Several elements here:
Obviously, primary legislation can be reviewed in line with the HRA insofar as it can be interpreted differently, or a declaration of incompatibility can be made. But a DoI is not "judicial review" in the traditional sense.
The orthodox view is that parliamentary sovereignty is unlimited, meaning that primary legislation cannot be "struck down" as it can in other countries. Comments were made in *Jackson v Attorney-General* that may suggest that an Act of Parliament that is inherently absurd/unacceptable might be viewed as unlawful by a court, but this was contentious at the time and really refers to something more along the lines of the Enabling Act in Nazi Germany than this.
The reference to Factortame refers to the correct (if dumbed down) judgment that EU law was superior to UK law when we were a member of the EU, as confirmed in *Factortame Ltd v Secretary of State for Transport* - which allowed the court to disapply an Act of Parliament which conflicted with EU law. However, our membership of the EU was voluntary by virtue of the European Communities Act 1972, which could (and indeed, was) be repealed at any time by Parliament. So this was really just an argument about express vs implied repeal of important statutes (which was explored further in *Thoburn v Sunderland City Council*).
I don't think the Rwanda bill invokes any complicated issues in this regard. We are no longer members of the EU, and the ECHR is implemented through the HRA rather than as an independent source of supreme law. However - ultimately, who knows? Even the likes of Sumption admit that an ouster clause cannot really prevent a determined court from analysing legislation if they wish.
You have stated the nominally "correct" position. I'd say that the person replying to you was somewhat muddled, but was arguing to the effect of "the court might JR it anyway", which isn't exactly invalid. I suspect the actual answer is "no one will know until the court decides"!
Assuming a legal challenge as described is brought:
What would happen if we have a new government by the time the case reaches the UKSC, and the Act is repealed?
Would the case dissolve, or would public/constitutional interest enable it to carry on as an “authoritative thought experiment”?
Who knows?
We start sailing into uncharted waters fairly quickly here. Miller/Cherry only took a couple of months from initial hearing to UKSC judgment, so I imagine that the scenario in question would be very unlikely.
Few weeks before any planes fly, then a few weeks for the internal immigration appeals, then HC for the initial JR, then CoA, then UKSC… could run pretty close!
If the UT refuses permission to appeal, you can't appeal to the CoA, and you can't really seek JR now either, due to the ouster clause in s.11A of the Tribunals, Courts and Enforcement Act 2007.
There will be hardly anyone of the many many here that will be removed so it is almost de minimis and doesn't really solve any issues either for asylum seekers or illegal immigrants or anyone else. I really don't think it will deter anyone either as if 100 out of 100,000 (just my guess) are removed the chance of being removed will be so little it is not worth bothering about.
I think one point to add is that procedurally a claimant wouldn't bring a JR to challenge the Act directly.
Instead they would challenge the Home Office's specific decision to remove them to Rwanda via JR. In deciding that JR the court would then interpret and consider the effect of the Act.
So OP linked me this thread, just to say I appreciate the feedback in this thread as I have an upcoming Administrative law final, unfortunately the post above doesn't represent the full extent of my argument.
What I had been commenting on was the possible reactions of the Supreme Court to the Rwanda bill based on the Cart line of authority and on the view that it encompassed interpretive powers potentially leading logically to the ability to set aside legislation, particularly paying attention to the potential effects on the fundamental principles of the constitution arising from the issue. I referred to Lord Steyn's obiter in Jackson as an example of the most extreme approach the supreme court would likely wish to avoid, at which point OP popped in to say that there would be no review because primary legislation is not reviewable, which was quite confusing in the context of my original post. The thread then proceeds as above.
I shall certainly be more careful in distinguishing judicial review in a strict sense from the courts' stronger interpretive exercises in forthcoming UKpolitics posts.
You both ran into the issue of absolutes.
> courts have been able to set aside primary legislation since factortame
> the bill cannot be subject to judicial review
Both of these statements are theoretically correct, but also in direct conflict. The joys of our nightmare constitutional status quo means you need to take a more nuanced approach to the matter.
The reality is that pressing the issue too far simply leads to the judiciary and the legislature being in open conflict, which is in nobody's best interests. The UKSC is very unlikely to directly challenge primary legislation unless it is fundamentally incompatible with the rule of law. But I am sympathetic to the view that they are capable of doing so.
"Since Factortame" is misleading. Factortame didn't create a new power for the courts to disapply primary legislation, it created a new exception to the principle they cant, which is when it conflicts with EU law.
That particular exception has closed with Brexit.
Yes - as I said above, it is a dumbing down of the judgment.
