Q1.

Introduction.

Current academic discussions focus on the revocability of parliamentary actions 1 and the
importance of safeguarding constitutional rights in a democratic society 2. This essay critically
evaluates whether Wade's idea of parliamentary supremacy aligns with its modern
manifestation in the UK. Through examining the traditional view, parliamentary sovereignty
challenges, and academic views, the analysis aims to provide a thorough assessment of the
concept's relevance in the evolving legal and political context.

Traditional View.

Characterized as contemporaneous with Dicey's perspective3, Wade's affirmation regarding

the established notion of parliamentary sovereignty as a "common law principle originating
from the evolution of the UK Constitution"4 highlights the intrinsic depth and adaptive
potential inherent in the uncodified UK constitutional framework.

This Diceyan view5 holds three core pillars. Firstly, Parliament is the supreme law-making
body. For example, in having no subject limits (R v Secretary of State for the Home
Department ex parte Simms6 shows express language is required to limit fundamental rights),
no geographical limits (Mortensen v Peters7 shows Parliament’s authority over British
waters, despite international law), and no temporal limits (Burmah Oil Co v Lord Advocate8
shows the War Damage Act 19659 allowed retrospective legislation, excluding liability for
war damage). Secondly, no parliament may be bound by a predecessor or may bind a
successor by entrenching legislation. For example, Attorney General of New South Wales v
Trethowan 10 underscores the Australian Parliament's ability to bind itself versus
Westminster's sovereign status. Lastly, no one can challenge the validity of an act of
Parliament. For example, under the ‘enrolled bill rule’, once a bill is on the statute book, has
become an act, no court may examine how it got there (Pickin11).

Wade's perspective aligns with Bogdanor's notion that "what the Queen in Parliament enacts
is law,"12 reaffirming the traditional understanding of unrestricted legislative powers.
1
William Blackstone, Commentaries on the Laws of England (London: John Murray, 1876), p. 129.
2
Jeffrey Jowell, "Parliamentary Sovereignty under the New Constitutional Hypothesis" (2006) PUB. L. 562.
3
M. Loughlin, "Beyond Complacency" (1983) 46 M.L.R. 666, 668.
4
H.W.R Wade, ‘The basis of Legal Sovereignty’ (1955) 13(2) Cambridge Law Journal 172.
5
A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th edn (London: Macmillan, 1915),
pp.37-38.
6
R v Secretary of State for the Home Department ex parte Simms [1999] UKHL 33.
7
Mortensen v Peters [1906] 7 WLUK 73.
8
Burmah Oil Co v Lord Advocate [1964] 2 All E.R. 348.
9
War Damage Act 1965.
10
Attorney General of New South Wales v Trethowan [1932] 5 WLUK 31.
11
Pickin v British Railways Board [1974] AC 765.
12
Goldsworthy, Jeffrey, 'Introduction', The Sovereignty of Parliament: History and Philosophy (Oxford, 2001;
online edn, Oxford Academic, 1 Jan. 2010), https://doi.org/10.1093/acprof:oso/9780199248087.003.0001,
accessed 2 Aug. 2023.
Jennings further exemplifies this authority by illustrating that Parliament can declare actions
as offenses13, emphasizing its extensive jurisdiction.

Parliamentary Sovereignty Challenges.

The Human Rights Act is capable of encroaching upon the principle of Parliamentary
Sovereignty. In the case of Ghaidan v Godin-mendoza14, the Rent Act 197715 conferred
survivorship rights in relation to statutory tenancies to individuals cohabiting with the
original tenant as their "wife or husband". The House of Lords, confronted with a claim from
a survivor of a homosexual couple advocating for equal rights, contended that this provision
contravened the individual's Article 8 ECHR16 right to a private and family life. The
employment of section 3 of the HRA17 facilitated the inclusion of the phrase "as if they
were" before "wife or husband", thereby extending equitable protection to cohabiting same-
sex couples. This statutory reinterpretation grants the judiciary substantial influence over the
interpretation and practical applicability of legislation, thereby unavoidably intruding upon
the proclaimed sovereignty of Parliament. Nevertheless, it is plausible to contend that
Parliament, through the enactment of the HRA 199818, willingly conferred powers to the
courts under sections 319 and 420, a decision arguably facilitated by the obligatory language
employed in section 321 ("must"), signifying Parliament's deliberate delegation of these
powers to the judicial realm.

