Jeffrey Goldsworthy - Parliamentary Sovereignty - Contemporary Debates (2010, Cambridge University Press) PDF
Jeffrey Goldsworthy - Parliamentary Sovereignty - Contemporary Debates (2010, Cambridge University Press) PDF
Jeffrey Goldsworthy - Parliamentary Sovereignty - Contemporary Debates (2010, Cambridge University Press) PDF
Th is book has four main themes: (1) a criticism of ‘common law consti-
tutionalism’, 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 legis-
lative 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 adminis-
trative action, the Human Rights and European Communities Acts and
the growing recognition of ‘constitutional principles’ and ‘constitutional
statutes’.
Series Editors
David Dyzenhaus, Professor of Law and Philosophy,
University of Toronto, Canada
Adam Tomkins, John Millar Professor of Public Law,
University of Glasgow, UK
J E F F R EY G O L D S WO RT H Y
Monash University
c a m br i d g e u n i v e r s i t y p r e s s
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521884723
A catalogue record for this publication is available from the British Library
v
DETA I L E D TA BL E OF CON T E N T S
1 Introduction 1
2 The myth of the common law constitution 14
I Introduction 14
II The historical record 18
III Philosophical analysis 47
3 Legislative sovereignty and the rule of law 57
I Introduction 57
II Legal principle or political ideal? 58
III The content of the rule of law 61
IV ‘Thin’ conceptions of the rule of law 63
V ‘Thicker’ conceptions of the rule of law 66
VI Conclusion 78
4 Homogenising constitutions 79
I Introduction 79
II The rule of law in liberal democracies 82
III Institutional authority 84
IV The concept of law 87
V The rule of law as law 95
VI The interpretation of written constitutions 101
VIII Conclusions 104
vii
viii Contents
V Conclusion 263
x Contents
Six of the chapters in this book are revised and updated versions of essays
published previously. Chapters 3, 4, 6 and 8 have been only lightly revised,
while Chapters 2 and 5 have had significant new material added to them.
The other chapters are new, but include some material that appeared
in previously published essays. I thank the following for permission to
republish the following essays, or material that appeared in them:
Cambridge University Press, for ‘The Myth of the Common Law
Constitution’, in D. Edlin (ed.) Common Law Theory (Cambridge:
Cambridge University Press, 2007), and for some material in ‘Questioning
the Migration of Constitutional Ideas: Rights, Constitutionalism and
the Limits of Convergence’, in Sujit Choudhry (ed.) The Migration of
Constitutional Ideas (Cambridge: Cambridge University Press, 2006).
Oxford University Press, for ‘Legislative Sovereignty and the Rule of
Law’, in Tom Campbell, Keith Ewing and Adam Tomkins (eds.) Sceptical
Essays on Human Rights (Oxford: Oxford University Press, 2001);
‘Homogenizing Constitutions’ Oxford Journal of Legal Studies 23 (2003)
483–505; and ‘Judicial Review, Legislative Override, and Democracy’, in
Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds.) Protecting
Human Rights, Instruments and Institutions (Oxford: Oxford University
Press, 2003).
Hart Publishing, for ‘Abdicating and Limiting Parliamentary Sovereignty’
King’s College Law Journal 17 (2006) 255–80.
The New Zealand Journal of Public and International Law, for some
material in ‘Is Parliament Sovereign? Recent Challenges to the Doctrine
of Parliamentary Sovereignty’ New Zealand Journal of Public and
International Law 3 (2005) 7–37.
xi
xii Acknowledgments
Introduction
I
Th is book is a collection of essays with four main themes. The first is
criticism of the theory known as ‘common law constitutionalism’, which
holds either that Parliament is not sovereign because its authority is sub-
ordinate to fundamental common law principles such as ‘the Rule of Law’,
or that its sovereignty is a creature of judge-made common law, which
the judges have authority to modify or repudiate (Chapters 2 , 3, 4 and
10). The second theme is analysis of how, and to what extent, Parliament
may abdicate, limit or regulate the exercise of its own legislative author-
ity, which includes the proposal of a novel theory of ‘manner and form’
requirements for law-making (Chapters 5, 6 and 7). This theory, which
involves a major revision of Dicey’s conception of sovereignty, and a
repudiation of the doctrine of implied repeal, would enable Parliament
to provide even stronger protection of human rights than is currently
afforded by the Human Rights Act 1998 (UK) (‘the HRA’), without con-
tradicting either its sovereignty or the principle of majoritarian dem-
ocracy (Chapters 7 and 8). The third theme is a detailed account of the
relationship between parliamentary sovereignty and statutory interpret-
ation, which strongly defends the reality of legislative intentions, and
argues that sensible interpretation and parliamentary sovereignty both
depend on judges taking them into account (Chapters 9 and 10). The
fourth is a demonstration of the compatibility of parliamentary sover-
eignty with recent constitutional developments, including the expansion
of judicial review of administrative action under statute, the operation of
the HRA and the European Communities Act 1972 (UK), and the grow-
ing recognition of ‘constitutional principles’ and perhaps even ‘consti-
tutional statutes’ (Chapter 10). This demonstration draws on the novel
theory of ‘manner and form’, and the account of statutory interpretation,
developed in Chapters 7 and 9.
1
2 Parliamentary Sovereignty
II
The English-speaking peoples are reluctant revolutionaries. When
they do mount a revolution, they are loath to acknowledge – even to
themselves – what they are doing. They manage to convince them-
selves, and try desperately to convince others, that they are protecting
the ‘true’ constitution, properly understood, from unlawful subversion,
and that their opponents, who wear the mantle of orthodoxy, are the real
revolutionaries.1 They appear certain that their cause is not only morally
righteous, but also legally conservative, in that they are merely uphold-
ing traditional legal rights and liberties.
Today, a number of judges and legal academics in Britain and New
Zealand are attempting a peaceful revolution, by incremental steps aimed
at dismantling the doctrine of parliamentary sovereignty, and replacing it
with a new constitutional framework in which Parliament shares ultim-
ate authority with the courts. They describe this as ‘common law constitu-
tionalism’, ‘dual’ or ‘bi-polar’ sovereignty, or as a ‘collaborative enterprise’
in which the courts are in no sense subordinate to Parliament.2 Or they
claim that the true normative foundation of the constitution is a principle
of ‘legality’, which (of course) it is ultimately the province of the courts,
rather than Parliament, to interpret and enforce.3 But they deny that there
is anything revolutionary, or even unorthodox, in their attempts to estab-
lish this new framework. They claim to be defending the ‘true’ or ‘ori-
ginal’ constitution, ‘properly understood’, from misrepresentation and
distortion.4 And they sometimes accuse their adversaries, the defenders
of parliamentary sovereignty, of being the true revolutionaries.5
1
Th is happened during the civil war of the 1640s, the Glorious Revolution of 1688, the
American Revolution of 1776, and the secession of the southern States of the US in the
1860s. See for example R. Kay, ‘Legal Rhetoric and Revolutionary Change’ Caribbean Law
Review 7 (1997) 161; R. Kay, ‘William III and the Legalist Revolution’ Connecticut Law
Review 32 (2000) 1645.
2
Philip A. Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’ King’s College
Law Journal 15 (2004) 333 at 334, discussed in Chapter 10, Section II, Part D, below.
3
S. Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: the Controlling Factor of
Legality in the British Constitution’ Oxford Journal of Legal Studies 28 (2008) 709.
4
D. Edlin, Judges and Unjust Laws, Common Law Constitutionalism and the Foundations
of Judicial Review (Ann Arbor: University of Michigan Press, 2008), p. 177.
5
Judicial repudiation of parliamentary sovereignty ‘would not be at all revolutionary.
What is revolutionary is talk of the omnipotence of Parliament’: R.A. Edwards, ‘Bonham’s
Case: The Ghost in the Constitutional Machine’ Denning Law Journal 63 (1996) 76.
Introduction 3
Claims like these are familiar ones in the development of the unwrit-
ten British constitution over many centuries. How, for example, did the
common law subordinate what were once called the ‘absolute preroga-
tives’ of the Crown? By strenuously asserting that those prerogatives had,
all along, been creatures of and therefore controlled by the common law.
When we read the constitutional debates of earlier centuries, we see on
all sides the pervasive tendentiousness of legal thinking pursued by those
who care so passionately about practical outcomes that objectivity has
become impossible. This was noted by A.V. Dicey:
The fictions of the courts have in the hands of lawyers such as Coke served
the cause both of justice and of freedom, and served it when it could have
been defended by no other weapons . . . Nothing can be more pedantic,
nothing more artificial, nothing more unhistorical, than the reasoning
by which Coke induced or compelled James to forego the attempt to with-
draw cases from the courts for his Majesty’s personal determination. But
no achievement of sound argument, or stroke of enlightened statesman-
ship, ever established a rule more essential to the very existence of the
constitution than the principle enforced by the obstinacy and the fallacies
of the great Chief Justice . . . The idea of retrogressive progress is merely
one form of the appeal to precedent. This appeal has made its appear-
ance at every crisis in the history of England and . . . the peculiarity of
all English efforts to extend the liberties of the country . . . [is] that these
attempts at innovation have always assumed the form of an appeal to pre-
existing rights. But the appeal to precedent is in the law courts merely a
useful fiction by which judicial decision conceals its transformation into
judicial legislation.6
already begun doing so, but apparently did not yet know it’.11 The basis
of the second claim was that a number of judicial decisions supposedly
made complete sense only if higher, unwritten constitutional principles
were assumed to exist. As one of these scholars argued in 1923, the judges
‘without expressly admitting it, and perhaps without even admitting it to
themselves, have opened the way to judicial review’.12 This campaign was
making headway until the publication of a book that explained how the
American Supreme Court had stymied democratic social reform by read-
ing laissez faire principles into its Constitution, and warned that French
judges might follow suit. This book had an enormous impact, and routed
the campaign in favour of judicially imposed, higher law principles.13
Law is an unusual discipline, in that the truth of legal propositions is
not independent of people’s beliefs about them: indeed, it depends on
whether enough of the right people believe them. According to H.L.A.
Hart, the most fundamental norms of a legal system owe their existence
partly to their being accepted as binding by the most senior officials of the
legal system, legislative, executive and judicial.14 Norms that are accepted
today might no longer be accepted tomorrow – so that propositions of
law that are false today might be true tomorrow – if the beliefs of enough
of the right people can be changed. The process by which the common
law gradually evolves can be of great assistance in bringing about such
changes. Obiter dicta or dissenting opinions that are false can, through
sheer repetition, come to appear true; indeed, sufficient repetition can
eventually clothe them with authority. For example, it can be confidently
predicted that dicta in Jackson v. Attorney-General15 challenging the doc-
trine of parliamentary sovereignty will be cited in this way regardless
of their inaccuracies. Judges know this, which is no doubt why, as Lord
Cooke of Thorndon observed, some of them have been ‘inching forwards
with ever stronger expressions when treating some common law rights as
constitutional’.16 As Tom Mullan says, of the obiter dicta in Jackson:
The most obvious reading is that certain judges are staking out their pos-
ition for future battles. They do fear that Parliament and governments
cannot be trusted in all circumstances to refrain from passing legislation
inconsistent with fundamental rights, the rule of law or democracy. When
a case involving such ‘unconstitutional legislation’ arises they want to be
11
Ibid., p. 2757. 12 Quoted in ibid., p. 2758. 13 Ibid., pp. 2758–60.
14
H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), ch. 6.
15
[2005] UKHL 56.
16
Robin Cooke, ‘The road Ahead for the Common Law’ International and Comparative
Law Quarterly 53 (2004) 273 at 277.
6 Parliamentary Sovereignty
in a position to strike it down without appearing to invent new doctrine
on the spot. They want to be able to say that they are applying settled con-
stitutional doctrine. Jackson may then be a useful precedent . . . Jackson
may [also] be viewed as a shot across the government’s bows.17
17
T. Mullen, ‘Reflections on Jackson v. Attorney General: questioning sovereignty’ Legal
Studies 27 (2007) 1 at 15–16.
18
S. Lakin, ‘Debunking the Idea of Parliamentary Sovereignty’ at p. 727.
19
Ibid., p. 730.
20
The Rt Hon Lord Bingham of Cornhill, ‘The Rule of Law and the Sovereignty of
Parliament’, King’s Law Journal 19 (2008) 223.
21
See Chapter 2 , below.
Introduction 7
III
This book includes further efforts to resist the legal revolution sought
by the common law constitutionalists. Chapter 2 presents historical and
philosophical objections, and Chapters 3 and 4 respond to arguments
based on the political ideal known as ‘the rule of law’. The first section of
Chapter 10 is also relevant to this theme. I attempt to show that Parliament
has been for centuries, and still is, sovereign in a legal sense; that this is
not incompatible with the rule of law; and that its sovereignty is not a gift
of the common law understood in the modern sense of judge-made law.
It is a product of long-standing consensual practices that emerged from
centuries-old political struggles, and it can only be modified if the con-
sensus among senior legal officials changes. Furthermore, it ought not to
be modified without the support of a broader consensus within the elect-
orate. The recent Green Paper titled The Governance of Britain ends on
the right note: constitutional change in Britain as significant as the adop-
tion of an entrenched Bill of Rights or written Constitution requires ‘an
inclusive process of national debate’, involving ‘extensive and wide con-
sultation’ leading to ‘a broad consensus’.23 Such changes should not, and
indeed cannot, be brought about by the judiciary alone.
If radical change is to be brought about by consensus, legislation will
be required. Chapters 5, 6 and 7 discuss problems relating to Parliament’s
ability to abdicate or limit its sovereignty, or to regulate its exercise through
the enactment of requirements as to the procedure or form of legislation.
Chapter 5 reviews all the current theories of abdication and limitation,
and advocates an alternative based on consensual change to the rules of
recognition underlying legal systems. The theories of A.V. Dicey, W. Ivor
Jennings, R.T.E. Latham, H.W.R. Wade and Peter Oliver are all subjected
to criticism. Chapter 6 is a detailed account of the influential decision in
Trethowan v. Attorney-General (NSW),24 which is often misunderstood
and misapplied in discussions of ‘manner and form’. Th is account reveals
the difference between the ‘manner and form’ and ‘reconstitution’ lines of
22
M. Elliott, ‘United Kingdom Bicameralism, Sovereignty, and the Unwritten Constitution’
International Journal of Constitutional Law 5 (2007) 370 at 379.
23
The Governance of Britain (CM 7170, July 2007), paras 198 and 213.
24
(1931) 44 CLR 97 (High Court).
8 Parliamentary Sovereignty
reasoning that were first propounded in that case, and shows that much
of the majority judges’ reasoning was dubious. Chapter 7 draws on the
previous two chapters to propose a novel theory of Parliament’s power
to regulate its own decision-making processes, by enacting mandatory
requirements governing law-making procedures or the form of legis-
lation. In passing, it discusses the somewhat different issues raised in
Jackson v. Attorney-General,25 which involved what is called in Australia
an ‘alternative’ rather than a ‘restrictive’ legislative procedure. The
novel theory of restrictive procedures that is proposed differs from the
‘new theory’ propounded by Jennings, Latham and R.F.V. Heuston, and
from the neo-Diceyan theory of H.W.R. Wade. It rejects a key element of
Dicey’s conception of legislative sovereignty, and the popular notion that
the doctrine of implied repeal is essential to parliamentary sovereignty.
Chapter 7 concludes with the possibly surprising suggestion that a judi-
cially enforceable Bill of Rights could be made consistent with parlia-
mentary sovereignty by including a broader version of the ‘override’ or
‘notwithstanding’ clause (s. 33) in the Canadian Charter of Rights, which
enables Canadian parliaments to override most Charter rights. Chapter 8
examines this topic in more detail, analysing the relationship between
the judicial protection of rights, legislative override, legislative supremacy
and majoritarian democracy.
Chapter 9 is a detailed account of the relationship between parlia-
mentary sovereignty and statutory interpretation, which argues that
legislative intentions are both real and crucial to avoiding the absurd
consequences of literalism. It also describes and criticises the alternative
‘constructivist’ theories of interpretation defended by Ronald Dworkin,
Michael Moore and Trevor Allan. It acknowledges the frequent need
for judicial creativity in interpretation, including the repair or recti-
fication of statutes by ‘reading into’ them qualifications they need to
achieve their purposes without damaging background principles that
Parliament is committed to. The intentionalist account is further devel-
oped in Chapter 10, where it is shown to be crucial to the traditional
justification of presumptions of statutory interpretation, such as that
Parliament is presumed not to intend to infringe fundamental common
law rights, and also crucial to the defence of parliamentary sovereignty
against other criticisms.
Chapter 10 is a lengthy defence of parliamentary sovereignty against
recent criticisms that it was never truly part of the British constitution, or
25
[2005] UKHL 56.
Introduction 9
is no longer part of it, or will soon be expunged from it. The Chapter begins
with some historical discussion, and then considers at length the conse-
quences of recent constitutional developments, including the expansion
of judicial review of administrative action under statute, the operation of
the European Communities Act 1972 (UK) and the HRA, and the growing
recognition of ‘constitutional principles’ and possibly even ‘constitutional
statutes’. It argues that none of these developments is, so far, incompatible
with parliamentary sovereignty.
IV
The once popular idea of legislative sovereignty has been in decline
throughout the world for some time. ‘From France to South Africa to
Israel, parliamentary sovereignty has faded away.’26 A dwindling num-
ber of political and constitutional theorists continue to resist the ‘rights
revolution’ that is sweeping the globe, by refusing to accept that judicial
enforcement of a constitutionally entrenched Bill of Rights is necessarily
desirable. To be one of them can feel like King Cnut trying to hold back
the tide.
This book does not directly address the policy questions raised by calls
for constitutionally entrenched rights. For what it is worth, my opinion
is that constitutional entrenchment might be highly desirable, or even
essential, for the preservation of democracy, the rule of law and human
rights in some countries, but not in others. In much of the world, a cul-
ture of entrenched corruption, populism, authoritarianism, or bitter reli-
gious, ethnic or class conflicts, may make judicially enforceable bills of
rights desirable. Much depends on culture, social structure and political
organisation.
I will not say much about this here, because the arguments are so well
known. I regret the contemporary loss of faith in the old democratic
ideal of government by ordinary people, elected to represent the opin-
ions and interests of ordinary people.27 According to this ideal, ordinary
people have a right to participate on equal terms in the political decision-
making that affects their lives as much as anyone else’s, and should be
presumed to possess the intelligence, knowledge and virtue needed to do
26
T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases
(Cambridge: Cambridge University Press, 2003), p. 3.
27
I hope the term ‘ordinary people’ does not seem patronising. I cannot think of an alterna-
tive, and I regard myself as an ‘ordinary person’.
10 Parliamentary Sovereignty
so.28 Proponents of this ideal do not naively believe that such a method
of government will never violate the rights of individuals or minority
groups. But they do trust that, in appropriate political, social and cul-
tural conditions, clear injustices will be relatively rare, and that in most
cases, whether or not the law violates someone’s rights will be open to
reasonable disagreement. They also trust that over time, the propor-
tion of clear rights violations will diminish, and ‘that a people, in act-
ing autonomously, will learn how to act rightly’.29 Strong democrats hold
that where the requirements of justice and human rights are the subject
of reasonable disagreement, the opinion of a majority of the people or
those elected to represent them, rather than that of a majority of some
unelected elite, should prevail. On this view, the price that must be paid
for giving judges power to correct the occasional clear injustice by over-
riding enacted laws, is that they must also be given power to overrule the
democratic process in the much greater number of cases where there is
reasonable disagreement and healthy debate. For strong democrats, this
is too high a price.
What explains the loss of faith in the old democratic ideal? I am aware
of possible ‘agency problems’: failures of elected representatives faithfully
to represent the interests of their constituents. In many countries this is
a major problem. But I suspect that in countries such as Britain, Canada,
Australia and New Zealand, the real reason for this loss of faith lies else-
where. There, a substantial number of influential members of the highly
educated, professional, upper-middle class have lost faith in the ability of
their fellow citizens to form opinions about important matters of public
policy in a sufficiently intelligent, well-informed, dispassionate, impar-
tial and carefully reasoned manner. Even though the upper-middle class
dominates the political process in any event, the force of public opin-
ion still makes itself felt through the ballot box, and cannot be ignored
by elected politicians no matter how enlightened and progressive they
might be. Hence the desire to further diminish the influence of ‘public
opinion’.
If I am right, the main attraction of judicial enforcement of constitu-
tional rights in these countries is that it shifts power to people (judges)
who are representative members of the highly educated, professional,
28
Th is position is most ably defended by J. Waldron, Law and Disagreement (Oxford:
Oxford University Press, 1999), Part III, and ‘The Core of the Case Against Judicial
Review’ Yale Law Journal 115 (2006) l346.
29
R. Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), p. 192.
Introduction 11
30
P.W. Hogg, A.A.B. Thornton and W.K. Wright, ‘A Reply on “Charter Dialogue Revisited” ’
Osgoode Hall Law Journal 45 (2007) 193, 201.
12 Parliamentary Sovereignty
out possibly superior alternatives. It may turn out that the old democratic
ideal does not need to be abandoned in order to maintain a level of human
rights protection at least as good as that achieved in the United States and
other countries that have adopted the American model. In fact, I believe
that the evidence already shows that this is possible.
2
I Introduction
The relationship between the common law and statute law is a subject
of debate. The controversy goes deeper than questions of interpretation,
such as – given the doctrine of legislative supremacy over the common
law – why, how and to what extent the meaning of a statute can legit-
imately be governed by common law principles.1 The answers to those
questions depend partly on more basic issues concerning the legal foun-
dations of the two bodies of law, and their respective status. The ortho-
dox view is that because Parliament can enact statutes that override any
part of the common law, statute law is superior to common law. But
according to an increasingly popular theory, Britain’s ‘unwritten’ con-
stitution consists of common law principles, and therefore Parliament’s
authority to enact statutes derives from the common law. Sir William
Holdsworth once expressed the view that ‘our constitutional law is sim-
ply a part of the common law’.2 For Trevor Allan, it follows that ‘the
common law is prior to legislative supremacy, which it defi nes and
regulates’.3 Th is theory has become so popular that even the British gov-
ernment has endorsed it. When the Attorney-General, Lord Goldsmith,
was asked in Parliament what was the government’s understanding of
‘the legal sources from which the legislative powers of Parliament are
1
See Chapter 9, Section II A(2) and Chapter 10, Section III, Part E, below.
2
W. Holdsworth, A History of English Law (2nd edn) (London: Methuen and Sweet &
Maxwell, 1937), vol. 6, p. 263.
3
T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford
University Press, 2001), p. 271; see also ibid. at pp. 139, 225, 229, 240 and 243; T.R.S. Allan,
‘Text, Context, and Constitution: The Common Law as Public Reason’ in D. Edlin (ed.),
Common Law Theory (Cambridge: Cambridge University Press, 2007), p. 185; T.R.S. Allan,
‘The Common Law as Constitution: Fundamental Rights and First Principles’ in
Cheryl Saunders (ed.), Courts of Final Jurisdiction: The Mason Court in Australia
(Sydney: Federation Press, 1996), p. 146.
14
The myth of the common law constitution 15
that England has long had a common law constitution. Brian Tamanaha,
for example, writes that:
England has had an unwritten constitution for centuries . . . This consti-
tution served as the functional equivalent of the written US Constitution
in the sense of a law that set limits on the law-makers. Coke’s decision in
Doctor Bonham’s case testified to this understanding . . . The basic idea
was that the common law, a body of private law reflecting legal principles,
established the fundamental legal framework.28
Unfortunately, all these propositions except the first are wrong. England
has never had a constitution that served as the functional equivalent of
the American Constitution. It has been conclusively established that the
common law never subjected Parliament’s legislative authority to limits
whose violation could warrant the judicial invalidation of a statute.29 As
I have argued at some length elsewhere, Coke’s famous dictum in Doctor
Bonham’s case might be understood to suggest that he thought otherwise,
although even that is very doubtful; but if he did, he was in a tiny minor-
ity, and later changed his mind.30 The most careful and thorough subse-
quent analyses of Coke’s language have confirmed (although for different
reasons) the majority scholarly opinion that in Doctor Bonham’s case he
did not intend to assert a judicial power to invalidate statutes.31 It is odd
that his famous dictum is still regularly cited in constitutional textbooks
as evidence that Parliament’s law-making authority was, in an earlier era,
subordinate to a controlling common law.32 This chapter will challenge
Tamanaha’s final, more modest proposition that the common law ‘estab-
lished the fundamental legal framework’ of English government.
28
Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge
University Press, 2004), p. 57.
29
Goldsworthy, The Sovereignty of Parliament; Tubbs, The Common Law Mind, pp. 21, 27,
30, 34–5, 46, 55, 57, 77, 183 and 186.
30
See generally Goldsworthy, The Sovereignty of Parliament ; see also ibid. at 111–17 (dis-
cussing Coke).
31
I. Williams, ‘Dr Bonham’s Case and “Void” Statutes’ J Legal History 27 (2006) 111;
P. Hamburger, Law and Judicial Duty (Cambridge, Mass: Harvard University Press,
2008), ch. 8 and Appendix I; R. Helmholz, ‘Bonham’s Case, Judicial Review and the
Law of Nature’ J of Legal Analysis (2009) 325. Hamburger disagrees with Williams at
ibid., 625 n. 7. Edlin ( Judges and Unjust Laws, ch. 5) presents arguments to the con-
trary, which are discussed in Chapter 10, Section II, Part A. For another recent account
of Dr Bonham’s case that offers Edlin no support, see J. Allison, The Historical English
Constitution (Cambridge: Cambridge University Press, 2007), pp. 131–48.
32
See, e.g., P. Joseph, Constitutional and Administrative Law in New Zealand (3rd edn)
(Wellington: Brookers, 2007), pp. 488–9; I. Loveland, Constitutional Law, Administrative
Law, and Human Rights; a Critical Introduction (4th edn) (Oxford: Oxford University
Press, 2006), p. 22.
20 Parliamentary Sovereignty
33
For present purposes, nonjusticiable constitutional conventions, which are not regarded
as ‘law’ at all, can be disregarded. The claim in question concerns constitutional norms
that are recognised and applied by the courts.
The myth of the common law constitution 21
34
Tubbs, The Common Law Mind, pp. 23 and 1, respectively.
35
Ibid., pp. 115 and 188.
36
Ibid., pp. 48, 65, 69, 70, 115, 162 and 190–2.
37
Ibid., pp. 194–5 and chs. 6–8.
38
See text accompanying n. 98 below (discussing Coke), text accompanying nn. 116–118
below (discussing Davies).
22 Parliamentary Sovereignty
sense that the highest court was formally the House of Lords; in reality
it is, of course, a separate court and only nominally a ‘committee’ of that
House.
Thirdly, the questions are interrelated, in that a particular answer to
one may be difficult to reconcile with a particular answer to another.
For example, for reasons given in the next section, if the common law
is merely a body of judge-made rules, it cannot be the source or basis of
Parliament’s law-making authority.39 On the other hand, if it consists of
the customs of the community, this becomes more plausible, as does the
broader claim that the unwritten constitution as a whole is a matter of
common law.
Fourthly, apparent agreement that the unwritten constitution is a mat-
ter of common law may obscure disagreement over important details.
Even if some seventeenth century lawyers believed that the most funda-
mental laws of the constitution were part of the common law, they may
have meant something very different from superficially similar beliefs
held today. They may have conceived of the common law as the custom of
the realm, which the High Court of Parliament – rather than the ‘infer-
ior courts’ of Westminster – had supreme authority to enunciate and
expound. That view provides little support for modern theories in which
the common law is conceived, on Dworkinian lines, as an evolving body
of principles of political morality, which the ordinary courts have ultim-
ate authority to identify and develop.
It is not possible, in this chapter, to provide a comprehensive account of
how these three questions have been answered in each of the many cen-
turies over which the British constitution evolved. That would require a
book. All that is possible is a brief account of the main issues.
We start with the period up to the sixteenth century, which is clouded
by a lack of both clear theoretical thinking about constitutional funda-
mentals, and written records of what thinking there was. According to
Pollock and Maitland, medieval English lawyers had no definite theory
of the relationship between enacted and unenacted law, or between law
and custom.40 Chrimes reports that ‘the half-expressed concepts and
ideas behind the machinery of government are often elusive and hard to
39
See text accompanying nn. 200–204 below.
40
Sir Frederick Pollock and Frederic William Maitland, The History of English Law Before
the Time of Edward I (2nd edn) (vol. 1) (London: Cambridge University Press, 1968),
p. 176.
The myth of the common law constitution 23
41
S.B. Chrimes, English Constitutional Ideas in the Fifteenth Century (New York: American
Scholar Publications, 1966), p. xvi.
42
Tubbs, The Common Law Mind; Norman Doe, Fundamental Authority in Late Medieval
English Law (Cambridge: Cambridge University Press, 1990); Chrimes, English
Constitutional Ideas.
43
It is now known that William Raleigh wrote De Legibus Consuetudinibus, which Bracton
later edited. See Paul Brand, ‘The Age of Bracton’ in John Hudson (ed.), The History of
English Law: Centenary Essays on ‘Pollock and Maitland’, Proceedings of the British
Academy (Oxford: Oxford University Press, 1996), 78 at pp. 78–9.
44
J.C. Holt, ‘The Origins of the Constitutional Tradition in England’ in Holt, Magna Carta
and Medieval Government (London: Hambledon Press, 1985), 1 at p. 13.
45
Ibid.
24 Parliamentary Sovereignty
46
Janelle Greenberg, The Radical Face of the Ancient Constitution: St. Edward’s ‘Laws’ in
Early Modern Political Thought (Cambridge: Cambridge University Press, 2001). For the
actual origins of these documents, see ibid. at pp. 9, 57–61, 71 and 77–8. Note that the
term ‘ancient constitution’ is of modern coinage, an attempt to translate old ideas into a
modern idiom.
47
Tubbs, The Common Law Mind, pp. 3, 7, 12, 15–17 and 189.
48
Donald Hanson, From Kingdom to Commonwealth: The Development of Civic
Consciousness in English Political Thought (Cambridge, Mass: Harvard University Press,
1970), p. 131.
49
Tubbs, The Common Law Mind, p. 187.
50
Sir Charles Ogilvie, The King’s Government and the Common Law 1471–1641
(Oxford: Blackwell, 1958), p. 10.
51
Goldsworthy, The Sovereignty of Parliament, pp. 22–3.
52
Hanson, From Kingdom to Commonwealth, pp. 159, 188–90 and 214.
The myth of the common law constitution 25
the great twelft h and thirteenth century law books to fundamental pol-
itical questions was that such matters lay with the king and magnates of
the realm.’53
In the fourteenth and fi fteenth centuries, it is unlikely that the most
basic laws on which royal government rested would have been classified
as part of the common law, even if they were by then customary. Tubbs
challenges the received view that the common law was, at that time, gen-
erally identified with the customs of the realm.54 He argues that it was
more frequently treated as the ‘common erudition’ (or in his words, the
‘learned tradition’) of the bench and bar of the common law courts. 55
Despite reading five thousand Year Book cases, he uncovered very lit-
tle evidence that medieval common lawyers primarily understood their
law to be custom,56 and even in the sixteenth century, when it was often
described as ‘common usage’ or ‘common custom’, lawyers ‘nearly always
mean only the usage or custom of the bench and bar’.57 Only in the early
seventeenth century did an important common lawyer, Sir John Davies,
unequivocally describe the common law as the custom of the English
people, and even then, his opinion was unorthodox.58 Tubbs’s conclusions
corroborate Norman Doe’s, who reports that ‘forensic and judicial usage
and learning’– and judicial rather than popular consent – were treated in
the Year Books as the basis of the common law:59 ‘Indeed, the idea that the
common law was in the keeping of, or within the control of, the judges was
implicit in several stock phrases . . . Sometimes, the judges overtly employ
the idea that a rule exists or a result is reached because they “assent” to it.’60
This quasi-positivist conception of the nature of the common law surely
had implications for its scope. It is unlikely that those who conceived of it
as the ‘common erudition’ of the bench and bar would have thought that it
53
Ibid., pp. 131–2. 54 Tubbs, The Common Law Mind, pp. 1–2.
55
Ibid., pp. 2, 24–5, 45–52, 56–7, 65–6, 111, 114, 130 and 193–4. The common law as ‘com-
mon erudition’ is a principal theme in J.H. Baker, The Law’s Two Bodies: Some Evidential
Problems in English Legal History (Oxford: Oxford University Press, 2001), Lecture Th ree,
esp. at pp. 67–70 and 74–9.
56
Tubbs, The Common Law Mind, pp. 24, 29, 45–6 and 50.
57
Ibid., pp. 191–2. See also Doe, Fundamental Authority, p. 26; Alan Cromartie, Sir
Matthew Hale 1609 –1676: Law, Religion and Natural Philosophy (Cambridge: Cambridge
University Press, 1995), pp. 14–15.
58
Tubbs, The Common Law Mind, p. 192; see also ibid. at pp. 130–2.
59
Doe, Fundamental Authority, p. 22; see also ibid. at p. 32 (noting that occasionally the
fiction was expressed, notably by St. German, that the community had consented to the
common law).
60
Doe, Fundamental Authority, pp. 23–4.
26 Parliamentary Sovereignty
It is equally unlikely that the powers and privileges of the ‘High Court of
Parliament’ – the highest court in the realm – would have been regarded
as subject to the ‘common erudition’ of ‘inferior courts’. In 1388, the Lords
who prepared charges of treason against some of Richard II’s associates,
including a number of judges, declared ‘that in so high a crime as is alleged
in this appeal, which touches the person of the King . . . and the state of his
realm . . . the process will not be taken anywhere except to Parliament,
nor judged by any other law except the law and court of parliament’; ‘the
great matters moved in this Parliament and to be moved in parliaments
61
Howard Nenner, The Right to be King: The Succession to the Crown of England 1603 –1714
(North Carolina: University of North Carolina Press, 1995), pp. 1–12.
62
Chrimes, English Constitutional Ideas, pp. 22 and 34.
63
Sir John Fortescue, De Natura Legis Naturae (New York: Garland Publishing, 1980),
referred to in Tubbs, The Common Law Mind, p. 53.
64
Sir John Fortescue, ‘The Declaracion of Certayn Wrytyngs’ in The Works of Sir John
Fortescue, p. 532, quoted in Chrimes, English Constitutional Ideas, p. 22.
65
Rotuli Parliamentorum (London, s.n., 1767–1777), V, pp. 375–6, quoted in W.H. Dunham
and C.T. Wood, ‘The Right to Rule in England: Depositions and the Kingdom’s Authority,
1327–1485’ American Historical Review 81 (1976) 738 at 750.
The myth of the common law constitution 27
66
Bertie Wilkinson, Studies in the Constitutional History of Medieval England 1216 –1399
(vol. 2) (London: Longmans, 1952), pp. 280 and 282; see also S.B. Chrimes and A.L. Brown
(eds.), Select Documents of English Constitutional History 1307–1485 (London: Adam &
Charles Black, 1961), pp. 146–9.
67
Rotuli Parliamentorum, V, 240, quoted in Chrimes, English Constitutional Ideas, p. 152.
68
See text accompanying nn. 106–108 and 162 below.
69
Hanson, From Kingdom to Commonwealth, p. 215.
70
Brian P. Levack, The Civil Lawyers in England 1603 –1641: A Political Study (Oxford: Oxford
University Press, 1973), p. 143.
71
Ibid., pp. 72–81.
28 Parliamentary Sovereignty
72
Ibid., pp. 81–3.
73
‘Observations on Ye Lord Cookes Reportes’, in Louis A. Knafla, Law and Politics in
Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge: Cambridge
University Press, 1977), p. 297.
74
Knafla, Law and Politics in Jacobean England, p. 166.
75
Levack, The Civil Lawyers in England, pp. 144–5 and 122–3.
76
Ibid., pp. 145–6.
