Restore's Great Clarification: Solving Non-Problems To Win Grandpa Rupe's Approval

Harrison Pitt is a bright mind, and an articulate university man. He's also admired and loved by Reiners, the friendliest of our pirate ship. What made him pitch his lot in with the Tiktok-influencer-waffen, one can only speculate. This is obviously not a Restore policy paper. It is Harrison's astute thinking he has offered up to high temple priest Lowe for branding. If this is "the plan," it needs serious re-thinking. The right's desperate need for any plan at all is so intense it seems to preclude thought itself.

Pitt's white paper advocates a "Great Clarification Act" designed to restore parliamentary sovereignty from what it characterises as judicial usurpation. The proposal rests on a fundamental misapprehension of constitutional mechanics. It is given in the context of criticising the weaknesses of repeal itself.

There's a lot of talk about great repeal. The problem with great repeal is that you're trying to anticipate how the judiciary will behave in advance by taking away tools from them. But they might they might find other tools which is always a problem. another government might provide them with this.

This thinking has been met by criticism from eternal grump Pete North, author of the Manifesto Project:

This reveals the sort of thinking in play - with the presumption that parliament is somehow subordinate to the courts or international law. It isn't. If the implication here is that parliament can overrule judges on specific cases pertaining to individuals, that's a darkly authoritarian road I would not want to go down.

North is wrong about not leaving the ECHR, but right about this. Parliament makes law. Judges interpret law. If a judge misinterprets or mal-interprets a law, that does not "create" new law.

Despite all attempts, Parliament remains sovereign under the British constitution. It has not been dispossessed of this sovereignty. The remedies the paper seeks to introduce already exist within the constitutional order and proposed reforms address not a genuine constitutional deficiency but rather a persistent political unwillingness to legislate with sufficient clarity and precision.

What Judges Actually Do

The paper's central error lies in conflating judicial interpretation with judicial legislation. This conflation pervades the document and undermines its theoretical coherence.

Judges interpret law; they do not create it. When Parliament enacts primary legislation, courts must apply that legislation to particular factual circumstances. Where statutory language admits of only one plausible meaning, judicial interpretation becomes straightforward application. The court reads the clear text and applies it. No discretion inheres in this process beyond the technical application of unambiguous rules to specific facts.

Complexity arises when Parliament legislates using evaluative standards, discretionary powers, or deliberately imprecise language.

Consider the difference between "any person who enters the United Kingdom illegally shall be detained pending removal" and "the Secretary of State shall have regard to the need to safeguard and promote the welfare of children when making immigration decisions."

The former admits of little interpretation. Either an individual entered illegally or did not. Either detention occurred or did not. The latter requires substantial judicial interpretation. What does "have regard to" entail? How much weight must child welfare receive relative to other considerations? What constitutes adequate consideration?

Parliament created these interpretive questions by selecting this legislative language. The interpretive discretion judges exercise derives not from judicial activism but from Parliamentary choice. When the white paper complains Section 19 of the Immigration Act 2014 "sought to specify in elaborate detail how our judges should apply Article 8 of the ECHR, but did so in such a way as has continued to invite the sort of preposterous rulings we see in news headlines every week," it inadvertently demonstrates the point.

Parliament drafted legislation requiring interpretation. Judges interpreted it. If the interpretations prove unsatisfactory, the deficiency lies in the drafting, not in the judicial function.

Pitt employs a metaphor of judicial "tools" which obscures this distinction. He worries judges possess "tools" which legislative repeal cannot remove, suggesting courts wield discretionary powers Parliament might withdraw. This fundamentally mischaracterises the judicial role.

Judges do not possess "tools" in the sense of discretionary powers Parliament grants and might revoke. They possess a constitutional function: determining what statutory language means when applied to particular cases. One cannot remove this "tool" without eliminating adjudication entirely.

Every legal system requires some institution to interpret legal texts and apply them to facts. The question is not whether interpretation occurs but who performs it and through what mechanisms their interpretations might be revised or overturned.

The British constitutional answer remains clear. Parliament legislates. Courts interpret. Parliament retains absolute authority to amend, clarify, or repeal legislation if judicial interpretation proves unsatisfactory. This mechanism operates continuously. Courts interpret statutes; Parliament responds by amending them if the interpretation diverges from legislative intent. The system functions. It does not require a "Great Clarification Act" to operate effectively.