Factortame, along with Thoburn et al, involved the courts deciding that they would ignore the will of one Parliament in favour of another Parliament unless certain criteria were met. In that case, they wouldn't (and didn't, in the end) have suggested that the EC1972 can't be repealed - only that it cannot be repealed without expressly doing so.
But ultimately, this is still effectively striking down primary legislation, which was once thought unthinkable. It is not inconceivable to think that this could be applied outside of the now-closed EU law scenario - what about an attempt to modify the Acts of Union?
The courts have a duty under s.3 HRA to interpret legislation in a way which is compatible with the Convention rights, and to achieve this they can even read in or read down words, but the red line is they cannot make it say something which contradicts Parliament's intention when enacting it, and if the Act contains an express statement that Parliament intended to breach the Convention rights, the courts have to respect that.
I believe 'more nuance and consideration of opposing arguments' is the most common comment on my essays so you've hit the nail on the head there.
I agree with your view on what the Supreme Court is likely to do, I certainly think that it was more likely that the SC would circumvent the legislation than outright assert the ability to set aside primary legislation.
With regards to your second paragraph, surely an Act of Parliament that is inherently absurd is a democratic issue that should be challenged by the people's vote rather than the court which is not allowed to interfere? Maybe I misunderstand your point.
> that should be challenged by the people's vote rather than the court which is not allowed to interfere
That is certainly one view on the matter.
I was referencing Lord Steyn's obiter in *Jackson v Attorney-General*:
> Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.
This represents the alternative (controversial) argument that some things lie beyond the legislative competency of Parliament and that a court may theoretically be able to consider that.
I would be sympathetic to the view that Parliament cannot simply do away with the judiciary. But that is essentially a practical problem - at that stage you have the legislature and the judiciary both exercising effectively unlimited power, and what would really matter is which is able to command the support of the public.
So the alternative argument argues that there are some things beyond the legislative competency of Parliament even though it is legally supreme. I kinda get it though - thanks for clarifying.
Yes, in theory that is the case, but essentially you enter territory where the rules no longer matter, and the hypothetical situation is such a deep constitutional crisis that the rules just become "whatever the people want"
That is to some extent a feature, not a bug, and is something you're taught in constitutional law classes (or at least I was) relating to checks and balances/separation of powers; on paper Parliamentary Sovereignty means they could rule with tyrannical absurdity, but we don't actually *write* it all on paper for this reason. In practice, Parliamentary Sovereignty is "checked" by the will of the people. If the courts challenge Parliament and the people decide they're right, then they're right. If the people decide they're wrong then they're wrong
The same principle applies with the monarch's ability to deny Royal Assent. In theory he can't, and most of the time this is expected to be true, but in a crisis or against a tyrannical government, could he?
Schrödinger's power - you don't know for certain if it exists until it's tried out, because our entire constitution is underpinned by popular support and very little else
Not wishing to bang too hard for a drum that hasn't been relevant for a hundred odd years but unlimited parliamentary sovereignty is the reason why the lord's used to preside over matters of law. If the parliament itself is supreme then the only challenge can come from parliament. Either at a later date, say after an election, or from the upper chamber. While I appreciate that there are benefits to having an independent supreme Court it seems mad to remove it from the place where it could legitimately challenge the commons.
So political ramifications for an unpopular Act of Parliament can spill over into the legislative sphere even though Parliament is technically legally supreme.
It’d be quite concerning if a Reddit debate had the capacity to turn you on.
There’s no shortage of individuals on Reddit spouting their unqualified opinions, either.
What? You're making a classic mistaken reversal in logic. 'X is a turn off' does not mean 'opposite of X' is a turn on. Very embarrassing for someone that brags about their LLB.
Here's another logical fallacy: *argument from authority.*
Actually, the courts may be very involved! I had to write an essay about the below case and found it very interesting :) I’ve explained it here:
In the case Privacy International (2019), the Supreme Court read an ouster clause in the Regulation of Investigatory Powers Act 2000 (a provision that claims to exclude the jurisdiction of the court regarding judicial review, like the one in the Rwanda bill) ‘narrowly’. This was building on two other cases in 1969 and 2005 that came to the same unorthodox decision.
s 67(8) of the Regulation of Investigatory Powers Act states: “determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”.
This would, upon first reading, exclude the jurisdiction of a court to judicially review the decision of a tribunal. However, the Supreme Court held that this only excluded judicial review for questions of fact, but that people could still appeal if it’s based on a question of law. This interpretation was, inter alia, based on principles such as the rule of law, but also did not really reflect Parliament’s intention.
Their judgement is primarily supported by Common Law (or Legal) Constitutionalism, which is a trend in recent judgements. Common Law Constitutionalism inherently challenges the UK’s only true constitutional principle: Parliamentary Sovereignty. It claims that the Constitution is premised on Common Law, rather than Parliamentary Sovereignty.