The European Communities Act 197222 conferred a comparable interpretive authority to the
courts through section 2(4) ECA23, enabling domestic law to be construed in light of EU law.
In Factorme24, Lord Bridge exercised his powers under section 2(1) 25, obliging courts to
uphold EU law, resulting in the "disapplication" of the Merchant Shipping Act 198826
following consultation with the CJEU. Wade characterizes the Factorme27 ruling as a
"constitutional revolution" for seemingly acknowledging the capacity of Parliament to bind
its successors. However, both Lord Bridge in Factorme28 and Laws LJ in Thoburn29 advance
the voluntary acceptance rationale, asserting that Parliament consciously embraced the

13
W.I. Jennings, The Law and the Constitution, 5th edn (London: University of London Press, 1959), p.170.
14
Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533.
15
Rent Act 1977.
16
European Convention on Human Rights, Article 8.
17
Human Rights Act 1998 (HRA 1998), s 3.
18
HRA 1998.
19
HRA 1998, s.3.
20
HRA 1998, s.4.
21
HRA 1998, s.3.
22
European Communities Act 1972 (ECA 1972).
23
ECA, s.2(4).
24
R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603.
25
ECA, s.2(1).
26
Merchant Shipping Act 1988.
27
Factortame Ltd (n 24).
28
Ibid.
29
Thoburn v Sunderland City Council [2002] EWHC 195.
supremacy of EU law by enacting the ECA 197230, with knowledge of the pre-existing
Costa31 doctrine establishing supremacy.

Judicial expressions concerning the rule of law indicate a growing inclination among senior
judges to challenge the tenets of Parliamentary Sovereignty, as evident from significant obiter
remarks. For instance, in the case of Jackson, the validity of the Hunting Act 200432 was
contested due to its enactment under the arguably defective Parliament Act 194933. In the
aftermath, Lord Steyn observed that the traditional construct of the UK's parliamentary
sovereignty might be antiquated, suggesting the potential of courts assessing whether the
elimination of judicial review transcends Parliament's constitutional competence. Lord Hope,
similarly, asserted that parliamentary sovereignty is no longer absolute, with the courts, as
custodians of the rule of law, wielding ultimate control in the constitutional framework. This
perspective aligns with Baroness Hale's assertion that any endeavour to exempt governmental
actions from judicial oversight would be met with judicial caution and possible resistance,
safeguarding the rule of law.

Academic Views.

To evaluate the alignment of Wade's assertion with contemporary UK parliamentary

supremacy, it is imperative to examine scholarly perspectives.

In contrast to the conventional Diceyan notion, Sir Ivor Jennings challenges parliamentary
sovereignty. He argues that Parliament can reshape itself and set rules for legislation,
including binding its future actions through procedural regulations. 34 This divergent view
supports Parliament's authority to control and restrict its own future actions.

Geoffrey Marshall's theory of "new view" on parliamentary sovereignty posits that

Parliament can redefine legislative norms for specific contexts and institute formal
regulations for valid laws. 35 He contends that while sovereignty originates as unbounded
power 'X,' it can be delineated into a qualified power 'Y' through prescribed procedures. 36
Marshall acknowledges the amalgamation of legal and political factors in constitutional
matters. While he defers the determination of the extent of parliamentary self-restraint to the
judiciary, he observes that different common-law jurisdictions might hold varied stances. The
"new view" put forth by Marshall recognizes Parliament's capacity to self-constrain via
procedural frameworks, thereby amplifying its sovereignty by acknowledging its expansive
legislative domain.
Goldsworthy's perspective advocates for prioritizing procedural aspects of lawmaking,