What Parliamentary Sovereignty Actually Means

Dicey's classical formulation of parliamentary sovereignty comprises three elements. First, Parliament possesses unlimited legislative competence; it may make or unmake any law whatsoever. Second, no person or body may override or set aside primary legislation. Third, no Parliament may bind its successors.

These principles establish Parliament as the supreme lawmaking authority within the British constitutional order.

Notice what this doctrine does not entail. Parliamentary sovereignty does not mean:

• Parliament adjudicates particular cases.
• Parliament may override judicial determinations in specific disputes between parties.
• It does not require judges to defer to what ministers wish they had written rather than what statutory language actually says.

It means Parliament's enacted legislation constitutes the supreme source of domestic law, and courts must apply that legislation as written.

The paper elides this distinction between Parliament's will and politicians' will.

Parliament's will finds expression through legislation which passes both Houses and receives Royal Assent. It manifests in statutory text, not in ministerial statements, white papers, manifesto commitments, or parliamentary debates. These latter sources may inform interpretation when statutory language proves ambiguous, but they do not themselves constitute law. Only the enacted text possesses legal force.

When the white paper complains judges "block" or "frustrate" Parliament's will, it attributes to Parliament a will distinct from its legislative enactments.

But this construction proves incoherent. If Parliament wills a particular outcome, it must express that will through legislation. If the legislation fails to secure the outcome, either the drafting proved inadequate or other legislative provisions create conflicting obligations.

In neither case does the fault lie with judicial interpretation. The problem originates in Parliamentary action or inaction.

Consider a concrete example.

• Parliament passes legislation stating deportation should occur "where proportionate to do so."
• A court determines deportation would be disproportionate in a particular case given the individual's family ties, length of residence, and rehabilitation.

Has the court thwarted Parliament's will? No. It has applied the proportionality standard Parliament enacted.

If Parliament dislikes this outcome, it should not have legislated using a proportionality standard. It could have written "all persons who entered illegally shall be deported regardless of personal circumstances."

Clear language produces determinate outcomes. Ambiguous language requires interpretation.

The paper's conception of sovereignty thus reveals a desire for outcomes without the political costs of legislating clearly. It wants judicial decisions to reflect governmental preferences without Parliament having to enact legislation explicit enough to guarantee those preferences prevail.

This is not parliamentary sovereignty. It is executive supremacy dressed in parliamentary clothing.

The Uncomfortable Truth About Vague Legislation

Why does Parliament so often legislate using vague, evaluative language requiring substantial judicial interpretation? Three reasons predominate, none of them constitutionally innocent.

First, ambiguity facilitates coalition-building. Precise language exposes disagreement; vague language conceals it. When political actors disagree about policy details, they can nonetheless vote for aspirational language suggesting shared values.

Everyone supports "proportionate" enforcement, "reasonable" consideration of welfare, and "appropriate" balance of interests. These formulations permit vote-gathering without requiring consensus on what these standards mean in practice.

The political problem gets deferred to courts, which must then interpret the deliberately vague language and inevitably disappoint some faction that understood the language differently.

Second, ambiguity provides political cover. Clear legislative language creates clear political accountability. A statute reading "no human rights considerations shall prevent deportation of persons who entered illegally" would be politically controversial. Ministers would face sustained criticism. Opposition parties would attack it. Some government backbenchers might rebel.

Far easier to legislate requiring "appropriate regard to human rights consistent with immigration control" and let courts take political heat for determining what "appropriate regard" requires in difficult cases. When courts interpret the standard in ways that attract criticism, ministers can disclaim responsibility—they passed tough legislation; activist judges undermined it.

Third, ambiguity enables security theatre. Government announces ROBUST NEW DEPORTATION POWERS in press releases while drafting legislation riddled with qualifications, exceptions, and evaluative standards which preserve substantial judicial discretion.

The political benefit of appearing tough gets secured without the political cost of actually being tough. Then, when judicial interpretation reflects the discretion Parliament deliberately preserved, ministers express shock at judicial activism.