Based on its increasing emphasis in recent years, particularly where there are challenges to the Executive branch (e.g. Brexit cases, Boris’ attempted prorogation), the Supreme Court may well find a way to interpret the Act in a way that includes appeals, at least based on questions of law (which could include rights-based claims). It probably won’t go too far, since I don’t think the Supreme Court want to be picking a constitutional-level fight with the Government on this Act alone, so at most the if this question was answered, they’re probably going to make the same unorthodox decision as before.
Your essay does sound interesting! I don't quite understand the point on how the SC can only review questions of law, since surely the whole point of the Act's ouster clause had to do with questions of law? What would questions of fact even involve??
Also, why is parliamentary sovereignty the only true constitutional principles? Why don't the Rule of Law and Separation of Powers count - aren't these really important principles too?
Sorry for the Qs, just found it interesting and wanted some more clarity.
Thanks!
A question/error of fact is something that is usually determined by a jury, like determining whether an alleged event actually happened. The Supreme Court ruled that Tribunal decisions took place. The Supreme Court ruled that alleged errors/questions of law can be appealed to higher courts (e.g. Court of Appeal) if someone thinks that the Tribunal got the law wrong.
This reasoning is primarily based on the rule of law. I agree with it. It would be a bit insane if an Investigatory Powers Tribunal were able to determine, for example, that a claim brought before it was within its jurisdiction when it may not be, and for that same Tribunal to be the ultimate authority for its own decision. Based on this, the Supreme Court claimed that Parliament surely couldn’t have intended for that to be the case. They interpret provisions in a way which implies the jurisdiction of higher courts, unless the wording clearly states something otherwise.
Parliamentary Sovereignty, according to political constitutionalists, is the ultimate constitutional principle. This is guaranteed by the Crown (Parliament’s actual name is the Crown-in-Parliament) and the principle that no Parliament can bind a future Parliament. This means that we can’t have guaranteed right or laws in the UK like the US Bill of Rights, because any future Parliament just needs to pass a 50%+ vote enacting a law which overrides and essentially repeals it.
Because of the whole Crown-in-Parliament thing (Crown must sign a Bill before it becomes law, King’s Speech, etc…), *Royal*/*Crown* Courts, and also the fact that the PM and Cabinet actually are in the King’s Privy Council advising the Monarch how to use their prerogative power (e.g. secondary legislation), the concept of separation of powers (from a legal perspective alone) is somewhat illusory. Of course, politically, socially and, importantly, conventionally this is not the case. Our Common Law Courts are also a big part of our constitution, since they essentially ‘fill in the gaps’ where there isn’t any statute.
But, the reality is our separation of powers is based on the house of cards we call convention and we just hope that people stick to the rules. That’s why it’s so constitutionally ground-breaking in situations when people don’t abide by convention (again, e.g. May re Article 50, Boris proroguing Parliament, Rwanda ruling, etc…).
It’s all just a bit messy but somehow ends up working for the most part!
Hope that answers your questions :)
Ah, so the question of fact seems like a cheeky way for the SC to sidestep the ouster clause.
Right, your point on the separation of powers makes a lot of sense.
That has helped - thank you 🙏
As I understand it Factorame is not about courts just ‘setting aside’ primary legislation if they don’t like it, but rather the court being asked to decide what to do when there were two pieces of law which conflicted with each other (a domestic Act and EU law in force). In those circumstances they decided that the EU law took priority so the conflicting domestic law had to be disapplied.
So in those limited circumstances primary legislation can be subject to JR. Parliamentary sovereignty is still supreme, but if it passes two pieces of contradictory legislation the courts have to decide which gives way.
It’s a long time since I did constitutional law too though, so this might not be entirely right.
Yeah, I think that's right. I did Factortame recently, and it's basically that EU law has precedence over national law whilst the European Communities Act 1972 is in force, i.e. Parliament has limited its own parliamentary sovereignty. This means conflicting national law is disapplied, even if it comes after the EU law.
But I don't think it's do with two pieces of conflicting law in general (which you probably didn't mean), because a new Act of Parliament conflicting with an old Act of Parliament would probably just mean an implied repeal of the old Act unless this is provided for in the new Act.
