However, Ms Cooke is optimistic if she thinks things can be changed merely by changing the powers of the head of state. During the English Republic (1649- 1653), the courts simply treated the President of the Council of State for the time being as enjoying the powers of the Royal Prerogative.
Parliamentary sovereignty in the hands of a unicameral parliament was more arbitrary than it had been before.
What must be changed if we are to have genuinely constitutional government is the power of Parliament to do whatever it likes, and not to be controlled but by itself. Regretfully, I have come to the conclusion that this cannot be done in English law. This is because the authority of the Crown in Parliament has no recorded foundation: since no authority conferred power on it, there is no superior capable of controlling it.
The only power capable of controlling Parliament, and therefore of giving us genuinely constitutional government, is the European Union. This is because, in the European Communities Act 1972, Parliament has so willed it. This is the only reason for which English judges can ever control an Act of Parliament, and in the Factortame case they have done so. The anger this creates in ministers whose power is thereby curtailed is an accurate measure of its usefulness to all the rest of us.
Yours faithfully, RUSSELL Department of History King's College London, WC2 19 OctoberReuse content