, which involves a major revision of Dicey’s conception of sovereignty, and a repudiation of the doctrine of implied repeal, would enable Parliament to provide even stronger protection of human rights than is currently afforded by the Human Rights Act 1998 (UK) (‘the HRA’), without contradicting either its sovereignty or the principle of majoritarian democracy (Chapters 7 and 8). The third theme is a detailed account of the relationship between parliamentary sovereignty and statutory interpretation, which strongly defends the reality of legislative intentions, and argues that sensible interpretation and parliamentary sovereignty both depend on judges taking them into account (Chapters 9 and 10). The fourth is a demonstration of the compatibility of parliamentary sovereignty with recent constitutional developments, including the expansion of judicial review of administrative action under statute, the operation of the HRA and the European Communities Act 1972 (UK), and the growing recognition of ‘constitutional principles’ and perhaps even ‘constitutional statutes’ (Chapter 10). This demonstration draws on the novel theory of ‘manner and form’, and the account of statutory interpretation, developed in Chapters 7 and 9.

The English-speaking peoples are reluctant revolutionaries. When they do mount a revolution, they are loath to acknowledge – even to themselves – what they are doing. They manage to convince themselves, and try desperately to convince others, that they are protecting the ‘true’ constitution, properly understood, from unlawful subversion, and that their opponents, who wear the mantle of orthodoxy, are the real revolutionaries. 1 They appear certain that their cause is not only morally righteous, but also legally conservative, in that they are merely upholding traditional legal rights and liberties.

Today, a number of judges and legal academics in Britain and New Zealand are attempting a peaceful revolution, by incremental steps aimed at dismantling the doctrine of parliamentary sovereignty, and replacing it with a new constitutional framework in which Parliament shares ultimate authority with the courts. They describe this as ‘common law constitutionalism’, ‘dual’ or ‘bi-polar’ sovereignty, or as a ‘collaborative enterprise’ in which the courts are in no sense subordinate to Parliament. 2 Or they claim that the true normative foundation of the constitution is a principle of ‘legality’, which (of course) it is ultimately the province of the courts, rather than Parliament, to interpret and enforce. 3 But they deny that there is anything revolutionary, or even unorthodox, in their attempts to establish this new framework. They claim to be defending the ‘true’ or ‘original’ constitution, ‘properly understood’, from misrepresentation and distortion. 4 And they sometimes accuse their adversaries, the defenders of parliamentary sovereignty, of being the true revolutionaries. 5

The fictions of the courts have in the hands of lawyers such as Coke served the cause both of justice and of freedom, and served it when it could have been defended by no other weapons … Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forego the attempt to withdraw cases from the courts for his Majesty’s personal determination. But no achievement of sound argument, or stroke of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief Justice … The idea of retrogressive progress is merely one form of the appeal to precedent. This appeal has made its appearance at every crisis in the history of England and … the peculiarity of all English efforts to extend the liberties of the country … [is] that these attempts at innovation have always assumed the form of an appeal to pre-existing rights. But the appeal to precedent is in the law courts merely a useful fiction by which judicial decision conceals its transformation into judicial legislation. 6

In an earlier book, I set out to refute various philosophical errors and dispel several historical myths concerning the doctrine of parliamentary sovereignty. 7 Prominent among these errors and myths are the beliefs that the doctrine of parliamentary sovereignty: (a) is a relatively recent development, no older than the eighteenth century; (b) supplanted an ancient ‘common law constitution’ that had previously limited Parliament’s authority; (c) is a creature of the common law that was made by the judges and can therefore be modified or even repudiated by them. But it is possible, as Ian Ward has observed, that even if I was right, ‘truth matters little in a politics of competing mythologies’. 8 I take him to mean that lawyers and judges who find the doctrine of parliamentary sovereignty morally objectionable, and are committed to bringing about its demise, are unlikely to be either able or willing to assess objectively the historical evidence and jurisprudential analysis that I presented – or perhaps even to acknowledge their existence. The mythology of common law constitutionalism is indeed very difficult to dispel. Scholarly works continue to perpetuate it while ignoring the weighty arguments and evidence to the contrary. 9