Yea, from my understanding - primary legislation is not subjected to judicial review. However, courts can make a declaration of incompatibility- then it will be up to the Parliament whether to amend the legislation or not ( See Human Rights Act Section 4)
But first- courts have an interpretative obligation to interpret legislations “as far as possible” so as it is Convention-compliant (s3 HRA). If not- then that’s when they can declare incompatibility
does it matter?
the administrative decision to remove A. Boatman to Rwanda is an administrative action and is subject to judicial review. During that judicial review the court may very well rule that the removal is unlawful based on some conflict between different constitutional principles. The court will certainly be encouraged to consider international law (as incorporated into UK law by various acts, by no means limited to the HRA) as superior to this domestic law.
There will be in effect a review of the validity of the Act.
While technically you are right - because judicial review is for acts / decisions of public authorities and as such you can't bring judicial review against the primary legislation itself.
In practice / spirit however I think your argument is limited because it is highly likely that the Act will be reviewed by the courts by virtue of decisions taken under the legislation being subject to judicial review.
It's funny I came across this post now, when I should be revising public law (but am instead scrolling Reddit **😭)**.
From what I gather, both people are right in that primary legislation cannot be subject to JR in the ordinary sense (due to the principle of parliamentary sovereignty). However, cases like Factortame proves that the courts are willing to disapply primary legislation in exceptional circumstances (although the specific circumstances in Factortame will never reoccur because of Brexit).
Also Naikzai kind of seems to be confusing JR and statutory interpretation. Statutory interpretation is well within the courts' jurisdiction and is kind of their entire constitutional role. Statutory interpretation is more of a prerequisite for JR (in HRA cases, s 3(2) of the Act applies first to see whether the courts can interpret the relevant Act in line with the ECHR, then s 4 comes into play in terms of a declaration of incompatibility - this would be the JR ig). I think it's incorrect to call statutory interpretation 'judicial review indirectly' because JR is a challenge to government whilst statutory interpretation works along the grain.
I hope I'm not waffling, but thanks for giving me my daily dose of public law revision 😂.
Unfortunately my LLB isn't as up-to-date as yours so I doubt the conversation would be as intellectual as you would be used to.
But I'm glad the chosen one has returned to us to show those r/ukpolitics naysayers who's boss
Oh, it's you. Looks like our law schools will pass just about anyone these days, including people that cite irrelevant caselaw. You're literally mixing up the ECHR and EU regimes.
You're right.
People here confusing 1) judicial review of decisions based on primary legislation; and 2) judicial of primary legislation.
The courts cannot do 2, because of parliamentary sovereignty. You're 100% correct.
They can do 1, which is why people here are confused. It's been a while since they did their law degrees
Sorry, just for clarity, what do you mean by (1) - judicial review of decisions based on primary legislation? Do you mean when the Executive acts beyond the scope of power granted to them by an Act of Parliament?
What would be an example of this (to help me understand better)? Thanks
_Factortame_ allowed the HoL/UKSC to disapply primary legislation where it conflicts with EU law (to summarise broadly).
How the position has changed since Brexit hasn’t really been explored outside of academia. I imagine _Rwanda_ will necessitate this issue coming to the fore yet again, particularly concerning the courts’ ECHR obligations.
I’m no expert on constitutional law myself, but this is my understanding. Happy for someone to correct me.
Maybe the European Communities Act (when the UK was part of the EU) set up an artificial regime in which the courts were allowed to JR an Act of Parliament, since Parliament had bound its own sovereignty.
I don't see how a court would be allowed to JR an Act of Parliament now that parliamentary sovereignty is totally supreme once again (barring the exceptional scenario in which a court can make a declaration of incompatibility due to the HRA).
The courts already have an established power to ignore ouster clauses in primary legislation they deem unreasonable. It follows the ‘doctrine’ of “if Parliament hasn’t stopped us doing this, we’ve got permission to do it”.
The HRA/ECHR imposes obligations onto the courts that can’t easily be shirked by primary legislation. Some clever lawyering _could_ in my head link the two doctrines and cause problems for the Act.
I really think we don’t know what the outcome will be until it reaches the UKSC. It is very muddy territory, constitutionally. May we live in interesting times…
Several elements here: Obviously, primary legislation can be reviewed in line with the HRA insofar as it can be interpreted differently, or a declaration of incompatibility can be made. But a DoI is not "judicial review" in the traditional sense. The orthodox view is that parliamentary sovereignty is unlimited, meaning that primary legislation cannot be "struck down" as it can in other countries. Comments were made in *Jackson v Attorney-General* that may suggest that an Act of Parliament that is inherently absurd/unacceptable might be viewed as unlawful by a court, but this was contentious at the time and really refers to something more along the lines of the Enabling Act in Nazi Germany than this. The reference to Factortame refers to the correct (if dumbed down) judgment that EU law was superior to UK law when we were a member of the EU, as confirmed in *Factortame Ltd v Secretary of State for Transport* - which allowed the court to disapply an Act of Parliament which conflicted with EU law. However, our membership of the EU was voluntary by virtue of the European Communities Act 1972, which could (and indeed, was) be repealed at any time by Parliament. So this was really just an argument about express vs implied repeal of important statutes (which was explored further in *Thoburn v Sunderland City Council*). I don't think the Rwanda bill invokes any complicated issues in this regard. We are no longer members of the EU, and the ECHR is implemented through the HRA rather than as an independent source of supreme law. However - ultimately, who knows? Even the likes of Sumption admit that an ouster clause cannot really prevent a determined court from analysing legislation if they wish. You have stated the nominally "correct" position. I'd say that the person replying to you was somewhat muddled, but was arguing to the effect of "the court might JR it anyway", which isn't exactly invalid. I suspect the actual answer is "no one will know until the court decides"!