30
ECA 1972.
31
Costa v Enel [1964] ECR 585.
32
Hunting Act 2004.
33
Parliament Act 1949.
34
Sir Ivor Jennings, The Law and the Constitution (5th ed, University of London Press, London, 1959) at 152
and 153.
35
Geoffrey Marshall, “Legislative Power and Sovereignty” in Constitutional Theory (Clarendon Press, 1980)
at 43.
36
ibid 48.
thereby endowing Parliament with decision-making autonomy while refraining from
constricting substantive legislative authority. He concurs with the implementation of distinct
procedural regulations, such as the necessity for explicit language when repealing laws and
the delineation of policy-making boundaries. 37 However, he opposes the notion of binding
Parliament through amendment procedures necessitating qualified majorities that hinder
routine legislative processes. 38 Goldsworthy acknowledges the significance of enduring
commitments while asserting that Parliament cannot entirely preclude successors from
enacting specific changes. His approach seeks to harmonize adaptability with the preservation
of core principles, thus upholding parliamentary sovereignty without compromising its
essence.

Alison L Young's stance aligns with the "self-embracing view" of parliamentary sovereignty,
apt for modern constitutionalism39. This outlook permits Parliament to establish procedural
requisites without weakening its substantive authority in regular legislation. Young asserts
Parliament's competence to institute lasting commitments while fortifying provisions against
future changes. However, she recognizes the challenge of entirely preventing successors from
making specific alterations, aiming to maintain sovereignty without undue compromise. The
self-embracing view enables enduring commitments while safeguarding core parliamentary
principles.

In the post-Factorme era, an extreme interpretation of the relevance of Parliamentary

Sovereignty contends that if Factortame signified one Parliament binding another, exiting the
EU will not restore the doctrine; the impact has already transpired. 40 Correspondingly, as per
Barnett, Parliament cannot unilaterally confer ultimate power upon itself. Mere assertion of
supremacy proves inadequate41; authentic supremacy hinges on the response of other
branches of the state, primarily the judiciary. Paradoxically, this implies that Parliament
cannot establish this legal principle autonomously.

Nonetheless, the persistent discourse surrounding the adoption of a written constitution

confronts Wade's conception of Parliamentary Sovereignty as a product of the UK
Constitution's evolutionary course. This ongoing dialogue engenders inquiries into the
established tenets of parliamentary sovereignty. According to Vernon Bogdanor, the
proposition of a codified constitution introduces a potential divergence from Wade's
understanding, as it could impose legal boundaries on parliamentary supremacy. While not
outright negating sovereignty, Bogdanor asserts that a formal constitution may entail legal
restraints on parliamentary authority42. Such a proposition contests the traditional perspective
of parliament's unbounded and absolute jurisdiction.
37
Rebecca Prebble “Constitutional Statutes and Implied Repeal:The Thorburn Decision and the Consequences
for New Zealand” (2005) 36 VUWLR 29.
38
Jeffrey Goldsworthy, Parliamentary Sovereingty - Contemporary Debates (Cambridge University Press,
New York, 2010) at 181 -182.
39
S Alison L Young in “Parliamentary Sovereignty Re-defined” in Sovereignty and the Law (Oxford
University Press, New York, 2013) 79.
40
Barber, "The afterlife of Parliamentary sovereignty" (2011) 9 I.J.C.L. 144 at 152–153.
41
H Barnett, Constitutional and Administrative Law, 11th edn (Routledge, 2016) 112.
42
Vernon Bogdanor, The New British Constitution (Hart Publishing, Oxford, 2009) at 14.
Conclusion.

In conclusion, Contemporary challenges have altered the doctrine of Parliamentary

Sovereignty as posited by Wade, although it remains central to the constitution. The current
state reflects a balanced approach, incorporating considerations like human rights and legal
constraints. This evolving dynamic will continue to shape the doctrine's trajectory, influenced
by debates on written constitutions, legal dynamics, and societal changes.

Word Count: 1377

Q3.
Stop and Search.