The white paper exemplifies this contradiction. It acknowledges Section 19 of the Immigration Act 2014 attempted to constrain judicial interpretation of Article 8 but did so through "elaborate detail" that "continued to invite" unwelcome rulings.

Why elaborate detail rather than simple prohibition? Because Parliament chose to preserve judicial discretion while claiming to constrain it. Parliament could have written "Article 8 considerations shall not prevent deportation of foreign criminals." It wrote something more qualified instead. This was a political choice, not a constitutional constraint.

If judges consistently interpret legislation more liberally than ministers prefer, this suggests not judicial activism but legislative ambiguity. Parliament keeps handing courts discretionary standards to interpret, then complains when courts exercise the discretion Parliament granted.

The solution is not a "Great Clarification Act" enabling Parliament to override interpretations retroactively. It is clearer prospective legislation that constrains interpretation by constraining the interpretive space statutory language creates.

What the "Anticipation" Problem Actually Reveals

The paper proposes Parliament enact a "Great Clarification Act" establishing "Correction Bills" may overturn judicial decisions through simple Commons majority. When courts interpret legislation in ways government dislikes, Parliament would pass a "Correction Bill" reversing the interpretation.

Three theoretical problems vitiate this proposal.

First, Parliament already possesses this power. It is called amending legislation.

If a court interprets a statute in manner X, and Parliament dislikes manner X Parliament may amend the statute to preclude manner X in the future. This happens regularly. It constitutes normal legislative-judicial interaction. Courts interpret ambiguous provisions; Parliament responds by clarifying them. The white paper proposes to "restore" a power Parliament never lost and exercises continuously.

The only novel element would be if "Correction Bills" override not merely the legal interpretation but the specific judicial decision in a particular case. This would transform Parliament into an appellate tribunal adjudicating individual disputes. Such a mechanism would violate separation of powers in its most basic form. Parliament legislates; courts adjudicate.

Parliament may change the law going forward; it should not reverse particular adjudications in individual cases. The rule of law requires disputes be resolved through pre-existing legal rules applied by independent judges, not through ad hoc political determinations responding to media pressure or party advantage.

Second, the mechanism would create perverse incentives and procedural absurdity. Rational legislators would legislate vaguely, observe judicial interpretation, then "correct" interpretations proving politically inconvenient. This inverts the proper sequence.

Parliament should legislate clearly, forcing itself to make difficult political choices before enactment rather than outsourcing those choices to courts then complaining about the results.

Moreover, the iterative process would prove endless:

• Parliament passes statute S.
• Court interprets S as meaning M1.
• Parliament passes Correction Bill CB1 stating S means M2 not M1.
• Different case arises involving slightly different facts.
• Court interprets S (as amended by CB1) as meaning M3.
• Parliament passes CB2 stating S means M4 not M3.
• The process continues indefinitely.

Or Parliament could draft S clearly enough initially to minimize interpretive discretion. The latter approach proves more efficient and constitutionally sounder.

Third, the mechanism rests on a false premise: judicial interpretation constitutes an obstacle to parliamentary will requiring extraordinary remedial powers. But as established above, judicial interpretation applies parliamentary will as expressed in statutory language.

If the interpretation seems wrong, either the language was ambiguous (drafting failure) or the interpretation was erroneous (judicial failure). In the former case, amend the language.

In the latter case, appeal to a higher court or, if no appeal lies, amend the statute. These mechanisms suffice. They preserve the separation of powers while permitting Parliament to correct interpretive errors through its normal legislative function.

Correction Bills: Legislating Without Legislating

The paper invokes two historical precedents for "clarification acts": the Declaratory Act 1766 and the British Nationality Act 1948. Neither supports the proposed mechanism.

The Declaratory Act 1766 represented substantive constitutional legislation. After repealing the Stamp Act in response to colonial opposition, Parliament enacted the Declaratory Act asserting its right to legislate for the American colonies "in all cases whatsoever." We all know how that turned out.

This was not a mechanism for overturning judicial decisions. No court had ruled Parliament lacked authority to tax the colonies.

Colonial resistance was political, not judicial. The Declaratory Act made a substantive constitutional claim about the scope of parliamentary authority. It did not create a procedure for reversing court rulings.

The British Nationality Act 1948 similarly represented substantive legislation clarifying legal status. It defined who counted as a British subject and what rights attached to that status in the context of decolonisation.