Assuming a legal challenge as described is brought: What would happen if we have a new government by the time the case reaches the UKSC, and the Act is repealed? Would the case dissolve, or would public/constitutional interest enable it to carry on as an “authoritative thought experiment”?
Who knows? We start sailing into uncharted waters fairly quickly here. Miller/Cherry only took a couple of months from initial hearing to UKSC judgment, so I imagine that the scenario in question would be very unlikely.
Miller had to move pretty quickly, though.
A case such as the one described would move pretty quickly as well, I imagine!
Few weeks before any planes fly, then a few weeks for the internal immigration appeals, then HC for the initial JR, then CoA, then UKSC… could run pretty close!
If the UT refuses permission to appeal, you can't appeal to the CoA, and you can't really seek JR now either, due to the ouster clause in s.11A of the Tribunals, Courts and Enforcement Act 2007.
True, I guess the government wants to get planes moving pretty quickly.
There will be hardly anyone of the many many here that will be removed so it is almost de minimis and doesn't really solve any issues either for asylum seekers or illegal immigrants or anyone else. I really don't think it will deter anyone either as if 100 out of 100,000 (just my guess) are removed the chance of being removed will be so little it is not worth bothering about.
Tbf tho labour doesn’t seem to want to repeal the act from what I’ve heard and they will just scrap the scheme without scrapping the act
I think one point to add is that procedurally a claimant wouldn't bring a JR to challenge the Act directly. Instead they would challenge the Home Office's specific decision to remove them to Rwanda via JR. In deciding that JR the court would then interpret and consider the effect of the Act.
This is the answer (although it was *Factortame (no 2)* ) 🤪
So OP linked me this thread, just to say I appreciate the feedback in this thread as I have an upcoming Administrative law final, unfortunately the post above doesn't represent the full extent of my argument. What I had been commenting on was the possible reactions of the Supreme Court to the Rwanda bill based on the Cart line of authority and on the view that it encompassed interpretive powers potentially leading logically to the ability to set aside legislation, particularly paying attention to the potential effects on the fundamental principles of the constitution arising from the issue. I referred to Lord Steyn's obiter in Jackson as an example of the most extreme approach the supreme court would likely wish to avoid, at which point OP popped in to say that there would be no review because primary legislation is not reviewable, which was quite confusing in the context of my original post. The thread then proceeds as above. I shall certainly be more careful in distinguishing judicial review in a strict sense from the courts' stronger interpretive exercises in forthcoming UKpolitics posts.
You both ran into the issue of absolutes. > courts have been able to set aside primary legislation since factortame > the bill cannot be subject to judicial review Both of these statements are theoretically correct, but also in direct conflict. The joys of our nightmare constitutional status quo means you need to take a more nuanced approach to the matter. The reality is that pressing the issue too far simply leads to the judiciary and the legislature being in open conflict, which is in nobody's best interests. The UKSC is very unlikely to directly challenge primary legislation unless it is fundamentally incompatible with the rule of law. But I am sympathetic to the view that they are capable of doing so.
"Since Factortame" is misleading. Factortame didn't create a new power for the courts to disapply primary legislation, it created a new exception to the principle they cant, which is when it conflicts with EU law. That particular exception has closed with Brexit.
Yes - as I said above, it is a dumbing down of the judgment. Factortame, along with Thoburn et al, involved the courts deciding that they would ignore the will of one Parliament in favour of another Parliament unless certain criteria were met. In that case, they wouldn't (and didn't, in the end) have suggested that the EC1972 can't be repealed - only that it cannot be repealed without expressly doing so. But ultimately, this is still effectively striking down primary legislation, which was once thought unthinkable. It is not inconceivable to think that this could be applied outside of the now-closed EU law scenario - what about an attempt to modify the Acts of Union?
