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What does footnote 119 mean?

5.10 Some conclusions on the rule of law

We end this discussion of the rule of law with the point with which it began— that the meaning of the concept cannot be addressed without reference to its practical effect. In the UK, the main practical effects of the rule of law are threefold:

● Courts will strike down government action that is inconsistent with the rule of law.
● Courts try, whenever possible, to give legislation a meaning that is compatible with the rule of law.
● Courts will generally hold legislation (other than Acts of Parliament) to be invalid if it cannot be interpreted compatibly with the rule of law.

All of this is subject to the longstop that, in orthodox theory at least, the UK Parliament is sovereign. It can therefore legislate contrary to the rule of law— including by authorising others, such as government Ministers, to breach the rule of law— if it so desires. Hence Parliament can, for instance, reverse the effect of a judicial decision by enacting legislation with retroactive effect.119 The upshot is that while the rule of law— and hence the meaning of that concept— is important, it is not decisively important: for as

p 63

long as Parliament is sovereign, legislation enacted by it can trump rule of law principles. In this sense, politics can ultimately overrule law.

119 But not legislation enacted by the UK Parliament.

Mark Elliott. Public Law (3 ed 2017). p 62.

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    I'd assume it means they cannot retroactively change legislation enacted by the UK Parliament. So they cannot for example have always been legal to hunt foxes with dogs. Since the 2004 legislation made this illegal. But if the fox hunting ban had been driven by a judicial decision say under older animal cruelty legislation then that could have been retroactively made never a crime.
    – Jontia
    Nov 27, 2019 at 9:40
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    @Jontia I think that is what it means too - but if so, it is clearly wrong. Parliament absolutely can legislate to make it always to have been legal to hunt foxes with dogs. (They usually don't do that sort of thing, but there is nothing which can stop them if they choose to.)
    – Martin Bonner supports Monica
    Nov 27, 2019 at 10:53
  • @MartinBonnersupportsMonica To further your point: "Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. . . It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law (in some cases, even a constitution) or by precedent." en.wikipedia.org/wiki/Parliamentary_sovereignty
    – Nelson O
    Nov 27, 2019 at 16:27
  • @MartinBonnersupportsMonica: It might greatly complicate things if that was possible. Retroactively changing law will retroactively affect lawsuits. For criminal law, Parliament can't change law such that past legal behavior becomes illegal (European Human Rights principle, nulla poena sine lege preavia). For civil law, you could get a flood of new lawsuits, not just to invalidate past lawsuits, but also over actions that did not lead to lawsuits in the past.
    – MSalters
    Nov 28, 2019 at 8:01
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    "Parliament can't change law such that past legal behavior becomes illegal" - oh yes it can! It might involve unpleasant political consequences from having to abrogate treaties, and effort in the law courts, but there is no constitutional way to stop Parliament doing so, or to nullify its effect after it has done so. (Of course, there's always "revolution" as an option.)
    – Martin Bonner supports Monica
    Nov 28, 2019 at 8:59

2 Answers 2

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Parliament can legislate to the effect that a court was wrong, and always had been wrong. As a hypothetical example:

The government decides that visa to nationals from mainly Muslim nations should never be granted. A court decides that this exceeds the powers granted to it by the government. Parliament creates new legislation that confirms the government's previous acts retrospectively, as if the court ruling had never existed.

But Parliament cannot pass legislation that retrospectively changes previous legislation passed by Parliament. It can pass or repeal any legislation, but it can't create laws that change the effect of prior legislation retrospectively.

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  • Put another way, the U.K. Parliament has disavowed the authority to pass ex post facto laws.
    – ohwilleke ♦
    Nov 1, 2021 at 20:31
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It is a printer's error and doesn’t mean anything.

According to a comment, in the first edition, the equivalent footnote was placed differently (essentially in the location where "other than Acts of Parliament" appears in parentheses in the edition to which the question refers). So this seems to be fairly conclusive proof that the footnote in this edition is a "printer's error".

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  • This is not an answer, so it will most likely be deleted. Please see How to Answer for more information.
    – Ekadh Singh - Reinstate Monica
    Oct 31, 2021 at 21:07
  • You may disagree with my view. But it is an answer!
    – Nemo
    Oct 31, 2021 at 21:09
  • It would be an answer if you said “the footnote has been misplaced”. However, right now, you’re just asking whether the footnote has been misplaced.
    – Ekadh Singh - Reinstate Monica
    Oct 31, 2021 at 21:10
  • Sometimes writers make mistakes. If someone questions what something means, the answer may be that it doesn't have a meaning because it is a mistake,
    – Nemo
    Oct 31, 2021 at 21:11
  • My answer is that it does not make sense. Asking whether the footnote may have been misplaced is an explanatory speculation on my part.
    – Nemo
    Oct 31, 2021 at 21:12

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