77
Ibid., pp. 125–6; John Guy, ‘The “Imperial Crown” and the Liberty of the Subject: The
English Constitution from Magna Carta to the Bill of Rights’ in Bonnelyn Young Kunze
and Dwight D. Brautigam (eds.), Court, Country and Culture: Essays on Early Modern
British History in Honor of Perez Zagorin (Rochester: University of Rochester Press,
1992), 65 at pp. 72–3.
78
Levack, The Civil Lawyers in England, p. 147.
79
Knafla, Law and Politics in Jacobean England, pp. 160–1. 80 Ibid., p. 161.
The myth of the common law constitution 29
since the common law was in his opinion superior to equity, its courts
were ‘above’ the Court of Chancery.81 Leading common lawyers denied
that equity was derived directly from divine law; it was, instead, con-
cerned with the reasons underlying positive laws, and aimed merely to
prevent strict adherence to legal rules from defeating those reasons.82
Lord Chancellor Ellesmere denied both claims of superiority: he regarded
Chancery and Star Chamber as equal to the common law courts, and the
laws they administered as equally part of the ‘law of the land’.83 James I
accepted the view that civil lawyers had urged in the previous century,
insisting that he would settle jurisdictional disputes among his courts: it
‘is a thing regal, and proper to a King, to keep every court within its
own bounds’.84 He said that the Court of Chancery was ‘independent of
any other Court, and is only under the King . . . from that Court there is
no appeal’; if it exceeded its jurisdiction, ‘the King only is to correct it,
and none else’. He explicitly forbad the common law courts from bring-
ing charges of praemunire against Chancery for allegedly exceeding its
powers.85
The common law came to be regarded as superintending all other
bodies of law administered by English judges, except for equity, which it
never subordinated.86 This development appears to have been part, and a
partial cause, of broader changes in conceptions of the nature and scope
of the common law. Instead of being merely the ‘common erudition’ of
particular courts, it was increasingly portrayed as the repository of imme-
morial customs of the realm, including those dealing with the rights and
powers of the King and Parliament. This led to what has been called the
‘classic age of common-law political thought, of ancient constitutionalism’
described by writers such as J.G.A. Pocock and Glenn Burgess.87 Janelle
81
Ibid., p. 160. 82 Tubbs, The Common Law Mind, pp. 102–3.
83
Knafla, Law and Politics in Jacobean England, pp. 161 and 166.
84
King James VI and I, ‘Speech in Star Chamber 1616’ in Johann P. Sommerville (ed.), King
James VI and I: Political Writings (Cambridge: Cambridge University Press, 1995), 212 at
p. 213. See also ‘Speech of 21 March 1610’ in Sommerville (ed.), King James VI and I, p. 188.
85
King James VI and I, ‘Speech in Star Chamber 1616’ in Sommerville (ed.), King James VI
and I, pp. 214–15.
86
On other bodies of law, see, e.g., Sir Matthew Hale, The History of the Common Law of
England (Charles M. Gray, ed.) (Chicago: University of Chicago Press, 1971), p. 4; Sir
William Blackstone, Commentaries on the Laws of England (vol. 1) (Oxford: Oxford
University Press, 1765), p. 15.
87
Pocock, The Ancient Constitution and the Feudal Law ; Glenn Burgess, The Politics
of the Ancient Constitution: An Introduction to English Political Thought 1600 –1642
(Hampshire: Palgrave Macmillan, 1992).
30 Parliamentary Sovereignty
Cromartie argues that between 1528 and 1628, there was a ‘constitution-
alist revolution’ in English political culture that originated within the
legal profession.93 Coke, who stated that the ‘[common] laws do limit,
bound and determine of all other human laws, arts and sciences’, was
88
Greenberg, The Radical Face of the Ancient Constitution.
89
The thesis that the common law originated in these laws is found in the writings of
Polydore, Vergil, Holinshed, Sir John Dodderidge, John Speed, Peter Heylyn, John
Cowell and William Whiteway, quoted in Greenberg, The Radical Face of the Ancient
Constitution, pp. 88, 99, 108, 135, 136, 152–3 and 156, respectively. See also the views of
Hale and Vaughan, below at n. 145.
90
Cromartie, Sir Matthew Hale, p. 16.
91
Ibid., pp. 12–13.
92
Charles M. Gray, ‘Parliament, Liberty, and the Law’ in J.H. Hexter (ed.), Parliament
and Liberty: From the Reign of Elizabeth to the English Civil War (Stanford: Stanford
University Press, 1992), 155 at pp. 162–3. Cromartie’s account of Coke’s thought is some-
what different. See Cromartie, Sir Matthew Hale, pp. 13 and 32.
93
Alan Cromartie, ‘The Constitutionalist Revolution: The Transformation of Political
Culture in Early Stuart England’, (1999) 163 Past and Present 76, esp. at 82 (for the
1528 date) and 111 (for the 1628 date). These themes are developed in his book,
Th e Constitutionalist Revolution: An Essay on the History of England, 1450 –1642
(Cambridge: Cambridge University Press, 2006).
The myth of the common law constitution 31
or direct the descent and right of the crown’.101 He also asserted that ‘the
Parliament has his power and authority from the common law, and not
the common law from the parliament. And therefore the common law
is of more force and strength than the Parliament’.102 If the common law
was the source of the King’s title to the throne, his prerogatives, and the
authority of Parliament, it was indeed the constitution of the realm.
But not all common lawyers, let alone other members of the ruling elite,
agreed with these views. As for the succession, Lord Chancellor Ellesmere
said in 1605 that ‘the King’s majesty, as it were inheritable and descended
from God, has absolutely monarchical power annexed inseparably to his
crown and diadem, not by common law nor statute law, but more ancient
than either of them’.103 Even Coke agreed that ‘the King’s majesty, in his
lawful, just and lineal title to the Crown of England, comes not by suc-
cession only, or by election, but from God only . . . by reason of his lineal
descent’.104
Although Coke insisted that the King’s prerogatives were conferred
and regulated by the common law, he does not seem to have held the same
view of Parliament’s privileges. In his First Institute, in a list of fifteen
‘diverse laws within the realm of England’, he included – in addition to
the common law itself – the lex et consuetudo Parliamenti (the law and
custom of Parliament).105 Later still, in his Fourth Institute, he discussed
the relationship between the common law and the lex and consuetudo
Parliamenti:
And as every court of justice has laws and customs for its direction, some
by the common law, some by the civil and canon law, some by peculiar
laws and customs, so the High Court of Parliament suis propriis legibus
& consuetudinibus subsistit [subsists according to its own laws and cus-
toms]. It is lex & consuetudo Parliamenti, that all weighty matters in any
Parliament moved concerning the Peers of the Realm, or Commons in
101
‘Speech on Impositions, 28 June 1610’ in Elizabeth Read Foster (ed.), Proceedings in
Parliament 1610 (vol. 2) (New Haven: Yale University Press, 1966), p. 174.
102
Ibid. But see the discussion of his views in Goldsworthy, The Sovereignty of Parliament,
pp. 117–19.
103
John Hawarde in William Paley Baildon (ed.), Les Reportes del Cases in Camera Stellata
1593 –1609 (London, 1894), 188, quoted in Conrad Russell, ‘Divine Rights in the Early
Seventeenth Century’ in John Morrill, Paul Slack and Daniel Woolf (eds.), Public Duty
and Private Conscience in Seventeenth-Century England (Oxford: Oxford University
Press, 1993), 101 at p. 117.
104
Hawarde, quoted in Russell, ‘Divine Rights in the Early Seventeenth Century’, p. 118.
105
Edward Coke, The First Part of the Institutes of the Laws of England (2nd corrected edn)
(Moore, 1629), ch. 1, sec. 3, p. 12.
The myth of the common law constitution 33
Parliament assembled, ought to be determined, adjudged, and discussed
by the course of the Parliament, and not by the civil law, nor yet by the
common laws of this realm used in more inferior courts . . . And this is the
reason that judges ought not to give any opinion of a matter of Parliament,
because it is not to be decided by the common laws, but secundum legem
ad consuetudinem Parliamenti [according to the laws and customs of
Parliament]: and so the judges in divers Parliaments have confessed. And
some hold, that every offence committed in any court punishable by that
court, must be punished (proceeding criminally) in the same court, or in
some higher, and not in any inferior court, and the Court of Parliament
has no higher.106
Coke clearly did not regard the ‘law and custom of Parliament’ as an
example of the local or particular customs whose application the com-
mon law sometimes authorised. He listed it separately. Moreover, local or
particular customs were not authorised by the common law unless they
satisfied the test of reasonableness, and it is hardly likely that judges would
have dared to dispute a privilege asserted by Parliament itself, as part of its
‘law and custom’, on the ground that it was contrary to reason. Parliament
was, as Coke acknowledged, the highest court in the realm. Cromartie
suspects that Coke’s discussion of the lex et consuetudo Parliamenti
was motivated by a desire to criticise James I’s conduct in the 1620s, in
attempting to prevent discussion of certain matters in Parliament, and
ordering the arrest of leading members of the Commons who had forcibly
prevented the Speaker from adjourning debate. Coke was also warning
the judges of inferior courts not to interfere with Parliament in such mat-
ters.107 But political motivations no doubt lay behind many of his views,
including his expansion of the scope of the common law in other respects.
Moreover, there were good precedents for his views about the ‘law and
custom of Parliament’. In 1604, the House of Commons complained that
James I had accepted an opinion of his judges, concerning a disputed elec-
tion return, rather than a contrary determination of the House itself: ‘the
judges’ opinion . . . being delivered what the common law was, which
extends only to inferior and standing courts, ought [not] to bring any
prejudice to this High Court of Parliament, whose power being above the
law is not founded on the common law but have their rights and privileges
peculiar to themselves’.108
106
Edward Coke, The Fourth Part of the Institutes of the Laws of England: Concerning the
Jurisdiction of Courts (4th edn) (Crooke, 1669), ch. 1, pp. 14–15.
107
E-mail from Alan Cromartie to author, 18 March 2005.
108
‘The Form of Apology and Satisfaction, 20 June 1604’ in J.R. Tanner (ed.), Constitutional
Documents of the Reign of James I 1603 –1625 (Cambridge: Cambridge University Press,
34 Parliamentary Sovereignty
So not even Coke, the prime exemplar of the ‘common law mind’, con-
sistently held that the common law was the supreme and overarching
body of law, which provided the ultimate source of all legal authority and
governed the scope and application of all other laws. As for other law-
yers, statesmen, and political theorists, many located the ultimate source
of political authority not in the common law, but in either the King, or
the community represented in Parliament. Even in the fourteenth and
fifteenth centuries, those who sought to account for the authority of legis-
lation had looked not to custom or common law, but to the will of the
King or the ‘common consent’ of the whole realm.109 By the sixteenth
century, these strands of thought had evolved into competing theories,
one based on the King’s divine right to rule, and the other on the consent
and combined wisdom of the community.110 Henry VIII’s self-proclaimed
‘imperial’ kingship – deployed to justify his supremacy over the Church –
entailed that he was ‘under God but not the law, because the king makes
the law’.111 On this view, the King was the human source of law and polit-
ical authority, and the foundation of all jurisdictions.112 The other theory
was expounded by Richard Hooker, who argued that ‘[t]he whole body
politic makes laws, which laws give power unto the king’.113 For many,
the two theories could be happily combined to sustain the authority of
the King in Parliament, but in the 1640s they were split apart with tragic
consequences.
Sir John Davies is often cited as one of the two best examples – the other
being Coke – of the ‘classical’ seventeenth century ‘common law mind’
that placed the common law at the core of the ‘ancient constitution’.114 The
preface to Davies’s Le Primer Report des Cases [etc.] has been described as
‘the classic exposition of the common lawyer’s viewpoint’.115 He depicted
the common law as the custom of the realm, refined by the accumulated
1930), 221 at 224. See also the earlier incident discussed in the text accompanying n. 67
above.
109
Doe, Fundamental Authority, p. 31.
110
Goldsworthy, The Sovereignty of Parliament, pp. 63–75.
111
Quoted in Guy, ‘The “Imperial Crown” and the Liberty of the Subject’ in Kunze and
Brautigam (eds.), Court, Country and Culture, pp. 67–8.
112
Corinne Comstock Weston and Janelle R. Greenberg, Subjects and Sovereigns: The
Grand Controversy over Legal Sovereignty in Stuart England (Cambridge: Cambridge
University Press, 1981), p. 87; Goldsworthy, The Sovereignty of Parliament, pp. 65–7.
113
Richard Hooker, ‘Of the Laws of Ecclesiastical Polity’ in J. Keble (ed.), The Works of
Mr. Richard Hooker (7th edn) (vol. 3) (Georg Olms Verlag, 1977), p. 443.
114
See, e.g., Pocock, The Ancient Constitution and the Feudal Law.
115
David Wootton, (ed.), Divine Right and Democracy: An Anthology of Political Writing in
Stuart England (Penguin, 1986), p. 129.
The myth of the common law constitution 35
116
Sir John Davies, Le Primer Report des Cases (Flesher, Steater, and Twyford, 1674) in
Wootton (ed.), Divine Right and Democracy, pp. 131–2.
117
Sir John Davies, The Question Concerning Impositions (Twyford, 1656), pp. 29–33. For
discussion, see Tubbs, The Common Law Mind, pp. 133–9.
118
Davies, The Question Concerning Impositions, p. 26.
119
James S. Spedding, R.L. Ellis and D.D. Heath (eds.), The Works of Francis Bacon (vol. 10)
(London: Longman, 1858–1874), p. 371. But see ibid. (vol. 14), 118, quoted in Tubbs, The
Common Law Mind, p. 138.
120
See Goldsworthy, The Sovereignty of Parliament, pp. 82–4, esp. p. 83, n. 40.
121
Charles H. McIlwain, The Political Works of James I (Cambridge, Mass: Harvard
University Press, 1918), p. 333.
122
Gray, ‘Parliament, Liberty, and the Law’ in Hexter (ed.), Parliament and Liberty, pp. 191–2.
36 Parliamentary Sovereignty
Not only had kings created the common law, they retained ‘absolute
authority’ to supplement or correct it.126 For this reason, Filmer said
elsewhere, the common law ‘follows in time after government, but can-
not go before it and be the rule to government by any original or rad-
ical constitution’.127 Later in the century another prominent royalist,
Dr Robert Brady, criticised Coke for giving the impression that the
123
Corinne Comstock Weston, ‘England: Ancient Constitution and Common
Law’ in J.H. Burns (ed.), The Cambridge History of Political Thought 1450 –1700
(Cambridge: Cambridge University Press, 1991), 374 at p. 377, quoting William Prynne,
The Treachery and Disloyalty of Papists to their Sovereigns in Doctrine & Practice
(Cambridge University Press, 1643), pp. 35–6. But not everyone thought that the ori-
gins of government were important. See Johann P. Sommerville, Politics and Ideology in
England 1603 –1640 (London: Longman, 1986), pp. 105–6.
124
Robert Filmer, Patriarcha, or the Natural Power of Kings (Richard Chiswell,
1680), p. 11, quoted in Johann P. Sommerville (ed.), Patriarcha and Other Writings
(Cambridge: Cambridge University Press, 1991), p. 54.
125
Filmer, Patriarcha, p. 9, quoted in Sommerville (ed.), Patriarcha and Other Writings, p. 45.
126
Filmer, Patriarcha , p. 11, quoted in Sommerville (ed.), Patriarcha and Other
Writings, p. 54.
127
Robert Filmer, ‘The Anarchy of a Limited or Mixed Monarchy’, in Sommerville (ed.),
Patriarcha and Other Writings, 131 at p. 153.
The myth of the common law constitution 37
common law had grown up with the first trees and grass, ‘abstracting it
from any dependence upon, or creation by the government’.128 For royal-
ists, it was obvious that kings came first, armed with divine authority, and
laws followed. The common law was sometimes explained as an innovation
of the Norman kings.129 Some royalists concluded that, since all law was
originally made by kings, it could be unmade or overridden by them.130
The royalist theory was widely regarded as a threat to the traditional
rights and liberties of the people, including the powers and privileges of
the Houses of Parliament. But there were different ways of resisting that
threat. Johann Sommerville shows that anti-absolutists relied either on
a contractual theory, according to which the powers of the King were
granted and limited by a pact between him and his subjects, or on Coke’s
theory of an immemorial common law that stood above both king and
people. He denies that everyone who regarded the King’s power as limited
subscribed to Coke’s theory: ‘[T]he vocabulary of contract was almost as
common as that of immemorial law.’131
Contractualists argued that, whenever the word ‘parliament’ was
fi rst used, representative assemblies had existed from time immemor-
ial. John Selden, for example, claimed that kings, nobles and freemen
had shared the power to make law from the inception of civil govern-
ment in England.132 He regarded all law and government as the product
of contracts between the King and the people.133 His views influenced
his younger friends, Sir Matthew Hale and Sir John Vaughan.134 Others
argued for the same conclusion on theoretical rather than historical
grounds: there must have been an original contract, whereby the com-
munity established the kingship subject to stringent conditions designed
to control regal power.135 Charles Herle stated that ‘what is meant by
those fundamental laws of this kingdom . . . is that original frame of this
128
Quoted by Weston, ‘England: Ancient Constitution and Common Law’ in Burns (ed.),
The Cambridge History of Political Thought, p. 407.
129
Greenberg, The Radical Face of the Ancient Constitution, quoting Samuel Daniel, The
Collection of the History of England (Simon Waterson, 1626).
130
Goldsworthy, The Sovereignty of Parliament, p. 83.
131
Sommerville, Politics and Ideology in England, p. 79.
132
Ibid., pp. 62–4; Paul Christianson, ‘Royal and Parliamentary Voices on the Ancient
Constitution c. 1604–1621’ in Linda Levy Peck (ed.), The Mental World of the Jacobean
Court (Cambridge: Cambridge University Press, 1991), 71 at pp. 83–5.
133
Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge:
Cambridge University Press, 1979), pp. 96 and 99–100; Cromartie, Sir Matthew Hale,
pp. 32, 37 and 39.
134
Tuck, Natural Rights Theories, pp. 84, 113 and 134.
135
Sommerville, Politics and Ideology in England, pp. 64–6 and 106–8.
38 Parliamentary Sovereignty
Here, Hale was using the word ‘constitution’ in a medical sense, to mean
the commonwealth’s natural state of health.151 It is significant that he
described the common law as ‘singularly accommodated to’ the frame of
government, and not as forming or embodying the frame of government.
By ‘the frame of the English government,’ he meant law-making by the
146
Hale, The History of the Common Law of England, p. 4. Hale and Vaughan both under-
stood ‘time of memory’ to have been fi xed for legal purposes as the period after 1189, the
beginning of the reign of Richard I. See Alan Wharan, ‘The 1189 Rule: Fact, Fiction or
Fraud?’ Anglo-American Law Review 1 (1972) 262. Plucknett has argued that Hale was
quite right to suspect that the common law often originated in legislation of one kind or
another. Theodore Frank Thomas Plucknett, Legislation of Edward I (Oxford: Oxford
University Press, 1962), pp. 8–9.
147
Thomas v. Sorrell, (1677) Vaugh 330, 358, 124 Eng. Rep. 1098, 1112. In the full passage,
Vaughan clearly uses the word ‘constitution’ in the same sense as Hale. See n. 145,
above.
148
Sheppard v. Gosnold, (1672) Vaugh 159, 163, 124 Eng. Rep. 1018, 1020.
149
See Gray’s introduction to Hale, The History of the Common Law of England, p. xxiii.
150
Hale, The History of the Common Law of England, p. 30.
151
Cromartie, Sir Matthew Hale, p. 63.
40 Parliamentary Sovereignty
King, with the assent of whatever assembly from time to time represented
the people.152
In his Prerogatives of the King, Hale discussed how the ‘nature and
extent of any government in any kingdom or place’ could be ascertained.
He explained that in the absence of actual records of ‘the original of
government’ – ‘the original of that pact or constitution of our government’:
we must have recourse to the common custom and usage of the kingdom
. . . I mean such customs as have been allowed by the known laws of the
kingdom. And therefore under the word custom I take in the traditions
and monuments of the municipal laws, law-books, records of judgments
and resolutions of judges, treaties and resolutions and capitulations of
regular and orderly conventions, authentical histories, concessions of
privileges and liberties . . .153
For example, ‘by the laws of this kingdom the regal government is heredi-
tary and transmitted by descent. This appears not only by the recognition
of 1 Jac. and 1 Eliz., but by the constant usage.’154 Evidence of the pact that
established the government of England was therefore not confined to the
records of common law, but included statute law as well. According to
Cromartie, Hale regarded Parliament as the only place where the funda-
mental compact could be deliberately altered, the only place in which the
‘consent of the people [and es]states of the kingdom’ could be voiced.155
That is why, when Henry VIII wished to dispose of the Crown by his last
will, ‘he could not make such disposal without an act of parliament enab-
ling him’.156 But the compact could also be altered by changes in custom
and usage, which were evidence of mutual consent.157 In that sense, Hale
attributed to the common law the capacity to change the constitution,
although Cromartie adds that in this respect the common law ‘was con-
ceptually equivalent to an enormous statute, on which the king and people
had tacitly agreed’.158 Hale did not think of the common law as something
that could be altered by judges. He said that when the common law failed
to provide a remedy for injustice, only Parliament could provide what was
152
In his Prerogatives of the King, Hale distinguished the ‘frame of government’ – whether
monarchical, aristocratic, democratic, or mixed – from ‘the particulars of government,’
which include the rights of the King and the people. See Yale (ed.), Sir Matthew Hale’s
The Prerogatives of the King, p. 6.
153
Yale (ed.), Sir Matthew Hale’s The Prerogatives of the King, pp. 7–8.
154
Ibid. p. 13.
155
Cromartie, Sir Matthew Hale, p. 50; Yale (ed.), Sir Matthew Hale’s The Prerogatives of the
King, p. 15.
156
Yale (ed.), Sir Matthew Hale’s The Prerogatives of the King, p. 18.
157
Cromartie, Sir Matthew Hale, pp. 49 and 102. 158 Ibid., p. 49.
The myth of the common law constitution 41
needed by making a new law. Not even the House of Lords, the highest
ordinary court of appeal, could grant a remedy if no established law pro-
vided for one: ‘for that were to give up the whole legislative power unto the
House of Lords. For it is all one to make a law, and to have an authoritative
power to judge according to that, which the judge thinks fit should be law,
although in truth there be no law extant for it.’159
Hale acknowledged that the common law dealt with matters of a fun-
damental nature, such as ‘the safety of the king’s royal person, his crown
and dignity, and all his just rights, revenues, powers, prerogatives and
government . . . and this law is also, that which declares and asserts the
rights and liberties, and the properties of the subject’.160 On the other
hand, he insisted that Parliament as a whole (and not the House of Lords
alone) was the ‘dernier resort’ – the supreme and final court of appeal –
with respect to all questions of law.161 These included questions that were
too high for inferior courts, raised by cases that were:
so momentous, that they are not fit for the determination of judges, as in
questions touching the right of succession to the crown . . . or the privi-
leges of parliament . . . or the great cases which concern the liberties and
rights of the subject, as in the case of Ship Money, and some others of like
universal nature.162
159
Ibid., p. 117, quoting Matthew Hale in F. Hargrave (ed.), The Jurisdiction of the Lords
House, or Parliament, Considered According to Ancient Records (T. Cadell and W. Davies,
1796), pp. 108–9.
160
Hale, The History of the Common Law of England, pp. 30–1.
161
Hale in Hargrave (ed.), The Jurisdiction of the Lords House. See Goldsworthy, The
Sovereignty of Parliament, p. 121.
162
Hale in Hargrave (ed.), The Jurisdiction of the Lords House, p. 159.
163
Cromartie, Sir Matthew Hale, p. 50.
164
Pocock, The Ancient Constitution and the Feudal Law, p. 234; see also ibid. at p. 239.
Corinne Comstock Weston asserts that this happened in the 1640s. See Weston,
42 Parliamentary Sovereignty
‘England: Ancient Constitution and Common Law’ in Burns (ed.), The Cambridge
History of Political Thought, pp. 397–8.
165
Burgess, The Politics of the Ancient Constitution, pp. 99 and 221–31.
166
Greenberg, The Radical Face of the Ancient Constitution, pp. 21–2 and 157. See also the
many references in her index to ‘contract theory of government’.
167
Blackstone, Commentaries on the Laws of England, pp. 79–80.
168
Ibid. p. 47. 169 Ibid., pp. 46 and 156.
The myth of the common law constitution 43
But Dicey was at this point discussing what he called ‘the general prin-
ciples of the constitution’, and as the editor of his tenth edition, E.C.S.
Wade, explained in a footnote, ‘it is clear from [Dicey’s] examples that
he is dealing with the means of protecting private rights. The origin of
the sovereignty of Parliament cannot be traced to a judicial decision
170
Ibid., p. 52. 171 Ibid., pp. 50–1.
172
J. Austin, The Province of Jurisprudence Determined etc. (H.L.A. Hart, ed.) (London:
Weidenfeld and Nicolson, 1954), pp. 31–2.
173
H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), pp. 46–7.
174
See Section III.
175
A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn)
(London: Macmillan, 1959), p. 196.
44 Parliamentary Sovereignty
and the independence of the judges has rested on statute since the Act of
Settlement, 1701.’176
There is ample evidence that Dicey did not believe that Parliament
owed its authority to judge-made law. First, having stated that English
constitutional law was ‘a cross between history and custom’, he argued
that Parliament’s sovereignty could be ‘shown historically’ by describ-
ing a number of extraordinary statutes that had been efficacious.177 For
example, he described the Septennial Act as ‘standing proof ’, Acts of
Indemnity as ‘crowning proof’, and repeals of statutes purporting to pro-
hibit their future repeal as ‘the strongest proof’, of Parliament’s sovereign
power.178 Secondly, Dicey endorsed Austin’s thesis that ‘[j]udicial legisla-
tion is . . . subordinate legislation, carried on with the assent and subject to
the supervision of Parliament’.179 Thirdly, his statement that ‘[t]here is no
power which, under the English constitution, can come into rivalry with
the legislative sovereignty of Parliament’ is inconsistent with the idea that
Parliament’s sovereignty derives from, and therefore could be limited by,
the exercise of judicial power.180 Finally, it is doubtful that Dicey regarded
even the common law as entirely judge-made: he described it as a ‘mass of
custom, tradition, or judge-made maxims’.181
Dicey seems to have regarded Parliament’s sovereignty as a matter of
long-standing, fundamental custom, which has the status of ‘law’ because
the courts are obliged to accept and enforce it. He did not accept Austin’s
theory that there must be a sovereign power in every legal system.182 Dicey
surmised that, rather than Parliament’s sovereignty being ‘a deduction
from abstract theories of jurisprudence’, Austin’s conception of sover-
eignty was ‘a generalisation drawn in the main from English law’, and
‘the ease with which the theory of absolute sovereignty has been accepted
by English jurists is due to the peculiar history of English constitutional
law’.183
The notion that the common law is the source of Parliament’s authority
was later revived by constitutional writers such as W. Ivor Jennings in the
twentieth century. But Jennings was too subtle a thinker to suggest that,
in this regard, the common law was judge-made law:
176
Ibid., p. 195 n. 3. Jennings had previously made the same point: W.I. Jennings, The Law
and the Constitution (2nd edn) (London: University of London Press, 1938), pp. 38–40.
177
Dicey, Introduction, pp. 24 and 43.
178
Ibid., pp. 48, 50 and 65 respectively. 179 Ibid., pp. 60–1.
180
Ibid., p. 70. Hence, his assertion that ‘no English judge ever conceded, or, under the pre-
sent constitution, can concede, that Parliament is in any legal sense a “trustee” for the
electors’.: Ibid., p. 75, emphasis added.
181
Ibid., p. 24. 182 Ibid., p. 61. 183 Ibid., p. 72.
The myth of the common law constitution 45
The most important principle [of the constitution], that of the supremacy
of Parliament, is no doubt a rule of the common law. It was not established
by judicial decisions, however; it was settled by armed confl ict and the
Bill of Rights and the Act of Settlement. The judges did no more than
acquiesce in a simple fact of political authority, though they have never
been called upon precisely to say so.184
Thirdly, for most of the period surveyed here, almost everyone accepted
that the High Court of Parliament was the highest court in the realm,
with ultimate authority to declare and interpret the common law itself.193
Even lawyers such as Thomas Hedley therefore accepted a version of com-
mon law constitutionalism that is very different from modern versions of
the theory, which attribute ultimate authority to expound and develop
the unwritten constitution to judges.
It must be conceded that, over the centuries, the ambit of the common
law has steadily expanded. For example, the theory that the King pos-
sessed ‘absolute’ prerogatives that were above the common law eventually
lost credibility. All the powers of the Crown are now creatures of either
statutory or common law, and today the unwritten constitution is largely
a matter of common law. Parliamentary sovereignty may be the final bas-
tion that still resists the common law’s imperial ambitions. But the com-
mon law’s subjugation of other sites of legal authority does not entail that,
by some kind of immanent logic, it is entitled and destined to sweep the
field.
193
Goldsworthy, The Sovereignty of Parliament, pp. 110, 118–19, 153–4 and 156–7.
194
Adam Tomkins, Public Law (Oxford: Oxford University Press, 2003), p. 103.
48 Parliamentary Sovereignty
If we are concerned with legal authority, then it is not clear that there is
any need to resort to deeper principles. There cannot be an infinite regress
of legal institutions or norms, each owing its authority to the next in line.
There must be a basic norm or set of basic norms that is authoritative for
legal purposes. These basic norms might simply be that the institutions in
question possess the legal authority that is generally attributed to them.
Consider written constitutions, for example. In Australia, it has become
common for people to ask what the current legal foundation of the
Australian Constitution is. Since the British Parliament, which originally
enacted the Constitution, lost its authority to change Australian law, the
answers usually given are either the common law, or the sovereignty of
the people. But no good reason has been given for assuming that, for legal
purposes, the Constitution must rest on some deeper legal foundation.
Why cannot the Constitution itself be the ultimate foundation of the legal
system, with no need for the support of deeper legal norms? And if it can,
then presumably the generally accepted norms of an unwritten constitu-
tion can play the same role. In other words, constitutional doctrines such
as that of parliamentary sovereignty can be legally fundamental, requir-
ing no deeper legal support.
If, on the other hand, we are concerned with moral rather than legal
authority – either for its own sake, or because positivists are wrong to
think that the two are distinct – another question arises. Why would an
enquiry into the ultimate source or basis of the moral authority of a legal
institution or norm be satisfied by an appeal to a deeper law, such as the
common law? Even if it did look to the common law, would it not insist on
digging even deeper, and enquiring into the moral authority of that body
of law? It is, after all, a moral rather than a legal source that is required
here, and many candidates are available: necessity, prudence, justice,
equality, fraternity, duty to others, fair play, consent, and so on. This is
why political and legal thinkers in past centuries, when reflecting on the
law’s moral authority, appealed to a variety of competing principles such
as divine right, natural law, ancient custom, social contract, the checks
and balances of ‘mixed government’, the collective wisdom of the com-
munity, and the practical necessity of sovereign power.
The nature of fundamental legal norms is admittedly a subject of philo-
sophical puzzlement. That is why we turn to thinkers such as Kelsen and
Hart for enlightenment. Perhaps what writers such as Tomkins really
seek, when they ask about the ultimate source or basis of the authority of
constitutional doctrines, is a philosophical explanation of legal authority
and of ultimate legal norms. But that is quite different from what they
The myth of the common law constitution 49
expressly ask for. Hart’s theory of law, for example, helps us understand
the nature and mode of existence of fundamental legal norms, and what
it means to say that they are legally authoritative, but it does not provide a
source or basis for their legal authority.
Common law constitutionalists might reply that, even if constitutional
norms such as the doctrine of parliamentary sovereignty are legally fun-
damental, and do not derive their authority from deeper legal principles,
it is still useful to classify them. Even if they do not rest on deeper com-
mon law principles, it may still be the case that they themselves are part
of the common law.
It should be noted at this point that the common law constitutionalists’
interest in classifying such norms as ‘common law’ is not merely taxonom-
ical. They believe that it has an important practical consequence: namely,
that such norms are ‘in the keeping of the courts’, which have author-
ity either to change them, or at least authoritatively to declare that they
have changed. Thus, having decided that parliamentary sovereignty is a
common law rule, Tomkins infers that ‘[l]ike any other rule of the com-
mon law it may be developed, refined, re-interpreted, or even changed
by the judges’.195 But there is a chicken/egg problem here: is the existence
of authority to change legal norms a consequence of their correct classi-
fication, or is their correct classification partly dependent on the nature
and location of authority to change them? Whether we should classify
unwritten constitutional norms as ‘common law’ surely depends partly
on whether they share the distinctive characteristics of the large body of
norms that uncontroversially bear that label – those of contract, property,
tort, and so on. These are the characteristics that distinguish the common
law from statute law. Among them is that common law norms have been
developed by judicial decisions over many centuries, and that the courts
have acknowledged authority to continue to develop them. But there are
still major theoretical disagreements about the precise nature of these
norms, and the way in which they are properly developed by judicial deci-
sions. At least four conceptions of the nature of the common law currently
compete for acceptance.
First, there is a legal positivist conception of the common law as a body
of judge-made rules, which Brian Simpson in 1973 described as the ‘pre-
dominant conception’.196 Secondly, there is the conception that Simpson
195
Tomkins, Public Law, p. 103.
196
A.W.B. Simpson, ‘The Common Law and Legal Theory’ in A.W.B. Simpson (ed.),
Oxford Essays in Jurisprudence (Second Series) (Oxford: Oxford University Press, 1973),
50 Parliamentary Sovereignty
reprinted in A.W.B. Simpson, Legal Theory and Legal History: Essays on the Common
Law (Hambledon, 1987), 359 at p. 361.
197
Simpson, ‘The Common Law and Legal Theory’ in Simpson, Legal Theory and Legal
History, p. 376.
198
See text accompanying nn. 55–61, above.
199
The similarities clearly emerge in Gray, ‘Parliament, Liberty, and the Law’ in Hexter
(ed.), Parliament and Liberty.
200
For Parliament, see the historical study in Goldsworthy, The Sovereignty of Parliament,
chs. 1–8, which is summarised in ch. 9 of that book.
201
See Thomas, ‘The Relationship of Parliament and the Courts’ at 26 (‘The conferral of
that recognition [of Parliament’s sovereignty] is in the nature of a self-denying judicial
ordinance.’).
The myth of the common law constitution 51
202
Note, however, that the Treasons Act of 1571 declared that it was treason to deny that
Parliament had authority to regulate the royal succession.
203
Lester, ‘Beyond the Powers of Parliament’ at 96. It follows that, in New Zealand,
Parliament’s authority cannot derive exclusively from § 15(1) of the Constitution Act of
1986 (NZ), or § 3(2) of the Supreme Court Act of 2004 (NZ), which refer, respectively, to
Parliament’s ‘full power to make laws’ and to its ‘sovereignty’.
204
‘Lord Steyn’s Comments from the Lester and Pannick Book Launch’ Judicial Review 107
(2004) at 107.
52 Parliamentary Sovereignty
209
See p. 5, above.
210
Mark Elliott, ‘Parliamentary Sovereignty and the New Constitutional Order: Legislative
Freedom, Political Reality and Convention’ Legal Studies 22 (2002) 340 at 362–76.
211
See H.L.A. Hart, The Concept of Law (2nd edn) (Oxford: Oxford University Press, 1994),
ch. 6.
212
Goldsworthy, The Sovereignty of Parliament, pp. 240–2.
213
Ibid., pp. 6 and 240–6. 214 Ibid., p. 26.
215
Th is point is seized on by Stuart Lakin, in ‘Debunking the Idea of Parliamentary
Sovereignty’, but he overlooks the subtleties explained here, and in Goldsworthy,
The Sovereignty of Parliament, pp. 254–9. For example, he ignores my explanation of
how judicial value-judgments play a legitimate role in the settlement of ‘hard cases’
The myth of the common law constitution 55
is not a sufficient condition for the existence of such rules, because the
acceptance of the other branches of government is also necessary. And
the judges’ judicial authority is equally dependent on acceptance by the
political branches. This means that any attempt by the judiciary unilat-
erally to change the fundamental rules of a legal system is fraught with
danger. Other officials might be persuaded, inveigled, bamboozled, or
bluffed into acquiescing in the change. But, on the other hand, they might
not. They might resent and resist the judicial attempt to change the rules
that had previously been generally accepted, and take strong action to
defeat it, possibly including the impeachment of ‘over-mighty judges’.