In the case of Christopher43, the Court of Appeal was tasked with determining the lawfulness of a
43
R v Bristol (Christopher) [2007] EWCA Crim 3214.
drug search, specifically focusing on whether the initiating police officer adhered to the
requirements stipulated in section 2 of the Police and Criminal Evidence Act (PACE) 44. This
provision mandates that, prior to conducting a search, officers must furnish the suspect with
information including their identities, police station affiliation, the grounds for suspicion, the nature
of the search, and the right to a written record. The Court of Appeal rendered the search unlawful,
resulting in the quashing of the conviction. Similarly, in the observation of Raymond, crucial details
such as the officers' identities, grounds for suspicion, and affiliation to a police station were omitted,
and the conveyed suspicion for drug possession remained vague (“you know why!”) until en route to
the police station, post the stop and search event in question. Drawing on the precedent set by
Christopher's case, Raymond might seek legal recourse by highlighting the officers' failure to adhere
to prescribed protocols. Additionally, their noncompliance with section 245, as aforementioned,
implies a violation of S2 PACE46.

However, in the absence of a warrant authorizing Raymond's arrest, it becomes imperative to

examine the scope of police authority for warrantless arrests. In accordance with section 24 of the
Police and Criminal Evidence Act 198447, law enforcement officers possess the power to apprehend
individuals found either committing an offense or for whom they possess reasonable grounds to
suspect their involvement in an offense.

Historically, the jurisdiction of these arrest powers was confined to 'arrestable offences,' but a
broadening amendment emerged in the form of the Serious Organised Crime and Police Act 2005 48,
extending their application to encompass all offenses. Consequently, the term 'suspicion' was
elucidated by Lord Devlin in Shaaban Bin Hussien v Chong Fook Kam49 as denoting a condition of
conjecture or conjectural inference in the absence of conclusive proof. Considering the
circumstances, it is conceivable that the police possessed reasonable grounds for suspecting
Raymond, as evidenced by the utterance of 'you know why!' and Raymond's flight response, an
attempt deemed criminal as it pertains to evading police custody, thereby warranting potential
arrest.

Under the purview of Code A50 , which prohibits the basis of 'reasonable grounds' on factors like
racial profiling, age, or attire, the focus shifts to identifying suspicious behaviour by the suspect.
Thus, assessing the legality of the stop and search incident reveals that Raymond's mere act of
carrying a bag and traversing a drug-related area lacks standalone grounds for suspicion. This is
more pronounced when considering the possibility of Raymond being an innocent passerby needing
that route. Additionally, Code A51 mandates respectful treatment and cooperation-seeking by law
enforcement. Sadly, the encounter lacks these elements, violating both legal standards and Code
A52. As a result, the search is unjustified, potentially leading to false imprisonment liability

44
Section 2 of The Police and Criminal Evidence Act 1984 (PACE 1984).
45
PACE 1984, s 2
46
PACE 1984, s 2.
47
Section 24 of the Police and Criminal Evidence Act 1984.
48
Serious Organised Crime and Police Act 2005.
49
Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, at 948.
50
PACE 1984, CODE A.
51
PACE 1984, CODE A.
52
PACE 1984, CODE A.
Furthermore, in consonance with Section 353, a comprehensive written record, termed the "National
Search Record," delineating pertinent information such as the chronological aspects of the search,
the rationale underpinning it, and any incriminating findings, is mandated. Importantly, a copy of this
record must be promptly furnished to the subject. It is conspicuous that these stipulations were
neither adhered to nor extended to Raymond, implying a plausible manifestation of discriminatory
misuse of police prerogatives directed towards him.

Arrest.

While the legality of the stop and search action undertaken against Raymond may be questionable,
it is pertinent to note Blackstone's elucidation of arrest as the apprehension or constraint of an
individual to ensure their availability for addressing an alleged or suspected offense 54. Furthermore,
in concordance with Section 28 of the Police and Criminal Evidence Act (PACE) 55, the precedent of
Christie v Leachinsky56 underscores that informing the detainee about their arrest and providing
rationale for it is imperative. This obligation necessitates clear, comprehensible language accessible
to the arrestee, as exemplified in Taylor v Thames Valley Chief Constable 57, a case involving the
apprehension of a minor. It is evident that Raymond was not apprised of any such details during the
stop and search episode, although judicial precedents imply that such information could be
communicated subsequently. This may be attributed to the exigency of the circumstances, given
Raymond's apparent resistance to arrest, as demonstrated in the case of DPP v Hawkins58.