Again, this was not a mechanism for overturning judicial interpretations. It was ordinary legislation doing what ordinary legislation does: establishing legal rules governing particular subject matter.

Neither precedent involved Parliament creating extraordinary procedures to override judicial decisions in real time. Both involved Parliament exercising its normal legislative function to enact substantive law.

If Pitt wants Parliament to clarify immigration law, the solution already exists. Draft an Immigration Clarification Act 2025 defining every relevant term precisely, eliminating evaluative standards where possible, and using ouster clauses to prevent judicial review of determinations Parliament wishes to immunise from judicial scrutiny.

Parliament possesses authority to do this now. It requires no "Great Clarification Act" as predicate. It requires only political will to legislate clearly and defend clear legislation publicly.

The Miller Cases and Judicial Overreach

However, none of this should not obscure legitimate concerns about judicial overreach exist. The Miller litigation illuminates these concerns and deserves careful attention.

Miller (No. 1) [2017] UKSC 5 addressed whether the Government could trigger Article 50 to commence Brexit without parliamentary authorisation. The Supreme Court held it could not. The Crown's prerogative powers could not be used to frustrate statutory rights created by the European Communities Act 1972. Triggering Article 50 would lead to those rights being removed, and only Parliament could authorise this.

Miller (No. 2) [2019] UKSC 41 addressed whether the Prime Minister's advice to prorogue Parliament was justiciable and, if so, lawful. The Supreme Court held prorogation was justiciable and this particular prorogation was unlawful because it frustrated Parliament's ability to exercise its constitutional functions without reasonable justification.

Critics argued the Court had invented new constitutional principles to reach politically desirable outcomes, usurped parliamentary functions, and demonstrated that senior judges could not resist imposing their political preferences under guise of legal interpretation.

In Miller (No. 1), the Court's reasoning about statutory rights proved somewhat formalistic. The European Communities Act 1972 made EU law applicable domestically during UK membership. Membership is a matter of international law governed by treaty obligations, not domestic statute.

The Government's argument it could trigger Article 50 using prerogative powers had substantial historical and theoretical support. The Court's contrary conclusion represented a contestable interpretation of constitutional principle, not the straightforward application of black-letter law.

Miller (No. 2) raised more profound concerns. The Court held prorogation justiciable despite substantial historical evidence suggesting it was a prerogative power beyond judicial scrutiny. It then invented a standard (frustration of parliamentary functions without reasonable justification) for which no clear legal source existed.

The Court essentially concluded because this prorogation appeared to the judges to be motivated by improper purposes (preventing parliamentary scrutiny of Brexit), it must be unlawful. This reasoning smacks of result-oriented jurisprudence. Had the Court believed the prorogation was justified, it seems unlikely it would have discovered a justiciable standard for reviewing it.

These cases illustrate a genuine phenomenon: judges sometimes strain legal materials to reach conclusions which correspond to their policy preferences or constitutional priors. When this occurs, judicial interpretation shades into judicial legislation (i.e. legislating from the bench). Courts attempt to "create" new law rather than applying existing law.

Parliament retained full power to respond legislatively to both Miller decisions. Had Parliament disagreed with Miller (No. 1), it could have enacted legislation stating "the Government may exercise prerogative powers to trigger Article 50 or similar treaty withdrawal provisions without further parliamentary approval."

Had Parliament disagreed with Miller (No. 2), it could have enacted legislation stating "prorogation is a non-justiciable prerogative power; no court may review the legality of any advice to prorogue Parliament."

Parliament did neither.

Not because it lacked constitutional authority but because politically, sufficient support for such legislation did not exist.

When courts interpret law in expansive or creative ways, Parliament can respond through legislation. The barrier is not constitutional but political. Miller (No. 2) proved controversial within Parliament itself. Many MPs welcomed the decision. Any legislation reversing it would have faced substantial parliamentary opposition.

The "problem" was not that courts "blocked" Parliament, but it was divided about whether the judicial decision itself was problematic.

The paper's proposed "Correction Bills" would address this political division by permitting a simple Commons majority to override judicial decisions without requiring Lords consent or broader parliamentary consensus. This would fundamentally alter the constitutional balance. It would empower the Government (which controls Commons majorities) to override judicial decisions checking executive power without persuading the broader Parliament or public such overrides are justified.