That might be regrettable, but the point is that if the judges tear up the
consensus that constitutes the fundamental rules of the system, they are
hardly well placed to complain if it is replaced by a power struggle they are
ill-equipped to win. In the absence of consensus, their own authority as
well as Parliament’s would be up for grabs. Rules of recognition can and do
change, but fundamental change in an unwritten constitution requires a
change in official consensus. Judges can attempt to initiate such a change,
but are well advised to make sure that the other branches of government
are likely to acquiesce. If that cannot be confidently expected, they would
be wise to wait for the legislature to initiate change.
This conception of the common law constitution is consistent with the
nature of fundamental unwritten constitutional rules, and the process by
which they are changed. But it is still problematic. The problem is that
describing the unwritten constitution as a matter of common law, even
in this sense, is likely to breed confusion. The vast bulk of the common
law consists of substantive rules and principles, governing property, con-
tracts, torts and so on, that are not constituted by a consensus of legal offi-
cialdom in general, and are therefore able to be changed without such a
consensus having to change. Judges are now recognised as having author-
ity unilaterally to change these rules and principles, or to declare that they
have changed. They are best conceptualised as judicially posited rules,
judicial customs, or Dworkinian principles.216 To apply the same label,
‘common law’, to the most fundamental norms of the unwritten consti-
tution, is likely to produce confusion, erroneous assumptions about the
authority of judges to change them, and conflict between the branches of
government. They are best regarded as ‘sui generis, a unique hybrid of law
(ibid., p. 259), and also my fall-back argument that, even if a Dworkinian theory were
adopted, parliamentary sovereignty should still be vindicated (ibid., pp. 254 and 271).
216
We do not need to choose between these alternatives here.
56 Parliamentary Sovereignty
and political fact deriving [their] authority from acceptance by the people
and by the principal institutions of the state, especially Parliament and
the judiciary’.217 As one critic of the doctrine rightly put it, parliamentary
sovereignty ‘is at one and the same time a political fact . . . a convention
of the constitution and a fundamental principle of the common law’; ‘the
legal distribution of power consists ultimately in a dynamic settlement,
acceptable to the people, between the different arms of government’.218
217
George Winterton, ‘Constitutionally Entrenched Common Law Rights: Sacrificing
Means to Ends?’ in Charles Sampford and Kim Preston (eds.), Interpreting Constitutions:
Theories, Principles and Institutions (Sydney: Federation Press, 1996), 121 at p. 136.
218
Justice E.W. Thomas, ‘The Relationship of Parliament and the Courts’ Victoria University
of Wellington Law Review 5 (2000) 31 at 14 and 19 respectively.
3
I Introduction
Throughout the common law world, it is increasingly assumed that legis-
lative sovereignty – legislative power that is legally unlimited1 – is incom-
patible with ‘the rule of law’.2 Those who regard the rule of law as an actual
legal principle sometimes argue that it necessarily excludes or overrides
any doctrine of legislative sovereignty. Others, who regard the rule of law
as a political ideal or aspiration, sometimes argue that it requires any doc-
trine of legislative sovereignty to be repealed, and legislative power subor-
dinated to constitutionally entrenched rights.
In this chapter I will challenge the assumption, common to both argu-
ments, that legislative sovereignty is incompatible with the rule of law.
Strong opinions have been expressed for and against. It has been claimed
that ‘[i]f parliament . . . can change any law at any moment . . . then the
rule of law is nothing more than a bad joke’.3 On the other hand, claims
of that kind have been disparaged as ‘judicial supremacist rhetoric’,4 and
judicial review of legislation as a ‘corrupting constitutional innovation –
which [only] in vulgar jurisprudence is thought to support the doctrine
of the rule of law’.5 The disagreement is not a new one. Over fi ft y years
ago, F.A. Hayek ’s argument that bills of rights enhanced the rule of law
was severely criticised for confusing ‘the Rule of Law’ with ‘the Rule of
1
Th is can be treated as a stipulative definition of ‘legislative sovereignty’ for the purposes of
this chapter. In addition, by ‘legal limit’ I will mean a judicially enforceable limit.
2
See, e.g., F. Jacobs, The Sovereignty of Law: the European Way, The Hamlyn Lectures 2006
(Cambridge: Cambridge University Press, 2007), p. 5; V. Bogdanor, ‘The Sovereignty of
Parliament or the Rule of Law?’, Magna Carta Lecture, 15 June 2006, p. 20, available at
http://royalholloway.org.uk/About/magna-carta/2006-lecture.pdf.
3
G. de Q. Walker, The Rule of Law, Foundation of Constitutional Democracy (Melbourne:
Melbourne University Press, 1988), p. 159.
4
M. Elliott, ‘Reconciling Constitutional Rights and Constitutional Orthodoxy’ Cambridge
Law Journal 474 (1997) 56 at 476.
5
P. Morton, An Institutional Theory of Law; Keeping Law in its Place (Oxford: Clarendon
Press, 1998), p. 371.
57
58 Parliamentary Sovereignty
6
H. Finer, The Road to Reaction (London: Dennis Dobson, 1945), ch. 4 passim.
7
Ibid., p. 38.
8
Constitutional conventions are rules or principles governing the exercise of govern-
mental powers, which officials accept as obligatory even though they are not judicially
enforceable.
9
T.R.S. Allan, Law, Liberty and Justice: the Legal Foundations of British Constitutionalism
(Oxford: Clarendon Press, 1993), p. 16; Sir John Laws, ‘Law and Democracy’ Public Law
72 (1995) at 85 and 88.
10
Reference Re Manitoba Language Rights [1985] 1 S.C.R. 721 at 750–1, quoted in
P. Monahan, ‘Is the Pearson Airport Legislation Unconstitutional?: The Rule of Law as a
Limit on Contract Repudiation by Government’ Osgoode Hall Law Journal 33 (1995) 411
at 421–2.
11
Ibid., passim.
Legislative sovereignty and the rule of law 59
Australia too, the rule of law has frequently been described as a funda-
mental principle implied by the Constitution, and two members of the
High Court have hinted that it might justify the invalidation of certain
kinds of unjust legislation.12
Notwithstanding the importance and interest of such claims, I will
be concerned in this chapter with the rule of law considered as a polit-
ical rather than as a legal principle. The fundamental issue is the incom-
patibility of legislative sovereignty with that political principle. It is an
important issue in its own right, for both political philosophy and con-
stitutional design. Moreover, the content and scope of the rule of law as a
legal principle is ultimately determined by that political principle, subject
to limitations and qualifications due to other legal principles. These limi-
tations and qualifications vary from one jurisdiction to another, and raise
complex legal questions that are beyond the scope of this chapter.13 As a
political principle, the rule of law is a ‘supra-national concept’ of poten-
tially universal significance, rather than a legal principle of a particular
jurisdiction.14
It is important not to confuse two different questions. The first is
whether legislatures are bound by the rule of law considered as a political
principle. Few people would deny that they are, just as few would deny that
legislatures are also bound by other political principles, such as equality
and justice. This is perfectly compatible with legislative sovereignty, which
I have defined as legislative power that is legally – not morally or polit-
ically – unlimited. In Britain, the doctrine of parliamentary sovereignty
co-exists with constitutional conventions requiring Parliament to comply
with many principles of political morality, including the rule of law.15
I am interested in a different question: namely, whether legislative
sovereignty is incompatible with the rule of law – or in other words,
whether the rule of law requires that legislative power be subject to
legal (judicially enforceable) limits.16 That legislative sovereignty and
12
Kartinyeri v. Commonwealth (1998) 152 ALR 540 at 569 (Gummow and Hayne JJ). See
also the remarks of Justice John Toohey, in ‘A Government of Laws, and Not of Men?’
Public Law Review 4 (1993) 158 at 160 and 174.
13
Chapters 2 , 9 and 10 deal with arguments to the effect that legislative sovereignty is lim-
ited by the common law. See also J. Goldsworthy, The Sovereignty of Parliament, History
and Philosophy (Oxford: Clarendon Press, 1999), esp. ch. 10.
14
See Norman Marsh, ‘The Rule of Law as a Supra-National Concept’, in A.G. Guest (ed.),
Oxford Essays in Jurisprudence (1st series) (Oxford: Oxford University Press, 1961),
p. 223.
15
G. Marshall, Constitutional Conventions (Oxford: Clarendon Press, 1994), pp. 9 and 201.
16
See n. 1, above.
60 Parliamentary Sovereignty
the rule of law are incompatible has been assumed by critics who have
accused A.V. Dicey of inconsistency for simultaneously adhering to
both principles.17 As Martin Loughlin puts it, ‘[h]ow can an absolut-
ist doctrine of sovereignty rest in harmony with the idea of the rule of
law? From the standpoint of mainstream contemporary jurisprudence
the issue seems irreconcilable.’18 Trevor Allan asserts that ‘it is ultim-
ately impossible to reconcile . . . the rule of law with the unlimited sover-
eignty of Parliament . . . An insistence on there being a source of ultimate
political authority, which is free of all legal restraint . . . is incompatible
with constitutionalism.’19 More recently, Geoff rey de Q. Walker has pro-
claimed ‘the simple truth that parliamentary omnipotence is an absurd-
ity and that legislative power must be balanced by the rule of law, not
just as a set of procedural safeguards, but as a minimum standard for the
substantive content of enacted law.’20
The increasing popularity of the idea that the rule of law requires even
elected legislatures to be subject to judicially enforceable limits is easy to
understand. It seems to involve a simple and natural extension of much
less controversial requirements that on any view are close to the heart of
the rule of law. If the rule of law can be reduced to a single core propos-
ition, it is that laws should limit or control what would otherwise be arbi-
trary power. It is therefore uncontroversial that administrative officials,
even at the highest levels of the executive branch of government, should
not enjoy arbitrary power. Their decisions and acts should be governed by
judicially enforceable rules or principles. But if so, it might seem that the
legislative branch of government should also be denied arbitrary power –
that its Acts, too, should be governed by judicially enforceable rules and
principles. That is why the American system of limiting legislative power
by a bill of rights is sometimes hailed as ‘the elevation of the Rule of Law
concept to its highest level’.21
17
A.V. Dicey, An Introduction to the Study of the Law of the Constitution (10th edn), (E.W.S.
Wade, ed.) (London: MacMillan, 1959).
18
M. Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992), p. 151.
19
Allan, Law, Liberty and Justice, p. 16. See also Sir John Laws, ‘Law and Democracy’
Public Law 72 (1995) at 85 and 88; F.A. Hayek, The Constitution of Liberty (London and
Henley: Routledge & Kegan Paul, 1960), ch. 12.
20
Walker, The Rule of Law, p. 359. On the other hand, Walker also says that ‘[i]n principle it
does not matter whether these restrictions are imposed by way of written constitutional
provisions and enforceable by courts, or by the dictates of custom that are enforceable by
other means’: ibid., p. 26; see also p. 159. The second option is consistent with legislative sov-
ereignty being subject only to non-legal constitutional conventions, as in Britain today.
21
P.G. Kauper, ‘The Supreme Court and the Rule of Law’ Michigan Law Review 59 (1961)
531 at 532.
Legislative sovereignty and the rule of law 61
22
E.g., A. Hutchinson and P. Monahan, ‘Democracy and the Rule of Law’, in A. Hutchinson
and P. Monahan (eds.), The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987).
23
H.W. Arthurs, ‘Rethinking Administrative Law: A Slightly Dicey Business’ Osgoode Hall
Law Journal 17 (1979) 1 at 3.
24
A. Palmer and C. Sampford, ‘Retrospective Legislation in Australia: Looking Back at the
1980s’ Federal Law Review 22 (1994) 213 at 227.
25
Th is is true, at least, if the law is conceived of in legal positivist terms. A natural law-
yer, who conceives of the law as including transcendent and overriding moral principles,
might think that the rule of law requires no more than the rule of the law, which is, ultim-
ately, the rule of those principles.
62 Parliamentary Sovereignty
26
See P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical
Framework’ Public Law (1997) 467.
27
Walker, The Rule of Law, pp. 2–3.
Legislative sovereignty and the rule of law 63
on the basis that in political and legal theory, it requires only ‘that the gov-
ernment should be ruled by law and subject to it’.28
28
J. Raz, ‘The Rule of Law and Its Virtue’, in The Authority of Law (Oxford: Clarendon Press,
1981) 210 at p. 212.
29
T. Endicott suggests that it has, in ‘The Impossibility of the Rule of Law’ Oxford Journal of
Legal Studies 19 (1999) 1 at 1–2.
30
Raz, ‘The Rule of Law and Its Virtue’. Other examples are J. Waldron, ‘The Rule of Law in
Contemporary Liberal Theory’ Ratio Juris 2 (1989) 79; R.S. Summers, ‘The Principles of
the Rule of Law’ Notre Dame Law Review 74 (1999) 1691.
31
Raz, ‘The Rule of Law and Its Virtue’, p. 211.
32
Ibid., p. 214. 33 Ibid., pp. 214–17. 34 Ibid., p. 222.
35
Ibid., pp. 219 and 228–9. 36 Ibid., pp. 220–1. 37 Ibid., p. 219.
64 Parliamentary Sovereignty
exercise can unfairly upset citizens’ expectations about their legal obliga-
tions and rights. Extremely unjust or tyrannical laws that are well known
to citizens, because they are prospective, adequately publicised, clear and
relatively stable, are not objectionable on rule of law grounds.
It does not follow that on this conception, legislative power can be com-
pletely uncontrolled. Raz suggests that judicial review of parliamentary
legislation is needed to ensure conformity with the formal requirements
of the rule of law, although he adds that this is ‘very limited review’.38 He
does not elaborate, but presumably means that the judiciary should be
able to invalidate legislation that violates the requirements that legislation
be prospective, adequately publicised, clear, relatively stable, and not con-
fer excessive discretion on administrators.39
But judicial review of legislation on these grounds would be highly
impractical. Consider the last four of them. None can possibly be abso-
lute. Legislators cannot be required to ensure that every detail of every
new law is brought to the attention of every citizen, that no law include
any vague terms, that the law never be changed, or that no administra-
tor ever be granted any discretionary power. Such requirements would
be highly undesirable from the point of view of the rule of law itself. For
example, the rule of law would suffer if citizens were immune from any
law not specifically brought to their attention. In addition, some vague-
ness in the law is often necessary if the law is not to be irrational and
arbitrary.40 The same is true of legal change, and the granting of discre-
tionary powers to administrators.41 These requirements raise questions
of degree – of more or less – that can be settled only by value judgments.
What methods of publicising new laws give citizens adequate notice of
them? When does vagueness in the law, legal change and administrative
discretion cease to be desirable and become excessive? These questions
require legislators to balance the competing values at stake, and there is
no good reason to think that judges would be better at doing this.
The requirement that seems most conducive to judicial enforcement
is that of prospectivity. But not even this should be made absolute.
Legislation that changes the law retrospectively can often be justified,
38
Ibid., p. 217.
39
If Raz meant merely that judicial review of ‘manner and form’ requirements is required,
that would not ensure that legislation conformed to the requirements of the rule of law
that he lists.
40
See Endicott, ‘The Impossibility of the Rule of Law’, 4–8.
41
Ibid., pp. 8–9, on legal change; Raz, ‘The Rule of Law and Its Virtue’, p. 222, on adminis-
trative discretion.
Legislative sovereignty and the rule of law 65
The same goes for another requirement often regarded as central to the
rule of law, although not discussed by Raz. This is that legislation should
be general in scope rather than aimed at particular persons. Even today,
legislation that changes the legal rights or duties of particular legal per-
sons is often regarded as justified, for example, to enable major public
works, or unique enterprises such as the staging of an Olympic Games,
to proceed expeditiously, by conferring special legal powers and rights
on their organisers. Sometimes Acts of indemnity or amnesty, which
relieve individuals or groups of liability for breaches of the law, are justi-
fied. Usually such breaches have been inadvertent. But as Dicey pointed
out, in extraordinary situations of internal disorder or war, the executive
might have to break the law deliberately ‘for the sake of legality itself’ – to
uphold the rule of law – and then seek an Act of Indemnity.49
To sum up, thin conceptions of the rule of law do not require that legis-
lative power be limited by a bill of rights. Moreover, there are powerful
reasons for denying that even the specific requirements they do impose
should be constitutionally guaranteed and made judicially enforceable.
They are too vague, and defeasible.50
47
See J. Rivers, ‘The Interpretation and Invalidity of Unjust Laws’, in D. Dyzenhaus
(ed.), Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing,
1999) p. 40.
48
Palmer and Sampford, ‘Retrospective Legislation’, p. 277.
49
Dicey, An Introduction, pp. 411–13.
50
There may be one or two narrow exceptions – such as a prohibition on Acts of Attainder –
but this does not undermine the general conclusion.
Legislative sovereignty and the rule of law 67
are not subject to the rule of law – which is no doubt obvious, since that
is the complaint about legislative sovereignty that we started with. If
legislatures governed by nothing more determinate than moral princi-
ples are not subject to the rule of law, why should judges be regarded any
differently?
An alternative solution would be to rely on ‘reason’, as opposed to ‘will’.
Aristotle’s conception of government by law rather than by men is said to
have amounted to government by reason.55 But the bare concept of rea-
son, like Kant’s categorical imperative, lacks substantive content – which
it needs if it is to perform the function required of it. And the moment we
try to give it content, we run into the same problem that plagues moral
argument: the requisite content is inherently controversial and debatable.
In practice, pure reason is unavailable to us: we only have access to the
variable, fallible and disputable reason of particular human beings. To
say that the rule of law is the rule of reason rather than of will is to beg the
question of whose reason should rule, and whose should be overridden
or discounted on the ground that it is mere ‘will’. Should law be based
ultimately on the reason of elected legislators, or the reason of judges?
It is difficult to see why the rule of law would favour judges rather than
legislators.
Another alternative would be to rely on long-standing and immutable
customs, rather than deliberately made laws, to limit legislative power.
That would be the situation in Britain if the thesis that it has a ‘com-
mon law constitution’, which controls even Parliament, were correct –
and if the common law consisted of customs that are ‘found but not
made’ by the judges. But among many difficulties with this idea, it is
far too conservative and would cripple the power of elected legislatures.
In the modern world of rapid change, legislatures cannot be prohibited
from reforming or abolishing customary practices, especially ones that
have come to seem oppressive and unjust. Imagine women being told,
in the 1970s, that elected legislatures could not validly enact legislation
inconsistent with the customary practices that defi ned their traditional
role as wives and mothers! A judicially enforceable ‘customary consti-
tution’ would be workable only if the judges were able and willing to
allow some customs, but not others, to be reformed or abolished. But on
what grounds could they do so? Custom itself could not provide them.
The judges would have to exercise moral judgment, of exactly the same
55
J. Sklar, ‘Political Theory and the Rule of Law’, in Hutchinson and Monahan (eds.), Ideal
or Ideology, 1 at pp. 1–3.
70 Parliamentary Sovereignty
This has been known for centuries. It has frequently been pointed out
that if rigid limits are imposed on legislative power, and judges appointed
to enforce them, the legislature may be disabled from doing good as well
as from doing evil, and the disadvantages of the former disability may
outweigh the advantages of the latter. The need for some power to alter or
override any law whatsoever, if only in an emergency, is a theme that runs
through centuries of disquisitions on sovereignty.60 The seventeenth–
century lawyer, Bulstrode Whitelocke, argued that no subject-matter
could safely be excluded from the reach of legislative power, because what
might be required in order to promote peace and good government could
not be predicted in advance.
If it be demanded, what is the subject matter of that good and peace? It
will be said: every thing, according as accidents and emergencies, may
make application of them, in the wisdom, and judgment, of a public coun-
cil. And consequently, all matters whatsoever may be accounted legisla-
tive affairs, within the authority of parliament.61
60
See Goldsworthy, The Sovereignty of Parliament, ‘Index of Subjects’, p. 319 (‘necessity of
power to override law in emergencies’).
61
B. Whitelocke, Whitelocke’s Notes uppon the Kings Writt for Choosing Members of
Parliament [etc] (London: C. Morton, 1766), vol. 2, p. 335; see also ibid., p. 185.
Legislative sovereignty and the rule of law 73
judgments affecting rights, but that is beside the present point. The rule of
judges may be preferable to the rule of legislatures, but we are concerned
with the rule of law. If in both cases decisions involve weighing up com-
peting abstract moral principles, why should the judges, but not the legis-
lature, be regarded as ‘ruled by law’? The identity of the decision-maker
may be different, but the character of the decision itself remains the same.
As J.A.G. Griffith put the point:
For centuries political philosophers have sought that society in which
government is by laws and not by men. It is an unattainable ideal. Written
constitutions do not achieve it. Nor do bills of rights. They merely pass
political decisions out of the hands of politicians and into the hands of
judges or other persons. To require a supreme court to make certain kinds
of political decisions does not make those decisions any less political.62
62
J.A.G. Griffith, ‘The Political Constitution’ Modern Law Review 42 (1979) 1 at 16.
63
Of course, they are not always less predictable. Some issues of political morality are
obvious and uncontroversial (such as the immorality of torturing children), and some
issues of statutory interpretation are not (words and legislative intentions can both be
obscure).
64
See P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law
(Oxford: Clarendon Press, 1987), p. 53.
74 Parliamentary Sovereignty
68
It is no accident that judicial review of legislation emerged in the United States as an
alternative to non-judicial mechanisms for ensuring legislative compliance with consti-
tutional laws. For example, New York State created a Council of Revision, which included
the Governor, Chancellor, and Supreme Court Justices, armed with a limited but not
fi nal veto over legislation deemed inconsistent ‘with the spirit of [the] constitution’.
Similar institutions, regarded as political rather than judicial, were proposed in other
states. At the Philadelphia Convention, which proposed the new federal Constitution for
ratification by the states, James Wilson and James Madison supported judicial review
only after a majority rejected their proposal for a Council of Revision. See Goldsworthy,
The Sovereignty of Parliament, pp. 212–13.
69
See W. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994).
76 Parliamentary Sovereignty
70
Dicey relied partly on this: An Introduction, 402 and 405.
71
See A.L. Goodhart, ‘The Rule of Law and Absolute Sovereignty’ University of Pennsylvania
Law Review 106 (1958) 943 at 950–2.
Legislative sovereignty and the rule of law 77
72
See Goldsworthy, The Sovereignty of Parliament, pp. 7–8, 75, 105–6, 200–1 and 234.
73
K.C. Davis, Discretionary Justice, A Preliminary Inquiry (Baton Rouge: Louisiana State
University Press, 1969), chs. 3–5.
78 Parliamentary Sovereignty
VI Conclusion
My objective has not been to completely discredit the idea of subjecting
legislative power to judicially enforceable bills of rights. It has merely
been to challenge one increasingly popular argument in favour of doing
so: namely, that it is required by the rule of law. I have made the counter-
intuitive argument that such a reform might actually detract from the
rule of law. I do not claim that this argument is sufficiently powerful to be
deployed as a positive argument against bills of rights. But it is useful in
a defensive role, to refute the argument that bills of rights are required by
the rule of law. Even if they do not detract from the rule of law, they are
clearly not required by it. They are certainly not required by ‘thin’ concep-
tions of the rule of law, and even if a ‘thick’ conception is preferable, there
are other ways of subjecting the exercise of legislative power to appropri-
ate legal control. Perhaps, in the end, all I have succeeded in doing is to
show that the issue is relatively unimportant, both because the rule of law
is too indeterminate to provide useful guidance, and because in this con-
text other political principles, such as democracy and justice, are much
more important. If so, I will be satisfied.
4
Homogenising constitutions
I Introduction
From the late eighteenth century until recently, the common law world
included just two alternative constitutional models for the protection of
individual rights. The first, developed in Britain, is the model of parlia-
mentary sovereignty, which reposes primary responsibility for protect-
ing rights in parliaments. The second, developed in the United States, is
the model of judicial review, which reposes that responsibility in courts
of law. In countries founded by Britain, the first model was established;
even when federations were formed, in Australia and Canada, judicial
review was adopted only as a means of policing the federal distribution
of powers, and not (generally speaking) as a means of protecting rights.
Some former British dominions adopted the American model upon or
after achieving independence, such as Ireland, India and (more recently)
South Africa. But otherwise, the British model predominated throughout
the common law world.
Recently, Canada, New Zealand and Britain have adopted ‘ hybrid’
models, which allocate much greater responsibility for protecting
rights to courts, without altogether abandoning the principle of parlia-
mentary sovereignty. In Canada , judicial enforcement of the Charter
of Rights 1982 is for the most part subject to s. 33, which permits legis-
latures by express provision to override most of the rights protected
by the Charter. To that extent, the principle of parliamentary sov-
ereignty has been retained, although in practice the power of over-
ride is seldom used.1 In Britain, the Human Rights Act 1998 requires
courts to ‘interpret’ (which in practice might mean to some extent
‘re-write’) legislation, wherever possible, to ensure that it is compatible
with protected rights. But where that is not possible, the courts can-
not declare the legislation invalid; they can only issue a declaration of
1
Discussed in Chapter 8, below.
79
80 Parliamentary Sovereignty
2
See, e.g., S. Gardbaum, ‘The New Commonwealth Model of Constitutionalism’
American Journal of Comparative Law 49 (2001) 707; M. Perry, ‘Protecting Rights in a
Democracy: What Role For the Courts?’ Wake Forest Law Review 38 (2003).
3
M. Tushnet, Taking the Constitution Away From the Courts (Princeton: Princeton
University Press, 2000); D. Lazar, The Frozen Republic: How the Constitution is Paralyzing
Democracy (New York: Harcourt Brace, 1996).
4
T.R.S. Allan, Constitutional Justice, A Liberal Theory of the Rule of Law (Oxford: Oxford
University Press, 2001).
Homogenising constitutions 81
amended in ways that are incompatible with the rule of law and the fun-
damental rights it embodies. Here, too, his arguments could be invoked
to support a position that has occasionally been defended in the United
States.9
Before resuming my debate with Allan, I should say at the outset that
his book is unquestionably an important contribution to legal theory
and comparative public law. It is brimming with insights distilled from
many years of reflection on the basic principles of public law in liberal
democracies. In analysing those principles and their implications, Allan
draws on the case law of many countries throughout the common law
world, including Australia, Britain, Canada, India, New Zealand and the
United States. He ranges over the whole of public law, administrative as
well as constitutional, insofar as civil liberties are concerned, including
aspects of criminal procedure and evidence that implicate the relation-
ship between the state and the citizen. He discusses such diverse issues as
free speech, due process, equality and discrimination, retrospectivity, ad
hominem legislation, civil disobedience and conscientious objection, the
right to silence, police trickery, rule-governed versus case-sensitive modes
of decision-making, justiciability and ‘political questions’, constitutional
conventions, and locus standi. In developing the concrete implications of
his abstract conception of the rule of law, his arguments are always illu-
minating and often persuasive.
That said, I will concentrate in what follows on the jurisprudential and
constitutional arguments that underpin his discussion of substantive
issues. I will argue that the former are less persuasive than the latter.
constitute what is known as the rule of law, which is ‘the core of the doc-
trine or theory of constitutionalism, and hence a necessary component of
any genuine liberal or constitutional democratic polity’.11 In explicating
the rule of law, he relies mainly on the work of Fuller, but also on that of
Hayek and Dworkin. Each of them, he says, ‘illuminates different aspects
of an integrated vision of constitutional justice’, ‘whose requirements any
acceptable version of liberal democracy should be expected to satisfy’.12
He defends Fuller’s claim that compliance with the eight well-known
‘principles of legality’ is of inherent moral value, but rejects Fuller’s argu-
ment that this is because it facilitates the governance of human conduct
by rules. Allan denies that such a purpose is of inherent moral value.13 He
argues, instead, that compliance with the principles is of inherent moral
value because it enhances the autonomy and dignity of citizens. It does
this first, by giving them fair warning of the exercise of state power, so
they can organize their affairs accordingly,14 and second, by helping them
to evaluate and criticise government coercion, as a result of officials hav-
ing to act consistently with publicised rules rather than through the secret
exercise of unfettered discretion.15
Allan concludes that the equal dignity of citizens is ‘the basic prem-
ise of liberal constitutionalism and . . . the ultimate meaning of the rule
of law’.16 ‘The citizen of a constitutional democracy is to be honoured as
an equal, autonomous, moral agent, who takes responsibility for his own
actions.’17 Indeed, ‘the role of the individual moral conscience’ is ‘[a]t the
heart of the rule of law’.18 Ultimately, ‘the rule of law is most persuasively
understood as an ideal of consent to just laws, freely given by all those to
whom they apply’.19 A legal system committed to the rule of law there-
fore aspires to every citizen’s consent: it seeks the citizen’s acceptance that
its demands ought morally to be obeyed.20 Indeed, as we will see, Allan
claims that the implicit appeal to the rational consent of the citizen is built
into the very concept of law in a liberal democracy.21
The two most fundamental principles of the rule of law – due process (or
procedural fairness) and equality – are designed to implement this aspir-
ation to popular assent.22 Compliance with these principles helps to ensure
that all government acts can be given a reasonable justification – shown
11
Ibid., p. 1.
12
Ibid., pp. 25 and 29. Allan also relies on A.V. Dicey’s influential examination of the rule
of law, pp. 13–21.
13
Ibid., p. 61. 14 Ibid., p. 62. 15 Ibid., p. 75. 16 Ibid., p. 2. 17 Ibid., p. 6.
18
Ibid., p. 89. 19 Ibid., p. 90. 20 Ibid., pp. 6, 24–5 and 64–5.
21
Ibid., pp. 65–7, discussed in section IV, below. 22 Ibid., pp. 16–17.
84 Parliamentary Sovereignty
to serve a defensible view of the common good, in which all citizens are
accorded equal respect and dignity.23 For example, due process requires
that citizens be provided with an initial right to be heard, so that their
interests and point of view must be taken into account, and a subsequent
right to require that government actions be justified both legally and
(therefore) morally before an independent judge.24 The principle of equal-
ity requires that ‘all forms of government discrimination between persons
should be adequately justified . . . [and] reasonably related to legitimate
public purposes, reflecting an intelligible view of the common good, con-
sistently maintained, and compatible with the basic principles of the legal
and constitutional order’.25 Those basic principles include a number of
‘fundamental freedoms’, of thought, speech, conscience and association,
which are necessary pre-requisites for the moral autonomy of citizens,
including their ability to evaluate whether their putative legal obligations
are truly obligatory.26
Allan anticipates the criticism that this account of the rule of law is so
substantive that it amounts to a complete theory of justice. He describes
the rule of law as ‘a modest theory of constitutional justice’, which does
not guarantee a perfectly just society, and may even form part of a polit-
ical culture that is hostile to liberty and careless of human dignity.27 But
it is hard to understand how this could be, given that the rule of law is
based on the principle of the equal dignity of all citizens, and the principle
of equality requires that all forms of discrimination must be justified to
independent courts and, indeed, to every individual citizen affected by
them. It is not easy to reconcile his claim that the rule of law is only one
political virtue among many, and does not guarantee a just society, with
his other claim that at the heart of the rule of law is the ideal of consent
on the part of every citizen to just laws.28 These claims pull in different
directions. I suspect that Allan’s theory would also not seem particularly
modest if a list were made of all the procedural and substantive rights that
he maintains are protected from legislative interference.
29
Allan, Constitutional Justice, p. 32. 30 Ibid., pp. 31, 38 and 48. 31 Ibid., p. 50.
32
Ibid., p. 39. 33 Ibid., p. 48. 34 Ibid., pp. 2, 3, 12–13, 31 and 41. 35 Ibid., p. 2.
36
See Goldsworthy, The Sovereignty of Parliament, pp. 255–71 and 274–5.
86 Parliamentary Sovereignty
37
Allan, Constitutional Justice, p. 162. 38 Ibid., p. 3.
39
Ibid. See also p. 202: ‘judicial sovereignty as regards the application of law to particular
cases’.
40
Ibid., p. 190. 41 Both quotes p. 7. See also pp. 220–1. 42 Ibid., p. 281.
43
Ibid., p. 217. 44 Ibid., p. 312. 45 Ibid., p. 89.
Homogenising constitutions 87
to invalidate legislation that violates the rule of law. First, legal officials are
also individual citizens, and so if judicial decisions are not ultimately or
finally authoritative for individual citizens, it is not entirely clear how they
can be for officials of the other branches of government. They are presum-
ably just as entitled as ordinary citizens to act on the basis of their own
sovereign autonomy. Secondly, if judges possess only the same authority
as ordinary citizens, then it is arguably confined to very unusual circum-
stances of quite extreme legislative injustice. This seems to be confirmed
by Allan’s choice of horrific Nazi laws as examples of the kind of legisla-
tion that judges would be justified in holding invalid.46 If, on the other
hand, it is part of the judges’ ‘ordinary constitutional function’ to invali-
date legislation inconsistent with the rule of law, then arguably it is prop-
erly exercisable much more frequently – even routinely – with a much
lower threshold of deference owed to legislative judgment.
46
Ibid., pp. 69–72. 47 Ibid., p. 75.
48
The emphasis is on Fuller at, e.g., p. 202. At p. 72, Dworkin’s theory of law is said to be
‘squarely built on these Fullerian foundations’.
49
Ibid., pp. 62 and 66–7. See also p. 6. 50 Ibid., p. 6. 51 Ibid., p. 202.
88 Parliamentary Sovereignty
52
Ibid., p. 6. See also p. 1.
53
For general discussion, see Chapter 3, above.
54
Allan, Constitutional Justice, pp. 6 and 71–2.
55
The word ‘implicit’ is frequently used: see, e.g., pp. 64–6. For examples of statements sug-
gesting a revisionary purpose, see ibid., pp. 62, 64, 66 and 72.
56
Ibid., pp. 61 and 67.
Homogenising constitutions 89
57
Ibid., p. 67, see also p. 218. 58 Ibid., p. 65, see also p. 202.
59
J. Raz, Ethics in the Public Domain, Essays in the Morality of Law and Politics (Oxford:
Clarendon Press, 1994), pp. 215–26.
60
Allan, Constitutional Justice, pp. 68–9.
61
Ibid., p. 68. Later Allan objects that positivists cannot account for the citizen’s moral
obligation to obey the law, p. 218. But legal positivists can account for such an obligation,
provided that it is understood to be a contingent rather than a necessary and universal
obligation.
90 Parliamentary Sovereignty
Legal positivists would concede that legal obligations and moral obliga-
tions are, in themselves, incommensurate. This is because legal obligations,
unlike moral obligations, are matters of fact, which by themselves have
no practical, action-guiding force. But positivists would argue that legal
obligations are usually (although not necessarily) accompanied by moral
obligations to obey the law, and it is always possible to weigh those moral
obligations against competing ones. There is no practical difficulty here
at all.
Allan also appeals to practical dilemmas confronting West German
courts after the Second World War. By adopting a non-positivist concep-
tion of law similar to Fuller’s, those courts were able to declare egregious
Nazi statutes legally void, and therefore ineffective to deprive Jewish citi-
zens of basic rights or to provide Nazi spies and informers with a defence
of legality.62 But as H.L.A. Hart argued in response to Fuller, there is more
than one way to achieve the same results. He argued that openly retro-
spective legislation would be a more frank and clear-headed way of deal-
ing with the problem. It is worth noting that Allan’s preferred Fullerian
solution also involves an element of retrospectivity: it involves culling
the Nazi statute book to accord with a concept of law that Allan claims is
distinctive to liberal democracies, and which therefore was presumably
alien to Nazism itself. As Hart observed, a ‘case of retrospective punish-
ment should not be made to look like an ordinary case of punishment
for an act illegal at the time’.63 In addition, the maxim ‘hard cases make
bad laws’ might be invoked here – rephrased as ‘hard cases make bad
concepts of law’. It is arguably unwise to advocate a particular concept
of law for all liberal democracies on the ground that it has proved useful
in dealing with a very unusual situation that existed only at the birth of
one or two of them, and not thereafter, especially when that situation
can be dealt with in other ways. Even if that concept was practically use-
ful in that unusual situation, it might prove to be counter-productive in
other situations that are much more likely to arise in a majority of liberal
democracies.64
Allan summarises his position thus: ‘it serve[s] no useful purpose, rele-
vant to any question of practical governance, to attribute legal validity
to a measure that wholly lack[s] moral legitimacy and ought, so far as
62
Ibid., p. 69.