The desire to clothe legal revolution in the trappings of legal orthodoxy is not, of course, peculiarly British. Constitutional debates reminiscent of those in Britain today took place in France between 1890 and the 1930s. Before 1890, the French legal system was firmly based on the principle of legislative sovereignty, which had been established during the French Revolution and the rule of Napoleon. But after 1890, leading public law scholars began to revive natural law ideas, arguing that the legislature was bound by an unwritten higher law, which the judges were capable of discerning and ought to enforce. According to a recent account, these neo-natural law ideas were ‘functionally equivalent to rule of law notions in Anglo-American legal theory’. 10 These scholars waged a persistent campaign to convince judges, first, ‘that they were juridically required to exercise … substantive judicial review’, and secondly, ‘that the judges had already begun doing so, but apparently did not yet know it’. 11 The basis of the second claim was that a number of judicial decisions supposedly made complete sense only if higher, unwritten constitutional principles were assumed to exist. As one of these scholars argued in 1923, the judges ‘without expressly admitting it, and perhaps without even admitting it to themselves, have opened the way to judicial review’. 12 This campaign was making headway until the publication of a book that explained how the American Supreme Court had stymied democratic social reform by reading laissez faire principles into its Constitution, and warned that French judges might follow suit. This book had an enormous impact, and routed the campaign in favour of judicially imposed, higher law principles. 13

The most obvious reading is that certain judges are staking out their position for future battles. They do fear that Parliament and governments cannot be trusted in all circumstances to refrain from passing legislation inconsistent with fundamental rights, the rule of law or democracy. When a case involving such ‘unconstitutional legislation’ arises they want to be in a position to strike it down without appearing to invent new doctrine on the spot. They want to be able to say that they are applying settled constitutional doctrine. Jackson may then be a useful precedent … Jackson may [also] be viewed as a shot across the government’s bows. 17

The claims of the dissenters could prove self-fulfilling if they are repeated so often that enough senior officials are persuaded to believe them. And this could happen even if these officials are persuaded for reasons that are erroneous (such as that common law constitutionalism was true all along). If that happens, original doubts about their correctness will be brushed aside as irrelevant, and the law books will be retrospectively rewritten. After revolution, as after war, history is written by the victors. If the legal revolution succeeds, it will not be acknowledged to have been a revolution. It will be depicted either as a judicial rediscovery of ‘hitherto latent’ restrictions on Parliament’s powers that the law always included, 22 or as the exercise of authority that the judges always had to continue the development of the ‘common law constitution’.

This book includes further efforts to resist the legal revolution sought by the common law constitutionalists. Chapter 2 presents historical and philosophical objections, and Chapters 3 and 4 respond to arguments based on the political ideal known as ‘the rule of law’. The first section of Chapter 10 is also relevant to this theme. I attempt to show that Parliament has been for centuries, and still is, sovereign in a legal sense; that this is not incompatible with the rule of law; and that its sovereignty is not a gift of the common law understood in the modern sense of judge-made law. It is a product of long-standing consensual practices that emerged from centuries-old political struggles, and it can only be modified if the consensus among senior legal officials changes. Furthermore, it ought not to be modified without the support of a broader consensus within the electorate. The recent Green Paper titled The Governance of Britain ends on the right note: constitutional change in Britain as significant as the adoption of an entrenched Bill of Rights or written Constitution requires ‘an inclusive process of national debate’, involving ‘extensive and wide consultation’ leading to ‘a broad consensus’. 23 Such changes should not, and indeed cannot, be brought about by the judiciary alone.