This is not restoring parliamentary sovereignty. It is enhancing executive power under parliamentary cover. Which never tends to go well.

The Carswell Manoeuvre

The paper proposes three additional reforms it admits to plagiarising from the veritable Douglas Carswell: a) restricting judicial review standing, b) empowering the Lord Chancellor to remove activist judges, and c) returning judicial appointments to direct political control. Douglas has earned legendary status at the Restorationist from his track record as an MP, but each warrants scrutiny no matter in what esteem he is considered.

The first reform would narrow standing in judicial review from "sufficient interest" to "personally and materially affected." This would reduce the number of judicial review applications, particularly those brought by advocacy organisations or concerned citizens without direct personal stake. Such reform might prove sensible. Broad standing can facilitate vexatious or ideologically motivated litigation. However, standing rules do not determine substantive outcomes.

If Government acts unlawfully, it acts unlawfully regardless of who points this out.

Tightening standing requirements might reduce judicial review caseload but would not prevent courts from ruling against Government when individuals with standing bring meritorious claims.

The second reform proves more troubling. Empowering the Lord Chancellor to remove judges for "persistent activist rulings flouting statutory text" would politicise judicial tenure. Who determines what constitutes "flouting" text? The Lord Chancellor, a political appointee serving at the Prime Minister's pleasure. Judges whose interpretations displease the Government would face removal threats. This would fundamentally compromise judicial independence – what's left of it.

The paper assumes "activist" interpretation is readily identifiable: judges simply ignore clear statutory text to reach preferred outcomes. Reality proves more complex.

Most controversial cases involve genuinely ambiguous statutory language where multiple interpretations are linguistically plausible. Reasonable lawyers disagree about correct interpretation. When judges choose interpretations disfavoured by Government, this might reflect judicial error, but it might equally reflect good-faith interpretation of ambiguous text.

Empowering politicians to remove judges for interpretive disagreements would chill judicial independence and subordinate courts to executive preference.

If a judge genuinely misinterprets clear statutory language, appellate mechanisms provide remedy. The Court of Appeal or "Supreme Court" reverses the decision. If appellate courts consistently interpret provisions contrary to legislative intent, Parliament amends the provisions. These mechanisms preserve judicial independence while correcting judicial errors. Threatening judicial tenure proves unnecessary and constitutionally corrosive.

The third reform advocates abolishing the Judicial Appointments Commission and returning appointments to the Lord Chancellor. The argument possesses surface plausibility. If judicial appointments are inevitably political, better they be openly political and subject to parliamentary accountability than disguised behind "independent" commission procedures that may simply entrench different political preferences.

However, this argument proves too quick.

Judicial appointments are not inevitably political in the sense of advancing partisan agendas. They involve selecting individuals with legal acumen, sound judgment, and commitment to applying law rather than making it. An appointments system can prioritise these criteria without being either secretly political or nakedly partisan.

The JAC's procedures may require reform if they produce ideologically homogeneous appointments, but reverting to direct political control is not the solution. The goal should be genuinely merit-based appointments with appropriate scrutiny ensuring appointees possess judicial temperament rather than policy agendas.

More fundamentally, even optimal judicial appointments cannot solve the core problem the paper correctly identifies. Even judges committed to textualist interpretation must interpret texts.

If Parliament legislates using evaluative standards and discretionary language, even the most restrained judge must exercise judgment about what these standards require in particular cases. The solution is not appointing different judges. It is drafting clearer legislation.

The Courage Question

Return to the fundamental question: why does Parliament so consistently legislate in ways requiring substantial judicial interpretation, then complain when that interpretation proves politically inconvenient?

The answer lies in the political economy of legislative production. Clear legislation imposes political costs. When Parliament writes "no human rights considerations shall prevent deportation of persons convicted of serious criminal offences," it must defend this policy publicly.

Opposition parties attack it as cruel. Advocacy groups mobilise against it. Some government backbenchers may have conscientious objections. The media scrutinises individual cases.

Ambiguous legislation diffuses these costs. Parliament writes "deportation should occur where proportionate, having regard to Article 8 considerations and public interest." This sounds balanced and reasonable. Different MPs can vote for it while holding different views about what "proportionate" means or how Article 8 should be weighted.