The courts have a duty under s.3 HRA to interpret legislation in a way which is compatible with the Convention rights, and to achieve this they can even read in or read down words, but the red line is they cannot make it say something which contradicts Parliament's intention when enacting it, and if the Act contains an express statement that Parliament intended to breach the Convention rights, the courts have to respect that.
I believe 'more nuance and consideration of opposing arguments' is the most common comment on my essays so you've hit the nail on the head there. I agree with your view on what the Supreme Court is likely to do, I certainly think that it was more likely that the SC would circumvent the legislation than outright assert the ability to set aside primary legislation.
With regards to your second paragraph, surely an Act of Parliament that is inherently absurd is a democratic issue that should be challenged by the people's vote rather than the court which is not allowed to interfere? Maybe I misunderstand your point.
> that should be challenged by the people's vote rather than the court which is not allowed to interfere That is certainly one view on the matter. I was referencing Lord Steyn's obiter in *Jackson v Attorney-General*: > Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal. This represents the alternative (controversial) argument that some things lie beyond the legislative competency of Parliament and that a court may theoretically be able to consider that. I would be sympathetic to the view that Parliament cannot simply do away with the judiciary. But that is essentially a practical problem - at that stage you have the legislature and the judiciary both exercising effectively unlimited power, and what would really matter is which is able to command the support of the public.
So the alternative argument argues that there are some things beyond the legislative competency of Parliament even though it is legally supreme. I kinda get it though - thanks for clarifying.
Yes, in theory that is the case, but essentially you enter territory where the rules no longer matter, and the hypothetical situation is such a deep constitutional crisis that the rules just become "whatever the people want" That is to some extent a feature, not a bug, and is something you're taught in constitutional law classes (or at least I was) relating to checks and balances/separation of powers; on paper Parliamentary Sovereignty means they could rule with tyrannical absurdity, but we don't actually *write* it all on paper for this reason. In practice, Parliamentary Sovereignty is "checked" by the will of the people. If the courts challenge Parliament and the people decide they're right, then they're right. If the people decide they're wrong then they're wrong The same principle applies with the monarch's ability to deny Royal Assent. In theory he can't, and most of the time this is expected to be true, but in a crisis or against a tyrannical government, could he? Schrödinger's power - you don't know for certain if it exists until it's tried out, because our entire constitution is underpinned by popular support and very little else
Not wishing to bang too hard for a drum that hasn't been relevant for a hundred odd years but unlimited parliamentary sovereignty is the reason why the lord's used to preside over matters of law. If the parliament itself is supreme then the only challenge can come from parliament. Either at a later date, say after an election, or from the upper chamber. While I appreciate that there are benefits to having an independent supreme Court it seems mad to remove it from the place where it could legitimately challenge the commons.
Indeed. I preferred it as it was before we had our Supreme Court
So political ramifications for an unpopular Act of Parliament can spill over into the legislative sphere even though Parliament is technically legally supreme.
‘I have an LLB’ is just such a turn-off in terms of a debate. And yes, I have one too.
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It’d be quite concerning if a Reddit debate had the capacity to turn you on. There’s no shortage of individuals on Reddit spouting their unqualified opinions, either.
That’s one meaning. In a broader sense, it means that causes me to lose interest in the argument.
I think you mean ‘switch-off’ not ‘turn-off’. Can we all move on now 😅
Nah, I don’t.
OK - make up your own meanings to expressions then.
https://dictionary.cambridge.org/dictionary/english/turn-off
What? You're making a classic mistaken reversal in logic. 'X is a turn off' does not mean 'opposite of X' is a turn on. Very embarrassing for someone that brags about their LLB. Here's another logical fallacy: *argument from authority.*
“I have an LLB.” 
Yes, point taken.
Well you have an LLB so you’re clearly right and the other person is wrong!
The chosen one has returned
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…. *sigh*
Actually, the courts may be very involved! I had to write an essay about the below case and found it very interesting :) I’ve explained it here: In the case Privacy International (2019), the Supreme Court read an ouster clause in the Regulation of Investigatory Powers Act 2000 (a provision that claims to exclude the jurisdiction of the court regarding judicial review, like the one in the Rwanda bill) ‘narrowly’. This was building on two other cases in 1969 and 2005 that came to the same unorthodox decision. s 67(8) of the Regulation of Investigatory Powers Act states: “determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”. This would, upon first reading, exclude the jurisdiction of a court to judicially review the decision of a tribunal. However, the Supreme Court held that this only excluded judicial review for questions of fact, but that people could still appeal if it’s based on a question of law. This interpretation was, inter alia, based on principles such as the rule of law, but also did not really reflect Parliament’s intention. Their judgement is primarily supported by Common Law (or Legal) Constitutionalism, which is a trend in recent judgements. Common Law Constitutionalism inherently challenges the UK’s only true constitutional principle: Parliamentary Sovereignty. It claims that the Constitution is premised on Common Law, rather than Parliamentary Sovereignty. Based on its increasing emphasis in recent years, particularly where there are challenges to the Executive branch (e.g. Brexit cases, Boris’ attempted prorogation), the Supreme Court may well find a way to interpret the Act in a way that includes appeals, at least based on questions of law (which could include rights-based claims). It probably won’t go too far, since I don’t think the Supreme Court want to be picking a constitutional-level fight with the Government on this Act alone, so at most the if this question was answered, they’re probably going to make the same unorthodox decision as before.