If radical change is to be brought about by consensus, legislation will be required. Chapters 5, 6 and 7 discuss problems relating to Parliament’s ability to abdicate or limit its sovereignty, or to regulate its exercise through the enactment of requirements as to the procedure or form of legislation. Chapter 5 reviews all the current theories of abdication and limitation, and advocates an alternative based on consensual change to the rules of recognition underlying legal systems. The theories of A.V. Dicey, W. Ivor Jennings, R.T.E. Latham, H.W.R. Wade and Peter Oliver are all subjected to criticism. Chapter 6 is a detailed account of the influential decision in Trethowan v. Attorney-General (NSW) , 24 which is often misunderstood and misapplied in discussions of ‘manner and form’. This account reveals the difference between the ‘manner and form’ and ‘reconstitution’ lines of reasoning that were first propounded in that case, and shows that much of the majority judges’ reasoning was dubious. Chapter 7 draws on the previous two chapters to propose a novel theory of Parliament’s power to regulate its own decision-making processes, by enacting mandatory requirements governing law-making procedures or the form of legislation. In passing, it discusses the somewhat different issues raised in Jackson v. Attorney-General , 25 which involved what is called in Australia an ‘alternative’ rather than a ‘restrictive’ legislative procedure. The novel theory of restrictive procedures that is proposed differs from the ‘new theory’ propounded by Jennings, Latham and R.F.V. Heuston, and from the neo-Diceyan theory of H.W.R. Wade. It rejects a key element of Dicey’s conception of legislative sovereignty, and the popular notion that the doctrine of implied repeal is essential to parliamentary sovereignty. Chapter 7 concludes with the possibly surprising suggestion that a judicially enforceable Bill of Rights could be made consistent with parliamentary sovereignty by including a broader version of the ‘override’ or ‘notwithstanding’ clause (s. 33) in the Canadian Charter of Rights, which enables Canadian parliaments to override most Charter rights. Chapter 8 examines this topic in more detail, analysing the relationship between the judicial protection of rights, legislative override, legislative supremacy and majoritarian democracy.

Chapter 9 is a detailed account of the relationship between parliamentary sovereignty and statutory interpretation, which argues that legislative intentions are both real and crucial to avoiding the absurd consequences of literalism. It also describes and criticises the alternative ‘constructivist’ theories of interpretation defended by Ronald Dworkin, Michael Moore and Trevor Allan. It acknowledges the frequent need for judicial creativity in interpretation, including the repair or rectification of statutes by ‘reading into’ them qualifications they need to achieve their purposes without damaging background principles that Parliament is committed to. The intentionalist account is further developed in Chapter 10, where it is shown to be crucial to the traditional justification of presumptions of statutory interpretation, such as that Parliament is presumed not to intend to infringe fundamental common law rights, and also crucial to the defence of parliamentary sovereignty against other criticisms.

Chapter 10 is a lengthy defence of parliamentary sovereignty against recent criticisms that it was never truly part of the British constitution, or is no longer part of it, or will soon be expunged from it. The Chapter begins with some historical discussion, and then considers at length the consequences of recent constitutional developments, including the expansion of judicial review of administrative action under statute, the operation of the European Communities Act 1972 (UK) and the HRA, and the growing recognition of ‘constitutional principles’ and possibly even ‘constitutional statutes’. It argues that none of these developments is, so far, incompatible with parliamentary sovereignty.

The once popular idea of legislative sovereignty has been in decline throughout the world for some time. ‘From France to South Africa to Israel, parliamentary sovereignty has faded away.’ 26 A dwindling number of political and constitutional theorists continue to resist the ‘rights revolution’ that is sweeping the globe, by refusing to accept that judicial enforcement of a constitutionally entrenched Bill of Rights is necessarily desirable. To be one of them can feel like King Cnut trying to hold back the tide.

This book does not directly address the policy questions raised by calls for constitutionally entrenched rights. For what it is worth, my opinion is that constitutional entrenchment might be highly desirable, or even essential, for the preservation of democracy, the rule of law and human rights in some countries, but not in others. In much of the world, a culture of entrenched corruption, populism, authoritarianism, or bitter religious, ethnic or class conflicts, may make judicially enforceable bills of rights desirable. Much depends on culture, social structure and political organisation.

I will not say much about this here, because the arguments are so well known. I regret the contemporary loss of faith in the old democratic ideal of government by ordinary people, elected to represent the opinions and interests of ordinary people. 27 According to this ideal, ordinary people have a right to participate on equal terms in the political decision-making that affects their lives as much as anyone else’s, and should be presumed to possess the intelligence, knowledge and virtue needed to do so. 28 Proponents of this ideal do not naively believe that such a method of government will never violate the rights of individuals or minority groups. But they do trust that, in appropriate political, social and cultural conditions, clear injustices will be relatively rare, and that in most cases, whether or not the law violates someone’s rights will be open to reasonable disagreement. They also trust that over time, the proportion of clear rights violations will diminish, and ‘that a people, in acting autonomously, will learn how to act rightly’. 29 Strong democrats hold that where the requirements of justice and human rights are the subject of reasonable disagreement, the opinion of a majority of the people or those elected to represent them, rather than that of a majority of some unelected elite, should prevail. On this view, the price that must be paid for giving judges power to correct the occasional clear injustice by overriding enacted laws, is that they must also be given power to overrule the democratic process in the much greater number of cases where there is reasonable disagreement and healthy debate. For strong democrats, this is too high a price.