63
H.L.A. Hart, The Concept of Law (2nd edn) (Oxford: Clarendon Press, 1994), pp. 211–12.
64
See Goldsworthy, The Sovereignty of Parliament, pp. 267–9, for general discussion of this
issue.
Homogenising constitutions 91
70
Ibid., p. 268. 71 Ibid., pp. 312 and 319–20.
72
T. Campbell, ‘Democratic Aspects of Ethical Positivism’, in T. Campbell and
J. Goldsworthy (eds.), Judicial Power, Democracy and Legal Positivism (Aldershot:
Ashgate/Dartmouth, 2000), p. 3.
73
Finnis, Natural Law, pp. 312 and 317. 74 Ibid., pp. 317–18.
75
See text to nn. 41–45, above.
Homogenising constitutions 93
they ought morally to obey legally valid legislation, the obliteration of any
distinction between moral and legal validity would tend to obscure the
likely costs and benefits of such decisions. As Allan acknowledges, there
are powerful reasons, concerning the maintenance of legal authority, why
individuals often ought morally to obey legislation that they regard as
morally wrong.76 These reasons are likely to be obscured if legislation that
is deemed morally wrong is for that reason also deemed legally invalid.
This is because disobeying legally invalid legislation does not directly
challenge legal authority, and therefore does not obviously threaten its
maintenance. The threat is more plainly apparent if the legislation in ques-
tion is regarded as legally valid. To put this another way: while it is clear
that there can be good reasons for obeying legislation that is immoral but
legally valid, it is not so clear that there can be good reasons for obeying
legislation that is both immoral and legally invalid.
Much the same point bears on how we should think about judicial
obedience to Parliament. Allan and I agree that judges should disobey
egregiously immoral legislation.77 I suspect that we also agree that out-
right disobedience is an extra-ordinary response – a remedy of last
resort – that should be reserved for quite exceptional circumstances. We
agree, in other words, that the judges’ normal stance should be one of
obedience, albeit tempered by strict interpretation of legislation impin-
ging on common law rights. But whereas I conceive of disobedience as an
exercise of moral authority, which overrides the judges’ legal duty, Allan
conceives of it as an exercise of both moral and legal authority. I regard the
distinction between legal and moral authority as a conceptual device that
helps prevent the extra-ordinary response of disobedience being resorted
to excessively, thereby eroding the normal judicial stance of obedience,
and undermining democracy. I previously showed that precisely this
concern contributed to the historical development of the doctrine of par-
liamentary sovereignty.78 Allan, on the other hand, is motivated by the
opposite concern, that adherence to the distinction might deter judges
from departing from their normal stance of obedience when necessary,
leading to craven judicial acquiescence in egregious injustice. That is also
a legitimate concern, but not necessarily the paramount one:
The price that must be paid for giving judges authority to invalidate a
few laws that are clearly unjust or undemocratic is that they must also be
76
Allan, Constitutional Justice, pp. 76 and 221.
77
Goldsworthy, The Sovereignty of Parliament, pp. 261–70.
78
Ibid., pp. 178–82, 196 and 267–9.
94 Parliamentary Sovereignty
given authority to overrule the democratic process in a much larger num-
ber of cases where the requirements of justice or democracy are debatable.
The danger of excessive judicial interference with democratic decision-
making might be worse than that of parliamentary tyranny, given the
relative probabilities of their actually occurring.79
This leads to the fourth argument. For the reason just given, the desir-
ability of judicial authority to invalidate legislation is a question of insti-
tutional design that cannot have any straight-forward and universally
applicable answer. Much depends on the culture, social structure and
political organization in which each legal system operates.80 No single
answer will fit all cases. For example, it now seems that hybrid consti-
tutional models might strike an attractive compromise between the
competing traditional models. The point is that legal positivism is neu-
tral between all the options: it is compatible with parliamentary sover-
eignty, full judicial protection of constitutional rights, and the various
hybrid models. But Allan’s non-positivist theory is not neutral: it builds
moral criteria into the concept of law in such a way that judicial review of
fundamental rights is required by definition. Excluding alternative con-
stitutional models by definitional fiat would severely hamper practical
institutional design. That is a further reason for legal positivists to argue
that their concept of law is superior for practical purposes.
These four arguments are not, of course, necessarily conclusive. But
they demonstrate that the question of which concept of law is superior
for practical purposes is far from easy. Allan needs to provide much more
argumentation to rebut them.
Worse still for Allan, it is not obvious that the answer he gives greatly
assists his main thesis. That thesis concerns what concept of law does
in fact prevail in liberal democracies such as Britain, not what concept
of law ought to prevail for reasons of practical utility. Showing that one
concept of law would be superior to an alternative, in terms of practical
utility, does not show that it already prevails. Allan’s own text sometimes
suggests that he is recommending a revised concept of law, rather than
analysing a concept already in use.81 He would no doubt reply that he is
engaged in Dworkinian interpretation, a partly evaluative exercise, rather
than purely empirical description. But interpretation is not purely evalu-
ative either: any plausible interpretation must satisfy a ‘dimension of fit’
79
Ibid., p. 269.
80
Ibid., p. 279. See also W. Sadurski, ‘Judicial Review and the Protection of Constitutional
Rights’ Oxford Journal of Legal Studies 22 (2002) 275.
81
See n. 55, above.
Homogenising constitutions 95
82
See n. 7, above. 83 Allan, Constitutional Justice, p. 71.
84
Ibid., p. 201. 85 Ibid., p. 4. 86 Ibid., p. 5.
87
Ibid., p. 13. See also p. 201: it is ‘generally treated as a characteristic feature of English
law’.
96 Parliamentary Sovereignty
88
Ibid., pp. 5 and 13. See also p. 201: it is ‘seriously confused as a matter of constitutional
theory’ and ‘mistaken’.
89
Ibid., p. 4. 90 Ibid., p. 232. 91 Ibid., p. 240.
92
Ibid., pp. 139, 225, 229, 243 and 271.
93
See Chapter 2 , above, and Goldsworthy, The Sovereignty of Parliament, pp. 238–43.
94
Allan, Constitutional Justice, p. 219. 95 Ibid., pp. 223–4.
96
Chapter 2 , above, and Goldsworthy, The Sovereignty of Parliament, p. 243.
Homogenising constitutions 97
But since Allan agrees that the issue turns on the consensus among senior
legal officials that underpins the legal system, one might expect him to
carefully examine the evidence of what that consensus actually is. An
example of relevant evidence is the government’s White Paper that accom-
panied the Human Rights Bill when it was introduced into the House of
Lords in 1997. It reaffirmed the doctrine of parliamentary sovereignty,
and asserted that a power to invalidate Acts of Parliament is something
‘which under our present constitutional arrangements they [the judges]
do not possess, and would be likely on occasions to draw the judiciary
into serious conflict with Parliament. There is no evidence to suggest that
they desire this power, nor that the public wish them to have it.’98 A second
example is a lengthy discussion that took place in the House of Lords in
1996, concerning the relationship between the three branches of govern-
ment. The present (then Shadow) Lord Chancellor, Lord Irvine of Lairg,
criticised statements by senior judges challenging the doctrine of par-
liamentary sovereignty as ‘unwise’, and disparaged the alternative they
advocated as ‘obsolete’.99 Two of those judges, Lords Woolf and Cooke,
were present, and neither mounted a defence of the opinions that Lord
Irvine criticised. Lord Woolf expressed confidence that the judges would
faithfully obey every statute that he could contemplate Parliament enact-
ing.100 The then Lord Chancellor, Lord Mackay, and Lord Wilberforce,
strongly affirmed Parliament’s sovereignty.101
These are just two examples of a mountain of evidence that could be
assembled to demonstrate that the doctrine of parliamentary sovereignty
is, as Allan actually concedes, the ‘current orthodoxy’. Statements to that
effect, by judges as well politicians, are both numerous and explicit. The
97
Allan, Constitutional Justice, p. 219.
98
Rights Brought Home: The Human Rights Bill, Presented to Parliament by the Secretary of
State for the Home Department (October 1997), 2.13.
99
Parliamentary Debates, Fifth Series, House of Lords, vol. 572, 5 June 1996, 1254–1313.
100
Ibid., 1273. 101 Ibid., 1310 and 1268 respectively.
98 Parliamentary Sovereignty
102
Allan, Constitutional Justice, pp. 13–14,
103
Ibid., pp. 13–14; and see also pp. 3 and 201–2.
104
Ibid., pp. 127–8, emphasis in original.
105
Ibid., p. 206. See also pp. 45, 210 and 211–12.
106
See Chapter 9, Section II, Part A below, and Goldsworthy, The Sovereignty of Parliament,
pp. 250–2.
Homogenising constitutions 99
107
Allan, Constitutional Justice, pp. 202–3 and 205.
108
See ibid., p. 145. 109 Ibid., pp. 229–30.
110
Ibid., p. 207; see also p. 202. At p. 210, the lesser claim is made that the power of interpret-
ation will ‘almost always’ be sufficient to preserve the rule of law.
111
Ibid., p. 214; see also p. 210. 112 Ibid., p. 233.
100 Parliamentary Sovereignty
while pretending to interpret it.113 But the occasional judicial ‘noble lie’
does not demonstrate that the legal system as a whole is committed to
judges having constitutional authority to do this. As Allan concedes, a
rule of recognition ‘does not rest on the practices and convictions of the
judiciary alone’.114 Moreover, as I argued previously, ‘the fact that the lie
is felt to be required indicates that the judges themselves realize that their
disobedience is, legally speaking, illicit’.115
Another of Allan’s strategies is to rely on judicial decisions that protect
basic rights indirectly without claiming constitutional authority to do so
directly. An example is a decision of the Australian High Court to invali-
date a statute that required a state Supreme Court to decide whether a par-
ticular, named individual should be imprisoned in the interest of public
safety.116 The High Court managed to do this by manipulating the doc-
trine of the separation of federal judicial power, which had never before
been applied to state courts, rather than by objecting directly to the ad
hominem nature of the law or its authorisation of preventive detention.
Allan says that ‘judges have often reached correct legal conclusions –
those indicated by a persuasive conception of the rule of law – which are
none the less poorly supported by the reasons offered in their defence. A
bolder, if less conventional, analysis, that frankly acknowledged the con-
straints on governmental decision-making inherent in the rule of law,
would have strengthened these judicial opinions.’117 But of course, what
is really happening in such cases is that although the judges would pre-
fer to be able to protect certain rights directly, they know that they lack
the constitutional authority to do so. They reach the result they desire
by bending or stretching other legal doctrines, or inventing new ones,
that are less controversial than a naked assertion of the constitutional
authority they lack. Allan would prefer them to declare their objective
more openly, even though this would be ‘less conventional’. But the very
fact that they do not openly claim constitutional authority to invalidate
legislation in order to protect the rights in question, surely indicates that
their legal systems do not recognise that they possess it. That is why they
proceed indirectly.
113
Although Allan does not seem to suggest that this was true in the celebrated Anisminic
case, which is usually cited in this regard: ibid., pp. 211–12.
114
Ibid., p. 219.
115
Goldsworthy, The Sovereignty of Parliament, p. 252.
116
Kable v. Director of Public Prosecutions (NSW) (1996) 138 ALR 577, discussed in Allan,
Constitutional Justice, pp. 5, 234–40 and 245–6.
117
Allan, Constitutional Justice, p. 5.
Homogenising constitutions 101
118
Ibid.
119
Goldsworthy, The Sovereignty of Parliament, pp. 253–4 and 271–2.
120
Allan, Constitutional Justice, pp. 4–5. See also ibid., p. 243.
102 Parliamentary Sovereignty
implied right to equality.121 Allan argues that the reasoning in such cases
would often be more plausible if the judges frankly admitted that the true
source of these implied rights is not the constitutional text, but deeper,
unwritten principles:
The absence of explicit guarantees of due process and the equal protection
of the laws in the Commonwealth constitution, though frequently noted
by the High Court’s critics, is immaterial if, as I have argued, these prin-
ciples are inherent in a constitution founded on the rule of law.122
[T]he written document is, in effect, subordinated to ‘higher principles’
of ‘natural’ or ‘fundamental law’ – the principles that together embody a
coherent theory of liberal constitutionalism.123
These are remarkable claims. Those who frame a written constitution usu-
ally deliberate very carefully about what institutions it should establish,
what authority it should confer on them, what rights it should guarantee
and protect through judicial review, and so on. But according to Allan, if
they make ‘mistakes’, by not giving courts sufficient authority to protect
121
Discussed in L. Zines, The High Court and the Constitution (4th edn) (Sydney:
Butterworths, 1997), pp. 202–12, 377–99 and 415–23. There is a much stronger case for
implied protection of due process than of free speech or equality.
122
Allan, Constitutional Justice, p. 250. 123 Ibid., p. 263.
124
Ibid., p. 264. See also p. 259.
Homogenising constitutions 103
legislation in order to protect rights essential to the rule of law, the Act
does not affect that power, but merely grants the courts a supplementary
power to declare legislation incompatible with other rights that are not
essential to the rule of law. It might be argued, to the contrary, that the
assumption and decision underlying the Act justify its being interpreted
as impliedly revoking any power to invalidate legislation that the judges
may previously have possessed. But Allan would surely reply that this
would be invalid, because (like s. 33 in Canada) it would contravene the
rule of law. ‘It was not open to the framers [of the Act] to choose only par-
tial implementation of the rule of law, or to leave its enforcement to other
organs of government.’128 Surprisingly, however, Allan does not explicitly
draw these conclusions, although he does say that ‘the new arrangements
serve to emphasise the dual sovereignty that previously existed’.129
VII Conclusions
Allan’s conception of the rule of law, encompassing rights to due process,
equality, free speech and association, and strong judicial review to protect
them, is powerful and attractive from a normative point of view. But his
claim that it lies at the heart of the constitution of every liberal democracy
is implausible. It is no doubt true that all liberal democracies are com-
mitted to the rule of law, in some sense of the term, as an ideal. But Allan
relies too heavily on claims about what he supposes to be ‘implicit’ in this
ideal.130 The rule of law is an abstract, vague and contestable ideal, which
is compatible with a variety of understandings and institutional arrange-
ments. That is why there is such a variety among the constitutions of lib-
eral democracies. The most fundamental principles to which they are
committed may be homogeneous, but the means by which they attempt
to implement them are not. Allan could have argued that some of those
means are inadequate or misguided, and should be reformed or replaced.
Instead, he suggests, in effect, that reforms are unnecessary, because all
liberal democracies are committed to protecting the rule of law in much
the same way. This homogenisation of constitutions ignores crucial dif-
ferences that currently exist, and if accepted, could stultify or frustrate
creative reforms that do not fit his preferred model.
As previously noted, the two traditional constitutional models are both
subject to well known criticisms: that of parliamentary sovereignty, for
128 129
See text to n. 124, above. Allan, Constitutional Justice, pp. 225–8.
130
See, e.g., ibid., pp. 64–5.
Homogenising constitutions 105
131 132
See n. 80, above. See, e.g., Allan, Constitutional Justice, pp. 22 and 163.
5
I Introduction
The doctrine that Parliament possesses sovereign – legally unlimited –
legislative authority has long been part of the foundation, if it is not indeed
the foundation, of Britain’s largely unwritten constitution.1 But the doc-
trine gives rise to a well-known conundrum: can Parliament’s author-
ity be used to limit itself? If it cannot, then it is already limited in this
one respect; on the other hand, if it can, then while it is unlimited today
it might not be tomorrow. According to the former view, Parliament’s
unlimited, sovereign authority is ‘continuing’; on the latter view, it is
‘self-embracing’.2 On the former view, parliamentary sovereignty is a
potential obstacle to effective constitutional reform: any statute pur-
porting to limit Parliament’s authority can supposedly be repealed, even
by implication, which means that it can be simply ignored. In the past,
this view made it difficult for constitutional lawyers to conceive of how
Britain’s dominions could ever achieve full constitutional independence
by lawful, rather than revolutionary, means. Even today, some lawyers
have difficulty conceiving of how Parliament could effectively subordin-
ate its authority to a constitutionally entrenched Bill of Rights, to a fed-
eral constitution transferring part of its authority to other legislatures
within Great Britain, or to a new constitution for the European Union.
In an important new book, Peter Oliver deals with the question of
colonial independence, although he hopes that his theoretical insights
will shed light on other types of constitutional reform.3 He offers an
1
J. Goldsworthy, The Sovereignty of Parliament, History and Philosophy (Oxford: Clarendon
Press, 1999).
2
H.L.A. Hart, The Concept of Law (2nd edn) (Oxford: Clarendon Press, 1994), ch. 7, s. 4.
But see the penultimate paragraph in Section II, below, on the ambiguity of the label
‘continuing’.
3
P. Oliver, The Constitution of Independence, The Development of Constitutional Theory in
Australia, Canada and New Zealand (Oxford: Oxford University Press, 2005). Th is book
will be cited henceforth as ‘Independence’.
106
Abdicating and limiting 107
4 5 6
Oliver, Independence, p. 1. Ibid., pp. 284 and 297. Ibid., p. 263.
108 Parliamentary Sovereignty
7 8 9
Ibid., pp. 7, 11 and 107. Ibid., pp. 15–18. Ibid., pp. 4–6.
Abdicating and limiting 109
vindicating his warning that ‘[i]f we are not careful, theoretical explan-
ations can cause yet further confusion’.10 I realise, however, that further
confusion may be unavoidable.
II Some clarifications
One matter that needs to be clarified at the outset is the nature of the legis-
lative authority, with respect to its former dominions, which the ‘con-
tinuing’ theory denies that Parliament can lawfully limit or abdicate, but
which it has plainly lost. It is not authority to enact valid legislation with
respect to persons or activities within these countries’ borders. That is
authority to legislate with extra-territorial effect, which Parliament con-
tinues to possess with respect to the entire world, enabling it to prohibit
people (even the French) from smoking cigarettes in Paris. Even today,
Parliament can make it an offence to smoke cigarettes in Sydney, Toronto
or Auckland. The point is that in passing such laws, it would be changing
British law, but not the law of France, Australia, Canada or New Zealand.
By contrast, the authority it has plainly lost with respect to the former
dominions is precisely authority to change their law. This is a distinction
that Oliver appears to overlook, for example, when he says that according
to the ‘standard’ (continuing) theory, Parliament’s authority to legislate
‘for Australia, Canada and New Zealand ’ cannot have been terminated,
because ‘[a]s a matter of United Kingdom law . . . the Westminster
Parliament can legislate for [these countries] just as easily as it can legis-
late for Mexico and France’.11 This misses the point, because what has been
terminated is authority to change the law of Australia, Canada and New
Zealand, and an equivalent authority with respect to Mexico and France
has never been claimed. The effect of the termination is to put Australia,
Canada and New Zealand in the same position as Mexico and France,
and all other countries in the world whose legal systems are independent
of Britain’s.12
Oliver discusses a bewildering variety of theories of parliamentary
sovereignty and dominion independence. In analysing them, he fre-
quently invokes Kelsen’s concept of the grundnorm, and Hart’s concept
10
Ibid., p. 350. 11 Ibid., pp. 286–7; see also p. 289.
12
It is also worth noting that the Australian and New Zealand Parliaments both possess
the same unlimited extra-territorial authority as the British Parliament, and can legis-
late with respect to persons and activities in Mexico, France, and anywhere else outside
their countries’ borders. But they do not foolishly claim authority to change the law of
any other country.
110 Parliamentary Sovereignty
of the rule of recognition. I will refer only to the latter. For readers who
need a reminder, according to Hart, rules of recognition are among the
most fundamental norms of a legal system, and govern what other norms
should be recognised as members of their system, or, in other words, as
valid laws. For example, a rule of recognition might recognise a written
constitution as valid law, as well as any statutes enacted by legislatures,
and any rules and principles adopted by courts, in accordance with that
constitution.13 Whether there is a single, complex, rule of recognition in
every legal system, or a number of such rules, is unimportant for present
purposes. Rules of recognition are intimately related to another kind of
fundamental norm – which Hart called rules of change – that author-
ise particular officials or institutions to change the law through specified
procedures. If a rule of change authorises some institution to make new
laws, then consistency demands that the (or a) rule of recognition recog-
nise as valid the laws made by that institution. The existence of funda-
mental norms of change and recognition depends, in large part, on their
being accepted as binding by the most senior officials of all branches of
government. They do not owe their existence to acceptance by the judi-
ciary alone.14 Hart himself regarded the doctrine of parliamentary sover-
eignty as a fundamental component of the rule of recognition in Britain,
and it is also a rule of change.15 The crucial question concerns the content
of this doctrine, and how it can itself be changed.
Oliver uses the terms ‘constituent power’ or ‘constituent process’ to
denote the power or process by which the most fundamental norms –
which is to say, the constitution – of a legal system can be changed. In a
legal system such as that of the United States, one of the most basic com-
ponents of the rule of recognition is recognition as valid law of the written
constitution, and of any amendments made by the procedure prescribed
by the constitution for its own amendment. Whatever the original con-
stituent power that enacted or created the constitution – and often it would
have been an extra-legal, perhaps revolutionary, power – while that con-
stitution persists, the only constituent power by which it may be lawfully
changed is the amendment procedure that it itself prescribes. Crucial to
13
I use the term ‘rule of recognition’ to refer only to the most fundamental components of
the law governing recognition within a legal system. For an attempt to spell out the rule
of recognition in the United States, see K. Greenawalt, ‘The Rule of Recognition and the
Constitution’ (1987) 85 Michigan Law Review 621, esp. at 659–60.
14
For elaboration, see Goldsworthy, The Sovereignty of Parliament, pp. 236–43.
15
Hart, The Concept of Law, pp. 144–8.
Abdicating and limiting 111
16
Th is proposition is not uncontroversial, as some theorists argue that the United States
Constitution can be lawfully changed by other means. See the discussion in D. Dow,
‘The Plain Meaning of Article V’, in S. Levinson (ed.), Responding to Imperfection, The
Theory and Practice of Constitutional Amendment (Princeton: Princeton University
Press, 1995), p. 117.
112 Parliamentary Sovereignty
17
See Section III, C(2) and (3), below.
18
Oliver, Independence, p. 87; see also p. 297.
19
Ibid., p. 9, emphasis added. See also p. 312: ‘the United Kingdom Parliament can be seen
either (on the continuing version) to remain perpetually at the apex of the Australian,
Canadian and New Zealand legal systems, or (on the self-embracing version) to provide
for its own replacement as the supreme amending procedure’ (emphasis added).
Abdicating and limiting 113
it can be so changed, and there is little evidence that there is. Of course,
any change to a rule of recognition must start somewhere: someone has to
initiate the requisite change in consensus. The courts can attempt to initi-
ate change, but they can succeed only if other branches of government are
willing to accept it.23
23
For more detailed discussion, see Chapter 2 , Section III above.
24
Oliver, Independence, pp. 80–1.
25
G. Winterton, ‘The British Grundnorm: Parliamentary Sovereignty Re-examined’ Law
Quarterly Review 92 (1976) 591 at 604.
26
Oliver, Independence, pp. 77–9. Winterton expresses the view that it is logically incoher-
ent to maintain that sovereignty can be procedurally self-embracing but substantively
continuing, but nevertheless advocates the manner and form theory for pragmatic rea-
sons: Winterton, ‘The British Grundnorm’, 604–5.
27
I advocated that the new theory be adopted in Goldsworthy, The Sovereignty of Parliament,
at pp. 14–15 and 244–5. However, the failure of British courts to accept the theory means
that it cannot yet be regarded as an established part of the rule of recognition in Britain.
For my views on drawing the necessary distinction, see J. Goldsworthy, ‘Manner and
Form in the Australian States’ Melbourne University Law Review 16 (1987) 403 at 417–25
and Chapter 7, below.
Abdicating and limiting 115
United Kingdom.28 It is worth noting, in this regard, that the new theory
is inconsistent with the popular notion that the doctrine of implied repeal
is somehow essential to parliamentary sovereignty. As I will later argue in
more detail, it is difficult to find any good reason for that notion.29
28
See the Conclusion to this chapter.
29
See Chapter 7, Section III, below.
30
Oliver, Independence, p. 9. 31 Ibid., pp. 85–6. 32 Ibid., p. 82.
33
Ibid., pp. 77 and 294. The decision in Factortame v. Secretary of State for Transport (No. 2)
[1991] AC 603 (HL) is arguably consistent with the continuing theory, as Oliver concedes
at ibid., p. 10. For discussion of the case, see Chapter 10, Section III, Part C, below.
116 Parliamentary Sovereignty
34
See text to n. 23 above.
35
Oliver, Independence, p. 308.
36
Elsewhere, Oliver has remarked that ‘[i]ronically, if Parliament’s . . . self-limiting ambi-
tions are to be checked in the future, Goldsworthy and others may fi nd themselves
arguing that it is up to the courts to intervene’: P. Oliver, ‘Sovereignty in the Twenty-
First Century’ KCL 14 (2003) 137 at 169. In a case such as that mentioned in the previ-
ous sentence, I would indeed urge them to do so. See also the second paragraph of the
Conclusion, below.
Abdicating and limiting 117
41
Ibid., p. 303–4, n. 71.
42
Ibid., pp. 289 n. 15, 59–60 and 315 n. 1. See also Winterton, ‘The British Grundnorm’, 602.
43
I acknowledge that Dicey may have had in mind only a complete abdication of the entir-
ety of Parliament’s authority, and not a partial abdication of its authority with respect
to some external dominion: see Oliver, Independence, pp. 60 and 289, n. 15. But any rea-
sons for conceding the possibility of a complete abdication apply equally to such a partial
abdication.
44
Oliver, Independence, p. 324.
Abdicating and limiting 119
47
See H.W.R. Wade, ‘The Basis of Legal Sovereignty’ Cambridge Law Journal (1955) 177
at 186.
48
See M.J. Detmold, The Australian Commonwealth, A Fundamental Analysis of Its
Constitution (Sydney: Law Book Co., 1985), p. 212.
Abdicating and limiting 121
that constitutes the relevant rule of recognition. The truth in Dicey’s dis-
tinction is that a purported abdication is much more likely to contribute
to the requisite change in that consensus, and therefore to prove endur-
ing, than a purported limitation.
49
If the law concerning Parliament’s power to limit itself really is indeterminate, then is it
arguable that Parliament is not legally barred from conferring independence on a domin-
ion or limiting its powers in some other way – and therefore, that it has legal liberty to do
so? In other words, is there a kind of default position, similar to the way in which com-
mon law liberty is usually conceived of: whatever is not positively prohibited, is permit-
ted? The problem with this is that it is self-contradictory: the conclusion that Parliament
is at liberty to limit its own power, because it is not positively prohibited from doing so,
contradicts the premise that the law is indeterminate. If Parliament is at liberty to limit
its own power, then a self-embracing theory (B(1) or (2)) should be preferred. In effect, on
this view, a self-embracing theory is the default position if the continuing theory is not
firmly established as law.
50
Oliver, Independence, pp. 9, 70–2 and 306–8. 51 Ibid., pp. 54 and 341.
Abdicating and limiting 123
52
Ibid., pp. 10–1 and 341. 53 Ibid., p. 311. 54
Ibid., pp. 341–2; see also pp. 318 and 24.
55
See last two paragraphs in Section II, above.
56
Oliver, Independence, pp. 8–9 and 20.
124 Parliamentary Sovereignty
57
See the final paragraph of Section II, above.
58
Other, non-justiciable, customary norms of legal officialdom are called constitutional
conventions rather than constitutional laws.
59
Goldsworthy, The Sovereignty of Parliament, p. 245.
60
J. Allison, ‘Parliamentary Sovereignty, Europe and the Economy of the Common Law’,
in M. Andenas (ed.), Judicial Review in International Perspective: Liber Amicorum in
Honour of Lord Slynn of Hadley (Kluwer, 2000), 177 at p. 185, quoting unpublished cor-
respondence between Hart and Wade.
61
J.F. Allison, The English Historical Constitution (Cambridge: Cambridge University
Press, 2007), p. 119, the conclusion of an illuminating discussion at pp. 110–19.
Abdicating and limiting 125
62
See text to n. 59, above.
63
Oliver, Independence, p. 76. It is not clear what this orthodox, Diceyan account is: of the
alternatives listed above, is it B(4) – Dicey’s own view – or C(2) – Wade’s view? Oliver
suggests that the Diceyan account is incompatible with twentieth century developments,
such as dominion independence and European legal order: loc. cit. Yet neither B(4) nor
C(2) are incompatible with both of those developments, although C(2) is incompatible
with their being ‘lawful’. Neither is my own theory, according to which the custom-
ary rule of recognition can evolve lawfully. Oliver’s suggestions are therefore puzzling.
Furthermore, in my book I explicitly adopt what Oliver calls the ‘new view’, which accepts
the validity of ‘manner and form’ requirements: see n. 27, above.
64
Young, Parliamentary Sovereignty and the Human Rights Act, ch. 3.
65
Ibid., pp. 15, 66, 73–4, 82–5, 90 and 168.
66
Ibid., pp. 15, 23–4, 65, 68, 75, 77, 83, 85, 86 and 93.
67
Th is is suggested by statements at ibid., pp. 28 (‘It is possible for rights to be entrenched
and for Parliament to retain continuing sovereignty’), 83 (‘the sovereignty of Parliament
is preserved, as courts only recognise as valid those legislative measures passed by the
sovereign law-making institution in the prescribed manner’) and 161.
126 Parliamentary Sovereignty
68
See text to n. 47, and the fi nal paragraph of Section II, above.
69
Allison, The English Historical Constitution, p. 127.
70
Oliver, Independence, pp. 19, 24, 82, nn. 41 and 313.
Abdicating and limiting 127
71
Ibid., pp. 303–4 n. 71.
72
So much so that I am puzzled as to why Oliver alleges that I pay little attention to the pos-
sibility of change initiated by Parliament (p. 300), claims that MacCormick has addressed
precisely that issue (ibid.), but then while expounding MacCormick’s views, adopts in a
footnote a position much closer to mine than to MacCormick’s (pp. 303–4 n. 71). See
Goldsworthy, The Sovereignty of Parliament, pp. 244–5.
73
See Oliver, Independence, p. 314: Parliament’s relinquishing of its powers ‘is a “disguised
revolution” if that Parliament’s powers are irrevocably continuing in nature’.
128 Parliamentary Sovereignty
This position is vulnerable to two objections. The first is that the puta-
tive distinction between lawful judicial resolution of an indeterminate
aspect of the rule of recognition, and revolutionary consensual change
of a determinate aspect of it, is dubious. It seems to assume that, just as
courts have acknowledged authority to resolve uncertainties in ordinary
laws, or in written constitutions, they must also have authority to resolve
uncertainties in unwritten, customary rules of recognition.74 Hart denied
this:
The truth may be that, when courts settle previously unenvisaged
questions concerning the most fundamental constitutional rules, they
get their authority to decide them accepted after the questions have
arisen and the decision has been given. Here all that succeeds is success
. . . Where this is so, it will often in retrospect be said, and may genuinely
appear, that there always was an ‘inherent’ power in the courts to do what
they have done. Yet this may be a pious fiction, if the only evidence for it is
the success of what has been done.75
74
See Oliver, Independence, p. 94. 75 Hart, The Concept of Law, p. 149. 76
Ibid., p. 146.
77
E.g., Oliver, Independence, pp. 5, 8, 9, 21 and 294.
Abdicating and limiting 129
78
Ibid., pp. 9 and 306.
79
Ibid., pp. 10, 307 and 319.
80
Oliver implies as much at ibid., p. 10, where he says that ‘one sort of penumbral issue’ is
whether ‘certain imaginary and as yet unenacted legislation by Parliament is beyond the
pale’. But this seems inconsistent with his usual stance of accepting that the ‘core’ of the
doctrine of parliamentary sovereignty is firmly established.
81
Hart, The Concept of Law, p. 98.
82
See Goldsworthy, The Sovereignty of Parliament, pp. 6 and 238–43.
83
See the final paragraph in Section II, above.
84
See text to nn. 18 and 19 above.
85
For examples of his expression of this assumption, see Oliver, Independence , pp. 87
and 297.
130 Parliamentary Sovereignty
86
Oliver, Independence, p. 318, n. 10. Sometimes, though, Oliver writes as if he accepted a
Dworkinian account. For example, he says that when courts resolve a hard case concern-
ing whether or not Parliament possessed self-embracing authority, they settle the ‘true’
nature of its sovereignty – as if there were a ‘right answer’ waiting to be authoritatively
identified: p. 319. But perhaps he means merely that a judicial determination creates legal
truth prospectively, rather than discovers what the truth was all along.
87
Oliver, Independence, p. 9.
Abdicating and limiting 131
be different from the right answer in Britain, because they have differ-
ent bodies of law, and the answer that makes each of them ‘the best it
can be’ might therefore be different. He sees no difficulty here, no reason
why independent legal systems should not adopt distinct, even conflict-
ing, interpretations of laws or legal processes they once held in common
(in this case, the law governing parliamentary sovereignty).88 Such ‘local
interpretations of the same Westminster processes are clearly incompat-
ible, but as separately functioning internal perspectives this incompati-
bility is of no consequence’.89
At the risk of over-complicating matters, and then leaving them unre-
solved, I will simply pose some questions about this possible reply. One
is whether Oliver would be begging the central question. The central
question is whether or not the independence of the former dominions
was acquired lawfully. Oliver relies on theories of legal systems to dem-
onstrate that they are independent, and then argues that consequently,
their courts are entitled to adopt distinct interpretations of the process by
which they acquired independence.90 But if the theories of legal systems
that he relies on merely establish de facto independence, how can they
assist in vindicating de jure independence? If, as a matter of law, their
independence was acquired unlawfully, how can the mere say-so of de
facto independent courts override that fact?91 And if a court’s legal system
is not de jure independent, is it entitled to infer a distinct ‘right answer’
from a separate, selective institutional history?
My second, related question concerns Dworkin’s thesis that the right
answer must be derived from the principles of political morality that pro-
vide the best justification of the institutional history of the legal system
in question. If a hard case concerns the nature of a power or right exer-
cised by a person or institution at some past time, does the Dworkinian
judge seek the best justification of the institutional history as it stood at
that time, or of the institutional history right up to the time when the
judge must decide the hard case? If the former, then there can be only
one right answer to a question about the nature of the power possessed by
the Westminster Parliament at a particular time. If the latter, then there
could in principle be many right answers, because truth would be relative
88
Ibid., pp. 11 and 17.
89
Ibid., p. 23; see also pp. 16 and 311. 90 Ibid., pp. 291–300.
91
If the Westminster Parliament enacted legislation not only reasserting its legislative
authority over a former dominion, but also reintroducing a right of appeal from that
country’s highest court to the Privy Council, then arguably that court would no longer
enjoy de jure independence.
132 Parliamentary Sovereignty
to the time and place at which the question is answered. Different answers
given by courts in different legal systems at different times – even to a
question concerning the same legal power that existed when all were part
of a single legal system – might all be correct.
My third question, which arises whenever and from whatever per-
spective the central question is asked, is whether the morally best answer
could possibly be that an obviously independent former dominion, with
its own flourishing democratic institutions, is not lawfully independ-
ent? The moral case in favour of even British courts acknowledging the
legality of independence might be overwhelming. But if so, then if they
adopted a Dworkinian approach, they should accept something like the
self-embracing theory, or at the very least the abdication theory, as the
right answer.