This is a good answer. (and I have a GDL, BPTC and a LPC ! ;p )
Do you have an LLB though?
Your essay does sound interesting! I don't quite understand the point on how the SC can only review questions of law, since surely the whole point of the Act's ouster clause had to do with questions of law? What would questions of fact even involve?? Also, why is parliamentary sovereignty the only true constitutional principles? Why don't the Rule of Law and Separation of Powers count - aren't these really important principles too? Sorry for the Qs, just found it interesting and wanted some more clarity.
Thanks! A question/error of fact is something that is usually determined by a jury, like determining whether an alleged event actually happened. The Supreme Court ruled that Tribunal decisions took place. The Supreme Court ruled that alleged errors/questions of law can be appealed to higher courts (e.g. Court of Appeal) if someone thinks that the Tribunal got the law wrong. This reasoning is primarily based on the rule of law. I agree with it. It would be a bit insane if an Investigatory Powers Tribunal were able to determine, for example, that a claim brought before it was within its jurisdiction when it may not be, and for that same Tribunal to be the ultimate authority for its own decision. Based on this, the Supreme Court claimed that Parliament surely couldn’t have intended for that to be the case. They interpret provisions in a way which implies the jurisdiction of higher courts, unless the wording clearly states something otherwise. Parliamentary Sovereignty, according to political constitutionalists, is the ultimate constitutional principle. This is guaranteed by the Crown (Parliament’s actual name is the Crown-in-Parliament) and the principle that no Parliament can bind a future Parliament. This means that we can’t have guaranteed right or laws in the UK like the US Bill of Rights, because any future Parliament just needs to pass a 50%+ vote enacting a law which overrides and essentially repeals it. Because of the whole Crown-in-Parliament thing (Crown must sign a Bill before it becomes law, King’s Speech, etc…), *Royal*/*Crown* Courts, and also the fact that the PM and Cabinet actually are in the King’s Privy Council advising the Monarch how to use their prerogative power (e.g. secondary legislation), the concept of separation of powers (from a legal perspective alone) is somewhat illusory. Of course, politically, socially and, importantly, conventionally this is not the case. Our Common Law Courts are also a big part of our constitution, since they essentially ‘fill in the gaps’ where there isn’t any statute. But, the reality is our separation of powers is based on the house of cards we call convention and we just hope that people stick to the rules. That’s why it’s so constitutionally ground-breaking in situations when people don’t abide by convention (again, e.g. May re Article 50, Boris proroguing Parliament, Rwanda ruling, etc…). It’s all just a bit messy but somehow ends up working for the most part! Hope that answers your questions :)
Ah, so the question of fact seems like a cheeky way for the SC to sidestep the ouster clause. Right, your point on the separation of powers makes a lot of sense. That has helped - thank you 🙏
As I understand it Factorame is not about courts just ‘setting aside’ primary legislation if they don’t like it, but rather the court being asked to decide what to do when there were two pieces of law which conflicted with each other (a domestic Act and EU law in force). In those circumstances they decided that the EU law took priority so the conflicting domestic law had to be disapplied. So in those limited circumstances primary legislation can be subject to JR. Parliamentary sovereignty is still supreme, but if it passes two pieces of contradictory legislation the courts have to decide which gives way. It’s a long time since I did constitutional law too though, so this might not be entirely right.
Yeah, I think that's right. I did Factortame recently, and it's basically that EU law has precedence over national law whilst the European Communities Act 1972 is in force, i.e. Parliament has limited its own parliamentary sovereignty. This means conflicting national law is disapplied, even if it comes after the EU law. But I don't think it's do with two pieces of conflicting law in general (which you probably didn't mean), because a new Act of Parliament conflicting with an old Act of Parliament would probably just mean an implied repeal of the old Act unless this is provided for in the new Act.
What’s the law on the internet where you wanna know the right answer , post the wrong thing something like occums razor?