What explains the loss of faith in the old democratic ideal? I am aware of possible ‘agency problems’: failures of elected representatives faithfully to represent the interests of their constituents. In many countries this is a major problem. But I suspect that in countries such as Britain, Canada, Australia and New Zealand, the real reason for this loss of faith lies elsewhere. There, a substantial number of influential members of the highly educated, professional, upper-middle class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionate, impartial and carefully reasoned manner. Even though the upper-middle class dominates the political process in any event, the force of public opinion still makes itself felt through the ballot box, and cannot be ignored by elected politicians no matter how enlightened and progressive they might be. Hence the desire to further diminish the influence of ‘public opinion’.

If I am right, the main attraction of judicial enforcement of constitutional rights in these countries is that it shifts power to people (judges) who are representative members of the highly educated, professional, upper-middle class, and whose superior education, intelligence, habits of thought, and professional ethos are thought more likely to produce enlightened decisions. I think it is reasonable to describe this as a return to the ancient principle of ‘mixed government’, by re-inserting an ‘aristocratic’ element into the political process to check the ignorance, prejudice and passion of the ‘mob’. By ‘aristocratic’, I mean an element supposedly distinguished by superior education, intellectual refinement, thoughtfulness and responsibility, rather than by heredity or inherited wealth.

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The Changing Constitution (9th edn)

• Preface to the ninth edition
• Table of Cases
• Table of Primary Legislation
• Table of Secondary Legislation
• Table of European Legislation
• Table of International Treaties and Conventions
• List of Contributors
• 1. The Rule of Law
• 2. Parliamentary Sovereignty in a Changing Constitutional Landscape
• 3. Human Rights and the UK Constitution
• 4. Brexit and the UK Constitution
• 5. The Internationalization of Public Law and its Impact on the UK
• 6. Parliament: The Best of Times, the Worst of Times?
• 7. The Executive in Public Law
• 8. The Foundations of Justice
• 9. Devolution in Northern Ireland
• 10. Devolution in Scotland
• 11. The Welsh Way/Y Ffordd Gymreig
• 12. The Relationship between Parliament, the Executive and the Judiciary
• 13. Information: Public Access, Protecting Privacy and Surveillance
• 14. Federalism
• 15. The Democratic Case for a Written Constitution

p. 29 2. Parliamentary Sovereignty in a Changing Constitutional Landscape

• Mark Elliott
• https://doi.org/10.1093/he/9780198806363.003.0002
• Published in print: 24 July 2019
• Published online: September 2019

Parliamentary sovereignty is often presented as the central principle of the United Kingdom’s constitution. In this sense, it might be thought to be a constant: a fixed point onto which we can lock, even when the constitution is otherwise in a state of flux. That the constitution presently is—and has for some time been— in a state of flux is hard to dispute. Over the last half-century or so, a number of highly significant developments have occurred, including the UK’s joining— and now leaving—the European Union; the enactment of the Human Rights Act 1998; the devolution of legislative and administrative authority to new institutions in Belfast, Cardiff and Edinburgh; and the increasing prominence accorded by the courts to the common law as a repository of fundamental constitutional rights and values. Each of these developments raises important questions about the doctrine of parliamentary sovereignty. The question might be thought of in terms of the doctrine’s capacity to withstand, or accommodate, developments that may, at least at first glance, appear to be in tension with it. Such an analysis seems to follow naturally if we are wedded to an orthodox, and perhaps simplistic, account of parliamentary sovereignty, according to which the concept is understood in unyielding and absolutist terms: as something that is brittle, and which must either stand or fall in the face of changing circumstances. Viewed from a different angle, however, the developments of recent years and decades might be perceived as an opportunity to think about parliamentary sovereignty in a different, and arguably more useful, way—by considering how the implications of this still-central concept are being shaped by the changing nature of the constitutional landscape within which it sits. That is the task with which this chapter is concerned.