When courts must then interpret this standard in difficult cases, judges rather than politicians face public criticism for outcomes that prove controversial.

Politicians prefer ambiguous legislation because it minimises immediate political costs. Courts must interpret the ambiguity, becoming lightning rods for criticism. Politicians then blame "activist judges" for controversial outcomes, proposing constitutional reforms to "restore" parliamentary authority.

The cycle continues.

A "Great Clarification Act" would entrench this behaviour. Rather than forcing Parliament to legislate clearly upfront, it would enable Parliament to legislate ambiguously, wait to see which judicial interpretations prove politically problematic, then override those specific interpretations while leaving the underlying ambiguity intact.

This is legislation by reaction rather than design. It constitutes an abdication of legislative responsibility dressed as restoration of parliamentary authority.

True parliamentary sovereignty requires parliamentary responsibility.

If Parliament wants particular policy outcomes, it must enact legislation clearly producing those outcomes and defend that legislation publicly. It cannot legislate vaguely, outsource difficult decisions to courts, then override judicial determinations when they prove inconvenient.

That is not sovereignty. It is evasion.

When Correction Is Worse Than Disease

The rule of law requires legal obligations be ascertainable in advance through clear rules applied consistently by independent judges. This principle serves several functions:

• It enables individuals to plan their affairs with knowledge of legal constraints.
• It protects against arbitrary power by requiring government action to be justified under pre-existing law.
• It preserves liberty by ensuring legal obligations are determined through rule application rather than political discretion.

The paper's proposals would undermine these functions. "Correction Bills" overriding judicial decisions in real time would introduce radical uncertainty.

• Individuals could not rely on judicial determinations of their legal rights because Parliament might override those determinations at any moment.
• Government could evade judicial checks simply by mobilising parliamentary majorities to reverse unfavourable rulings.
• The constraint judicial review imposes on executive action would vanish, replaced by political determination of whether executive action was lawful.

This is not restoring balance between Parliament and courts; it is subordinating law to politics. In a constitutional democracy, both Parliament and courts serve essential but distinct functions. Parliament makes law through democratic processes. Courts interpret and apply law through independent adjudication.

This division of labour serves important constitutional values. Democratic legitimacy attaches to legislation because it reflects popular will mediated through representative institutions. Legal legitimacy attaches to adjudication because it applies general rules impartially to particular cases without regard for political expediency.

When courts check executive action through judicial review, they do not thwart democracy. They ensure executive action complies with law Parliament enacted.

If Parliament dislikes judicially enforced legal constraints, it may change the law. What Parliament should not do is override judicial determinations in individual cases while leaving the underlying law intact. That converts courts from interpreters of law into advisors whose interpretations bind only when politically convenient.

The paper gestures toward American debates about "judicial supremacy" and congressional power to limit judicial jurisdiction. However, the American constitutional context differs fundamentally from the British. The US Constitution constrains both Congress and courts. Congress cannot override constitutional interpretation through ordinary legislation because the Constitution is entrenched supreme law.

Britain has no such entrenched constitution. Parliament can amend or repeal any law, including laws constraining government power. Parliamentary sovereignty means Parliament already possesses power to override judicial interpretation. It need only legislate clearly.

Before Blair: A Mythology

The paper claims: "Before the sweeping constitutional reforms enacted by Blair, Britain had a remarkable track record of effective government."

Did it? Consider the record. Before Blair came:

• Black Wednesday and the ERM crisis
• Poll tax riots
• The Winter of Discontent
• Stop-go economics and the three-day week
• Suez
• Decades of managed industrial decline

Effective government indeed.

The Blair reforms (devolution, Human Rights Act, Supreme Court creation) can be criticised on many grounds. But the notion pre-1997 Britain was a constitutional paradise where governments governed effectively because judges knew their place is fantasy.

Governments have always found governing difficult. They have always blamed someone else. Before it was judges, it was Brussels. Before Brussels, it was unions. Before unions, it was something else.

The constant is: politicians struggling with the gap between what they promise and what they deliver, seeking constitutional explanations for political failures.

