50. For the third volume in the series, see Feldman, D (ed) Law in Politics, Politics in Law (Oxford: Hart Publishing, 2013).Google Scholar

51. Drewry, G and Oliver, D The Law and Parliament (London: Butterworths, 1998).Google Scholar

52. Horne, A, Drewry, G and Oliver, D (eds) Parliament and the Law (Oxford: Hart Publishing, 2013) p v.Google Scholar

53. [2010] UKSC 52.

54. Horne et al, above n 52, p v.

55. Ibid. For a discussion on the legitimacy of judicial strike-down of primary legislation, see Gearty, C Can Human Rights Survive? The Hamlyn Lectures 2005 (Cambridge, UK: Cambridge University Press, 2006).Google Scholar Professor Gearty was not in favour of judicial protection of human rights, where this permits the courts to strike down primary legislation. Gearty observed that ‘(t)here is something inherently distasteful about elected representatives waiting to see whether their judgments about the public interest, made on a bona fide basis with the interests of the community at heart meet with the approval of a bench of unelected and unaccountable lawyers’ (p 92). Gearty referred to the US system, where the Supreme Court can strike down legislation. He noted that the Canadian constitution afforded the elected representatives the ability to overturn the Supreme Court's verdict. This, Gearty observed, was a ‘bit better’. However, Gearty preferred the position in the UK, where the Human Rights Act 1998 could be repealed and therefore ensures that the politicians remain in control (pp 94–96).

56. [2005] UKHL 56.

57. The decision in Jackson generated judicial dialogue on the nature of parliamentary sovereignty and whether the judiciary could impose restrictions. Different positions were taken by their Lordships. Lord Steyn believed that parliamentary sovereignty was a ‘construct of the common law’ and if Parliament attempted to abolish judicial review, then the courts ‘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’ (at [102]). Similarly, Lord Hope challenged the traditional orthodox interpretation of parliamentary sovereignty and held that the ‘rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’ (at [107]). Lord Bingham upheld the orthodox account of parliamentary sovereignty in his opinion in Jackson and also extra-judicially in The Rule of Law (London: Allen Lane, 2010). For the opinion of the current President of the Supreme Court, see NeubergerLord ‘Who are the masters now?’ Second Lord Alexander of Weedon Lecture (6 April 2011), available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf (accessed 4 March 2014). Lord Neuberger expressly refuted both Lord Steyn's and Lord Hope's propositions (at 11–12).

58. Horne et al, above n 52, p 32.

59. Article 9 of the Bill of Rights 1689 states that ‘(t)hat the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament’.

60. Horne et al, above n 52, pp 40, 62–64.

61. Ibid, p 48.

62. Ibid, p 49.

63. Ibid, pp 48–49.

64. Ibid, p 54.

65. [2010] UKSC 52.

66. Horne et al, above n 52, p 69.

67. Ibid, p 69. See Phillips Lord' judgment in Chaytor at [61].

68. Ibid, p 130.

69. Ibid. Kennon observes that s 5(1) CRA 2005 is regarded as a nuclear option. The former Lord Chief Justice, Lord Judge, has given evidence to the House of Lords Constitution Committee, where he commented that there are political restrictions on using s 5, as if the Lord Chief Justice were to make a formal representation to Parliament, that this would risk being seen as taking sides against the government. Lord Judge was of the opinion that the CRA 2005 had weakened the dialogue between the judiciary and the government, as ‘(t)here's nobody in the cabinet who is responsible for representing – to those members of the cabinet who may need advice on an issue – how a particular proposal may impact on the judiciary’. See RozenbergJ ‘Lord Chief Justice: changes to judiciary “eroding something important”’ The Guardian 30 January 2013, available at http://www.theguardian.com/law/2013/jan/30/lord-chief-justice-changes-judiciary (accessed 4 March 2014).

70. Horne et al, above n 52, p 131.

71. Ibid.

72. Ibid.

73. Ibid, pp 132–133. Recently, Lord Justice Leveson has given evidence to a number of parliamentary committees. On 9 October 2013, Lord Justice Leveson gave evidence to the House of Lords committee that is investigating the Inquiries Act 2005 and on 10 October he appeared before the Culture, Media and Sport Committee.

74. Ibid, p 149.

75. Ibid, p 152.

76. Ibid, pp 190–191.

77. Ibid, pp 212–218.

78. Ibid, p 219.

79. Ibid, p 243.

80. Ibid, p 243.

81. Ibid, p 254.

82. Lord Sumption became a Justice of the Supreme Court in 2012. See J Sumption ‘Judicial and political decision-making: the uncertain boundary’, The FA Mann Lecture (2011). Sir Stephen Sedley, writing extra-judicially, disagreed with Sumption's interpretation of the decision in R v Secretary of State for Foreign Affairs ex parte World Development Movement Ltd [1994] EWHC Admin 1, and remarked that, ‘In other words, the court was doing its job of testing the legality of executive action against the relevant statutory power. It was not, as Sumption openly suggests it was, substituting its own view of policy for the foreign secretary's.’ According to Sir Stephen Sedley, the thesis was ‘poorly substantiated’ and ‘there is a repeated insinuation that judicial interference in the political process regularly occurs’. This, Sedley refutes, ‘does not happen’: S Sedley ‘Judicial politics’ [2012] Lond Rev Books 15, available at http://www.lrb.co.uk/v34/n04/stephen-sedley/judicial-politics (accessed 4 March 2014).

83. Horne et al, above n 52, pp 258–260.

84. Ibid, p 279.

85. Ibid, pp 282–283.

86. Ibid, p 308.

87. Ibid, pp 311–312.

88. Ibid, p 317.

89. Ibid, p 315.

90. Above n 56, per Lord Hope at [107].

91. Horne et al, above n 52, p 321.

92. Ibid, p 331.

93. Ibid, p 329.

94. Ibid, p 349.

95. Ibid, p 359.

96. Ibid.

97. See ibid, pp 340–341, for a brief discussion on arena and transformative legislatures.

98. Ibid, p 361.

99. Ibid.

100. See n 75 above, where Worthy observes that ‘trust has also fallen across other European Parliaments from 2007’. This demonstrates that despite the expenses scandal, decreasing public trust in parliamentarians is also an issue that affects the rest of Europe.