• parliamentary sovereignty
• constitutional law
• European Union (Withdrawal) Act 2018
• Scotland Act 1998
• Northern Ireland Act 1998
• Government of Wales Act 2006
• Human Rights Act 1998
• political and legal constitutionalism
• constitutional legislation

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4 Parliamentary Sovereignty: Authority and Autonomy

• Published: July 2013
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Dicey's absolutist conception of parliamentary sovereignty should be rejected in favour of an account of legislative supremacy compatible with the rule of law. Conventional accounts of the ‘rule of recognition’, treating sovereignty as legal or political fact, are erroneous. We need not choose, therefore, between ‘continuing’ and ‘self-embracing’ accounts, which are only broad generalizations, extraneous to legal analysis. Legislative supremacy has a moral foundation within a general theory of British government: it authorizes only the legitimate use of state power. Matters of fundamental rights and the primacy of European law alike pose a challenge to absolutist conceptions of sovereignty. Goldworthy's legal positivist account is rejected. The important judgments in Jackson , Factortame , and Thoburn are closely considered. A protestant approach to interpretation, giving a critical role to personal conscience and commitment, has implications for the limits of sovereignty (limits implicit in Dworkin's theory of law, when correctly understood).

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Public Law for Everyone

by Professor Mark Elliott

1,000 words / Parliamentary sovereignty

Since writing this post, I have written a longer piece examining the the constitutional implications of the UK’s membership of, and departure from, the European Union, with particular reference to the principle of parliamentary sovereignty. An overview of the paper can be found  here ; the full text can be downloaded  here . 

On the surface, at least, parliamentary sovereignty — a phenomenon that applies to the UK, or Westminster, Parliament, but not to the UK’s devolved legislatures — is a simple concept. To paraphrase Dicey, Parliament has the legal authority to enact, amend or repeal any law, and no-one has the legal authority to stop it from doing so. But this notion is as extravagant as it is simple: it means, as Stephen famously put it, that a law directing the killing of all blue-eyed babies would be valid. The fact that such laws remain unenacted is thanks to “political constitutionalism” as opposed to “legal constitutionalism”: it is political, not legal, factors — including, one hopes, legislators’ own sense of morality — that operate as the restraining force.

It is often assumed that the sovereignty of Parliament follows from the absence in the United Kingdom of a written constitution, the existence of such constitutions generally being associated with legislatures that have only limited powers. Within such legal systems, the written constitution usually performs two functions (which are in truth flip sides of one coin) that rule out anything like parliamentary sovereignty. The constitution confers authority on the legislature; and the constitution restricts the legislature’s authority (by omitting to confer the power to do certain things). Within this type of constitutional framework, the legislature only has those (limited) powers that the constitution grants: and if the legislature attempts to make laws beyond the powers granted to it, then (often) courts can intervene by quashing unconstitutional legislation (or simply refusing to apply it, on the ground that it is not really “law”).

In the UK, however, in the absence of a written constitution, there is nothing to tell us what powers Parliament has : and there is equally nothing to tell us what powers (if any) Parliament lacks . It appears, therefore, that the constitution fails to perform the twin functions — of allocating and limiting authority — that usually result in something other than legislative sovereignty. But while this seems to follow from the absence of a written constitution, it does not necessarily follow. The fact that there is no written constitution performing the functions mentioned above does not automatically mean that there is no constitution performing those functions.

In other words, it is conceptually possible for an unwritten constitution to ascribe power to — and circumscribe the power of — the legislature. The constraining capacity of a constitution derives not from the fact that it is written; rather, it derives from the fact that it enjoys a legal status superior to that of regular law, with the result that enacted laws are valid only to the extent that they respect the terms of the legally superior constitution. The question then becomes whether — for all that it is unwritten — the UK’s constitution may enjoy the kind of legal superiority more readily associated with textual constitutions, such that it — like its written counterparts — may claim some sort of constraining force in relation to the legislature.