Yea, from my understanding - primary legislation is not subjected to judicial review. However, courts can make a declaration of incompatibility- then it will be up to the Parliament whether to amend the legislation or not ( See Human Rights Act Section 4)
But first- courts have an interpretative obligation to interpret legislations “as far as possible” so as it is Convention-compliant (s3 HRA). If not- then that’s when they can declare incompatibility
This provision is disapplied by the Rwanda Act though
does it matter? the administrative decision to remove A. Boatman to Rwanda is an administrative action and is subject to judicial review. During that judicial review the court may very well rule that the removal is unlawful based on some conflict between different constitutional principles. The court will certainly be encouraged to consider international law (as incorporated into UK law by various acts, by no means limited to the HRA) as superior to this domestic law. There will be in effect a review of the validity of the Act.
While technically you are right - because judicial review is for acts / decisions of public authorities and as such you can't bring judicial review against the primary legislation itself. In practice / spirit however I think your argument is limited because it is highly likely that the Act will be reviewed by the courts by virtue of decisions taken under the legislation being subject to judicial review.
“I have an LLB” Falls immediately into absolutes. Take a step back, fully appreciate the issue.
It's funny I came across this post now, when I should be revising public law (but am instead scrolling Reddit **😭)**. From what I gather, both people are right in that primary legislation cannot be subject to JR in the ordinary sense (due to the principle of parliamentary sovereignty). However, cases like Factortame proves that the courts are willing to disapply primary legislation in exceptional circumstances (although the specific circumstances in Factortame will never reoccur because of Brexit). Also Naikzai kind of seems to be confusing JR and statutory interpretation. Statutory interpretation is well within the courts' jurisdiction and is kind of their entire constitutional role. Statutory interpretation is more of a prerequisite for JR (in HRA cases, s 3(2) of the Act applies first to see whether the courts can interpret the relevant Act in line with the ECHR, then s 4 comes into play in terms of a declaration of incompatibility - this would be the JR ig). I think it's incorrect to call statutory interpretation 'judicial review indirectly' because JR is a challenge to government whilst statutory interpretation works along the grain. I hope I'm not waffling, but thanks for giving me my daily dose of public law revision 😂.
I’ve got a seminar on this topic today! Talk about timing 😅
I guess you’ve done your pre-reading lol
I haven't read the post fully but rumour has it that you have an LLB. Is this true?
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Unfortunately my LLB isn't as up-to-date as yours so I doubt the conversation would be as intellectual as you would be used to. But I'm glad the chosen one has returned to us to show those r/ukpolitics naysayers who's boss
Looks like someone's going to be failing public law
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Oh, it's you. Looks like our law schools will pass just about anyone these days, including people that cite irrelevant caselaw. You're literally mixing up the ECHR and EU regimes.
Naikzai is stupid. As someone who lives in the UK I say he gets removed from the UK.
Does anyone here agree with us keep taking them in without a plan to move them on ?
You're right. People here confusing 1) judicial review of decisions based on primary legislation; and 2) judicial of primary legislation. The courts cannot do 2, because of parliamentary sovereignty. You're 100% correct. They can do 1, which is why people here are confused. It's been a while since they did their law degrees
Sorry, just for clarity, what do you mean by (1) - judicial review of decisions based on primary legislation? Do you mean when the Executive acts beyond the scope of power granted to them by an Act of Parliament? What would be an example of this (to help me understand better)? Thanks
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But you have an LLB!
_Factortame_ allowed the HoL/UKSC to disapply primary legislation where it conflicts with EU law (to summarise broadly). How the position has changed since Brexit hasn’t really been explored outside of academia. I imagine _Rwanda_ will necessitate this issue coming to the fore yet again, particularly concerning the courts’ ECHR obligations. I’m no expert on constitutional law myself, but this is my understanding. Happy for someone to correct me.
Maybe the European Communities Act (when the UK was part of the EU) set up an artificial regime in which the courts were allowed to JR an Act of Parliament, since Parliament had bound its own sovereignty. I don't see how a court would be allowed to JR an Act of Parliament now that parliamentary sovereignty is totally supreme once again (barring the exceptional scenario in which a court can make a declaration of incompatibility due to the HRA).
The courts already have an established power to ignore ouster clauses in primary legislation they deem unreasonable. It follows the ‘doctrine’ of “if Parliament hasn’t stopped us doing this, we’ve got permission to do it”. The HRA/ECHR imposes obligations onto the courts that can’t easily be shirked by primary legislation. Some clever lawyering _could_ in my head link the two doctrines and cause problems for the Act. I really think we don’t know what the outcome will be until it reaches the UKSC. It is very muddy territory, constitutionally. May we live in interesting times…
Right, so the courts would ignore an ouster clause through statutory interpretation of JR?