We can perhaps bypass these questions, because Oliver prefers a
legal positivist account of hard cases.92 Th is assumes that there is no
right answer as a matter of law: the law was indeterminate, and neither
affirmed nor denied that Parliament possessed either full or partial self-
embracing authority. Faced with such a question, courts are at liberty to
exercise discretion on grounds of political morality. Oliver argues that
courts in former dominions might legitimately choose one answer, and
courts in Britain another, given that somewhat different considerations
of political morality might bear on their choices. Considerations such as
de facto independence, popular sovereignty and democracy should per-
suade courts in the former dominions to accept that their legal system has
lawfully achieved independence, whereas considerations of democracy
might persuade British courts to comply with a statute enacted by their
Parliament, attempting to reassert its authority to change the law of an
independent, former dominion.
A possible problem here concerns intellectual honesty. Oliver says that
adopting a self-embracing interpretation of Parliament’s powers would
‘fulfi l the function’ of vindicating the constitutional independence of
these dominions.93 But if the law were truly indeterminate – if, as a matter
of law, it were not true either that Parliament possessed self-embracing
authority, or that it did not – then would it not be intellectually dishon-
est for courts to hold that as a matter of law it did possess such authority?
It would amount to them adopting the self-embracing theory (B(2)) that
Oliver himself rejects. It would also be a pious fiction. Its fictional nature
would be accentuated if, as Oliver suggests, British judges were to adopt
92 93
See text to n. 86, above. Oliver, Independence, p. 24.
Abdicating and limiting 133
the opposite, but supposedly equally valid, answer to the same question.
This might not, as he asserts, cause any practical difficulty. But to hold that
both answers would be equally valid because they would express different
‘perspectives’ just reinforces the conclusion that they would both be pious
fictions. The honest answer would be that the law was indeterminate, and
therefore that whether or not independence was acquired lawfully is also
legally indeterminate.94 A court in a former dominion, which adhered to
a legal positivist philosophy, could say as much, and then explain that
since it must decide the question of independence one way or the other,
it would hold the former dominion to be legally independent for reasons
of political morality. Admittedly, courts do not usually speak so frankly
about their exercise of necessary discretion to resolve legal indetermin-
acies: they usually speak as if they have uncovered the ‘right answer’ that
was latent in the legal material all along. Dworkin cites just that kind of
judicial rhetoric to support his theory. But there is no reason for Oliver to
shy away from blunt truths.
Oliver might reply that for a court in a former dominion to hold, for rea-
sons of political morality, that it acquired its independence lawfully, the
court would have to hold that the British statute that granted independ-
ence was valid – and therefore, if only by implication, that the Westminster
Parliament had authority to enact it. And that would amount to choosing
the self-embracing theory. But this strikes me as fallacious. Why should
the court attribute either continuing, or self-embracing, authority to the
Westminster Parliament? Imagine that it must decide whether or not to
recognise the validity of a British statute purporting to repeal an earlier
statute that granted independence to the dominion. Arguably, all it needs
to do is choose whether or not to regard its legal system as independent. It
does not need to decide whether or not that independence was acquired
lawfully, let alone attempt to explain why it was or wasn’t. It could simply
accept independence as an established fact, which must now be accepted
for legal purposes. If it were to address the question of whether inde-
pendence was acquired lawfully, it should say that no answer could be
given because (ex hypothesi) the law was indeterminate. It might deem
it to have been acquired lawfully, for reasons of political morality. Those
reasons have to do with the irreversible change in the political allegiance
of legal officials (the judges included), other political elites and the general
public in the former dominion, together with principles such as popular
sovereignty and democracy. My theory frankly acknowledges that these
94
See n. 49, above, to help avoid a false step here.
134 Parliamentary Sovereignty
would be the crucial reasons. But for Oliver, it seems, they are inadequate,
because they cannot establish that independence was acquired lawfully.
They must therefore be supplemented by a post hoc endorsement of the
self-embracing theory, which given the fact of independence, has no
remaining practical relevance other than as a fictional legal rationalisa-
tion for a decision really reached on other grounds.
Could it be plausibly argued that even if the retrospective adoption of
the self-embracing theory would be pious fiction, it should be adopted
prospectively?95 The problem is that a hard case involving the granting of
independence to a former dominion is unlike most hard cases that must
be decided by courts. Usually, a legal indeterminacy concerning the scope
of some right or power must be resolved prospectively, one way or the
other, in order to pre-empt other disputes that might arise in the future.
But here, no future disputes can arise. A court’s acceptance that its legal
system is lawfully independent entails that Parliament’s authority is of no
further relevance to it. Parliament no longer has any authority, continu-
ing or self-embracing, to change its laws. Therefore, no future disputes
about the nature of that authority can have any relevance to it.96 It fol-
lows that there is no need for the court of the former dominion to adopt
a position one way or the other, as to whether Parliament’s authority is
continuing or self-embracing. That is a matter that can and should be left
to British courts.
To summarise this part of the argument: on a positivist analysis, if the
nature of Parliament’s authority when it purported to grant independence
was, as a matter of law, indeterminate, then (a) a decision that it possessed
self-embracing authority at that time would be a pious fiction, and (b) a
decision that it should thenceforth be taken to possess full self-embracing
authority (theory B(2)) would be irrelevant to the circumstances of inde-
pendent former dominions, and therefore unnecessary.
4. My theory may have the additional advantage, compared with
Oliver’s, of enabling more fine-grained, discriminating conclusions to be
reached. Mine can explain how the rule of recognition can come to accept
the validity of some limits to Parliament’s authority, but not others. For
example, the rule might come to accept the validity of a Bill of Rights
enacted by large majorities in both Houses of Parliament after being
approved by a majority of voters in a referendum, which future parliaments
95
See the conclusion of point 1 in this section, above.
96
Subject to one exception: the nature of Parliament’s authority might have some bearing
on the nature of the authority that it originally conferred upon the Parliament of the
dominion. But any questions of that kind could be decided if and when they arise.
Abdicating and limiting 135
97
See text to n. 35, above.
98
Oliver, Independence, p. 308 (so long as those means are very explicit).
99
Ibid., p. 341. 100 Ibid., p. 311, emphasis added. 101 See text to n. 44, above.
136 Parliamentary Sovereignty
statute and resumed its authority over the dominion, the dominion’s
own courts would no doubt accept the repeal as valid, thereby presum-
ably rejecting the theory that the earlier Parliament possessed author-
ity to abdicate its sovereignty.102 Only my own theory, or Wade’s, can
accommodate the ad hoc, case-by-case way in which a customary rule
of recognition might evolve in response to the wide variety of challenges
to parliamentary sovereignty that might arise.
Admittedly, Oliver does at one point suggest that his theory could be
applied in a discriminating fashion:
[I]t is wrong to imply . . . that having identified the power of change . . .
all manner of constitutional change is possible. Significant constitutional
change may indeed be possible where recognition [by the courts] can
confidently be predicted, as with the devolution legislation and constitu-
tional independence legislation: however, on more controversial matters,
the proposed constitutional change is only confi rmed when the courts
eventually shed light on the rule of recognition’s previously penumbral
areas.103
This implies that courts might accept that Parliament has only partial self-
embracing authority, enabling it to limit its authority in some respects, but
not others. This would require a case-by-case determination of whether
or not attempts by Parliament to limit its authority should be accepted
as valid. The problem for Oliver is that it is hard to see how this can be
squared with his usual insistence that the courts must choose between
the continuing and the self-embracing theory. A court that accepted the
validity of any limit imposed by Parliament on its own authority would
have to reject the continuing theory, but if it therefore accepted the self-
embracing theory, it would be conceding the validity of any other limit
that Parliament might attempt to impose in the future. What general rule,
defining Parliament’s authority to limit itself, could explain the validity of
one limit, without conceding the validity of any others?
My own theory can account for the way in which some attempts by
Parliament to limit its own powers have succeeded, and might succeed in
the future, while others will probably not. It does so by frankly acknow-
ledging that the difference lies in the evolution of the requisite consensus
among senior legal officials whose opinions count for practical purposes.
On this view, it cannot accurately be said that Parliament possesses
either continuing sovereignty (in the strong sense), or self-embracing
102
See the final paragraph of Section III, B(4), above.
103
Oliver, Independence, p. 304, n. 71.
Abdicating and limiting 137
V Conclusion
In an earlier essay, Oliver expressed hope that ‘[o]nce the possibility of
self-embracing sovereignty is acknowledged . . . over the coming decades
and centuries, the United Kingdom could cautiously and pragmatically
develop an organic constitution’.106 I see no good reason why such a con-
stitution should not be developed, but I doubt that the best way forward is
for the courts to proclaim that Parliament possesses full self-embracing
sovereignty. The adoption of such a general rule would allow Parliament
to impose whatever limits it should choose – substantive, as well as formal
and procedural – on its own authority. That would allow democracy to be
subverted. For example, a political party might use a temporary majority
in Parliament to prevent future parliaments from altering or repealing
statutes implementing its favoured policies. Or it might include in a par-
ticular statute a requirement that the assent of an unrepresentative body,
such as a private corporation, be obtained in order to amend or repeal
parts of the statute. This may seem far-fetched, but a corporation enter-
ing into an agreement with the government involving the investment of a
104
See text to n. 7, above. 105 Oliver, Independence, p. 11.
106
P. Oliver, ‘Sovereignty in the Twenty-First Century’ KCLJ 14 (2003) 137 at 156.
138 Parliamentary Sovereignty
large sum of money for the sake of long-term returns might seek binding
guarantees that the agreement will not be unilaterally changed by either
the government or Parliament.107
It might be thought inconsistent for me, having argued on a previous
occasion that it is not unreasonable to trust Parliament with legislative
sovereignty, to warn against possible abuses of self-embracing sover-
eignty. But one of the reasons for entrusting Parliament with ordinary
legislative sovereignty is that mistakes and injustices can be corrected by
future Parliaments, whereas if full self-embracing authority (theory B(2))
were used to limit their ability to do so, this could become difficult or
impossible.
A more discriminating approach seems desirable, which enables
the courts to uphold some limits, but not others. It would help if the
courts adopted theory B(1) – the theory of procedural self-embracing
sovereignty – which holds that Parliament can subject itself to manner
or form requirements that do not limit its substantive authority.108 Such
requirements allow Parliament to exercise its substantive authority to
legislate, which is ‘continuing’, but require it to follow some special but
relatively undemanding procedure or form in order to do so. Manner or
form requirements can be used to protect legislation of special import-
ance from inadvertent or ill-considered amendment or repeal, by encour-
aging more careful or extensive deliberation than is usually required. For
example, ‘express repeal’ requirements and absolute majority require-
ments can have this effect. This might be invaluable, provided the courts
refuse to enforce substantive limits that are disguised as manner and
form requirements.109 On the other hand, for that very reason, this theory
would not be able to accommodate every desirable reform. For example,
a referendum requirement, despite being perfectly democratic, cannot
logically be classified as a mere requirement as to manner or form. Such
a requirement goes much further than just requiring Parliament to fol-
low a particular procedure or adopt a particular form in exercising its
substantive authority to enact law: by forbidding Parliament to enact law
without the approval of an external body – namely, the electorate – it
plainly limits its substantive authority.110 (The usual way of attempting
107
Two Australian cases in which this was argued to have happened are Commonwealth
Aluminium Corporation Pty Ltd v. Attorney-General (Western Australia) [1976] Qd R
231 and West Lakes Ltd v. South Australia (1980) 25 SASR 389.
108
See text to nn. 24–26, above; for further discussion, see Chapter 7, below.
109
See n. 27, above.
110
Contra, Winterton, ‘The British Grundnorm’, 604–6. For this reason, the decision of
the High Court in A.G. (NSW) v. Trethowan (1931) 44 CLR 394 was legally erroneous,
Abdicating and limiting 139
might be a broad consensus among legislators that the will of the elect-
orate should be respected, and another referendum required in order to
amend or repeal the Bill. In other words, by greatly enhancing the pol-
itical legitimacy of a limit imposed on Parliament’s authority, a referen-
dum might also contribute to general official acceptance of that limit.
The second consequence of my theory is that in each case, the judges
would also have to be guided by their own assessment of constitutional
principles, such as democracy and the rule of law, in deciding whether or
not they should endorse any attempted entrenchment by Parliament. The
danger of Oliver’s approach is that the courts might be guided by such
principles only in the first hard case that arises, which presents them with
the opportunity to adopt the full self-embracing theory. Thereafter, that
theory might – as a matter of logic – have to be applied in an undiscrim-
inating fashion. That would make it more difficult for the judges to insist
that only important constitutional rules or principles, which enjoy wide-
spread, non-partisan support, may be entrenched, and only in ways that
are consistent with democratic principle.113
113
For similar reasoning, see Young, Parliamentary Sovereignty and the Human Rights Act,
pp. 168–75.
6
Trethowan’s case
I Introduction
Trethowan’s case is among the most important and influential constitu-
tional cases decided in any jurisdiction of the British Commonwealth.
It was the first major case to deal with a problem common to many of
these jurisdictions, including Britain itself: namely, whether, and to what
extent, a Parliament can control or even restrict the future exercise of
its own legislative power. The problem includes, for example, whether
a Parliament can make the future enactment of legislation conditional
on its being passed by super-majorities in Parliament, or by a majority
of electors in a referendum. Moreover, the ingenious arguments put for-
ward in the case, and adopted in various judgments, proposed novel solu-
tions to the problem that have greatly influenced constitutional thought,
throughout the Commonwealth, ever since. They are generally acknow-
ledged to have inspired new theories of Parliamentary sovereignty, which
are more amenable to Parliaments being able to bind themselves in these
ways. But, however beneficial its consequences may have been, the deci-
sion in the case was almost certainly wrong as a matter of law. It is an
example of creative judicial statecraft surmounting legal obstacles in the
interests of good government.
II Background
In the early part of the twentieth century, members of Upper Houses in
State Parliaments were either elected on a restricted property franchise, or
(in New South Wales and Queensland) appointed for life by the Governor.
Consequently, they ‘were more patrician than democratic in character,
their membership reflecting the interests of wealth and privilege’.1 They
1
D. Clune and G. Griffith, Decision and Deliberation: The Parliament of New South Wales
1856–2003 (Sydney: Federation Press, 2006), pp. 242–3. Much of the information in this
Section was found in this book’s thorough account of the political background to the
Trethowan litigation.
141
142 Parliamentary Sovereignty
2
Ibid., p. 313. 3 Ibid., pp. 243 and 248.
4
P. Crockett, Evatt, A Life (Melbourne: Oxford University Press, 1993), p. 111; K. Buckley,
B. Dale and W. Reynolds, Doc Evatt (Melbourne: Longman Cheshire, 1994), p. 58.
5
Clune and Griffith, Decision and Deliberation, pp. 278–9.
6
Ibid., pp. 280–2; A.S. Morrison, ‘Dominion Office Correspondence on the New South
Wales Constitutional Crisis 1930–32’ (1976) 61 Journal of the Royal Australian Historical
Society 323 at 325.
Trethowan’s case 143
14
Clune and Griffith, Decision and Deliberation, pp. 288–9; K. Turner, House of Review?
The New South Wales Legislative Council, 1934–68 (Sydney: Sydney University Press,
1969), pp. 14 and 17.
15
See T. Blackshield, M. Coper, G. Fricke and T. Simpson, ‘Counsel, notable’, in
T. Blackshield, M. Coper and G. Williams (eds.), The Oxford Companion to the High
Court of Australia (Melbourne: Oxford University Press, 2001), pp. 160 at 163 and 166.
16
NSWPD, vol. 113, 15 May 1928, pp. 572–3 (A.C. Wills) and 597 (W. Brennan).
17
A.B. Keith, Imperial Unity and the Dominions (Oxford: Clarendon Press, 1916),
pp. 389–90, quoted in Attorney-General (NSW) v. Trethowan (1931) 44 CLR 417 at 424
(Starke J). See also A.B. Keith, Responsible Government in the Dominions (2nd edn)
(Oxford: Oxford University Press, 1928), pp. 352–3.
Trethowan’s case 145
Bavin taunted the Labor Party by asking how, given its long-standing
commitment to the referendum as the epitome of democracy, it could
possibly oppose s. 7A.18 In the Council, Labor members pledged to sup-
port s. 7A if, as logic and consistency demanded, it were itself submitted to
a referendum before being enacted; but their proposed amendment along
these lines was defeated by a vote of 34–14.19
There seems to have been some confusion as to the intended effect of
the section. Even Attorney-General Boyce, on introducing the Bill con-
taining s. 7A in the Assembly, assured members that it could be repealed
by a subsequent Parliament, quoting Bacon and Dicey as authorities for
the proposition that no Parliament could bind itself. ‘All that we can do
is to throw obstacles in the way of repeal’, he added.20 When reminded
by Sir Joseph Carruthers that the whole point of the section was to bind
future Parliaments, he replied: ‘It is the best we can do.’21 According to
the historian Charles Currey, who lived through the events, opinion
as to the bindingness of s. 7A was sharply divided. The view that it was
legally binding ‘was scoffed at by men of legal learning’, both within the
legislature and outside.22 One said that sub-section (6) was ‘an absolute
absurdity . . . For this Parliament to purport to bind future Parliaments
in this way is simply futile and, to that extent, the Bill is not worth the
paper it is written on’. 23 Even Peden was reported to have expressed
doubt, acknowledging in April 1930 that ‘some eminent lawyers believed
that the courts would decide that the Act could be repealed in the ordin-
ary way’.24 Due to various delays, the Bill did not come into force until
just before the general election of October 1930 that returned Labor to
government.25 In the meantime, legislation to reform the Upper House
had been introduced, debated and amended, but a proposed referendum
not proceeded with.26
Upon resuming office as Premier, Lang immediately revived his cam-
paign to abolish the Council. This time he could claim a mandate from
18
NSWPD, vol. 117, 12 March 1929, pp. 3619–21, 3626 and 3715.
19
NSWPD, vol. 113, 15 May 1928, pp. 598–601.
20
NSWPD, vol. 113, 10 May 1929, p. 502.
21
Ibid., p. 506; Clune and Griffith, Decision and Deliberation, p. 288.
22
Currey, ‘The Legislative Council’, 417.
23
NSWPD, vol. 117, 13 March 1929, p. 3704 (Mr McKell).
24
Sydney Morning Herald, 1 April 1930, p. 10, quoted in Clune and Griffith, Decision and
Deliberation, p. 294.
25
Clune and Griffith, Decision and Deliberation, p. 289.
26
Ibid., pp. 289–93.
146 Parliamentary Sovereignty
the people, since his policy speech had plainly spelled out this objective.27
Even Carruthers, a veteran conservative Councillor, agreed that Lang had
a mandate, but insisted that a referendum should nevertheless be held.28
Governor Sir Philip Game also acknowledged that Lang had a ‘popular
mandate’ to abolish the Council, and that this policy had been ‘placed
first on the programme he put before the electors in his Policy Speech’.29
Two Bills – one to repeal s. 7A, and the other to abolish the Council – were
introduced in the Council, and quickly passed by both Houses without
opposition. Opponents of the Bills apparently decided not to defeat them
in the Council, which might have led the Governor to appoint new Labor
members at the government’s behest, but instead, to seek judicial enforce-
ment of the requirement in s. 7A that a referendum had to be held.30 In
fact, Premier Lang had already sought further appointments, the very day
after he was returned to office, and continued to do so while litigation
proceeded through the courts, although the Governor, Sir Philip Game,
held out until November 1931.31
Lang could have submitted the Bills to a referendum, and it has been
suggested that ‘after his resounding electoral success, the chance of fur-
ther approval by voters was reasonably good’.32 He recalled many years
later that he was unwilling to do so because ‘I had in effect referred it to
the people by asking for a mandate that had been given to me’.33 He was
fortified by a legal opinion of the Crown Solicitor, John Tillett, obtained
by Attorney-General Andrew Lysacht at the Governor’s request, that a
referendum was not legally mandatory.34 The opinion stated that British
Parliamentary tradition prevented any Parliament from binding itself in
the future.35
27
Turner, House of Review?, p. 17.
28
N.B. Nairn, The Big Fella: Jack Lang and the Australian Labor Party 1891–1949 (Melbourne:
Melbourne University Press, 1995), p. 214.
29
Letter from Governor to Premier, 2 April 1931, printed by the Legislative Assembly
(NSW), State Records Office (NSW), CGS 4545 (2/8206; microfi lm copy SR Reels
2784–2785, Folio 650); Premier to Secretary of State for Dominion Affairs, 11 November
1930, DO 35/11156/8–9, quoted in F. Cain, Jack Lang and the Great Depression
(Melbourne: Australian Scholarly Publishing, 2005), p. 222; see also Currey, ‘The
Legislative Council’, 419.
30
Clune and Griffith, Decision and Deliberation, p. 294.
31
Ibid., pp. 296–9; Turner, House of Review?, p. 17.
32
Nairn, The Big Fella, p. 213.
33
J.T. Lang, The Turbulent Years (Sydney: Alpha Books, 1970), p. 108.
34
Nairn, The Big Fella, p. 213; Currey, ‘The Legislative Council’, 419; Morrison, ‘Dominion
Office Correspondence’, 326.
35
Memo, ‘Repeal of Constitution (Legislative Council) Amendment Act, 1929’, 6 November
1930, papers regarding differences between Governor Game and Premier Lang, CGS
Trethowan’s case 147
On 10 December 1930, the day the Bills were passed, Lang presented
Governor Game with a memorandum, which he was advised to send
forthwith by cable to the British government, requesting that Game assent
to the Bills immediately. Game sent it, adding to the cable that he could
see no reason why he should not accept his Ministers’ advice.36 This cable
included further legal advice supplied to the Governor, which described
s. 7A as
an unprecedented attempt to convert a flexible and an uncontrolled
Constitution into a rigid and controlled one, not by the will of the
Imperial Parliament, but by the mere operation of an ordinary local law
passed according to the views of a casual and accidental majority in one
Parliament.37
4545 reels 2784–5, folio 844, State Records Authority of New South Wales, quoted in
Cain, Jack Lang, p. 222.
36
Cable, ‘Game to Secretary of State for Dominion Affairs’, 10 December 1930, DO
35/11156/10, NA, quoted in Cain, Jack Lang, p. 224; also referred to by Currey, ‘The
Legislative Council’, 422.
37
Cable from Governor to Secretary of State, 11 December 1930, DO 35/400 11156/6.
38
Morning Post, 4 December 1930, and Daily Mail, 9 December 1930, press clippings, DO
35/400 11156/5.
39
Crockett, Evatt, A Life, p. 112.
148 Parliamentary Sovereignty
great a risk that this might arouse a political ‘storm which would sweep
away the power itself’.40
Argument before the Full Court was heard from 15–18 December, just
in time for Evatt to appear for the defendants, since he was appointed
to the High Court by the Scullin Labor government on 19 December
(McTiernan was appointed to that Court the following day). On 23
December, the Full Court handed down its judgment. The expedited
nature of the proceedings should be kept in mind when evaluating the
quality of the opinions delivered. The Court held by a majority of 4–1
that the requirements of s. 7A were binding, and granted the relief sought.
Street C.J., Ferguson, James and Owen J.J. found for the plaintiffs, and
Long Innes J dissented.
An appeal was immediately taken to the High Court. Evatt was pre-
cluded from sitting in the case, because of his previous involvement as
counsel, but McTiernan sat, even though as Lang’s Attorney-General in
1926 he had been intimately involved in the initial attempt to abolish
the Council (he had fallen out with Lang, and not contested his seat at
the 1927 election). After hearing argument on 20–21 January, the High
Court on 16 March 1931 rejected the government’s appeal by a majority
of 3–2. Rich, Starke and Dixon J.J. made up the majority; McTiernan and
Gavan Duff y C.J., an earlier Labor appointee to the Court, dissented.
Interviewed by Morrison in 1975, at the age of 98, Lang recalled ‘a little
story told to me by one of the judges’ (allegedly McTiernan):
On the morning the [Trethowan] judgment was given in the High Court
the weather was very bad. The Chief justice, Sir Gavan Duff y, came down
the stairs and said . . . ‘A dirty day for a dirty deed’.41
40
Memo from Chancellor of the Exchequer, 19 December 1930, DO 35/400 11156/10.
41
A.S. Morrison, ‘Further Documents and Comment on the New South Wales
Constitutional Crisis 1930–1932’ Journal of the Royal Australian Historical Society 68
(1982) 122 at 129.
42
Lang, Turbulent Years, p. 187; see New South Wales v. Commonwealth (No 1) (1932) 46
CLR 155 and (No 2) (1932) 46 CLR 246.
Trethowan’s case 149
Office to advise Jowitt to support the State government’s case, but was
told that this was constitutionally impossible because the Attorney-
General acted independently.43 In fact, the Attorney-General was ini-
tially advised by the Dominions Office that it might embarrass the British
government if he openly supported either party in the case. But due to
concerns about other Dominion constitutions – in particular, those of
South Africa and the Irish Free State – he was eventually asked to sup-
port, if he found it possible to do so, the judgment of the High Court, so
that those constitutions could have some degree of rigidity.44 Sir Thomas
Inskip, who replaced Jowitt as Attorney-General, did find this possible.45
Latham for the Commonwealth also supported the plaintiffs.46 The Privy
Council’s judgment was delivered in the middle of a State election cam-
paign, brought about by Premier Lang having been dismissed, on 12 May,
by Governor Game. Labor lost the ensuing election.
Sydney was at this time a small world, as was the Australian legal pro-
fession as a whole. Peden had taught both Evatt and McTiernan at Sydney
Law School, and was held in high regard by Evatt.47 Sir Philip Street, the
State’s Chief Justice, provided legal advice to Governor Game during the
crisis leading to Lang’s dismissal; by then, Lang regarded Street as the
‘leader’ of his government’s enemies.48 Lang’s government was notori-
ously unpopular among Sydney’s commercial and legal elites.49 Owen
Dixon believed it to be ‘dangerous and thoroughly corrupt, and Evatt
and McTiernan as forever stigmatised by their former intimate associ-
ation with it’.50 Commonwealth Attorney-General Latham was a per-
sonal friend of Bavin’s, both being members of the ‘Waterfall Fly Fishing
Club’, which Lang denounced as a sinister cabal of politicians, judges and
businessmen.51
43
Telegram from Game to Secretary of State for Dominion Affairs, 20 March 1931; reply, 26
March 1931, DO 35/400 11156/15.
44
Minute of meeting between H. Bushe, H. Batterby and W. Jowitt, 24 September 1931, DO
35/400 11156/59 and other documents included there; minutes of a further meeting on 6
April 1932, DO 345/400 11156/85.
45
Attorney-General (NSW) v. Trethowan [1932] AC 526 at 532.
46
‘Case for the Intervenant’, Privy Council Appeal Book, University of Sydney Law Library
(Call No 342.940238).
47
Buckley, Dale and Reynolds, Doc Evatt, p. 54; K. Tennant, Evatt, Politics and Justice
(Sydney: Angus & Robertson, 1970), pp. 22 and 32.
48
Morrison, ‘Constitutional Crisis’, 128–30.
49
Cain, Jack Lang, p. 230.
50
P. Ayres, Owen Dixon (Melbourne: Miegunyah Press, 2003), pp. 60, 182–3.
51
See ‘Latham, Sir John Greig’, Australian Dictionary of Biography Online Edition, www.
adb.online.anu.edu.au/biogs/A100002b.htm?hilite=latham.
150 Parliamentary Sovereignty
52
Trethowan v. Peden (1930) 31 SR (NSW) 183 at 195.
53
Ibid., 234. 54 Ibid., 235. 55 Ibid., 234–5 56 Ibid., 205 (Street C.J.); 221 (Owen J.).
57
Ibid., 221; see also 205 (Street C.J.).
Trethowan’s case 151
62
On the distinction between validity and bindingness, see J.D. Goldsworthy, ‘Manner and
Form in the Australian States’ Melbourne University Law Review 16 (1987) 403 at 405–6.
63
Reported in Sydney Morning Herald, 21 January 1931, p. 17.
64
McCawley v. R [1920] AC 691.
65
See summary of the defendants’ argument at (1930) 31 SR (NSW) 183 at 187–8 and
188–9.
66
Argument of Loxton KC reported at (1931) 44 CLR 394 at 401–2.
Trethowan’s case 153
cannot bind itself; and secondly, sub-s (6) was repugnant both to s. 4 of
the Imperial Act 18 and 19 Vict c. 54, and to s. 5 of the Colonial Laws
Validity Act.67
As for the first argument, the plaintiffs replied that general theories
concerning Parliamentary sovereignty, and the powers of the Imperial
Parliament, were irrelevant. The State Parliament was a subordinate legis-
lature, whose powers were conferred by superior constitutional instru-
ments. Whether s. 7A was valid and binding turned on the meaning of
these instruments, and not on false analogies between the State and the
Imperial Parliaments, or on philosophical analysis of the abstract concept
of sovereignty. This reply arguably overlooked the established principle
that the Imperial Parliament had intended to invest colonial legislatures
with power of the same plenary nature as its own power, but almost all
the judges in all three courts agreed with the submission.68 They directed
their attention to the two Imperial Acts that conferred constituent power
on the State Parliament, and therefore, so shall we.
The first Act, commonly called the Constitution Statute, enacted the
State’s first Constitution Act, an amended version of legislation passed
in New South Wales that was included in a schedule to the Statute.69
Section 4 of the Statute provided that:
It shall be lawful for the legislature of New South Wales to make laws alter-
ing or repealing all or any of the provisions of the said reserved Bill [the
Constitution Act], in the same manner as any other laws for the good gov-
ernment of the said Colony, subject, however, to the conditions imposed
by the said reserved Bill on the alteration of the provisions thereof in cer-
tain particulars, until and unless the said conditions shall be repealed or
altered by the authority of the said legislature.
Section 5 of the Colonial Laws Validity Act 1865 (the ‘CLVA’), which
applied to the New South Wales legislature, provided that:
[E]very Representative Legislature shall . . . have, and be deemed at all
Times to have had, full Power to make Laws respecting the Constitution,
Powers, and Procedure of such Legislature; provided that such Laws shall
67
(1930) 31 SR (NSW) 183 at 187.
68
Trethowan v. Peden (1930) 31 SR (NSW) 183 at 198–9 (Street C.J.), 208 (Ferguson J.), 213
and 216 (Owen J.), 228–9 (Long Innes J.); Attorney-General (NSW) v. Trethowan (1931) 44
CLR 394 at 418 (Rich J.), 422 (Starke J.), 425–7 (Dixon J.), 434–5 (McTiernan J.); Attorney-
General (NSW) v. Trethowan (1931) 47 CLR 97 at 99 and 104 (PC).
69
The terms ‘Constitution Statute’ and ‘Constitution Act’ were prescribed by the
Interpretation Act 1897 (NSW).
154 Parliamentary Sovereignty
have been passed in such Manner and Form as may from Time to Time
be required by any Act of Parliament, Letters Patent, Order in Council, or
Colonial Law for the Time being in force in the said Colony.
70
(1930) 31 SR (NSW) 183 at 188. It was clear from the Despatch from the Secretary of
State for the Colonies to the Governor of NSW, which accompanied the Constitution
Statute, that s. 4 was intended to enable those conditions to be repealed by ordinary legis-
lation: see the judgment of McTiernan J, (1931) 44 CLR 394 at 439.
71
(1930) 31 SR (NSW) 183 at 188; (1931) 44 CLR 394 at 403.
72
Ibid., 183 at 191–2.
73
Ibid., 183 at 200 (Street C.J.), 212 (James J. concurring), 217 (Owen J.); (1931) 44 CLR 394
at 417 (Rich J.), 428–9 (Dixon J.); (1932) 47 CLR 97 at 104 (PC).
74
Dixon J. placed some emphasis on the phrase ‘shall . . . be deemed at all times to have
had’ the power: (1931) 44 CLR 394 at 430. It could be argued to mean that the legislature
must be deemed at all times, past and future, to have had the power. But it was probably
Trethowan’s case 155
included merely to ensure that the legislature would be deemed to have had the power
at all past times, even before the CLVA was enacted. Its correct interpretation depends
partly on whether the words ‘at all times’ attach to ‘be deemed’, or to ‘to have had’.
75
(1931) 44 CLR 394 at 430.
76
Ibid., 443.
77
Loxton K.C., reported in (1931) 44 CLR 394 at 403 and 400 respectively; see also 402.
78
(1930) 31 SR (NSW) 183 at 232.
79
(1931) 44 CLR 394 at 406.
156 Parliamentary Sovereignty
A Reconstitution
The plaintiffs argued that a referendum requirement could be made bind-
ing by changing the composition of the legislature itself, so that for par-
ticular purposes, it would consist of the King, the two Houses and the
electors speaking by referendum.83 If s. 7A had done this, the defend-
ants’ main objection would be rebutted: the legislature would be shown
to retain, undiminished, the continuing power conferred by CLVA, s. 5,
and to be able to repeal s. 7A at any time – except that, for this particular
purpose, the legislature would consist of the King, the two Houses and
the electors. On this construction of s. 7A, the electors were not external
to the legislature, with the ability to veto Bills passed by the two Houses;
they were, instead, an internal, constitutive element of it. The ‘full power’
was untouched and intact, but the power-holder was reconstituted.
80
They are clearly distinguished at (1931) 44 CLR 394 at 407–8 (argument of counsel for
Trethowan), in the judgment of Rich J., ibid., at 418, and in the plaintiffs’ submissions
before the Privy Council at [1932] AC 526 at 530.
81
Th is is modern terminology invented by H.L.A. Hart, The Concept of Law (2nd edn)
(Oxford: Clarendon Press, 1994), ch. 7, s. 4.
82
(1931) 44 CLR 394 at 430–1.
83
(1930) 31 SR (NSW) 183 at 191.
Trethowan’s case 157
It was agreed on all sides that a State Parliament could change its own
composition, either by abolishing one of its existing Houses or by adding a
new House or other decision-making body.84 This was indisputable, given
that such Parliaments had power to change their own constitutions, and
that s. 9 of the Constitution Statute expressly defined ‘the legislature’ so as
to include not only the legislature as originally constituted, but ‘any future
legislature which may be established’ through the powers of amendment
conferred by s. 4 of the Statute and by the Constitution Act itself.
In the Supreme Court, Ferguson J. suggested that the same was true
even of the United Kingdom Parliament. The principle that Parliament
cannot shackle its own legislative power, he said:
does not mean . . . that it is beyond the power of the King, with the assent
of the Lords and Commons, to pass an Act today which it is impossible
for the King, with the assent of the Lords and Commons, to repeal tomor-
row. Tomorrow there may be no Lords and Commons, or rather, those
two estates may not compose the Parliament of tomorrow. What I con-
ceive to be the true rule is that the sovereign Legislature of today, however
constituted, cannot pass a law which the equally sovereign Legislature of
tomorrow, however it may be constituted, cannot repeal.85
He thought the same reasoning applied to the New South Wales legis-
lature, although he did not clearly apply it to the facts, and towards the
end of his judgment, seems to rely on manner and form rather than
reconstitution.86
In the High Court, Dixon J. also hinted that reconstitution was in prin-
ciple possible:
The power [in CLVA, s. 5] to make laws respecting its own constitution
enables the legislature to deal with its own nature and composition . . .
Laws which relate to its own constitution . . . must govern the legislature
in the exercise of its powers, including the exercise of its power to repeal
those very laws.87
He also said that if the British Parliament were to require the assent of
the electors before any part of a particular Act could be repealed, and
that requirement were later ignored, ‘the Courts might be called upon
to consider whether the supreme legislative power in respect of the mat-
ter had in truth been exercised in the manner required for its authentic
expression and by the elements in which it had come to reside’.88 But he
84
See, e.g., ibid., 227 (Long Innes J.). 85 Ibid., 207; see also 210.
86
Ibid., 210–11. 87 (1931) 44 CLR 394 at 430. 88 Ibid., 426.
158 Parliamentary Sovereignty
went on to decide the case on the basis of manner and form, rather than
reconstitution.