What Actually Requires Clarification

Parliamentary sovereignty does not require clarification. It requires exercise. Parliament possesses unlimited legislative competence. It can pass any law it wishes. Courts cannot override primary legislation. If judicial interpretation proves unsatisfactory, Parliament can amend statutes prospectively.

What requires clarification is the distinction between judicial interpretation one dislikes and judicial activism properly so-called. Judicial activism occurs when judges invent new legal principles unsupported by statutory text or common law precedent to reach preferred policy outcomes.

This does sometimes occur. Miller (No. 2) arguably exemplifies it.

However, most controversial judicial decisions involve good-faith interpretation of ambiguous statutory language. Judges choosing between plausible interpretations are not activists. They are performing their constitutional function.

If Parliament dislikes how judges interpret statutory language, the solution is to make language less ambiguous.

• If Parliament wants deportation to occur regardless of human rights considerations, enact "deportation shall occur regardless of human rights considerations."
• If Parliament wants certain determinations immunised from judicial review, use ouster clauses.
• If Parliament wants to reverse specific judicial interpretations, pass amending legislation clarifying Parliament intended the opposite interpretation.

These mechanisms already exist. They function adequately.

The paper's proposed reforms would not enhance parliamentary sovereignty. They would enable politicians to avoid political costs of clear legislation while claiming frustrated sovereignty when courts interpret ambiguous legislation in politically inconvenient ways.

Judicial review serves to ensure executive action complies with law Parliament enacted. It does not empower courts to override parliamentary legislation or substitute judicial policy preferences for legislative policy choices. When courts overstep this limited role (as arguably occurred in Miller 2), Parliament should respond through legislative clarification or, in extreme cases, ouster clauses preventing judicial review of particular decisions.

However, the existence of occasional judicial overreach does not justify wholesale constitutional renovation. The appropriate response to occasional error is correction of error, not demolition of institutional arrangements that generally function effectively.

Courts sometimes interpret legislation too expansively. Parliament sometimes legislates too ambiguously.

These are ordinary features of governance in a complex constitutional democracy, not symptoms of constitutional breakdown requiring extraordinary remedial measures.

Unnecessary, Unworkable, Unwise

A "Great Clarification Act" is constitutionally unnecessary, practically unworkable, and normatively unwise.

It is unnecessary because Parliament already possesses every power the Act purports to grant. Parliamentary sovereignty means Parliament can make or unmake any law. Courts cannot override primary legislation. If judicial interpretation proves unsatisfactory, Parliament can amend statutes. These powers suffice to address any genuinely problematic judicial overreach.

It is unworkable because interpretation is inherent to adjudication. Someone must determine what statutory language means when applied to particular facts. One cannot eliminate this interpretive function without eliminating courts. Nor can one "correct" interpretations through reactive legislation without creating an endless cycle of interpretation and counter-interpretation. Better to legislate clearly initially than attempt perpetual correction of interpretations of ambiguous legislation.

It is unwise because it would subordinate law to political convenience, undermine judicial independence, and enable politicians to evade responsibility for legislative choices. The rule of law requires legal obligations be determined through consistent application of pre-existing rules by independent judges. Empowering politicians to override judicial determinations in individual cases would destroy this crucial constitutional safeguard.

The paper identifies a genuine problem: judicial interpretation sometimes frustrates political objectives.

However, it misdiagnoses the cause and misprescribes the remedy.

The cause is not judicial activism but legislative ambiguity. The remedy is not constitutional innovation but political courage.

If Parliament wants particular policy outcomes, it must enact legislation clearly producing those outcomes. It cannot legislate ambiguously to avoid political controversy, delegate difficult interpretive questions to courts, then blame judges when interpretation proves politically inconvenient.

That is not frustrated sovereignty. It is evaded responsibility.

True parliamentary sovereignty requires parliamentary clarity. One cannot claim sovereignty while refusing to exercise it through clear legislative choices. The barrier to effective immigration enforcement is not activist judges or constitutional deficiency. It is political unwillingness to legislate clearly and defend clear legislation publicly.

Parliament is sovereign. It always has been. What requires clarification is not parliamentary powers but political obligations.

Sovereignty without responsibility is not sovereignty at all. It is merely power unmoored from accountability. A "Great Clarification Act" would entrench evasion under guise of restoration.