The principle of Parliamentary Sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. — Professor AV Dicey,  An Introduction to the Study of the Law of the Constitution

There is no definitive answer to this question; what evidence there is is circumstantial. The ability of Parliament to enact law — and its claim to unconstrained law-making capacity — is rooted in the constitutional settlement reached in the aftermath of the Glorious Revolution at the end of the 17th century. Unusually, however, that settlement was never cemented by means of being recorded in a superior constitutional text. It is for this reason that writers such as Wade argue that the sovereignty of Parliament is ultimately secured not by law, but by a “political fact”: a consensus that emerged in the wake of the Glorious Revolution and that remains in place unless and until it breaks down as a result of a “technical legal revolution”.

There is a certainly a good deal of evidence to suggest that that consensus — and so the sovereignty of Parliament — remains in place today; no judgment of a UK court specifically rejects the notion of parliamentary sovereignty. That said, there are dicta , perhaps most notably in Jackson v Attorney-General , that call into question the idea that Parliament has unlimited legislative power. There are, for instance, suggestions in that case that if Parliament were to attempt to remove the courts’ powers of judicial review, the courts might refuse to recognise such legislation as valid. This implies — as, perhaps paradoxically, Wade himself suggested — that judicial review is a “constitutional fundamental” that even Parliament cannot disturb.

However, it would be a very brave judge who actually went through with threats of the type made — or at least hinted at — in Jackson . Without a written constitution, there is no roadmap that tells us what would happen if a court were to refuse to apply an Act of Parliament: and it cannot be taken for granted — particularly if the legislation concerned were generally popular, albeit perhaps oppressive to a minority — that the courts would prevail. Nor, in the absence of a written constitution, do judges have the luxury of a text that identifies fundamental constitutional values and legitimises judicial protection of them. Judges who were to enforce such values over and above democratically enacted legislation would thus find themselves in a very exposed position.

It is unsurprising, therefore, that courts do not seek out conflict with Parliament, preferring instead to confer a degree of protection on fundamental constitutional values by interpreting legislation — in cases like Anisminic and Witham — consistently with them, rather than refusing to apply it on the ground that it infringes such values. This sort of interpretative approach, of course, must have its limits: if legislation is sufficiently explicit, then there is little, if any, room for interpretative manoeuvre. However, just as courts are not eager to provoke a constitutional crisis, so Parliament is not anxious to do so. As a result, both sides, for the most part, exercise a degree of self-restraint born of healthy concern as to how the other might react in the event of an excessive use of legislative or judicial power. It is this sort of constructive institutional tension — together with the restraining effect of democratic politics — that forms the context in which the practical significance of parliamentary sovereignty falls to be understood. It follows that even if we accept the Diceyan orthodoxy that Parliament possesses unlimited legislative power, this does not mean that Parliament is in a position to exercise the full width of that authority.

Further reading

• Elliott and Thomas, Public Law (OUP 2014), 3rd edition , pp 228–256
• Elliott, “Parliamentary sovereignty in a multidimensional constitution” (2013) Public Law For Everyone
• Wade, “The Basis of Legal Sovereignty” [1955] Cambridge Law Journal 172
• Jackson v Attorney-General [2005] UKHL 56
• Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
• R v Lord Chancellor, ex parte Witham [1998] QB 575

This post is part of my  1,000 words series . Other questions concerning parliamentary sovereignty — including the implications of membership of the European Union and the relationship between parliamentary sovereignty and the rule of law — are considered in other posts in the series.

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A Critical Analysis of Judicial Review's Impact on Parliamentary Sovereignty

2020, Exeter Law

It will be argued in this short critical analysis that judicial review supports the sovereignty of Parliament to a degree, however it remains a threat where appropriate. This threat is not unjust, as it establishes an element of bi-polar sovereignty between the two powers. This bi-polar sovereignty allows for a calculated application of both parliamentary sovereignty and the rule of law, creating a fair state for the citizens of the United Kingdom. This piece was initially written under exam conditions for the May 2019 first year LLB constitutional and administrative law exam. Minor textual amendments and OSCOLA referencing were carried out retrospectively post-exam. Further editing and publishing was carried out by exeterlaw.org.

