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Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional conventions are essentially political not legal requirements. Therefore, a constitutional convention requiring popular approval of constitutional change, if it ever existed, would not have violated parliamentary sovereignty. But if it did exist, it was displaced by the Parliament Act 1911 and has not been revived since. Moreover, there is no evidence that courts today have legal authority to enforce any requirement, conventional or legal, requiring such approval.

This book has four main themes: (1) a criticism of 'common law constitutionalism', the theory that Parliament's authority is conferred by, and therefore is or can be made subordinate to, judge-made common law; (2) an analysis of Parliament's ability to abdicate, limit or regulate the exercise of its own authority, including a revision of Dicey's conception of sovereignty, a repudiation of the doctrine of implied repeal and the proposal of a novel theory of 'manner and form' requirements for law-making; (3) an examination of the relationship between parliamentary sovereignty and statutory interpretation, defending the reality of legislative intentions, and their indispensability to sensible interpretation and respect for parliamentary sovereignty; and (4) an assessment of the compatibility of parliamentary sovereignty with recent constitutional developments, including the expansion of judicial review of administrative action, the Human Rights and European Communities Acts and the growing recognition of 'constitutional principles' and 'constitutional statutes'.

Implication of judgments on implied freedom of political communication, the exercise of federal jurisdiction and the jurisdiction to review decisions for jurisdictional error - critique of judicial reasoning - whether judgments were well-founded.

Judicial review of legislation to ensure its compatibility with vague and abstract principles of political morality is often argued to be incompatible with the democratic right of ordinary citizens to participate on equal terms in public decision making. Adrienne Stone argues that 'structural' judicial review, aimed at protecting constitutional structures such as federalism and the separation of powers, is just as vulnerable to this objection as 'rights' review, aimed at protecting constitutionally entrenched rights. I argue that some kinds of structural review are distinguishable from rights review and not susceptible to the objection: it does not apply to (a) judicial enforcement of provisions dividing powers within a federation; (b) genuine 'manner and form' requirements governing the composition, powers, and procedures of the legislature and its houses, provided that they leave its substantive power to legislate unaffected; (c) a requirement that only independent courts may exercise the judicial power of determining the concrete legal rights and duties of litigants, based on the application of general laws that legislatures have made and remain free to change; or (d) provisions forbidding states or provinces within a federation from discriminating against the residents or commercial enterprises of other states or provinces.

This review article examines Richard Ekins' attempt to defend the concept of legislative intention from influential criticism, and to demonstrate its indispensable and central role in statutory interpretation. He rejects accounts of legislative intention in terms of the aggregation of the intentions of individual legislators, and instead, draws on recent philosophical work on the nature of group agency to propose a unitary model, in which the relevant intention is that of the legislature itself, although it is supported by the 'interlocking' of the intentions of all its members. The legislature has two relevant intentions: a secondary or standing intention to operate by way of agreed procedures to develop and enact particular proposals for legislation to enhance the welfare of the community; and primary intentions that consist of the content of those proposals once the legislature has enacted them. Ekins restricts the evidence that is relevant and admissable in order to determine the content of such proposals; because they must be 'open' to all legislators, and transparent to the community, the evidence must be publicly available. This article summarizes the main theses of the book, and subjects them to critical examination. It concludes that the book adds considerable depth, rigour and theoretical insight to our understanding of these issues. But it also suggests that his argument is vulnerable to criticism at a few points, at least one of which is crucial. The argument needs a better account of what it is that constitutes the content of particular proposals when they are put to the legislature for enactment.

It is intriguing how lawyers react so differently to very inventive judicial decisions. When I first heard about the High Court's recognition, in ACTV and Nationwide News,1 of an implied freedom of political communication, I was somewhat shocked. Any purported discovery of a major unwritten constitutional principle that was not even noticed by our best legal minds for nearly a century is inherently suspicious. It seemed obvious to me that the Court had changed the system of government established by our Constitution in a substantial way, without asking me or my fellow Australians whether we approved of the change, as required by s 128. When I read the judges' reasoning, I was not persuaded that they had identified a genuinely 'necessary' implication that no-one (except Lionel Murphy) had previously noticed. I explained why I was not persuaded in print.

It is intriguing how lawyers react so differently to very inventive judicial decisions. When I first heard about the High Court's recognition, in ACTV and Nationwide News,1 of an implied freedom of political communication, I was somewhat shocked. Any purported discovery of a major unwritten constitutional principle that was not even noticed by our best legal minds for nearly a century is inherently suspicious. It seemed obvious to me that the Court had changed the system of government established by our Constitution in a substantial way, without asking me or my fellow Australians whether we approved of the change, as required by s 128. When I read the judges' reasoning, I was not persuaded that they had identified a genuinely 'necessary' implication that no-one (except Lionel Murphy) had previously noticed. I explained why I was not persuaded in print.

It is intriguing how lawyers react so differently to very inventive judicial decisions. When I first heard about the High Court's recognition, in ACTV and Nationwide News,1 of an implied freedom of political communication, I was somewhat shocked. Any purported discovery of a major unwritten constitutional principle that was not even noticed by our best legal minds for nearly a century is inherently suspicious. It seemed obvious to me that the Court had changed the system of government established by our Constitution in a substantial way, without asking me or my fellow Australians whether we approved of the change, as required by s 128. When I read the judges' reasoning, I was not persuaded that they had identified a genuinely 'necessary' implication that no-one (except Lionel Murphy) had previously noticed. I explained why I was not persuaded in print.

Judicial review of legislation to ensure its compatibility with vague and abstract principles of political morality is often argued to be incompatible with the democratic right of ordinary citizens to participate on equal terms in public decision making. Adrienne Stone argues that 'structural judicial review, aimed at protecting constitutional structures such as federalism and the separation of powers, is just as vulnerable to this objection as 'rights' review, aimed at protecting constitutionally entrenched rights. I argue that some kinds of structural review are distinguishable from rights review and. not susceptible to the objection: it does not apply to (a) judicial enforcement of provisions dividing powers within a federation; (b) genuine 'manner and form' requirements governing the composition, powers, and procedures of the hffslature and its houses, provided that they leave its substantive power to legislate unaffected; (c) a requirement that only independent courts may exercise the judicial power of determining the concrete legal rights and duties of litigants, based on the application of general laws that legislatures have made and remain free to change; or (d) provisions forbidding states or provinces within a federation from discriminating against the residents or commercial enterprises of other states or provinces.