Notably, even McTiernan J., who powerfully dissented in the High
Court, did not reject the reconstitution argument outright. In setting out
his conclusions, he said:
the submission of the Bill to repeal sec. 7A to the electors would be neces-
sary if the electors have been made a part of a Legislature which thereupon
became the only authority competent to repeal sec. 7A. In my opinion sec.
7A has not that result.89
89
Ibid., 446. 90 (1930) 31 SR (NSW) 183 at 195. 91
(1931) 44 CLR 394 at 447–8.
92
(1930) 31 SR (NSW) 183 at 230. 93 Ibid., 231. 94
Ibid., 230–2.
Trethowan’s case 159
101
Note also that the Commonwealth Attorney-General supported the plaintiffs’ man-
ner and form argument, but not their reconstitution argument: see ‘Case for the
Intervenant’.
102
Gavan Duff y C.J. thought that Parliament might, in principle, be able to alter its com-
position either for general or for particular purposes, but had not done so here: (1931) 44
CLR 394 at 413.
103
Ibid., 444–5. 104 Ibid., 442.
Trethowan’s case 161
CLVA, s. 5 had been enacted showed that a manner and form require-
ment could prescribe action outside the legislature itself. They referred
to a letter of the Law Officers within the then Colonial Office concern-
ing the enactment of the CLVA.111 This showed that the purpose of the
proviso in s. 5 was to ensure that pre-existing requirements for colonial
law-making would remain binding, notwithstanding the confirmation
that colonial legislatures had ‘full power’ to alter their own constitutions.
These pre-existing requirements included requirements of special major-
ities, including two-thirds majorities, within the legislature; reservation
of Bills for the Queen’s personal assent; and the tabling of Bills before both
Houses of the Imperial Parliament. The last of these requirements had
‘nothing to do with any of the units of the Legislature’ – it was a ‘form’
required to be satisfied in the making of law even though it concerned
matters ‘happening in regard to units not part of the legislature’.112 In
the High Court, Rich and Dixon J.J. found this point to be decisive.113
‘[T]he law governing the reservation of Bills and the laying of copies
before both Houses of the Imperial Parliament were matters prominently
in view when s. 5 was framed. It is evident that these matters are included
within the proviso’, and this ruled out ‘[a]n interpretation which restricts
the application of the words of the proviso to conditions occurring, so to
speak, within the representative legislature’.114
The problem is that, while this effectively rebuts the weaker of the
defendants’ two arguments, it simply fails to address the stronger one.
There is an obvious qualitative difference between a requirement that a
Bill must be laid before an outside body such as the Imperial Parliament,
pending the royal assent, and a requirement that it must be positively
approved by an outside body such as the electorate. The former require-
ment does not deprive the legislature itself of the power of enactment: it
merely gives members of the Imperial Parliament notice of the Bill. They
might seek to persuade Ministers to advise the monarch not to assent to
it, or they might propose Imperial legislation to override it, but since the
monarch is part of the colonial legislature, and the Imperial Parliament
is able to override colonial laws, none of this is inconsistent with the State
legislature retaining full power of enactment. The latter requirement, on
the other hand, is plainly inconsistent with the legislature retaining its
full power of enactment. So the defendants’ stronger argument – that even
if a manner and form requirement can require some action outside the
111
(1931) 44 CLR 394 at 407 and 409 respectively.
112
Ibid., 409. 113 Ibid., 418–19 (Rich J.), 432 (Dixon J.). 114
Ibid., 432 (Dixon J.).
Trethowan’s case 163
Dixon J. agreed:
The more natural, the wider and the more generally accepted mean-
ing includes within the proviso all the conditions which the Imperial
Parliament or that of the self-governing State or Colony may see fit to
prescribe as essential to the enactment of a valid law.116
Starke J. took the same view, quoting Berriedale Keith ’s statement that
‘[a]ny rule whatever which has been laid down by any legislative authority
with regard to the mode of modifying the constitution is a fetter on the
freedom of the Dominion Parliament which it cannot break save in the
way appointed by the Act imposing the fetter’.117
The Privy Council endorsed Rich J.’s definition, and stated that the
words of the proviso were ‘amply wide enough’ to cover a referendum
requirement.118
The problem with this very broad interpretation is that it enables the
proviso to be used to restrict or even extinguish the legislature’s con-
stituent power, rather than merely to regulate its exercise. Dixon J., at
least, acknowledged that manner and form requirements could qualify
or control the legislature’s ‘full power’ to make laws respecting the mat-
ters specified by CLVA, s. 5 only to a limited extent: they ‘cannot do more
than prescribe the mode in which laws respecting these matters must be
made’.119 But if the so-called ‘mode’ in which such laws must be made
can require the assent of a body external to the legislature, then the ‘full
power’ can in effect be taken from the legislature and given to a larger law-
making entity of which the legislature is merely a part.
115
Ibid., 419; emphasis added.
116
Ibid., 432–3; emphasis added.
117
Keith, Imperial Unity and the Dominions, pp. 389–90, quoted by Starke J.: (1931) 44 CLR
394 at 424; emphasis added.
118
(1931) 47 CLR 97 at 106 and 104 respectively.
119
(1931) 44 CLR 394 at 431.
164 Parliamentary Sovereignty
The defendants objected that if the assent of the electorate, as a body out-
side the legislature, could be required, then logically, so could the assent
of other external bodies such as private associations or corporations, or
some other condition making it virtually impossible for laws to be passed.
As Ferguson J. recounted the submission, it was urged ‘that Parliament
might with equal force claim the right to provide that the repealing Bill
should be submitted to the Tattersall’s Club, or that three years should
elapse after its introduction before it should finally become law’.120
Ferguson J. dismissed this objection, in a passage appealing to the
orthodox defence of legislative sovereignty:
[U]nder any reading of the constitution it is conceded that the Legislature
might do things quite as drastic. It might lawfully abolish one House
or Parliament, or possibly both, create a third house, or thirty, extend
the franchise to every man and child in the State old enough to hold a
pencil, restrict it so that nobody should have a vote or sit in Parliament
except young women between fi fteen and eighteen, or provide that after
the next dissolution there should be no further election for twenty years
. . . All that means is that there is nothing in the constitution forbidding
the Legislature to do insane things. One would not expect to fi nd such
a provision there. The constitution of every free civilised community is
based on the assumption that the body to which it commits the power
of making its laws may be trusted to bring to the exercise of that power
a reasonable degree of sanity. If at any time that trust should prove to be
misplaced, then the State would be in very evil case, and would be hard
put to it to find a way of escaping disaster.121
120
(1930) 31 SR (NSW) 183 at 202 and 208. 121 Ibid., 208–9.
122
Two Australian cases in which this was subsequently argued to have happened are
Commonwealth Aluminium Corporation Pty. Ltd v. Attorney-General (WA) [1976] Qd R
231, and West Lakes Ltd v. South Australia (1980) 25 SASR 389.
Trethowan’s case 165
What this makes clear is that the defendants and dissenting judges in
Trethowan were right that, as a general rule, a requirement that an exter-
nal body must assent to legislation cannot be regarded as a legitimate
manner and form requirement, because it partially deprives the legisla-
ture of its power. The majority judges’ broad interpretation of the proviso
123
(1930) 31 SR (NSW) 183 at 202.
124
See the account of Loxton K.C.’s argument in Sydney Morning Herald, 21 January 1931,
p. 17.
125
(1931) 47 CLR 97 at 104.
126
West Lakes Ltd v. South Australia (1980) 25 SASR 389 at 397–8.
166 Parliamentary Sovereignty
127
Attributed to Lang by Boyce K.C., Premier Stevens and others, according to Sydney
Morning Herald, 1 June 1932, p. 11.
128
E. McWhinney, ‘Trethowan’s Case Reconsidered’ McGill Law Journal 2 (1955–56) 32
at 37.
129
For confl icting views within Labor itself, see G. Freudenberg, Cause for Power: The Official
History of the New South Wales Branch of the Australian Labor Party (Leichhardt: Pluto
Press, 1991), chs. 7 and 8.
130
McTiernan J. offered a rather feeble response to the invocation of political principle.
To the plaintiffs’ argument that the State Constitution would be defective if Parliament
Trethowan’s case 167
The majority judges, in all three courts, appear to have been influenced
more by these political principles than by ‘strict legalism’ and logical
analysis.131 McTiernan J’s dissent is superior in technical legal terms, even
to Dixon J.’s subtle ruminations. It is of course true that in law, pure logic
is often sterile, and must then be guided by underlying principles. But it
is doubtful that the principle of direct popular sovereignty can be found
within, or underlying, CLVA, s. 5. As for the other two principles, recourse
to underlying principles does not provide a legal warrant for rewriting
legal provisions that at best give only partial expression to them.
The majority judges seem to have taken a creative, ‘statesman-like’
approach, remoulding s. 5 for the sake of good government, and quietly
brushing legal technicalities under the carpet. Consider, for example,
their tendency to assert conclusions while ignoring powerful counter-
arguments, as in the case of Rich J.’s uncritical endorsement of the feeble
reconstitution argument, and the general refusal to consider ‘hypothet-
ical cases’. This is especially true of the Privy Council ’s cursory and high-
handed disposal of the complex issues raised: its published opinion is
full of assertions but, as Richard Latham observed, ‘hardly amounts to
a statement of reasons for judgment at all’.132 Starke J.’s judgment is even
more perfunctory. It does not follow that the majority judges’ decision
was wrong in a moral or political sense: one of the most fascinating ques-
tions in legal theory is the extent to which judges are morally justified in
changing the law, for a good cause, while giving the appearance of merely
interpreting it.
could not impose a referendum requirement itself, and had to request the Imperial
Parliament to do so, he replied:
Whether such a request would indicate a greater defect in the Constitution
than a request for power to enable the Legislature to cut the knot of legislative
provisions for two or more referenda, so that it could act as it deemed expe-
dient in an emergency which could not in its judgment permit of the delay
involved in taking the referendum or referenda, by which some existing law
or new law had been fortified against repeal or amendment, is a speculation
which will not decide the issue in this appeal: (1931) 44 CLR 394 at 449.
For a more powerful response, see M.J. Detmold, The Australian Commonwealth: A
Fundamental Analysis of Its Constitution (Sydney: Law Book Co., 1986), pp. 208 and
212–6. Note also the ‘conceptual difficulty’ raised by Gummow J. in McGinty v. Western
Australia (1996) 186 CLR 140 at 297, which applies to the events in Trethowan’s case as
described in the text to n. 19, above.
131
The words in quotation marks are, of course, Dixon’s, in O. Dixon, ‘Address Upon Taking
the Oath of Office as Chief Justice’, in Jesting Pilate, And Other Papers and Addresses
(Woinarski, ed.) (Melbourne: Law Book Co., 1965), 245 at p. 247.
132
R.T.E. Latham, The Law and the Commonwealth (Oxford: Oxford University Press,
1949), p. 566.
168 Parliamentary Sovereignty
Rich J. in the High Court said much the same thing.134 Ferguson J. empha-
sised self-determination, asking why New South Wales should not have
the right, if it chose, to adopt a referendum requirement similar to that in
the Commonwealth Constitution.135 Dixon J.’s disapproval of confining
‘a constitutional provision basal in the development of the self-governing
Colonies’ to ‘matters of procedure’ may also reflect a concern with self-
determination.136
Dixon J. avoided any comment on the merits, preferring to couch his
reasoning in strictly legal terms. It is impossible to believe, however, that
he was not influenced by the desirability of requiring fundamental consti-
tutional changes to be approved by the electors. In 1935, he described the
‘discovery’ of this means of requiring a referendum to alter a State con-
stitution as possibly ‘the most important legal development of the time’.
He depicted it as a modern reconciliation and demarcation of the equally
fundamental but competing principles of the supremacy of Parliament
and the rule of law:
The law existing for the time being is supreme when it prescribes the con-
ditions which must be fulfi lled to make a law. But on the question of what
may be done by a law so made, Parliament is supreme over the law.137
The problem with this analysis is, as we have seen, that the majority
judges’ decision to uphold the validity of s. 7A was not consistent with
133
(1930) 31 SR (NSW) 183 at 203. 134 (1931) 44 CLR 394 at 420–1.
135
(1930) 31 SR (NSW) 183 at 211. 136 (1931) 44 CLR 394 at 432.
137
O. Dixon, ‘The Law and the Constitution’, in Jesting Pilate, And Other Papers and
Addresses (Woinarski, ed.) (Melbourne: Law Book Co., 1965), 38 at 50.
Trethowan’s case 169
Parliament remaining ‘supreme over the law’. Given this logical flaw
in his analysis, which he was too astute not to have discerned, it seems
that even Dixon J. delivered a ‘quasi-political decision, based on a far-
sighted view of ultimate constitutional policy, of the type with which the
Supreme Court of the United States in its greatest periods has made us
familiar’.138
The Upper House had been abolished there in 1922, and in 1934, the new
provision inserted into the constitution proscribed its re-establishment
absent a referendum.143 (This supplied an answer to a point that Evatt
had raised in the 1920s, when he warned that abolition of the Legislative
Council might be futile, because a future Parliament could just as easily
re-establish it.)144 Several other states later adopted referendum require-
ments, to protect a variety of constitutional provisions.145
The legal foundation for these and other law-making requirements
changed in 1986. The Australia Act 1986 (UK and Cth) repealed the
CLVA with respect to Australia, although s. 6 re-enacted the substance
of the manner and form proviso. The intention was undoubtedly, in part,
to preserve the effect of the decision in Trethowan. Therefore, even if the
interpretation given to the words ‘manner and form’ in that case was
legally erroneous, as I have argued, it must now be regarded as having
received legislative endorsement by their unqualified re-enactment in
s. 6.146 Consequently, the majority judgments in Trethowan remain the
foundation for the law on ‘manner and form’ in Australia.
Professional reaction to the decision was mixed. Commonwealth
Attorney-General Sir John Latham rightly described it as ‘a landmark in
the constitutional history of the Empire’.147 Berriedale Keith, unsurpris-
ingly, claimed that ‘[i]t is plain indeed that the meaning of the proviso
to the [Colonial Laws Validity] Act of 1865 was exactly to cover such an
action as was intended by the Act of 1929, despite the ingenuity with which
the contrary view was argued’.148 But this is extremely dubious, given the
traditional British commitment to legislative supremacy and constitu-
tional flexibility, which prevailed at the time the CLVA was enacted, and
the purpose of that Act, which was to empower rather than limit colonial
legislatures.149 That is why legal officers in Britain were initially puzzled
143
Constitution Act Amendment Act 1934 (Qld) s. 3.
144
Crockett, Evatt, A Life, p. 60.
145
See P. Hanks, P. Keyzer and J. Clarke, Australian Constitutional Law, Materials and
Commentary (7th edn) (Sydney: LexisNexis Butterworths, 2004), pp. 315–6.
146
Kirby J. was therefore right to say that: ‘It is now too late to correct the judicial decisions
that construed the proviso to s. 5 as an authority to fetter the constituent and legislative
powers of Australia’s State Parliaments’: Attorney-General (WA) v. Marquet (2003) 217
CLR 545 at 609 [194].
147
Quoted in Sydney Morning Herald, 1 June 1932, p. 11.
148
A.B. Keith, The Constitutional Law of the British Dominions (London: Macmillan, 1933),
p. 106; repeated in A.B. Keith, The Dominions as Sovereign States (London: Macmillan,
1938), p. 169.
149
Hence Sir Victor Windeyer’s observation that the result in Trethowan’s case would
have surprised those whose actions led to its enactment: V. Windeyer, ‘Responsible
Trethowan’s case 171
156
Hart, The Concept of Law, ch. 7, s. 4.
157
H.V. Evatt, ‘Constitutional Interpretation in Australia’ University of Toronto Law Journal
3 (1939) 1 at 20.
158
Evatt, The King and His Dominion, p. 215.
159
Ibid., pp. 309–10.
Trethowan’s case 173
his opinion that s. 7A was not binding.160 Evatt had certainly changed
his tune.
In Harris v. Minister of Interior (1952), the concept of reconstitution
was invoked by the South African Supreme Court in holding that self-
entrenched provisions of the South African Constitution were valid and
binding, even though the CLVA was not applicable. Indeed, the con-
cept was expanded to include the idea that procedural requirements as
well as structural elements can form part of the definition or constitu-
tion of ‘Parliament’, which Parliament itself can change, although only
as so defined.161 This case, together with Trethowan, had such an impact
on constitutional theory throughout the Commonwealth that by 1976, a
leading commentator plausibly asserted that, even within Britain itself,
‘the great majority of modern constitutional lawyers’ had come to favour
the new ‘manner and form’ theory.162
160
See text to n. 20, above.
161
Harris v. Minister of Interior [1952] (2) SA 428, esp. at 463–4 (Centlivres C.J.). See
D.V. Cowen, ‘Legislature and Judiciary’ Modern Law Review 15 (1952) 282 at 287 and
289–90.
162
G. Winterton, ‘The British Grundnorm: Parliamentary Sovereignty Re-examined’ Law
Quarterly Review 92 (1976) 591 at 604.
7
I Introduction
One of the most important questions not settled by the doctrine of par-
liamentary sovereignty is whether, and how, Parliament can make the
legal validity of future legislation depend on compliance with statutory
requirements as to procedure or form.1 A requirement as to proced-
ure is a requirement that Parliament follow a particular procedure in
order to enact legislation of a certain kind. A requirement as to form is
a requirement that such legislation take or include some particular form
(for example, a particular form of words). Such requirements might
be designed to protect important legislation from inadvertent or ill-
considered amendment or repeal, by prompting more careful or extensive
deliberation within Parliament than is required to enact ordinary legis-
lation. They might also serve other purposes, such as: (a) to ensure that a
bill likely to be controversial is brought to public attention; (b) in the case
of requirements as to form, to ensure that Parliament expresses its inten-
tions with unmistakable clarity in order to avoid subsequent misunder-
standings; or (c) to differentiate between the respective functions of the
two Houses in a bicameral system.
In this chapter I will argue that legally binding and judicially enforce-
able requirements as to procedure or form are consistent with parlia-
mentary sovereignty, provided that they do not control or restrict the
substantive content of legislation, or make it so difficult for Parliament
to legislate that its power to do so is diminished. The second qualifi-
cation, admittedly, gives rise to questions of degree. But provided that
these qualifications are satisfied, such requirements are consistent with
Parliament retaining full, continuing power to change the substance of
the law however and whenever it sees fit.
1
In this chapter the word ‘Parliament’ will be used to refer not only to the United Kingdom
Parliament, but to any Parliament with respect to which the questions under discussion
might arise.
174
Requirements as to procedure for legislating 175
2
W.I. Jennings, The Law and the Constitution (5th edn) (London: University of London Press,
1959), pp. 151–63. For further discussion, see Chapter 5, Section III, Part B(2), above.
3
R.T.E. Latham, The Law and the Commonwealth (Oxford: Oxford University Press, 1949),
p. 525.
4
(1931) 44 CLR 97.
5
Jennings, The Law and the Constitution, pp. 153–4, Latham, The Law and the Common-
wealth, pp. 525–34, R.F.V. Heuston, Essays in Constitutional Law (London: Stevens &
Sons, 1961), pp. 9–16.
6
(1931) 44 CLR 97.
7
See the discussion in Chapter 6, Section IV, Part B, above.
176 Parliamentary Sovereignty
12
C. Munro, Studies in Constitutional Law (2nd edn) (London: Butterworths, 1999),
p. 164.
13
See J. Allan, ‘The Paradox of Sovereignty: Jackson and the Hunt for a New Rule of
Recognition?’ King’s Law Journal 18 (2007) 1 at 12–14.
14
[2005] UKHL 56.
178 Parliamentary Sovereignty
15
Ibid., paras. 59, 79, 118, 122, 164 and 175.
16
M. Plaxton, ‘The Concept of Legislation: Jackson v. Her Majesty’s Attorney General ’
Modern Law Review 69 (2006) 249 at 257. See also Young, Parliamentary Sovereignty,
pp. 193–4.
17
Young, Parliamentary Sovereignty, p. 194.
18
Ibid. See also the illuminating discussion in R. Ekins, ‘Acts of Parliament and the
Parliament Acts’ Law Quarterly Review 123 (2007) 91 at 109–10.
Requirements as to procedure for legislating 179
that is more onerous than its ordinary procedure, and Parliament partially
expanding its practical ability to exercise its powers by permitting itself
to use an alternative procedure that is less onerous than its ordinary one,
for some but not all legislation. In the former case, the attempt to restrict
its substantive powers can subsequently be ignored by Parliament; in the
latter case, Parliament’s decision to expand its powers only to a partial
extent cannot be subsequently ignored by the House of Commons and
Her Majesty. A bill not assented to by the House of Lords cannot become
an Act of Parliament unless it is passed in accordance with the Parliament
Acts. Thus, if the House of Commons and Her Majesty, without the assent
of the Lords, were to attempt to pass an Act outside the requirements of
those Acts, it would not be an Act of Parliament. Th is would not be an
instance of Parliament itself attempting to, and being prevented from,
enacting law.19
It seems to have been accepted by all parties and judges involved in
Jackson’s case that the alternative procedure provided by the Parliament
Act 1911 (UK) was valid. But Parliament’s ability to enact an alternative
procedure does not entail that it can enact restrictive procedures. This is
because by definition the former cannot, but the latter might, diminish
its sovereign power to legislate. Partly for this reason, everything said in
Jackson’s case in relation to the possibility of the British Parliament enact-
ing binding restrictive procedures must be classified as obiter dicta.20 The
question of whether Parliament can enact mandatory requirements as to
procedure or form remains open.
19
Ekins, ‘Acts of Parliament’, 109.
20
See T. Mullen, ‘Reflections on Jackson v. Attorney General: questioning sovereignty’ Legal
Studies 1 at 11.
180 Parliamentary Sovereignty
chocolate, but does not know whether I know it. She therefore does not
know whether I have changed my mind and intend to override my earlier
request, or whether I acted in ignorance of the biscuits’ chocolate con-
tent, in which case I myself, if fully informed, would want her to refuse
my request. Let us assume that although she receives messages from me,
she cannot send any to me, and therefore cannot seek clarification of my
current state of mind. She wishes to act as my ‘faithful agent’, and fully
accepts my ‘supremacy’ in the matter.21 But whether or not she should
send the biscuits to me is still an open question.
In deciding what to do, she should weigh up the consequences. If my
initial request was based on medical advice that I have a life threaten-
ing allergy to chocolate, she will know that I am very unlikely to have
changed my mind, and will conclude that I have requested the biscuits
in ignorance. Alternatively, if that request was based merely on a desire
to lose some weight, she may think it possible that after seven months in
the Antarctic I have exceeded that goal, and now want to end my diet.
However, she may also reasonably think that if I had changed my mind
about eating chocolate, I would have expressly said so, to avoid confus-
ing her. My failure to expressly override the initial request may itself be
treated as evidence that the later request was a mistake due to ignorance.
I could have prevented this uncertainty from arising by initially direct-
ing her not to send me anything that includes chocolate unless, in the
future, I expressly override that directive. If the potential consequences
of a mistake are extremely serious, I might want to eliminate any pos-
sibility of mistakes by insisting that she not send me chocolate unless
I use a very specific form of words that establishes beyond doubt that I
have changed my mind. This would be similar to a mandatory require-
ment as to the form of legislation, which requires that a certain form of
words must be used as a pre-requisite for a statutory provision, deemed
by a court to be contrary to some earlier provision, to be valid and effi-
cacious.22 In less serious cases, I might not want my future requests to be
frustrated by technicalities: I might prefer my initial directive to be able
to be overridden by any unequivocal indication of my intention to do so,
regardless of the particular form of words I use. In other words, I risk
making mistakes whatever I do. I might prefer my friend to act on the
21
Terms used in the American literature on statutory interpretation: see Chapter 9,
Section I’.
22
A ‘notwithstanding clause’, such as that set out in s. 33 of the Canadian Charter of Rights
and Responsibilities, is a kind of ‘form’ requirement: see Chapter 8.
Requirements as to procedure for legislating 181
23
J. Goldsworthy, Th e Sovereignty of Parliament, History and Philosophy (Oxford:
Clarendon Press, 1999), p. 15.
182 Parliamentary Sovereignty
by judicially enforceable norms that determine its composition, and the
procedure and form by which it must legislate. Furthermore, its sovereign
power is a continuing one even if it includes power to change the norms
that govern its own composition, procedure, and form of legislation, pro-
vided that it cannot use that power to unduly impair its ability to change
the substance of the law however and whenever it chooses.24
24
Ibid., p. 16.
25
See A. Kavanagh, Constitutional Review under the UK Human Rights Act
(Cambridge: Cambridge University Press, 2009), pp. 297 and 315.
26
On this point I am in agreement with Sir John Laws in ‘Constitutional Statutes’ Statute
Law Review 29 (2008) 1 and 8. But, I disagree with his view that only the common law can
subject Parliament to an express repeal requirement.
Requirements as to procedure for legislating 183
27
To ensure that Parliament’s intention to interfere with certain rights is known with suffi-
cient certainty, it may be reasonable to adopt a rule that requires express words or neces-
sary implication. But like other rules, this one might be over-inclusive, if Parliament’s
intentions can sometimes be clearly established by means other than express words or
necessary implication, such as statements made in parliamentary debates. The risks of
error might be grounds for excluding such evidence where protected rights are at stake,
even if it might sometimes be persuasive in such cases and is generally admitted in other
cases. For a possible example, see Re Bolton, ex parte Beane (1987) 162 CLR 514, discussed
in J. Doyle and B. Wells ‘How Far Can the Common Law Go Towards Protecting Human
Rights?’ in P. Alston (ed.), Promoting Human Rights Through Bills of Rights: Comparative
Perspectives (Oxford: Oxford University Press, 1999), pp. 57–8.
28
But some procedures have been held to be ‘directory’: see Clayton v. Heff ron (1960) 105
CLR 214.
29
See the discussion in Hon J.J. Spigelman, ‘Principle of Legality and the Clear Statement
Principle’ Australian Law Journal 79 (2005) 769, esp. at 779.
184 Parliamentary Sovereignty
30
For example, T.R.S. Allan, ‘Legislative Supremacy and the Rule of Law: Democracy and
Constitutionalism’ Cambridge Law Journal 44 (1985) 111.
31
South Eastern Drainage Board v. Savings Bank of South Australia (1939) 62 CLR 603.
Requirements as to procedure for legislating 185
the later enactment of the legislature must be given effect at the expense of
the earlier.’32 Given the wording of the provision in question, this seems
a dubious interpretation; it was influenced by Dixon J.’s opinion that the
alternative interpretation would have given rise to constitutional objec-
tions that could not have been intended.33
It is also possible for what purport to be interpretive presumptions to
be treated as, in effect, mandatory requirements as to form. Recently, the
orthodox rationale of interpretive presumptions has been questioned, and
other rationales suggested. In R v. Secretary of State for Home Department;
Ex parte Simms, Lord Hoff man justified the presumptions partly on the
orthodox ground that legislators may have adopted general or ambiguous
words without noticing, and therefore without intending, the full conse-
quences of their literal meaning. But he also said that ‘Parliament must
squarely confront what it is doing and accept the political costs.’34 Lord
Bingham observed extra-judicially that the presumptions are important
because:
if . . . the executive as the proponent of legislation wants to introduce a
provision that would strike ordinary people as unfair or disproportionate
or immoral, the need to spell out that intention explicitly on the face of the
bill must operate as a discouragement, not last because of the increased
risk of media criticism and parliamentary and popular resistance.35
32
Ibid., 625. 33 See n. 61 below. 34 [2002] 2 AC 115 at 131.
35
Lord Bingham of Cornhill, ‘Dicey Revisited’ Public Law 39 (2002), 48.
36
In Thoburn’s case, Laws L.J. spoke of interpretive presumptions as if they were require-
ments as to form, but Alison Young has argued that he is best understood as treating
186 Parliamentary Sovereignty
them as interpretive: see A. Young, Parliamentary Sovereignty and the Human Rights
Act (Oxford: Hart Publishing, 2009), pp. 40–5. Sir John’s recent article ‘Constitutional
Guarantees’ Statute Law Review 29 (2009) 1 suggests that she is wrong. Indeed, he
acknowledges that the adoption of his view would involve a change in the rule of recogni-
tion of statutes as valid laws: ibid., 9.
37
See Section II, above.
38
An exception is Hanks , Constitutional Law in Australia, p. 100, text to n. 44.
39
See, e.g., Constitution Act 1975 (Vic), ss. 62–65.
Requirements as to procedure for legislating 187
customs. If someone asked why the Lower House should not add extra-
neous provisions to appropriation bills, or why the Upper House should
not initiate or amend such bills, it could forcefully be said in reply that
this would violate not only long-standing practices and sound political
principles, but the written constitution itself.
According to A.V. Dicey’s defi nition of ‘law’ as ‘any rule which will
be enforced by the courts’, these provisions are not laws.42 But as I
have argued at length elsewhere, there are good reasons to reject that
definition:
[A]s we conceive of law, what distinguishes legal norms from purely cus-
tomary or moral norms is that the former belong to a system of norms
that is administered by governmental institutions . . . Some legal systems
include constitutional rules that are ‘non-justiciable’ – not enforceable by
their courts – but are nevertheless generally regarded by legal officials as
laws binding other institutions of government . . . Non-justiciable rules
should be regarded as laws only if, other than not being judicially enforce-
able, they are indistinguishable in form and function from other rules that
are unquestionably laws. That condition is satisfied if they are expressed
in written, canonical form, in formally enacted legal instruments, such as
constitutions; are expected to be obeyed by legal institutions other than
courts; are in fact generally obeyed by those institutions; and, despite bor-
derline problems of vagueness and ambiguity, are sufficiently clear that
some possible actions of those institutions would plainly be inconsistent
with them. Provided that the rules satisfy these criteria, there is no good
reason to refuse to call them laws. They belong to the system of norms that
is administered by legal institutions as a whole.43
46
Ekins, ‘Acts of Parliament’, 113.
47
Constitution Act 1902 (NSW), s. 5A(3); Constitution Act 1934 (Tas), s. 40.
190 Parliamentary Sovereignty
48
(2003) 202 ALR 233, at 251 per Gleeson C.J., Gummow, Hayne and Heydon J.J., and 279
per Kirby J.
49
Section 6 of the AA states that ‘a law . . . made by the Parliament of a State respecting the
constitution, powers or procedure of the Parliament of the State shall be of no force of
effect unless it is made in such manner and form as may from time to time be required by
a law made by that Parliament’.
Requirements as to procedure for legislating 191
50
A.G. for NSW v. Trethowan (1931) 44 CLR 394 at 429–30.
51
E.g., Clayton v. Heff ron (1960) 105 CLR 214.
52
Ekins, ‘Acts of Parliament’, 103. 53 Ibid.
192 Parliamentary Sovereignty
54
J. Goldsworthy, ‘Manner and Form in the Australian States’ University of Melbourne Law
Review 16 (1987) 403 at 411.
55
Ibid., 409–10, 417–25 and 420, n. 79.
Requirements as to procedure for legislating 193
reason to deny that they are legally valid and could be made legally
enforceable. The same goes for requirements concerning voting by pre-
siding officers. These requirements are examples of what, in earlier work,
I have called ‘pure procedures or forms’: requirements as to the procedure
or form of legislation that do not in any way diminish Parliament’s sub-
stantive power.56
It might be objected that, when the judges in Marquet’s case suggested
that s. 6 of the AA provides the only foundation for the enforcement of
‘manner and form’ requirements in Australia, they did not have in mind
standard requirements, such as quorum rules, that apply to legislation in
general. They were thinking, instead, of restrictive procedures that apply
only to particular, narrow categories of legislation.
That might indeed be what they had in mind. We do tend to distin-
guish between procedural requirements that are routine and easy to com-
ply with, and those that are unusual and more demanding. And we tend
to assume that the former are legally unproblematic, whereas the latter
need the support of some special rule or principle, such as the provision
in AA, s. 6 that makes some ‘manner and form’ requirements enforce-
able. But is there any good reason to draw such a distinction? The con-
tinuing plenary or sovereign power of a Parliament is not limited to the
enactment of requirements as to procedure or form that apply to legisla-
tion in general. There is no good reason to think that the power does not
extend to the enactment of special requirements that apply only to par-
ticular categories of legislation. Nor is there any good reason to think that
the relevant limit to that power – which invalidates any requirement that
in substance diminishes or destroys the Parliament’s continuing plenary
power – tracks the distinction between general and special requirements.
The issue is whether a requirement diminishes or destroys the parlia-
ment’s continuing plenary power, not whether it is a general or special
requirement. A general requirement that violates that limit should be held
invalid, and a special requirement that does not violate it should be held
valid.
To see this, imagine that a special quorum requirement of an abso-
lute majority of members of one or both Houses of an Australian state
Parliament were required for a specific category of legislation regarded
as particularly important. There is surely no good reason to assume that
this special requirement could be made judicially enforceable only if AA,
s. 6 applied, but that if it were made the standard quorum requirement,
56
Ibid., 408–9.
194 Parliamentary Sovereignty
exercise: any member whose absence from the House results in a failure
to secure an absolute majority is subject to severe criticism from his party
leaders and colleagues. The better view is that such a requirement does
not diminish Parliament’s substantive power to pass the legislation in
question.57
The same reasoning applies to requirements as to form, that require
express words or even a particular verbal formula in order to amend or
repeal an earlier law. It is essential to a parliament’s plenary power that
it be able to amend or repeal its own earlier statutes. But why must it be
able to do so by implication, as opposed to being required in some cases
to do so by using express words? As previously argued, if a Parliament
can require that an important statute be changed only by express words,
or even a specific ‘literary form’, rather than by mere implication, it can
prevent itself from changing that statute accidentally, by enacting a less
important statute that its members do not realise is inconsistent with the
more important one. Parliament can ensure that future legislators must be
given clear notice of any proposal to change the statute, without restrict-
ing their ability to change it.58
It was noted earlier that in the South-Eastern Drainage Board case,
the Australian High Court interpreted s. 6 of the Real Property Act 1886
(SA) as governing the interpretation of future legislation, rather than as
imposing a ‘manner and form’ requirement as a precondition of validity.59
The Court was strongly influenced by a supposed constitutional principle,
stated by Evatt J., that ‘the legislature of South Australia has plenary power
to couch its enactments in such literary form as it may choose. It cannot be
effectively commanded by a prior legislature to express its intention in a
particular way.’60 Evatt J. was guided by the earlier statement of Maugham
L.J. in Ellen Street Estates v. Minister of Health, namely: ‘The legislature
cannot, according to our Constitution, bind itself as to the form of sub-
sequent legislation, and it is impossible for Parliament to enact that in a
subsequent statute dealing with the same subject matter there can be no
implied repeal.’61
57
For an argument to the contrary, see G. Taylor, The Constitution of Victoria (Sydney:
Federation Press, 2006), pp. 483–4.
58
See Section III, above.
59
South Eastern Drainage Board v. Savings Bank of South Australia (1939) 62 CLR 603 at 625.
60
Ibid., 633. Alternatively, Dixon J. may have thought that on any other view, s. 6 would
not have any effect because the subject-matter of the later law did not concern the ‘con-
stitution, powers or procedure of the legislature’, as required by s. 5 of the Colonial Laws
Validity Act 1865 (UK) (and today, s. 6 of the Australia Act 1986 (Cth) (UK)).
61
Ellen Street Estates Ltd v. Minister of Health [1934] 1 KB 590 at 597.
196 Parliamentary Sovereignty
62
Originally by s. 5 of the Colonial Laws Validity Act 1865 (UK); today by s. 6 of the
Australia Act 1986 (Cth) (UK).
63
However, manner and form requirements can only govern the future enactment of laws
‘respecting the constitution, powers, or procedure’ of the state parliament in question,
and so in South-East Drainage Board, Dixon and Evatt J.J. were still right to deny that the
requirement in the Real Property Act 1886 (SA) was a binding manner and form require-
ment within the scope of s. 5 of the CLVA.
64
[1934] 1 KB 590 (CA).