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munsif 19 , Shehla Zahoor

The article aims to discuss some British parliamentary issues that are directly link with the democratic values, power distribution, limitations, overlapping of national laws with the EU laws before Brexit, and restoration of state sovereignty in the post-Brexit UK. Parliamentary Sovereignty is a doctrine where the parliament wields absolute power and can therefore make and unmake laws. Many scholars argue that the doctrine is the central principle in the UK but by weighing its advantages and its disadvantages, one may assume that it can no longer be regarded as the central element of the constitution. The issue of common law radicalism can also be seen as a limitation to parliamentary sovereignty. The paper also discuss some legal issues of translating Parliamentary Acts by courts and judges. Simultaneously an act count valid on certain circumstances but not applicable when it conflicts with other status.

Alan Greene

• Parliamentary sovereignty should be understood as an institutionally oriented-doctrine and in this context the 'political limits' on parliamentary sovereignty can be understood. • Challenges to Parliamentary sovereignty stem from the increasingly fragmented nature of authority in constitutional orders today. Such a problem is not unique to the UK. In this context, while Parliament can claim superior democratic legitimacy vis-à-vis constitutional authorities such as the courts, or the Monarch as was historically the case, the same is not necessarily the case in relation to other authorities such as the devolved institutions. • In particular, parliament should be particularly aware of the limits of the democratic legitimacy of parliamentary sovereignty in relation to referendums and the emergence of 'the people' as an alternative source of authority. In this regard, the idea of 'constituent power' can illuminate many of the current challenges facing parliamentary sovereignty today. • Parliamentary sovereignty performs much of the functions that 'constituent power'—the unlimited power to create and establish a constitutional order— performs in other constitutional orders. However, while constituent power is often considered to be vested in 'the people' Parliament's claim to the constituent power in the UK reveals a potential tension between Parliament and 'the People'. Parliament must be aware of, and take account of this tension if its claim to the constituent power is to be maintained and legitimated. • In turn, this concept of constituent power can illuminate discussion of who 'the people' in the UK actually are and whether the UK is a unitary or 'plurinational' polity.

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This essays discusses whether the growing power of judiciary over-shadows the parliamentary supremacy

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Is parliamentary sovereignty still a useful concept in the post-Charter era? Once a central principle of Canadian constitutional law, parliamentary sovereignty has come to be viewed by many as being of little more than historical interest. It is perhaps not surprising, then, that the doctrine has received relatively little scholarly attention since the enactment of the Charter. But while it is undoubtedly true that the more absolute versions of parliamentary sovereignty did not survive the Charter’s entrenchment, we should not be too quick to dismiss the principle’s relevance entirely. In this paper I suggest that some variant of parliamentary sovereignty continues to subsist in Canadian constitutional law. I also suggest that the study of parliamentary sovereignty reveals an important connection between the intensity of judicial review and the degree to which Parliament focusses on the constitutional issues raised by a law during the legislative process. Parliament can expand its sphere of autonomous decision-making power relative to courts by showing that it is proactive about securing and promoting constitutional rights.

LADLI VENCATASAMY

This paper argues that parliamentary sovereignty’s assimilation of constituent power—the ultimate power in a legal order to create and posit a constitution— has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the UK currently faces. By conceptualising a more antagonistic relation between the Crown in Parliament and ‘the People’ by questioning the democratic credentials of the former, this paper contends that the UK constitutional order can be re-invigorated. This re-appraisal, however, also requires the interrogation of the notion of ‘the People’ in the UK constitutional order itself. Part I argues that despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in ‘crisis’ in search of a paradigmatic revolution. A descriptive—as distinct from normative—account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and ‘the people’. Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much what the idea of constituent power does. However, this does not mean that constituent power is vested in ‘the people’; rather, the locus of constituent power in the UK should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and ‘the People’.

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Georgia’s President Vetoes Foreign Influence Law

The law has triggered protests and threatens to derail the nation’s pro-European aspirations in favor of closer ties with Russia.

By Ivan Nechepurenko

Reporting from Tbilisi, Georgia

President Salome Zourabichvili of Georgia said on Saturday that she had vetoed a bill on foreign influence that has sparked protests and plunged the nation into a political crisis, threatening to derail its pro-European aspirations in favor of closer ties with Russia.

