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Lord Phillips: “If parliament did the inconceivable, we [the judges] might do the inconceivable as well”

Parliament can act in some conceivable and inconceivable ways

The following notes concern how the courts react to what Parliament throws at them

1) Marking the territory


Obiter statements may be made by the courts that go against the absolute conception of parliamentary sovereignty

For example, see R (Jackson) v AG [2005]:

  • “The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament” (Lord Bingham)
  • “We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts” – parliamentary sovereign is a concept that is now “out of place”, but “is still the general principle of our constitution.” (Lord Steyn)
  • “Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute.”

2) Interpretation


Judicial interpretations of an Act of Parliament may be at odds with the literal meaning of that Act

In Pepper v Hart [1993] the court held that there are some ruling where parliamentary debates may be referred to by the court in the interpretation of a statute, and not just use the literal meaning of statutes

However, the court cannot refer to statements made in parliament in the following situations:

  • It is NOT applicable when the interpreted provision is not “ambiguous, obscure, or [leading] to authority”
  • It is NOT applicable to statements of persons other than the promoter of the bill
  • It is NOT applicable if the statement itself is not clear

Also see Robinson v Sec of State for N. Ireland [2002]

3) Informal Disapproval


Judges can make statements extrajudicially expressing their disagreement with proposed legislation or other actions of public bodies

Judicial Review

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body → it is the inherent supervisory jurisdiction of the courts

The court therefore has the power to restrain or remedy excess or abuse of public power

The court does NOT have the power to consider whether the exercise of public power was right or wrong

Judicial review can be used in relation to decisions of ministers, local authorities, or other public officers

Judicial review is important for accountability, the separation of powers, and protection of individual rights

Asylum and Immigration (Treatment of Claimants, etc.) Bill (2003)

This established the Asylum and immigration Tribunal (AIT)

The AIT was an “independent judicial body” composed of immigration judges and non-legal members

The AIT was responsible for hearing appeals against government decisions on asylum and immigration matters

Decisions of the AIT were, according to s.11 of the Bill (the ‘ouster clause’), to be outside the scope of judicial review

  • The judiciary reacted to this clause negatively: “I am not over-dramatising the position if I indicate that, if this clause were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution.” (Lord Woolf)
  • In other words, Lord Woolf said that the ouster clause should be removed from the Bill or there may be a move towards a written constitution which will abolish parliamentary sovereignty

As a result the Government withdrew the ouster clause from the Bill

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4) Declaration of Incompatibility


A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute, or acts of public authorities, are incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic law.

  • So, through Declarations of Incompatibility, judges are able to indirectly propose legislative change

Belmarsh Prison Case

Following 9/11 the British government issued a derogation (i.e. a derogation allows a State to derogate from certain rights contained in the European Convention on Human Rights) which gave the Government extended power to detain foreign nationals on terrorism charges without trial (so Britain was derogating from the ECHR Article 5 ‘Right to Liberty’)

There were two questions:

  • Does the risk posed by terrorism amount to a “public emergency threatening the life of the nation” justifying a derogation from Art 5?
  • Is indefinite detention of foreign suspects a necessary response to such emergency?

Baroness Hale said: “[T]here is absolutely no reason to think that the problem applies only to foreigners. Quite the reverse. There is every reason to think that there are British nationals living here who are international terrorists … Yet the Government does not think that it is necessary to lock them up”

Thus, the appellants won the case and the House of Lords issued a ‘declaration of incompatibility’ stating that the British government had legislated and acted contrary to Article 5 of the ECHR

  • Therefore, the judiciary were, in effect, indirectly proposing legislative change

5) "The Inconceivable"

Could the judiciary potentially refuse to apply parliamentary legislation and/or rule on its invalidity?

The judiciary came very close to invalidating an Act of Parliament in Anisminic Ltd v Foreign Compensation Commission [1969]

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

The Foreign Compensation Act 1950 established the Foreign Compensation Commission (a public body). The Commission decided that the claimant (a company) had failed to establish a claim for compensation for the loss of its Egyptian assets following the Suez crisis of 1956. The Act said that any "determination" of the Commission should "not be called in question in any court"

  • The point of contention was as follows: Does the court have jurisdiction to decide whether the Commission made an error of law in rejecting an application?

It was held that the wording of the legislation does not preclude the court from determining whether or not the determination in question was lawful; in other words, despite the seemingly clear meaning of the statute, it was interpreted flexibly such that the judiciary could “carry out the intention of the legislature” (Lord Wilberforce)

  • The decision illustrates the courts' reluctance to give effect to any legislative provision that attempts to exclude their jurisdiction in judicial review. Even when such an exclusion is relatively clearly worded, the courts will hold that it does not preclude them from scrutinising the decision on an error of law and quashing it when such an error occurs

Why not go further?

Anisminic Ltd v Foreign Compensation Commission [1969] is the closest the English courts have gone to actually refusing the application of a statutory provision, but why haven’t they gone further?

Possible reasons:

  • The courts are not prepared to refuse to apply primary legislation (due to the doctrine of parliamentary sovereignty)
  • The courts are prepared to do so, but they have not yet been faced with ‘unconstitutional’ legislation
  • The courts wish to disguise their action as the interpretation of legislation

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