65
[1932] 1 KB 733 (Div Ct).
66
P. Oliver, The Constitution of Independence, The Development of Constitutional Theory
in Australia, Canada, and New Zealand (Oxford: Oxford University Press, 2005), pp. 9,
70–1, 98 and 306–7.
Requirements as to procedure for legislating 197
67 68
See Chapter 6, Section IV, Part B, above. Ibid.
198 Parliamentary Sovereignty
IX Reconstitution
Referendum requirements are difficult to reconcile with the continu-
ing plenary or sovereign power of a parliament. The two most common
ways of attempting reconciliation are: firstly, to argue that the referen-
dum requirement is merely a ‘manner and form’ by which laws must be
passed, which does not limit parliament’s substantive power to pass them;
and secondly, to argue that the requirement changes the composition
of Parliament by adding to it an additional element – the electorate as a
whole – while leaving its powers unaffected.
Objections to the second alternative in the Australian context have
been explained in Chapter 6.72 If the ‘reconstitution’ argument were made
69
E.g., s. 85(5) of the Constitution Act 1975 (Vic).
70
Note that an absolute majority requirement is a special but not a super majority
requirement.
71
See Chapter 6, above.
72
Chapter 6, Section IV, Part A, above.
Requirements as to procedure for legislating 199
X Conclusion
It is necessary to choose between two theories of the validity and justicia-
bility of statutory requirements as to procedure or form.
According to the first theory, such requirements are only enforceable
by virtue of some ‘higher’ or ‘superior’ law such as s. 6 of the AA. In the
Australian states, this theory would have the unfortunate consequence
that a large number of existing and possible future requirements are only
justiciable in relation to legislation respecting the constitution, powers or
procedure of a state parliament. This consequence affects special require-
ments, applicable to particular categories of legislation, that are more
onerous than the general requirements that govern ordinary legislation.
These special requirements include not only the usual suspects, such as
referendum and super majority requirements, but also uncontroversial
requirements that currently govern the passage of finance bills. Since
finance bills do not concern parliament’s constitution, powers or pro-
cedure, these requirements cannot – according to this theory – be made
judicially enforceable. But the crux of my argument is that logically, this
unfortunate consequence also affects general requirements that apply to
200 Parliamentary Sovereignty
202
Judicial review and legislative override 203
4
L.E. Weinrib argues that the purpose of s. 33 is to enable legislatures to override rights
when this cannot be justified under s. 1: ‘Learning to Live With the Override’ McGill Law
Journal 35 (1990) 541 at 567–9. But any use of s. 33 that could not in principle (leaving
aside judicial versus legislative judgment) ‘be demonstrably justified in a free and demo-
cratic society’ would surely be very difficult to justify at all.
5
See, e.g., P.H. Russell, ‘Standing Up For Notwithstanding’ Alberta Law Review 229 (1991)
293.
6
See Section IV, below, and T. Kanaha, ‘Understanding the Notwithstanding Mechanism’
University of Toronto Law Journal 52 (2002) 221 at 233–6.
7
Russell, ‘Standing Up’, 294.
204 Parliamentary Sovereignty
8
G. Marshall, ‘Taking Rights For An Override: Free Speech and Commercial Expression’
Public Law 4 (1989) at 11.
9
F.L. Morton and R. Knopff, The Charter Revolution and the Court Party (Ontario:
Broadview Press, 2000).
10
Russell, ‘Standing Up’.
11
P.W. Hogg and A.A. Bushell, ‘The Charter Dialogue Between Courts and Legislatures’
Osgoode Hall Law Journal 35 (1997) 75. See also Kanaha, ‘Understanding the
Notwithstanding’.
12
See, e.g., R. Knopff and F.L. Morton, Charter Politics (Ontario: Nelson Canada, 1992),
esp. pp. 205–6 and 225–33.
13
P.W. Hogg, Constitutional Law of Canada (Ontario: Carswell, 1997), 36.10–36.11.
14
See G. Huscroft, ‘Constitutionalism From the top Down’ and A. Petter, ‘Taking Dialogue
Theory Much Too Seriously’ Osgoode Hall Law Journal 45 (2007) 91 and 147 respectively.
But see to the contrary K. Roach, ‘Dialogue or Defiance: Legislative Reversals of Supreme
Judicial review and legislative override 205
Court decisions in Canada and the United States’ International Journal of Constitutional
Law 4 (2006) 347, and P.W. Hogg, A.A.B. Thornton and W.K. Wright, ‘A Reply on Charter
Dialogue Revisited’, at 199–202.
15
Chapter 7, Section VII, above.
206 Parliamentary Sovereignty
24
Ibid., p. 251.
Judicial review and legislative override 209
25
E.g., A. Kavanagh, Constitutional Review Under the Human Rights Act (Cambridge:
Cambridge University Press, 2009), pp. 281–9 and 322–4.
26
See the final paragraph of the previous section.
27
Waldron, ‘A Right-Based Critique’, 46.
210 Parliamentary Sovereignty
the retention of power at any time to override the delegate and/or cancel
the delegation by non-onerous means.
Democracy is surely compatible with arrangements (3) and (4), even
if this is doubtful in the case of (2). Indeed, modern representative dem-
ocracies resemble (3): the electorate confers legislative power on elected
officials for more or less fi xed periods, retaining only the power occasion-
ally to decide whether to extend their terms or replace them.28 We do not
generally regard this as undemocratic. Nor do we regard as undemocratic
the delegation of extensive law-making power to unelected officials, pro-
vided that elected officials retain the power to override them. Much mod-
ern law-making consists of regulations made by executive governments,
which elected legislatures can scrutinize before they come into operation,
and disallow if they see fit. Even if it were the case that legislatures seldom
disallow such regulations, that would not in itself demonstrate a dimin-
ution of democracy.
It follows that we regard democracy as based on a right to participate
indirectly, rather than a duty to participate directly, in public decision-
making.29 A right, by definition, does not have to be exercised; otherwise,
it would be a duty rather than a right.30 Of course, a right can be accom-
panied by a duty to exercise it. In Australia, for example, voters have a
legal duty to exercise their right to vote. But a rights-based theorist should
surely argue against the imposition of such duties. Rights are maximised
if they coexist with rights not to exercise them. In countries where voters
do not have a duty to vote, for example, some voters deliberately refuse to
vote in order to express their disapproval of the candidates or the political
process. Their right not to vote reflects a broader freedom not to partici-
pate in processes they find distasteful. It follows from all this that a rights-
based theorist is not well placed to object to the infrequent exercise of a
democratic right to override judicial decisions.
So an override clause is not subject, merely because it is rarely used,
to an objection similar to Waldron’s rebuttal of the ‘democratic’ justifi-
cation of entrenched constitutional rights. This point can be taken one
28
Th is resembles (3) because the electorate is usually unable to exercise legislative power
itself, and therefore cannot resume it. It is restricted to choosing those who will exercise
the power on its behalf.
29
Except in Australia, where compulsory voting in both elections and constitutional ref-
erendums in effect imposes a duty to participate both indirectly and directly in different
decision-making processes.
30
Of course, a right can be accompanied by a duty: in Australia, the right to vote is accom-
panied by a duty to exercise it.
Judicial review and legislative override 211
31
Waldron, Law and Disagreement, p. 282.
32
For a critical discussion of arguments of this sort, see W. Nelson, On Justifying Democracy
(London: Routledge & Kegan Paul, 1980).
212 Parliamentary Sovereignty
The argument for apathy and irresponsibility goes something like this.
First, legislators might be inclined to devote less attention to the com-
patibility of proposed legislation with protected rights, if the matter is
likely to be litigated in the courts anyway. They might become reckless
as to compatibility or, worse still, ‘pass the buck’ to the courts, and shirk
responsibility for unpopular decisions they would otherwise have to
make. Secondly, frequent resort to litigation to advance claims of rights
might divert vital funds and energies from grass-roots political mobiliza-
tion, and even victory in the courtroom could engender political impo-
tence due to complacency. Constitutional challenges are ‘conducted via
technocratic representation, i.e. lawyers, who only demand fund-raising
from their clientele, not advice, not meetings, marches or votes. A vic-
tory in the courts may still leave a broke and apathetic rump organisa-
tion behind, not one capable of moving forward any further.’37 Thirdly, if
political debate is subsumed by constitutional debate, couched in legal-
istic jargon and formulae, lay-people (including legislators) may come to
be regarded, and to regard themselves, as incompetent to participate. 38
Consequently, they might lose interest in the debate. Fourthly, the loss of
ultimate responsibility for how questions about rights are decided might
make the electorate more politically enervated, apathetic, or even irre-
sponsible. James Bradley Thayer famously urged judicial restraint partly
because an excessive readiness to overrule the legislature might grad-
ually diminish ‘the political capacity of the people’ and its sense of moral
responsibility.39
The argument for extremism and intolerance has been put most elo-
quently by leading Charter critics F.L. Morton and Rainer Knopff. They
argue that when judges can enforce rights, political antagonists become
more inclined to resolve disagreements through litigation, rather than
37
H. Glasbeek, ‘A No-Frills Look at the Charter of Rights and Freedoms, or How Politicians
and Lawyers Hide Reality’ Windsor Yearbook of Access to Justice 9 (1989) 293 at 344. For
strong evidence of this in the US, see G. Rosenberg, The Hollow Hope; Can Courts Bring
About Social Change? (Chicago: University of Chicago Press, 1991), pp. 12, 282, 313–14
and 339–41. On the other hand, Rosenberg also reports that courtroom victories can gal-
vanise the opposition into strenuous political efforts to overturn them: pp. 155–6, 138–9
and 341–2.
38
Th is may also impoverish political debate, by confi ning it to a procrustean bed of con-
stitutional formulae. As Waldron suggests, it is healthier to discuss issues of principle
directly and freely, ‘rather than having to scramble around constructing those principles
out of the scraps of some sacred text, in a tendentious exercise of constitutional caligra-
phy’: Waldron, Law and Disagreement, pp. 220 and 289–90.
39
See P. Kurland (ed), John Marshall (Chicago: University of Chicago Press, 1967), pp. 85–6.
214 Parliamentary Sovereignty
Although these two arguments, for apathy and irresponsibility, and for
extremism and intolerance, are not obviously compatible, they are rec-
oncilable. It might be hypothesised that the majority of legislators and
citizens – who occupy the broad ‘middle ground’ of politics – will become
more apathetic and irresponsible, while those closer to the ends of the pol-
itical spectrum will become more zealous and intolerant of their oppon-
ents. This might happen if a policy status quo, established by the moderate
majority, strikes a compromise between two passionately opposed minor-
ities. If one minority persuades a court to overturn that status quo in its
favour, members of the moderate majority might not think it worth the
effort required to overturn the judicial decision, given that their views
were not passionately held in the first place. Their reluctance to do so
might be reinforced by lack of confidence in their competence to dispute
the complex legalistic reasoning of judges presumed to possess special
expertise about constitutional rights. On the other hand, the opposed
40
Knopff, ‘Populism and the Politics of Rights’, 702.
41
Morton and Knopff, The Charter Revolution, p. 166.
Judicial review and legislative override 215
42
Roe v. Wade (1973) 410 US 113.
43
M. A. Glendon, ‘A Beau Mentir Qui Vient De Lion: the 1988 Canadian Abortion Decision
in Comparative Perspective’ Northwestern University Law Review 83 (1989) 569 at 588.
44
Morton and Knopff, The Charter Revolution, pp. 163 and 165.
45
See ibid., pp. 155–7, on the ‘moral inflation’ encouraged by the rhetoric of rights.
46
See P.W. Hogg, ‘The Charter Revolution: Is It Undemocratic?’ Constitutional Forum 12
(2001/2002) 1.
216 Parliamentary Sovereignty
scope of this chapter to attempt to settle that debate, or the broader ques-
tion of the impact of judicial enforcement of Charter rights on Canadian
political culture. That would require gathering and interpreting empir-
ical evidence of changes in the behaviour and motivations of citizens and
legislators throughout the country, involving very difficult questions of
cause and effect. For present purposes, the important point is that when
a bill of rights includes a comprehensive override clause, it survives
Waldron’s rights-based objection. The question of its compatibility with
democratic values then depends on sociological evidence that is inevit-
ably impressionistic and contestable.
IV The desuetude of s. 33
Even if Morton and Knopff are right, it is natural to ask why s. 33 has not
been effective in preventing or at least minimising the democratic debili-
tation that they report. When judicial interpretations of rights are conclu-
sive (subject only to constitutional amendment), it is easier to appreciate
how democracy might be debilitated. But the whole point of an override
clause is to ensure that the judges do not have the final word. Precisely
because it enables them to be overridden, such a clause has the potential to
stimulate robust and potent political debate, among both legislators and
the electorate, about questions of rights that may be or have been decided
by judges. In doing so, it could ‘encourage a more politically vital dis-
course on the meaning of rights and their relationship to competing con-
stitutional visions than what emanates from the judicial monologue that
exists in a regime of judicial supremacy’.53
There is general agreement that s. 33 has failed to fulfi ll that poten-
tial in Canada. This is partly because it is widely believed that the clause
has been used only once outside Quebec, and not at all since 1988.54 In a
recent thorough study, Tsvi Kanaha has demonstrated that it has in fact
been used more often than this, but the fact remains that it has been used
very rarely.55 Kanaha also shows that the use of the clause has often failed
to generate, among the electorate, the ‘politically vital discourse on the
Charter; Canada and the Paradox of Liberal Constitutionalism (2nd edn) (Ontario: Oxford
University Press, 2001), pp. 177–9; P. Hogg and A.A. Thornton, ‘Reply to “Six Degrees of
Dialogue” ’ Osgoode Hall Law Journal 37 (1999) 529.
53
Manfredi, Judicial Power and the Charter, p. 191. 54 Ibid., p. 5.
55
T. Kanaha, ‘The Notwithstanding Mechanism and Public Discussion: Lessons From
the Ignored Practice of Section 33 of the Charter’ Canadian Public Administration 44
(2001) 255.
218 Parliamentary Sovereignty
56
Tushnet, ‘Policy Distortion’, 296, citing A. Heard, Canadian Constitutional Conventions:
The Marriage of Law and Politics (Toronto: Oxford University Press, 1991), p. 147.
57
Howard Leeson, ‘Section 33, the Notwithstanding Clause: A Paper Tiger?’ Choices 6(4)
(2000) 20 (Institute for Research on Public Policy).
58
Quoted in Manfredi, Judicial Power and the Charter, pp. 187–8.
59
Mandel, The Charter of Rights, p. 95.
60
G. Huscroft, ‘Constitutionalism From the Top Down’, at 96.
61
Text to n. 42, above.
62
Leeson, ‘Section 33’, pp. 18–19.
Judicial review and legislative override 219
63
J. Waldron, ‘Some Models of Dialogue Between Judges and Legislators’, in G. Huscroft
and I. Brodie (eds.), Constitutionalism in the Charter Era (Canada: LexisNexis
Butterworths, 2004) pp. 7 and 34–9; J. Waldron, ‘The Core of the Case Against Judicial
Review’ Yale Law Journal 115 (2006) 1347 at 1357, n. 34.
64
See Russell, ‘Standing Up’.
65
Knopff and Morton, Charter Politics, pp. 179–80.
220 Parliamentary Sovereignty
66
I am grateful to Grant Huscroft for emphasising this point in comments sent to me.
67
[1988] 2 SCR 712 (Can).
68
Manfredi, Judicial Power and the Charter, p. 184.
69
Ibid.
70
J. Hiebert, Limiting Rights; The Dilemma of Judicial Review (Canada: McGill-Queen’s
University Press, 1996), p. 139.
71
Knopff and Morton, Charter Politics, p. 30.
72
Hiebert, Limiting Rights, pp. 140–1; Mandel, The Charter of Rights, p. 92.
Judicial review and legislative override 221
seemed to confirm the view that the protection of individual rights could
be safely entrusted only to the courts. Prime Minister Mulroney imme-
diately condemned s. 33 as a ‘fatal flaw’ that made the Charter ‘not worth
the paper it was written on’.73 As a result, it ‘became virtually impossible
to defend the use of section 33 outside of Quebec’;74 ‘section 33 has now,
except for the francophone majority in Quebec, generally assumed the
mantle of being constitutionally illegitimate’.75
This was arguably the result of fortuitous events in Canadian history,
rather than a general law of political dynamics. Quebec’s perceived abuse
of the section made s. 33 virtually unusable before it had been given a
‘fair go’. ‘The opposition to any use of the notwithstanding clause’, argues
Manfredi, ‘is [partly] the product of historical accident . . . Canadians
experienced a use of section 33 that they found objectionable before the
Supreme Court rendered a politically unpopular Charter decision.’76
Moreover, s. 33 could have been either drafted so to deter Quebec’s per-
ceived abuse of it, or interpreted in the Ford case so as to invalidate that
abuse.77 In either case, s. 33 might have been saved from its current igno-
minious fate.
It is still possible that s. 33 will be resuscitated sometime in the future.
It has been argued that the obstacle posed by its wording is not insur-
mountable because, first, regardless of formalities, the general public is
sufficiently intelligent to realise that the legislative intention is to override
a judicial interpretation of the Charter rather than the Charter itself, and
secondly, because the legislature can clearly state that intention in a statu-
tory preamble.78 Furthermore, ‘[o]nly the fact that public opinion outside
Quebec has not been deeply disturbed by decisions of the Court has so far
kept the override locked up and out of sight’.
Make no mistake about it: if conflict between the judicial and legislative
branches in Canada ever approached the intensity and duration of the
conflict that occurred in the United States during the Lochner era (1905–
1937) or during, and just after, the Warren Court (1953–1973) (and that
continues to this day with respect to abortion), the current reluctance by
73
Quoted in W.A. Bogart , Courts and Country: The Limits of Litigation and the Social and
Political Life of Canada (Toronto: Oxford University Press, 1994), p. 311.
74
Manfredi, Judicial Power and the Charter, p. 187.
75
Hiebert, Limiting Rights, p. 139.
76
Quoted in Tushnet, ‘Policy Distortion’, 296.
77
Ibid., 299.
78
P.W. Hogg, A.A. Bushell Thornton and W.K. Wright, ‘Charter Dialogue Revisited – Or
“Much Ado About Metaphors” ’ Osgoode Hall Law Journal 45 (2007) 1, 35.
222 Parliamentary Sovereignty
Canadian politicians to use the override would disappear. Indeed, the use
of the override by Quebec to protect its French language policy is a reli-
able indication of what would happen elsewhere in the country if a cher-
ished policy were threatened by the Court.79
V Conclusion
If a bill of rights were to include a comprehensive override clause, the
question of its compatibility with democratic values could not be settled
by appealing to Waldron’s ‘right of rights’ – the right to participate on an
equal basis in the final determination of public policy. This is because the
override clause would preserve that right. Instead, the question is whether,
despite the existence of the override clause, judicial enforcement of con-
stitutional rights would corrode ‘the habits and temperament’ that are
necessary for democracy to thrive.80 This could only be resolved by socio-
logical evidence of differences in political culture that would be extremely
difficult both to collect and to interpret.
In principle, an override clause such as s. 33 should help legislators
resist the democratic debilitation that might otherwise attend the legal-
ization of rights. The failure of Canadian legislatures to make more use
of their override clause is something of a puzzle. It may be due to factors
peculiar to Canada, especially the ways in which the clause was drafted,
interpreted and allegedly abused by Quebec. Amendments to s. 33, which
cannot be discussed here, have consequently been proposed in the hope
of reinvigorating it.81 If, even in Canada, there is still hope that a differ-
ently worded override clause might be put to better use, the same must
be true of other countries. In Australia, the Constitutional Commission
observed in 1988 that ‘Canadian experience in the use of such a power is
no safe guide to how such a power might be used in Australia . . . There is
no knowing how Australian governments might seek to utilise a legisla-
tive override power.’82
On the other hand, it is possible that the draft ing and early usage of
s. 33 were not the crucial factors, and that no over ride clause – regardless
of its wording – would have proven politically useable. The major obstacle
79
P.W. Hogg, A.A.B. Thornton and W.K. Wright, ‘A Reply on “Charter Dialogue Revisited” ’
Osgoode Hall Law Journal 45 (2007) 193 at 201.
80
Morton and Knopff, The Charter Revolution, pp. 149 and 151.
81
See, e.g., Manfredi, Judicial Power and the Charter, pp. 192–3 and Hiebert, Limiting
Rights, p. 142.
82
Final Report of the Constitutional Commission (Canberra: Australian Government
Publishing Service, 1988), vol.1, pp. 494, para. 9.222 and 495 para. 9.224.
Judicial review and legislative override 223
to the more frequent use of the clause might lie ‘less in the existing section
33 than in the perspective of oracular legalism. To the extent that judicial
pronouncements are seen as the very embodiment of the constitution,
rather than as debatable interpretations of it, the use of section 33 will be
seen as illegitimate.’83
On this view, legislators, the electorate, or both, are the victims of a
kind of false consciousness. They are deluded by the specious objectiv-
ity of constitutional rights, and a naïve faith in judges’ capacity to dis-
cern their true import by virtue of superior legal expertise, wisdom and
impartiality.
It is beyond the scope of this chapter to assess this claim, which in the
absence of careful empirical research into public attitudes, presumably
rests on anecdotal and impressionistic evidence. Legislators and voters
show little sign of being overawed by ‘oracular legalism’ when seemingly
lenient sentences imposed by judges on criminals are subjected (as they
often are) to voluble public criticism. But perhaps matters are different
where constitutional rights are concerned. In the absence of sufficient evi-
dence to assess the claim, some general points can nevertheless be made.
As previously observed, there are two obstacles to rights-based demo-
crats making such a claim. First, even if legislators and the electorate are
deluded, their democratic right to the final say remains intact. Secondly,
alleging such a delusion is difficult to reconcile with the basis of that
right: namely, the presumption that ordinary people are sufficiently intel-
ligent, knowledgeable and virtuous to deserve it.84
The first of these obstacles does not prevent goal-based democrats from
alleging that legislators or the electorate are deluded in this way. From
their perspective, the mere preservation of the democratic right to the
final say is not the crucial issue. More important are the beneficial conse-
quences that flow from its frequent exercise, and these may be jeopardised
if – for whatever reason – it is exercised rarely.
But the second obstacle is not so easily avoided. Goal-based democrats
regard the cultivation of intelligence, knowledge and virtue throughout
the community as one of the main beneficial consequences of democracy.
83
Knopff and Morton, Charter Politics, p. 231; Waldron, ‘The Core of the Case’, 1357, n.
34; G. Huscroft and P. Rishworth, “You Say You Want a Revolution”: Bills of Rights in
the Age of Human Rights’, in D. Dyzenhaus, M. Hunt and G. Huscroft, eds., A Simple
Common Lawyer; Essays in Honour of Michael Taggart (Oxford: Hart Publishing, 2009)
pp. 123, 145; A. Petter, ‘Taking Dialogue Theory Much Too Seriously’ (Osgoode Hall Law
Journal 45 (2007) 147 at 161–2.
84
See text to n. 24, above.
224 Parliamentary Sovereignty
85
I owe this way of putting the point to Kristen Walker.
9
I Introduction
How statutes are interpreted is crucial to the implementation of the doc-
trine of parliamentary sovereignty. The doctrine maintains that every
statute that Parliament enacts is legally valid, and therefore that all citi-
zens and officials, including the courts, are legally obligated to obey it.1
The courts’ legal obligation is therefore to interpret and apply every stat-
ute in a way that is consistent with Parliament’s legal authority to enact
it, and their corresponding obligation to obey it.2 In a small number of
cases, what is called ‘interpretation’ might be tantamount to disobedi-
ence under cover of a ‘noble lie’. But if that were to become more routine,
and generally condoned by the other branches of government, Parliament
would no longer be sovereign.
Statutory interpretation is central to debates about many specific issues
discussed in the next chapter. The nature and justification of the ultra
vires doctrine in administrative law, the protection of common law prin-
ciples by ‘presumptions’ of legislative intention, the judicial response to
statutes in cases such as Anisminic3 and Factortame,4 all raise questions
about the relationship between statutory interpretation and parliamen-
tary sovereignty. But the topic of this chapter is statutory interpretation in
general, including in Australia and New Zealand as well as in Britain, and
not in cases to which the Human Rights Act 1998 (UK) applies.
There are two possible methods of investigating how the doctrine of
parliamentary sovereignty helps determine the way in which statutes
should be interpreted. The fi rst is normative and deductive. It involves
1
I ignore here some complications discussed elsewhere, such as disapplication of statutory
provisions inconsistent with laws of the European Community: see Chapter 10, Section
III, Part C, below.
2
R. Ekins, ‘The Relevance of the Rule of Recognition’ Australian Journal of Legal Philosophy
31 (2006) 95 at 103.
3
Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147, [1969] 2 WLR 163.
4
R v. Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603 (HL).
225
226 Parliamentary Sovereignty
5
J. Goldsworthy, Th e Sovereignty of Parliament: History and Philosophy (Oxford:
Clarendon Press, 1999), p. 1.
6
Calder v. Bull 3 US (3 Dall.) 385 at 398 (1798) (Iredell J., concurring).
sovereignty and statutory interpretation 227
law treatise explains: ‘In form, the Supreme Court has adopted the views of
Justice Iredell . . .’;7 ‘the philosophy that the Justices would overturn acts of
other branches only to protect specific constitutional guarantees has been
the formal guideline of the Supreme Court at every stage in its history.’8
In his Commentaries on American Law, Chancellor Kent wrote: ‘[T]he
principle in the English government, that the Parliament is omnipotent,
does not prevail in the United States; though, if there be no constitutional
objection to a statute, it is with us as absolute and uncontrollable as laws
flowing from the sovereign power, under any other form of government.’9
After summarising the British doctrine of parliamentary sovereignty,
Roscoe Pound wrote, ‘Except as constitutional limitations are infringed,
the same doctrine obtains in America.’10 Supreme Court dicta corrobor-
ate that proposition:
7
Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law: Substance and
Procedure (3rd edn) (St Paul Minn.: Thomson/West, 1999), § 15.1.
8
Ibid., § 15.5.
9
James Kent, Commentaries on American Law (10th edn) (Boston: Little, Brown & Co.,
1860), p.503; see also Thomas M. Cooley, A Treatise on the Constitutional Limitations
Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little,
Brown & Co., 1868), pp. 87–9 (describing the plenary powers of Congress as bounded
only by the Constitution).
10
Roscoe Pound, ‘Common Law and Legislation’ Harvard Law Review 21 (1908) 383
at 392.
11
Chung Fook v. White (1924) 264 US 443 at 446; 44 S Ct 361 at 362; 68 L Ed 781. See also
Common School Dist. No 85 v. Renville County (1965) 141 Minn. 300 at 304; 170 NW
216 at 218: ‘[t]he wisdom or propriety of the statute is not a judicial question . . . A stat-
ute may seem unwise, it may seem unjust . . . but that view of the law, in the absence of
some confl ict with the Constitution, cannot be made the basis of a refusal by the courts
to enforce it.’
12
I.N.S. v. Chadha (1983) 462 US 919 at 944; 103 S Ct 2764 at 2780; 77 L Ed 2nd 317. See also
Tennessee Valley Authority v. Hill (1978) 437 US 153 at 194–5; 98 S Ct 2279 at 2303; 57 L
Ed 2nd 117.
228 Parliamentary Sovereignty
13
D. Edlin, Judges and Unjust Laws (Ann Arbor: University of Michigan Press, 2008), p. 51.
14
Kent Greenawalt, Legislation: Statutory Interpretation – Twenty Questions (New York:
Foundation Press, 1999), p. 23.
15
Robert S. Summers, ‘Statutory Interpretation in the United States’, in D. Neil
MacCormick and Robert S. Summers (eds.), Interpreting Statutes: A Comparative Study
(Aldershot: Dartmouth, 1991), 407 at p. 450.
16
See, for example, W. Eskridge, ‘Spinning Legislative Supremacy’ Georgia Law Review 78
(1989) 319; D. Farber, ‘Statutory Interpretation and Legislative Supremacy’ Georgia Law
Review 78 (1989) 281; E.O. Correia, ‘A Legislative Conception of Legislative Supremacy’
Case W Res L Rev. 42 (1992) 1129; E.M. Maltz, ‘Rhetoric and Reality in the Theory of
Statutory Interpretation: Underenforcement, Overenforcement, and the Problem of
Legislative Supremacy’ BUL Rev 71 (1981) 767.
17
See, for example, J. Manning, ‘Textualism and the Equity of the Statute’ Columbia Law
Review 101 (2001) 1 at 6–7 and 9–22.
18
In Duport Steels Ltd v. Sirs [1980] 1 WLR 142 Lord Diplock said: ‘the British constitu-
tion, though largely unwritten, is firmly based upon the separation of power; Parliament
makes the laws, the judiciary interprets them’ (at 157b).
sovereignty and statutory interpretation 229
statutes that flouts the principle of legislative supremacy could not accur-
ately be called ‘interpretation’.19
Consider the following example from Germany. In the Soraya case, the
Federal Constitutional Court had to decide whether or not compensa-
tion could be awarded for non-material (such as emotional) injury result-
ing from violations of the right to personality. The relevant section of the
Civil Code allowed such compensation only in cases ‘determined by the
law’, but German Courts had been awarding it in cases not determined
by the law. The Constitutional Court upheld this practice by reading an
unwritten exception into the Code. It said:
The law is not identical with the whole of the written statutes. Over and
above the positive enactments of the state power there can be ‘ein Mehr
an Recht’ [a surplus of law] which has its source in the constitutional legal
order as a holistic unity of meaning, and which can operate as a corrective
to the written law . . . [E]valuative assumptions which are imminent in the
constitutional legal order, but are not, or are only incompletely, expressed
in the texts of written statutes, [may] be elucidated and realized in [judi-
cial] decisions . . . It must be understood that the written statute fails to
fulfi l its function of providing a just solution for a legal problem. The judi-
cial decision then fi lls this gap . . .20
19
Such a claim is controversial. Joseph Raz, for example, treats ‘interpretation’ as embracing
quite radical judicial ‘development’ of the law: see J. Goldsworthy, ‘Raz on Constitutional
Interpretation’ Law and Philosophy 22 (2003) 167.
20
Soraya, BverfGE 34, 269 (287), quoted in R. Alexy and R. Dreier, ‘Statutory Interpretation
in the Federal Republic of Germany’ in MacCormick and Summers (eds.), Interpreting
Statutes, p. 80.
21
Alexy and Drier, ‘Statutory Interpretation’, pp. 80, 94, 107 and 112–13.
22
A statute is sometimes ‘read down’ in order to avoid inconsistency with a constitutional
provision, but the reasoning of the German Court appears to go much further than that.
23
Alexy and Dreier, ‘Statutory Interpretation’, p. 117.
230 Parliamentary Sovereignty
would be the real and only lawmakers. Law would be like baseball as seen
by the umpire who supposedly said ‘it ain’t nothin’ ‘til I call it’. Although
there are theorists who may have maintained something like this extreme
sceptical view, it is absurd. After all, if the texts produced by judges to
explain their interpretations can be meaningful, without further inter-
pretation (which they must, to avoid an infinite deferral of meaning), then
so can the legal texts the judges start with.27
Courts engage in both clarifying and creative interpretation, some-
times in the course of interpreting the same provision. But they rarely
acknowledge this, possibly because they prefer to maintain the formalist
faÇade that all interpretation is aimed at clarifying pre-existing mean-
ing. An interpretation can partly reveal or clarify meaning that was there
all along, and partly add to or modify it if that is necessary or desirable.
Adding meaning might be necessary if the revealed meaning of the pro-
vision is insufficiently determinate to dispose of an issue that judges must
decide. It might be ambiguous, vague, contradictory, insufficiently expli-
cit, or even silent as to that issue. A court, after all, cannot wash its hands
of a dispute that has been properly brought before it, and leave the parties
to fight it out in the street. Modifying meaning might also be desirable, in
strictly limited circumstances: for example, if the revealed meaning of the
provision is plainly inconsistent with or incapable of fulfilling its purpose,
due to drafting errors or other mistakes or omissions. ‘Judicial statecraft’
may then be justified in order to repair or rectify the provision.
But even though interpretation is sometimes partly creative, there
may be limits to the kinds of creativity that can be classified as genuinely
interpretive rather than legislative. Creativity that infringes the prin-
ciple of legislative supremacy arguably crosses that conceptual boundary,
and becomes what Roscoe Pound called ‘spurious interpretation’.28 The
examples of creativity mentioned in the previous paragraph, on the other
hand, are both consistent with that principle. However, I do not want to
push this point too strongly. The important question is not a conceptual
one concerning the meaning of the word ‘interpretation’. Rather, it is how
courts do or should treat statutes in a legal system that vests authority in
27
It has often been noted that any assertion that texts do not have meanings is incoher-
ent, because it asserts that it itself is meaninglessness; in other words, it asserts that it
does not assert anything. See A. Altman, Critical Legal Studies, a Liberal Critique
(Princeton: Princeton University Press, 1990), pp. 90–4; F. Schauer, Playing By the Rules
(Oxford: Clarendon Press, 1991).
28
R. Pound, ‘Spurious Interpretation’ Columbia Law Review 6 (1907) 379.
232 Parliamentary Sovereignty
the legislature to make laws, which the courts are required faithfully to
apply.
31
Ibid., p. 89. 32 Ibid., p. 81. 33 Ibid., and also p. 86. 34 Ibid., p. 86.
35
Heidi Hurd is unusually candid in this regard. Having denied that legislatures can have
intentions, and concluded that statutes can therefore have only literal meanings (or what
philosophers call ‘sentence meanings’), she concedes that statutes are ‘like the often-
hypothesized novel typed by random chance by the thirteen-thousandth monkey chained
to a typewriter: meaningful . . . despite not having been produced as a communication by
234 Parliamentary Sovereignty
Those who deny that a legislature can have intentions might object that
this is an unfair caricature of their position, because they fully realise that
a statute reflects the intentions of some subset of people involved in the
legislative process, such as its sponsors and drafters. The problem is that
they deny that these intentions can be attributed to the legislature itself,
on the ‘constitutional’ ground that they cannot be shown to have been
adopted or endorsed by the legislature as a whole. It follows that these
intentions cannot contribute to the meaning of the statute, since it is an
act of the legislature as a whole. The statute must therefore be treated as if
it expresses no intentions at all.
Consider how bizarre it would be to treat a statute as if it did not give
expression to any intentions at all. Take these examples:
(1) Section 8(1) of the Road Traffic Act 1972 (UK) provided that in certain
circumstances any person ‘driving or attempting to drive’ a vehicle
could be required to take a breath test. The defendant drove through a
red light, stopped, and changed seats with his passenger. He was then
asked to take a breath test, although by then he was clearly not ‘driv-
ing or attempting to drive’ the vehicle. (Indeed, that would arguably
have been true even if he had remained in the driver’s seat.) The court
held that he was nevertheless required to take the test.36
(2) Section 8(1) of the Food and Drugs Act 1955 prohibited the sale of ‘any
food intended for, but unfit for, human consumption’. Some children
asked for lemonade, were given corrosive caustic soda, and drank
some of it. Read literally, s. 8(1) did not apply: the vendor had not sold
the children food unfit for human consumption, because caustic soda
is not food. But the apparent purpose of the provision was to protect
the public from harmful products being sold as food, and it was inter-
preted accordingly.37
(3) Rule 14(2) of the Magistrates’ Courts Rules 1968 (UK) stated that at
the conclusion of the evidence for the complainant, ‘the defendant
may address the court’. It did not provide that the court must listen to
the defendant’s address. Nevertheless, this was held to be implied.38
(4) An Alberta bylaw required that ‘all drug stores shall be closed at
10 p.m. on each and every night of the week’. It would be consistent
anyone for anyone’: H. Hurd, ‘Sovereignty in Silence’ Yale Law Journal 99 (1990) 945
at 966.
36
See F.A.R. Bennion, Statutory Interpretation (2nd edn) (London: Butterworths, 1992),
pp. 668–9, discussing Kaye v. Tyrrell (1984) The Times, 9 July.