Even without explicit justification for the delay, repeated assertions during transit to the police
station regarding Raymond's suspected drug dealing could mitigate potential unlawfulness from not
promptly informing him of the arrest grounds (Lewis v Chief Constable of South Wales) 59. Historical
arrest intent was to ensure suspect presence in court; contemporary practice uses arrests for
investigation and questioning at stations, as upheld in Holgate-Mohammed v Duke. 60

Code G61, focusing on arrest powers, becomes pertinent here. The need for Raymond's fingerprints
and DNA samples, along with his statements during the car journey, likely influenced the arrest
decision. This arrest would then justify thorough questioning at the station under caution,
potentially involving a solicitor. In corroboration, Under the Serious Organised Crime and Police Act
200562, police officers are vested with the authority to detain individuals for the purpose of
ascertaining their identity. Arrests can also be made to prevent harm to oneself or others, prevent
property damage, address offenses against public decency, ensure unhindered use of public
thoroughfares, safeguard vulnerable individuals, facilitate investigations, and prevent the
disappearance of suspects to hinder prosecution

53
PACE 1984, s 3.
54
William Blackstone, Commentaries on the Laws of England (London: John Murray, 1876), p. 289.
55
PACE 1984, s 28.
56
Christie v Leachinsky [1947] AC 573.
57
Taylor v Thames valley chief constable [2004] 3 ALL ER 503.
58
DPP v Hawkins [1988] 3 ALL ER 673.
59
Lewis v Chief Constable of South Wales [1991] 1 ALL ER 206.
60
Holgate-Mohammed v duke [1984] AC 437.
61
PACE 1984, CODE G.
62
Serious Organised Crime and Police Act 2005.
However, it may be contended in favour of Raymond that irrespective of any justifying rationale for
the arrest, the principle established in the Christopher63 case would render any subsequent actions
by the police unlawful if the initial stop and search itself is deemed to be unlawful.

Detention.

Raymond should be aware that Code of Practice C64 governs detention at the police station, with a
Custody Officer responsible for detailed records and ensuring legal rights are respected. However, in
this context, Raymond's legal rights and entitlements were not upheld.

According to Section 5665, a suspect holds the right to inform someone of their arrest and detention,
which appears to have been denied to Raymond. Additionally, under s5866, a suspect is entitled to
free legal advice under the Criminal Defence Service Scheme while in police custody. However,
Raymond was deprived of legal adviser assistance. Moreover, if Raymond underwent interviews, he
should have been cautioned before the first one and reminded of this caution in subsequent
interviews, with access to legal representation. The absence of legal representation could lead to a
lack of contemporaneous written records, and his confessions may be deemed admissible without
adhering to required legal procedures, including recording the interviews as stipulated by section
6067.

The right to delay legal advice under Section 56 is permissible for up to 36 hours, contingent upon
specific conditions, such as the nature of the offense and Superintendent approval to prevent
evidence tampering or harm. However, Raymond was seemingly denied legal assistance from the
outset of his detention.

While the exact duration of Raymond's detention remains unspecified, the potential impact of his
mental illness on his well-being implies the presence of stress arising from a possible extended
detention. Section 40 68stipulates that an Independent Reviewing Officer should assess detention
within 6 hours of its authorization and subsequently every 9 hours. The absence of such reviews
could render continued detention unlawful. In terms of detention time limits, Section 4169 permits a
12-hour extension by a Superintendent after 24 hours, given certain conditions are met. However,
there is no mention of such extensions or Independent Reviewing Officer involvement, suggesting a
possible basis for a false imprisonment claim by Raymond.

