Cosmo Graham argues that
Jackson could be seen as "a constitutional curio, dealing with an obscure point, which is now effectively settled in favour of the Executive"; the case, from this perspective, is of no practical consequences given the limited use of the Parliament Acts and plans to further reduce the power of the House of Lords to delay bills. However, he suggests that
Jackson is part of a trend of increased willingness by the judiciary to examine the claimed existence of
executive powers and "to push at the borders of traditional techniques of judicial interpretation".
Common law constitutionalism, a view that there are fundamental constitutional values that are protected even from interference by Parliament, had become increasingly popular at the time of
Jackson. Four recent cases had found that "in the absence of express language or necessary implication to the contrary, the courts [will] presume that even the most general words were intended to be subject to the basic rights of the individual". while
John Laws had argued that "ultimate sovereignty rests ... not with those who wield governmental power, but in the conditions under which they are permitted to do so. The constitution, not the Parliament, is in this sense sovereign". Baroness Hale similarly suggested that there may be limits to Parliament's legislative competence. The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny. Although no judge expressly disapproved the opinions that there were limits to Parliament's legislative capabilities, Mullen suggests that Lord Bingham and Lord Carswell intended to impliedly rebut these suggestions. Lord Bingham affirmed that "the bedrock of the British constitution is ... the supremacy of the Crown in Parliament" while Lord Carswell stated: I do not, and I have no doubt your Lordships do not, have any wish to expand the role of the judiciary at the expense of any other organ of the State or to seek to frustrate the properly expressed wish of Parliament as contained in legislation. The attribution in certain quarters of such a wish to the judiciary is misconceived and appears to be the product of lack of understanding of the judicial function and the sources of law which the courts are bound to apply.
Justifying limits to the 1911 Act Alison Young argues that
Jackson entrenched section 2(1) of the Parliament Act 1911 by requiring that it only be overturned by adopting a specific manner and form (approval of the bill changing the 1911 Act by the House of Lords). She suggests that Lord Steyn and Baroness Hale would explain this result using a self-embracing view of sovereignty – that Parliament as a whole is sovereign and can therefore bind later parliaments. The passing of the 1911 Act was from this perspective a redefinition of Parliament that binds the courts. However, she notes that Lord Hope, Lord Nicholls and Lord Carswell provide an alternative explanation for the decision: that the 1911 Act modified the
rule of recognition defining valid legal documents. Under this view, the 1911 Parliament did not bind future Parliaments simply by passing the Parliament Act 1911, but by the legislation being recognised, in political fact, as valid; the courts were therefore altering the legal rule of recognition accordingly. This perspective allows the orthodox continuing view of parliamentary sovereignty (that every new parliament is sovereign) to be held while still explaining why future parliaments cannot modify section 2(1) of the 1911 Act. Christopher Forsyth suggests that the limitations of the 1911 Act could be explained by the common law constitutionalism theory, but argues that "if the judiciary frustrated by the failings of the elected legislature were to assert a power to hold Acts of Parliament invalid it would be stepping from law into politics and the outcome of its efforts impossible to predict". He instead proposes that section 2(1) of the 1911 Act was a redefinition of Parliament: it is a
bicameral body for all legislation but also has a method of
unicamerally legislating (except to extend Parliament beyond five years) if the requirements of the Parliament Acts have been fulfilled. However, he also notes that a "sufficiently determined elected House, coupled with an executive willing to influence the composition of the House of Lords by the creation of peers ... would in the end get its way. If the government advisors had a sufficiently secure Commons majority, it would in the end be able to extend the life of Parliament." Jeffrey Jowell proposes two justifications for limiting parliamentary sovereignty: legitimacy and the current hypothesis of constitutionalism. The argument from legitimacy highlights that Parliament's supremacy depends on the democratic and accountable nature of legislature; anything that undermines this status would invalidate the applicability of the doctrine. Jowell suggests that this view was expressly supported by Lord Hope and impliedly supported in other opinions that legislation limiting Parliament's accountability would be challenged by the judiciary. The argument based on the current hypothesis of constitutionalism reasons that no authority should be allowed to violate fundamental rights in a democratic society: they are essential features that cannot be removed, even by a supposedly sovereign Parliament. This view was also expressly endorsed in
Jackson by Lord Hope, who regarded Parliament's sovereignty as subject to the rule of law.
Parliamentary sovereignty as a judicial creation Richard Ekins criticises as "historically false [and] jurisprudentially absurd" the claim made by Lord Steyn and Lord Hope that parliamentary sovereignty was solely a judicial creation. He argues that the doctrine is fundamental to the UK constitution because it has been accepted by all three
branches of government; "while the judges also accept the rule, they did not create it and may not (lawfully) change it". However, Stuart Lakin responds that parliamentary sovereignty does, in practice and in theory, depend on its recognition by the courts. Given that Parliament derives its powers from law, we have a
normative reason to erase the concept of sovereignty from our constitutional landscape ... [This perspective] demands that Parliament may only exercise power in accordance with the principles – whatever they may be – that justify that power. ==See also==