Georgia’s Parliament, which passed the draft law in three readings, is widely expected to override the veto. The ruling Georgian Dream party, which introduced the proposed legislation, can turn it into law as early as May 28, when the Parliament will be in session again.

Mrs. Zourabichvili called her veto “symbolic,” but it still represented another step in the political conflict between the country’s pro-Western opposition, which Mrs. Zourabichvili supports, and the Georgian Dream party, which has been in power since 2012.

The crisis has highlighted the highly polarized nature of Georgia’s political life. It has called into question the country’s pro-Western course, which is enshrined in its Constitution, as American and European officials threatened to downgrade ties with the country and impose sanctions on its leadership if the law were to be finalized and protests against it were crushed.

Georgia, a mountainous nation of 3.6 million in the middle of the Caucasus, once was a pro-Western trailblazer among former Soviet states. If it were to turn away from the West in favor of a closer relationship with Russia, the geopolitics of the whole region could change, because of the country’s central geographical position there.

The draft law that triggered the crisis bears an innocuous-sounding name: “On Transparency of Foreign Influence.”

It requires nongovernmental groups and media outlets that receive more than 20 percent of their funding from foreign sources to register as “organizations carrying the interests of foreign power,” and to provide annual financial statements for their activities. Georgia’s justice ministry would be given broad powers to monitor compliance. Violations could result in fines equivalent to more than $9,000.

The ruling party insists that the bill is necessary to strengthen Georgia's sovereignty against outside interference in its political life by Western-funded NGOs and media organizations. But the country’s vocal political opposition refers to it as the “Russian law,” designed to convert Georgia into a pro-Moscow state in substance, if not in name.

“This law in its essence and spirit is fundamentally Russian, contradicting our constitution and all European standards,” Mrs. Zourabichvili said in announcing the veto on Saturday. “This law is not subject to any changes or improvements, making it an easy veto,” she said in televised remarks. “This law must be repealed.”

In 2018, Mrs. Zourabichivili was endorsed by the Georgian Dream party in her successful bid to become president. But in the years since then, Mrs. Zourabichvili has grown increasingly critical of the party’s policies, a process of mutual alienation that peaked with the party’s failed attempt to impeach her in 2023.

Born in Paris to a family of prominent Georgian émigrés who fled the 1921 Bolshevik occupation of the country, Mrs. Zourabichvili, in her first official role in Georgia, was France’s ambassador there in 2003. The following year, she accepted Georgian nationality and became the country’s first female foreign minister, a role she filled until Oct. 2005. Before becoming Georgia’s president, Mrs. Zourabichvili also founded her own political party and was elected to Parliament in 2016.

While her role is largely ceremonial, Mrs. Zourabichvili has become the public face of the protest against the domination of the Georgian Dream party, as opposition parties in Georgia have suffered internal splits.

Since the draft law was introduced in early April, the country’s capital, Tbilisi, has become engulfed in protests against it. Protesters, many of them students, have marched through the streets of Tbilisi almost every day shouting, “No to the Russian law.” They have repeatedly surrounded the country’s imposing Soviet-era Parliament building on Rustaveli Avenue and tried to block entrances to it.

Many protests turned violent as riot police officers pushed the protesters away from the Parliament building, often using tear gas, pepper spray and fists to disperse them. Many members of the opposition were arrested and beaten. Some reported being harassed and intimidated by the authorities. On Saturday, following Mrs. Zourabichvili’s veto, protesters again filled the square in front of the Parliament.

At the end of April, the ruling party, led by Bidzina Ivanishvili, a reclusive oligarch who returned to Georgia in the early 2000s after making a fortune in Russia, organized a rally in support of the bill. On Friday, thousands of conservative Georgians also marched in a church procession through the city center to one of Tbilisi’s main cathedrals. Many of them said they supported the bill.

“I have friends in Ukraine, Russia, Moldova,” said Gocha Kekenadze, a farmer who came from the Kakheti region east of Tbilisi to join the procession. “We want to live as we did before” in the Soviet Union, said Mr. Kekenadze, 62. “It is the Americans who tell us to pick a rifle and fight against Russia.”

Ivan Nechepurenko covers Russia, Ukraine, Belarus, the countries of the Caucasus, and Central Asia. He is based in Moscow. More about Ivan Nechepurenko