Raymond's potential plea of not guilty can be informed by Section 6170, which allows police to
request fingerprints from a suspect, and Section 6571, enabling the use of reasonable force for a non-
intimate DNA sample if refused, with Inspector consent. However, the legality of the sequencing of
police actions during detention may be questioned. The absence of Inspector involvement raises
63
Christopher (n 1).
64
PACE 1984, CODE OF PRACTICE C.
65
PACE 1984, s 56.
66
PACE 1984, s 58.
67
PACE 1984, s 60.
68
PACE 1984, s 40.
69
PACE 1984, s 41.
70
PACE 1984, s 61.
71
PACE 1984, s 65.
concerns of breach of Article 872, following Marper73, particularly in light of potential unjustified
force and denial of rights during detention, combined with a potentially unlawful arrest. This
situation challenges the admissibility of Raymond's confession and underscores the importance of
court discretion and legal representation.

Word Count: 1383.

Bibliography
Primary Sources

Cases

72
HRA 1998, Article 8.
73
S and Marper v United Kingdom [2008] ECHR 1581.
 Attorney General of New South Wales v Trethowan [1932] 5 WLUK 31
 Burmah Oil Co v Lord Advocate [1964] 2 All E.R. 348
 Christie v Leachinsky [1947] AC 573
 Costa v Enel [1964] ECR 585
 DPP v Hawkins [1988] 3 ALL ER 673
 Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533
 Holgate-Mohammed v Duke [1984] AC 437
 Lewis v Chief Constable of South Wales [1991] 1 ALL ER 206
 Mortensen v Peters [1906] 7 WLUK 73
 Pickin v British Railways Board [1974] AC 765
 R v Bristol (Christopher) [2007] EWCA Crim 3214
 R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603.
 R v Secretary of State for the Home Department ex parte Simms [1999] UKHL 33
 S and Marper v United Kingdom [2008] ECHR 1581
 Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942
 Taylor v Thames Valley Chief Constable [2004] 3 ALL ER 503
 Thoburn v Sunderland City Council [2002] EWHC 195

Statute and Statutory Instruments

 European Communities Act 1972 (ECA 1972)

 Human Rights Act 1998 (HRA 1998)
 Police and Criminal Evidence Act 1984 (PACE 1984)
 Serious Organised Crime and Police Act 2005

Secondary Sources
Books

 Vernon Bogdanor, The New British Constitution (Hart Publishing, Oxford, 2009)
 William Blackstone, Commentaries on the Laws of England (London: John Murray, 1876)
 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th edn (London: Macmillan,
1915)
 Jeffrey Goldsworthy, Parliamentary Sovereignty - Contemporary Debates (Cambridge University
Press, New York, 2010)
 W.I. Jennings, The Law and the Constitution, 5th edn (London: University of London Press, 1959)
 Geoffrey Marshall, “Legislative Power and Sovereignty” in Constitutional Theory (Clarendon Press,
1980)

Journal articles

 Barber, "The afterlife of Parliamentary sovereignty" (2011) 9 I.J.C.L. 144 at 152–153

 Jeffrey Jowell, "Parliamentary Sovereignty under the New Constitutional Hypothesis" (2006) PUB. L.
562
 M. Loughlin, "Beyond Complacency" (1983) 46 M.L.R. 666, 668
 Rebecca Prebble “Constitutional Statutes and Implied Repeal:The Thorburn Decision and the
Consequences for New Zealand” (2005) 36 VUWLR 29
 H.W.R Wade, ‘The basis of Legal Sovereignty’ (1955) 13(2) Cambridge Law Journal 172
 S Alison L Young in “Parliamentary Sovereignty Re-defined” in Sovereignty and the Law (Oxford
University Press, New York, 2013) 79

Online Journals
 Goldsworthy, Jeffrey, 'Introduction', The Sovereignty of Parliament: History and Philosophy (Oxford,
2001; online edn, Oxford Academic, 1 Jan. 2010),
https://doi.org/10.1093/acprof:oso/9780199248087.003.0001