37
Meah v. Roberts [1978] 1 All ER 97 at 98–100 and 104–6 (Q.B.); see also Bennion, Statutory
Interpretation, pp. 611–12 (discussing Meah).
38
Bennion, Statutory Interpretation, p. 30.
sovereignty and statutory interpretation 235
39
Rex v. Liggetts-Findlay Drug Stores Ltd [1919] 3 WWR 1025 at 1025; see also J. Bell and
G. Engle, Statutory Interpretation (3rd edn) (London: Butterworths, 1995), pp. 67–8 (dis-
cussing Liggetts-Findlay).
40
Turner v. Ciappara (1969) VR 851; see also Bennion, Statutory Interpretation, p. 699 (dis-
cussing Turner).
41
See Pound, ‘Spurious Interpretation’, 381.
42
Th is understanding of statutes is proposed and developed by Richard Ekins in his
D. Phil Thesis, The Nature of Legislative Intent (University of Oxford, 26 March 2009),
236 Parliamentary Sovereignty
A Clarifying interpretation
(1) Ambiguity and ellipsis
Ambiguity, both semantic and syntactic, is one reason why literal mean-
ings are often too thin and indeterminate to be serviceable. The phenom-
enon is so well known that examples are superfluous. The point is that
ambiguities in literal meanings are often resolved by additional evidence
of the speaker’s intentions, such as evidence supplied by the context in
which the words were uttered. Ambiguities proliferate if such evidence is
excluded, or the very idea of the speaker having an intention is dismissed
as a fiction.
Another reason is what we might loosely call ellipsis. In law, as in every-
day life, what we say or write is often elliptical in the sense that we omit
details that we expect our audience to know already. If I say ‘Everyone
has gone to Paris’ I expect to be understood as saying that every member
of some contextually defined group has gone to Paris, not that everyone
who has ever lived has done so. When I ask the bus driver ‘Do you go to
Blackburn?’ I am asking whether he drives the bus to Blackburn as part
of its scheduled route, not whether he ever goes there when he is off duty.
Many philosophers of language now regard literal meanings as ‘typically
quite fragmentary and incomplete, and as falling far short of determining
a complete proposition even after disambiguation’.43 Consider a sign next
to be published in the near future. His preliminary views are sketched in ‘The Relevance
of the Rule of Recognition’ Australian Journal of Legal Philosophy 31 (2006) 95, esp.
at 108–13.
43
D. Sperber and D. Wilson, ‘Pragmatics’, in F. Jackson and M. Smith (eds.), The Oxford
Handbook of Contemporary Philosophy (Oxford: Oxford University Press, 2005), 468 at
p. 477. See also A. Marmor, ‘The Immorality of Textualism’ Loyola University Law Review
38 (2005) 2063.
sovereignty and statutory interpretation 237
to an escalator that says: ‘Dogs must be carried on the escalator’. Read lit-
erally, this could be taken to mean that no-one may ride on an escalator
without at least two dogs in one’s arms, or that no-one may carry dogs
anywhere except on an escalator. But those literal meanings are obviously
too absurd to have been intended. We therefore understand the sign to
mean something much richer, such as this:
Anyone who is accompanied by a dog, and wishes to travel on the escal-
ator, must pick up the dog and hold it in his or her arms, and not allow it
to stand directly on the steps of the escalator.44
Although those who draft legal texts attempt to be clear, precise and com-
prehensive, many ellipses can be found in legal texts if we look closely
enough. This is partly because it is so difficult to pack into them every-
thing that is needed to express completely and exactly what is intended. It
is also because it is unnecessary and would even be counter-productive:
when context supplies the missing ingredients, ellipses contribute to
brevity without reducing clarity or precision. Cases (3) and (4), above, are
arguably among many examples that could be given.45
Ambiguities and ellipses are usually resolved by common sense, con-
textual or other evidence of the speaker’s intended meaning. If all that
evidence had to be ignored, indeterminacies and gaps in meaning would
have to be filled in by the interpreter. If a statutory provision, read literally,
were ambiguous or incomplete, then a literalist approach would require
the judges to choose how to resolve the problem. As a result, indetermin-
acies would greatly increase, as would the need for judicial creativity to
resolve them. Literalism would thereby diminish the utility of statutes
as authoritative guides for conduct; it would leave many more questions
to be answered, and disputes to be resolved, by judicial creativity after
expensive and time-consuming litigation. It would accord less authority
to legislatures and more to judges. It would allow judges to impose their
own preferred meaning on a statute rather than to accept the meaning
intended by the legislature, whenever the legislature has failed to enact
words whose literal meaning expresses its intended meaning completely
and precisely.
This is why literalism has long been a byword for a narrow, formalistic
and obstructive approach to interpretation. Legislatures inevitably fail
to express themselves with perfect clarity and total comprehensiveness.
44
N.E. Simmonds, ‘Between Positivism and Idealism’ Cambridge Law Journal 50 (1991)
308 at 311–12.
45
See text to nn. 38 and 39, above.
238 Parliamentary Sovereignty
(2) Presuppositions
Another reason why literalism often has absurd consequences is the ubi-
quitous dependence of meaning on background assumptions. I will dwell
on this because it is vital to the subsequent analysis of several important
issues.
The words we use usually provide merely the bare bones of what we
mean, which can only be properly understood if many background
assumptions are grasped. If they are not taken for granted, almost any-
thing we say is open to being misunderstood in unpredictable and bizarre
ways. If I order a hamburger in a restaurant, and carefully list all the
ingredients that I want, I do not think it important to specify that they
should be fresh and edible, and the meat not too cold. If I thought about
this at all, I would expect it to be taken for granted. Even if I did specify
those conditions, I would not think to add that the hamburger should
not be encased in cube of solid lucite plastic that can only be opened by
a jackhammer.46 My order implicitly requires a hamburger that can be
immediately eaten without great difficulty. If, on going out at night, I insist
46
J. Searle, ‘Literal Meaning’, in his Expression and Meaning (Cambridge: Cambridge
University Press, 1979), 117 at p. 127.
sovereignty and statutory interpretation 239
that my son stay at home and study, I do not think to add that he may leave
if the house catches fire, or if he receives a message that I have collapsed
and been rushed to hospital. Nor would I later think he had disobeyed me
if he did leave in those circumstances. Even if I had no conscious inten-
tions regarding these very unlikely and unanticipated circumstances, I
could truly say that I did not intend my instruction to apply to them. That
is because our conscious intentions, as well as the words we use to convey
them, can only be properly understood in the light of many background
assumptions.47 My instruction is implicitly subject to an indeterminate
number of qualifications that I may not even have thought of, let alone
expressed.
As the philosopher John Searle has argued, no matter how many of
these qualifications I expressly include, there will be others I cannot
anticipate. This is because, first, many of the crucial background assump-
tions are ‘submerged in the unconscious and we don’t quite know how
to dredge [them] up’,48 and secondly, for every assumption spelled out,
others would spring up on which the meaning of the expanded utter-
ance would depend.49 Each assumption depends for its full meaning on
others, which together constitute a vast and complex network of beliefs
and values that are generally not consciously adverted to, let alone articu-
lated in language. If it were possible to make all of them explicit, the result
would be so prolix and convoluted that it would be very difficult even to
read, let alone to understand.50 What Martinich says of conversation is
true of communication generally: ‘the words the participants utter are
merely the surface that simultaneously outlines and conceals the under-
lying substance of communication and meaning’.51
Th is background network of assumptions may not be consciously
adverted to by either the speaker or the hearer of an utterance. It would
therefore be inappropriate to say that speakers intend to communicate
them, even indirectly. They are presupposed by communications rather
than implied by them. But it does not follow that speakers’ intentions are
47
For a fuller analysis, see J. Goldsworthy, ‘Implications in Language, Law and the
Constitution’, in G. Lindell (ed.), Future Directions in Australian Constitutional Law
(Sydney: Federation Press, 1994), 150 at p. 160–1.
48
J.R. Searle, Intentionality (Cambridge: Cambridge University Press, 1983), p. 142.
49
Searle, ‘Literal Meaning’, 126; Searle, Intentionality, p. 148; J.R. Searle, ‘The Background
of Meaning’, in J. Searle, F. Keifer and M. Bierwisch (eds.), Speech Act Theory and
Pragmatics (Holland: Reidel, 1980), p. 228.
50
See A.P. Martinich, Communication and Reference (Berlin: de Gruyter, 1984), p. 45;
M. Dascal, Pragmatics and the Philosophy of Mind I (Amsterdam: John Benjamins, 1983),
p. 86; and Bennion, Statutory Interpretation, p. 427.
51
Martinich, Communication and Reference, p. 78.
240 Parliamentary Sovereignty
52
The background assumptions on which communication depends cannot be reduced to
social conventions that are universally applicable and independent of particular contexts.
See J. Goldsworthy, ‘Marmor on Meaning, Interpretation, and Legislative Intention’
Legal Theory 1 (1995) 439 at 461–3.
53
A. Kramer, ‘Implication in Fact as an Instance of Contractual Interpretation’ Oxford
Journal of Legal Studies 63 (2004) 384 at 385.
54
Bennion, Statutory Interpretation, p. 3; see also ibid., pp. 361–2 and 364; see also J. Bell,
‘Studying Statutes’ Oxford Journal of Legal Studies 13 (1993) 130 at 133.
55
Bennion, Statutory Interpretation, p. 407.
56
Ibid., p. 727. See also Dickerson, The Interpretation and Application of Statutes, p. 29, and
as to the draft ing and interpretation of criminal laws, Lord Diplock in R v. Miller [1983]
2 AC 161 at 174.
sovereignty and statutory interpretation 241
profit from his own wrong, and therefore as excluding inheritance in the
circumstances. The decision is arguably justified by a ‘tacit general legal
assumption’.63 In a similar English case, the High Court held that a statu-
tory provision granting widows a pension did not benefit a widow con-
victed of the manslaughter of her husband. Lord Lane C.J. said that the
lack of any specific provision to that effect was ‘merely an indication . . .
that the draftsman realised perfectly well that he was drawing this Act
against the background of the law as it stood at the time’.64
When statutes are ‘read down’ to have a narrower application than a lit-
eral reading would warrant, so that common law freedoms are preserved,
the only justification that is consistent with parliamentary sovereignty
depends on the presumption that the legislature intended not to interfere
with those freedoms or, at least, did not intend to interfere with them. If
legislative intentions are really fictions, this justification is a camouflage
that conceals judicial amendment. And if judges can legitimately amend
statutes to make them consistent with common law freedoms, why should
they not amend statutes to make them consistent with other common law
principles, or to improve them in other ways? What principled limit to
a power of judicial amendment could provide a substitute for rebuttable
presumptions of legislative intention? It might be suggested that the com-
mon law, rather than Parliament’s intention, both justifies and limits the
judicial power of amendment. But if that were the case, the common law
would be superior to statute law – a reversal of constitutional orthodoxy –
and the power would not be effectively limited, because the judges can
change the common law.
The literal meaning of a provision is often qualified to give effect to
unstated intentions, purposes or values, when these can be reasonably
regarded as implicit background assumptions that the legislature took
for granted, and would have expected interpreters to take for granted. In
such cases we can still regard the judicial interpreter as engaged in a cog-
nitive process, clarifying the true meaning of the statute, which happens
to differ from its literal meaning.65
The pioneering philosopher H.P. Grice famously attempted to explain
the process of reasoning that we use in inferring implications from one
another’s utterances. Even when implications are grasped intuitively,
63
Dickerson, The Interpretation and Application of Statutes, p. 108, n. 14; Bennion, Statutory
Interpretation, pp. 532–3.
64
R v. Chief National Insurance Commissioner, ex parte Connor [1981] QB 758, 765; see also
Re Sidgworth [1935] Ch 89 and Re Royse [1985] Ch 22 at 27 per Ackner L.J.
65
See Goldsworthy, ‘Implications in Language, Law and the Constitution’.
sovereignty and statutory interpretation 243
B Creative interpretation
Sir Rupert Cross observed that judges have a ‘limited power’ in effect to
alter statutory words that would otherwise be unintelligible, absurd, or
totally incompatible with the rest of the statute.67 The court must repair
or rectify the statute by undertaking some ‘embroidery’ to supplement or
qualify its express provisions. He noted that many judges preferred not to
admit that they were engaged in rectification of the statutory words.68 But
it would be more truthful to acknowledge that they do occasionally mod-
ify a statute’s meaning to correct a legislative mistake or oversight.69
66
H.P. Grice, Studies in the Way of Words (Cambridge, Mass: Harvard University Press,
1989), chs. 2 and 3.
67
Bell and Engle, Statutory Interpretation, pp. 49 and 93.
68
Ibid., p. 98.
69
These observations about ‘purpose’ and ‘mistake’ are somewhat loose. Professor Jim
Evans has persuasively argued that the Courts should only correct a mismatch between
the express provision and the immediate practical judgment or reason underlying it. See
J. Evans, ‘Reading Down Statutes’, in R. Bigwood (ed.), The Statute, Making and Meaning
244 Parliamentary Sovereignty
One example is the correction of draft ing errors, which can result in
the literal meaning of a provision being quite different from its obviously
intended meaning, sometimes even absurdly different. When it is obvious
that this has happened, and also obvious what the legislature intended to
provide, the courts may be prepared to overlook the error and give effect
to the intention. The legislature is deemed to have succeeded in commu-
nicating its intention despite its clumsy mode of expression. But literalists
must have great difficulty justifying the judicial correction of a drafting
error. The provision must be understood as if some word or words were
either added to or subtracted from it. But how could this be justified,
except on the basis that it is necessary to give effect to what the provision
was obviously intended to mean? Indeed, how could one even identify
a draft ing error, except by comparing what the legislature enacted with
what it obviously intended to enact? If the concept of legislative intention
is discarded, or all extra-textual evidence of intention disregarded, only
the words of the provision are left. The idea that the wording is mistaken
could then mean only that the interpreter regards it as undesirable. But
how could interpreters be allowed to rewrite a provision on the ground
that they regard it as undesirable? That would be to confer on them an
unbounded power of amendment, because there would be no way to dis-
tinguish correcting drafting errors from making other improvements.
Another example of creative interpretation is the correction of omis-
sions in the design of a statute. Legislatures sometimes fail to anticipate
and expressly provide for some unusual circumstance or unexpected
development; there is no background assumption or presupposition that
covers it; and creative interpretation is needed to help the statute achieve
its purpose, or avoid damage to other standing commitments of the legis-
lature. Cases (1), (2) and (5) above may be examples, although (5) is argu-
ably an example of an implicit, background assumption.70
Consider, for example, the judicial attribution of implications to stat-
utes. The courts usually require that implications be ‘necessary’ ones. Two
different kinds of ‘necessity’ can be found in the case-law on implications,
whether statutory or contractual.71 One is a kind of ‘psychological neces-
sity’: it concerns whether or not interpreters are, as it were, compelled to
genuinely implied by a text are inferred from it, not implied into or read
into it: the latter are oxymoronic expressions that, in trying to have it both
ways, defy ordinary English. They presumably function as euphemisms,
by blurring the difference between the discovery of genuine implications,
and the insertion of pretended ones. If judges are really inserting terms
into an instrument to ensure that it can achieve its purposes, they should
say so.78
Adding a term to a statute is consistent with constitutional orthodoxy
if its intended purpose is obvious, and the added term is necessary for it
to fulfi l that purpose. If so, no damage is done either to the principle of
parliamentary sovereignty, because the court is guided by Parliament’s
purpose, or to the rule of law, because that purpose is ascertainable by rea-
sonable interpreters. The court exercises the kind of equitable judgment
described by Aristotle, who argued that when general laws would operate
unjustly in unusual circumstances, they should be corrected according
to ‘what the legislator himself would have said had he been present and
would have put in his law had he known’.79
This is not to deny that analytical difficulties remain unresolved. For
example, how should we distinguish between background assumptions
that are presupposed by an utterance, without having been in the speak-
er’s conscious mind, and matters that the speaker has neglected to address
and which are neither expressed nor presupposed by the utterance? If the
speaker has not consciously thought of either one, what is the difference?
It cannot be that in the former case we know the view he would have taken
if he had consciously considered the matter, but in the latter case we do
not. It is possible to know what view someone would have formed if he
had considered some matter, without it being presupposed by the view he
has in fact formed and expressed.
The real difference seems to be that, in the case of presuppositions,
it would probably have made no difference if the speaker had con-
sciously thought of the matter: he would still have expressed no view,
on the ground that it was too obvious to require expression. That is why
‘obviousness’ is superior to ‘practical efficacy’ as the test for genuine
implications.
78
Chief Justice James Spigelman of the New South Wales Supreme Court denies that terms
can be legitimately added to statutes, and disapproves of the expression ‘reading into’
because it suggests the opposite: see the lucid summary of views he has expressed in
several cases, in his Statutory Interpretation and Human Rights (St Lucia: University of
Queensland Press, 2008), ch. 3, esp. pp. 132–4.
79
Aristotle Nichomachean Ethics, vol. 10, 1137b22–24.
sovereignty and statutory interpretation 247
use in everyday life. The full meaning of what people say to us depends
partly on what we know about their intentions; but it does not depend on
esoteric information such as what they confide only to their spouses or
write in their private diaries. The meaning of an utterance depends partly
on what its intended audience knows, or can reasonably be expected to
know, about the speaker’s intentions, but not on concealed intentions.83 In
the case of statutes, the courts have therefore distinguished between what-
ever hidden intentions the legislature may have had, and those intentions
it has communicated by the statute it has enacted, given readily available
knowledge of its context and purpose. While the former are irrelevant,
the latter may be crucial. That is why, when interpreting a statute, judges
often take into account the circumstances when it was made and what it
was intended to achieve, when these are, or were when it was made, mat-
ters of common knowledge.84
We can summarise all this, somewhat inexactly, by saying that the
meaning of a statute is what the legislature appears to have intended it
to mean, given evidence of its intention that is readily available to its
intended audience. This seems consistent with Lord Hoff mann’s dictum
that the intention of Parliament normally amounts to ‘the interpretation
which the reasonable reader would give to the statute read against its
background’.85
It is not altogether clear who the ‘intended audience’ of a statute is. The
courts have always held that the meaning of statutory provisions may
depend on specialised knowledge possessed by lawyers: for example,
knowledge of the technical legal meaning of particular words or phrases,
or of pre-existing deficiencies in the law that the provisions were intended
to remedy. It is not the case, therefore, that they have admitted as evidence
of legislative intention only matters known by the general public. It is as if
they have treated lawyers as the ‘intended audience’, or at least lay-people
only through the medium of professional legal advice. A law is supposed
83
See J. Goldsworthy, ‘Moderate versus Strong Intentionalism: Knapp and Michaels
Revisited’ San Diego Law Review 42 (2005) 669.
84
See, e.g., P.B. Maxwell, On the Interpretation of Statutes (London: W. Maxwell &
Son, 1875), pp. 20–1; P. Langan, Maxwell on the Interpretation of Statutes (12th edn)
(London: Sweet & Maxwell, 1969), pp. 47–50; E. Driedger, Construction of Statutes (2nd
edn) (Toronto: Butterworths, 1983), pp. 149–51; J.F. Burrows, ‘Statutory Interpretation
in New Zealand’, reprinted in N.J. Singer, Sutherland Statutory Construction (5th
edn) (1992) vol. 2A, 647 at 658; Bell and Engle, Statutory Interpretation, pp. 143–4; G.
Devenish, Interpretation of Statutes (South Africa: Juta & Co., 1992), pp. 127–9 and 130–3;
D. Gifford, Statutory Interpretation (Sydney: Law Book, 1990), pp. 117–19.
85
R (Wilkinson) v. Inland Revenue Commissioners [2006] All ER 529 at [18].
sovereignty and statutory interpretation 249
92
See J. Manning, ‘Textualism and the Equity of the Statute’, Columbia Law Review 101
(2001) 1 at 6–7 and 9–22.
93
I. Loveland, ‘Redefi ning Parliamentary Sovereignty? A New Perspective on the Search
for Meaning in Law’ Parliamentary Affairs 46 (1993) 319.
sovereignty and statutory interpretation 251
IV Alternatives to intentionalism
We have seen that statutory provisions often cannot be interpreted and
applied literally, because the consequences of doing so would be so unrea-
sonable that no legal system could tolerate them. Intentionalist theories
offer one way of avoiding these consequences. If that approach is rejected,
not many alternatives are available. This can be shown by considering
various justifications of the decision in Riggs v. Palmer,94 concerning
whether a murderer could be prevented from inheriting under his vic-
tim’s will, despite the relevant statute being silent on the subject.
Intentionalists can offer two different justifications of the decision.
One is that, although the legislators had no conscious intention concern-
ing murderers inheriting, it was reasonable to understand the statute in
the light of a tacit, background assumption that was taken for granted.95
The second is that the court engaged in ‘equitable’ rectification along
Aristotelian lines, adding to it a qualification needed to prevent damage
to an important principle that the legislature itself would probably have
wanted to avoid had it adverted to the matter.96
If the very idea of a legislature having ascertainable intentions or pur-
poses is rejected, what alternative justifications are available?
A Judicial override
One is to accept that statutes should be interpreted literally, but deny that
they should always be applied accordingly. This would be possible if courts
were entitled to amend, override or disobey statutes. Some legal theorists
94
(1889) 115 NY 506, 22 NE 188, discussed at pp. 241–2, above.
95
See Section II, Part A(2), above.
96
See Section II, Part B, above.
252 Parliamentary Sovereignty
have suggested that the courts may, indeed, sometimes do this. The issue
has been discussed in the context of the debate between H.L.A. Hart and
Lon Fuller, concerning whether the meaning of a statutory rule depends
partly on its purpose. Fuller defended the claim that it does, partly by
relying on examples in which literal interpretations lead to unreasonable
or absurd results.97 Some of Hart’s defenders have replied that Fuller’s
point goes to the application of rules, rather than to their meaning. There
are different versions of this reply.
Andrei Marmor once argued, in effect, that arguments like Fuller’s
show that judges may sometimes have to disobey the law. He wrote that
they confuse ‘the question of what following a rule consists in (which
interested Hart), with that of whether a rule should be applied in the cir-
cumstances’. Whether a rule should or should not be applied in the cir-
cumstances depends on its moral content and that of the legal system
in question. According to Marmor, it does not follow that the rule can-
not be understood without reference either to its purposes or to moral
considerations.98
But this exaggerates and aggravates the problem. It turns a humble
problem of statutory interpretation into a challenge to judicial fidelity to
law. Judicial disobedience of the law is generally thought to be an extreme
remedy, to be reserved for truly extraordinary situations in which a law is
so morally outrageous that the reasons why judges should almost always
obey the law are outweighed or overridden. Run-of-the-mill cases of
statutory interpretation in which a literal reading would have unreason-
able consequences are problematic, but must they be treated as posing
such a grave moral dilemma? Is there really no way that judges can deal
with them except by violating their judicial oaths and disobeying the law?
A less spectacular solution would surely be preferable.
Frederick Schauer has offered a different version of the same reply,
according to which judges have legal authority to decline to apply stat-
utes. Like Marmor, he denies that Fuller’s argument shows that the mean-
ing of a rule depends on its purpose; it shows, instead, that judges should
sometimes refuse to follow a rule if doing so would be absurd or unjust.99
Moreover, he claims that the Anglo-American legal tradition authorises
97
L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ Harvard Law Review
71 (1958) 630 at 662–9.
98
Andrei Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992),
pp. 136–7.
99
Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based
Decision-Making in Law and in Life (Oxford: Clarendon Press, 1991), pp. 209–10.
sovereignty and statutory interpretation 253
judges to do so. For example, he denies that the statutory rules consid-
ered in Riggs v. Palmer were unclear. This was not a hard case in the sense
of not being clearly covered by the existing rules: the events in question
plainly fell within the scope of the relevant statute.100 The problem was
that the statutory rules provided an answer that was ‘socially, politically,
or morally hard to swallow’. According to Schauer, American practice,
and less pervasively English practice, empowers the judge to override or
revise such rules.101
Schauer differs from Marmor by describing this judicial power to over-
ride or revise statutes as a legal rather than an extralegal power. But this
explanation of the decision in Riggs is inconsistent with the explanation
given by the court itself. As Jeremy Elkins has pointed out, ‘the court went
out of its way to argue that it was interpreting the Statute of Wills, rather
than displacing it’.102 Ronald Dworkin has also observed that none of the
judges denied that if the statute, properly interpreted, gave the inherit-
ance to the murderer, then they were bound to let him have it. ‘None said
that in that case the law must be reformed in the interests of justice.’ The
judges’ disagreement was about ‘what the statute required when properly
read’.103
In addition, Schauer’s explanation of the decision is vulnerable to a
constitutional objection. According to the American principle of legisla-
tive supremacy, courts are legally required to obey any statute that is con-
stitutionally valid. Statutes are not subordinate to judge-made common
law principles; if there is any inconsistency between them, the common
law principles rather than the statute must give way. This is certainly the
position in Britain, whose constitution is based on the doctrine of parlia-
mentary sovereignty. And we have seen that the principle that statutory
law is superior to common law is equally well established in the United
States.104 American statutes are subject to constitutional guarantees, some
of which are famously ‘open ended’ and have been interpreted extremely
broadly. But that provides no support for the entirely different propos-
ition that the courts may overturn or amend statutes that are inconsist-
ent with ordinary common law principles, such as that people should not
profit from their own wrongs.
100
Ibid., pp. 200 and 209.
101
Ibid., p. 210; on Riggs v. Palmer, see ibid. at pp. 189–90, 200 and 203.
102
Jeremy Elkins, ‘Frederick Schauer on the Force of Rules’, in Linda Meyer (ed.), Rules and
Reasoning: Essays in Honour of Fred Schauer (Oxford: Hart Publishing, 1999), 79 at p. 90.
103
R. Dworkin, Law’s Empire (Cambridge Mass.: Harvard University Press, 1986), p. 16.
104
See Section I, above.
254 Parliamentary Sovereignty
B Constructivism
A second alternative to intentionalism consists of ‘constructivist’ theories
of interpretation, according to which the purposes and meanings attrib-
uted to statutes are, to a substantial extent, constructed by the judges who
interpret them. Constructivists agree that the meaning of a statutory
provision cannot sensibly be confined to the literal meaning of its words.
But since it cannot be enriched by evidence of the legislature’s intentions
or purposes (which are either non-existent or indiscernible), it must be
enriched by something else, such as the moral principles of the commu-
nity as a whole, or ‘true’ moral principles.
Ronald Dworkin in Law’s Empire expounded the most influential ver-
sion of constructivisim. He rejected what he called ‘conversational’ inter-
pretation, based on the ‘speaker’s meaning’ theory which holds that the
meaning of ordinary speech is determined partly by the speaker’s men-
tal state.107 In the case of statutes and written constitutions, that theory
was confounded by ‘a catalogue of mysteries’, including the identity of
‘the speaker’ and the mental state that contributes to meaning.108 Instead,
these laws had to be interpreted constructively.
105
See, e.g., Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and
Politics (Oxford: Clarendon Press, 1994), p. 359.
106
See text to n. 17, above. Something like this analogy is usefully developed in Richard
A. Posner, The Problems of Jurisprudence (Cambridge Mass., Harvard University Press,
1990), pp. 269–73. By rule of law requirements, I mean that the will of the legislature
must be publicly ascertainable from the words it enacted, understood in the light of con-
textual evidence that is readily available to its intended audience.
107
Dworkin, Law’s Empire, p. 50 and 315.
108
Ibid., p. 315; see also p. 348.
sovereignty and statutory interpretation 255
109
Ibid., p. 52. 110 Ibid., p. 166. 111 Ibid., p. 225. 112 Ibid., p. 314.
113
Ibid., p. 316. 114 Ibid., p. 337. 115 Ibid., pp. 335–6 and 168–9.
116
Ibid., pp. 171 and 168 respectively, emphasis added.
256 Parliamentary Sovereignty
117
Ibid., p. 338. 118 Ibid., pp. 349–50. 119 Ibid., p. 349. 120 Ibid., p. 225.
121
Ibid., p. 352, emphasis in original.
122
Ibid., 386. See also Michael S. Moore, ‘The Semantics of Judging’ Southern California
Law Review 54 (1980) 151 at 263–5.
123
Michael S. Moore, ‘A Natural Law Theory of Interpretation’ Southern California Law
Review 58 (1985) 277 at 354.
124
Moore, ‘A Natural Law Theory’, 397.
sovereignty and statutory interpretation 257
125
Moore, ‘The Semantics of Judging’, 259–60 and 293–4.
126
Ibid., 278.
127
Ibid., 294; see also Moore, ‘A Natural Law Theory’, 385.
128
Discussed in Moore, ‘Semantics of Judging’, 277–8.
129
Ibid., 321 and 385; see also ibid., 313–20 for a description of the rule of law virtues.
258 Parliamentary Sovereignty
strong that the ethical intuitions might not be determinative the other
way’.130 If it is necessary to avoid extreme injustice, ‘a judge may “overrule”
the ordinary meaning by acknowledging that this is a term of art in the
law, guided by the law’s special purposes and not by ordinary meaning’.131
He also claims that judges must always ask a final, ‘safety-valve’ question
concerning the justice of applying the statute.132 He acknowledges that
this might lead to overruling the statute as enacted.133 His constructiv-
ist approach to interpretation therefore turns into invalidation if this is
needed as a last resort in order to achieve justice.
Trevor Allan also defends what he calls ‘robust constructivism’ involv-
ing ‘a “constructive” notion of legislative intention’.134 Unlike Dworkin
and Moore, Allan concedes that Parliament does have intentions of
relevance to interpretation.135 But the ‘true (or legal) meaning’ of a stat-
ute is ‘constructed in the light of the background values we treat as
fundamental’.136 ‘The relevant intention is essentially metaphorical’; it
is ‘attributed [to Parliament] rather than (in any straight-forward sense)
discovered’.137 It is a product of interpreting the text of the statute and its
‘apparent purpose’ in the light of settled common law principles of fair-
ness and legality.138 Even ‘purpose’ is partly ‘constructed’: the statute is
taken to embody the purposes of the ‘ideal legislator’.139 ‘The true or legal
meaning of a provision is the sense that best reflects the various require-
ments of political morality, all fairly taken into account’; ‘legal outcomes
that would be widely thought unjust or inexpedient will be excluded’.140 ‘A
statute ultimately means what the courts decide it ought to mean in par-
ticular instances.’141
Like Michael Moore, Allan argues that the graver the threat posed by
a statute’s words to a fundamental right, the more a court is justified in
130
Ibid., 278. 131 Moore, ‘A Natural Law Theory’, 385.
132
Ibid., 386–7. 133 Ibid.
134
T.R.S. Allan, ‘Legislative Supremacy and Legislative Intent: A Reply to Professor
Craig’ Oxford Journal of Legal Studies 24 (2004) 563 at 567–8 and 570 (on Dworkin).
He distinguishes his theory from Dworkin’s, and acknowledges Dworkin’s change of
position post-Law’s Empire, in T.R.S. Allan, ‘Legislative Supremacy and Legislative
Intention: Interpretation, Meaning, and Authority’ Cambridge Law Journal 63 (2004)
685 at 694 (although at 700 he seems to prefers the theory in Law’s Empire).
135
Allan, ‘Legislative Supremacy and Legislative Intention: Interpretation, Meaning, and
Authority’, 694.
136
Ibid., 695. 137 Ibid., 693 and 692.
138
Allan, ‘Legislative Supremacy and Legislative Intent: A Reply to Professor Craig’, 568.
139
‘Legislative Supremacy and Legislative Intention: Interpretation, Meaning, and
Authority’, 690 and 694.
140
Ibid., 695 and 696. 141 Ibid., 690.
sovereignty and statutory interpretation 259
C Criticism of constructivism
Constructivist theories purport to justify a judicial power to ‘construct’
statutory meaning that is constitutionally unacceptable. The very idea
that judicial interpreters ‘construct’ meaning shows that it is a power
amounting, at minimum, to co-authorship of the statute. It is a power
to subordinate the words chosen by the legislature (and, if they exist, its
intentions and purposes) to moral values chosen by the judges. The legis-
lature is no longer the sole author of the statute it enacts: no matter what
it provides, the content of the statute will be determined partly by values
‘read into it’ by the judges. The meaning of a statute, Allan declares, is ‘the
joint responsibility of Parliament and the courts’.146
As Richard Ekins has argued, it is difficult to see how constructiv-
ism can be reconciled with the fundamental notion that Parliament has
authority to make law. The theory treats Parliament as merely providing
raw material, in the form of words, which the judges combine with other
material to construct law.147 Putting the same point another way,
The courts are enjoined to interpret each statute as a purposive
communication – but not a communication from real legislators. Instead
the statute should be read as though it were a communication from the
judge to himself, via the thought experiment of the ideal legislator.148
142
Allan, ‘Legislative Supremacy and Legislative Intent: A Reply to Professor Craig’, 580.
143
Allan, ‘Legislative Supremacy and Legislative Intention: Interpretation, Meaning, and
Authority’, 707.
144
Allan, ‘Legislative Supremacy and Legislative Intent: A Reply to Professor Craig’, 581.
145
Allan, ‘Legislative Supremacy and Legislative Intention: Interpretation, Meaning, and
Authority’, 699.
146
Ibid., 689, n. 13.
147
R. Ekins, ‘The Relevance of the Rule of Recognition’ Australian J Legal Philosophy 31
(2006) 95, 100.
148
Ibid., 106.
260 Parliamentary Sovereignty
149 150
Ibid., 103. R. Dworkin, Law’s Empire, 268 and 401.
151 152
Ibid., 315. Moore, ‘A Natural Law Theory’, 386–7; Allan, 17.
sovereignty and statutory interpretation 261
‘[A] text is not just a series of letters and spaces: It consists of propos-
itions’, and ‘[w]e decide what propositions a text contains by assigning
semantic intentions to those who made the text’.161
History is therefore plainly relevant. But only in a particular way. We turn
to history to answer the question of what they intended to say, not the
different question of what other intentions they had. We have no need to
decide what they expected to happen, or hoped would happen, in conse-
quence of their having said what they did . . .162
158
Dworkin, Freedom’s Law, p. 10.
159
R. Dworkin, ‘Comment on Scalia’, in A. Scalia, A Matter of Interpretation; Federal Courts
and the Law (Princeton: Princeton University Press, 1997), 115 at pp. 116 and 119.
160
Dworkin, ‘Comment on Scalia’, p. 117.
161
Dworkin, ‘Arduous Virtue of Fidelity’, 1260.
162
Dworkin, Freedom’s Law, p. 10.
163
Dworkin, ‘Reflections on Fidelity’ Fordham Law Review 65 (1997) 1799 at 1815–16.
sovereignty and statutory interpretation 263
He adds that this justification of Riggs and similar cases is based on ‘a con-
vincing explanation for the speech acts in question’.168 But explaining a
speech act in terms of the speaker’s intentions is what the speaker’s mean-
ing theory is all about!169
V Conclusion
Statutory interpretation is not as mysterious as some theorists would have
us believe. Parliament has legal authority to make laws that the courts
are legally obligated to obey. Parliament exercises its authority by using
164
M. McConnell, ‘The Importance of Humility in Judicial Review: a Comment on Ronald
Dworkin’s “Moral Reading” of the Constitution’ Fordham Law Review 65 (1997) 1269 at
1280, esp. n. 54.
165
Dworkin, ‘Reflections on Fidelity’, 1806.
166
Dworkin, Law’s Empire, pp. 351–2; see n. 121, above.
167
Dworkin, ‘Reflections on Fidelity’, 1816. 168 Ibid., 1816.
169
For more detailed discussion of the complexities of Dworkin’s more recent work on inter-
pretation, see J. Goldsworthy, ‘Dworkin as an Originalist’ Constitutional Commentary
17 (2000) 49.
264 Parliamentary Sovereignty
language to communicate its will in much the same way that language is
used in everyday life. The interpretation of statutes is a specialised case of
linguistic interpretation in general, and many of the principles developed
by the courts are explicitly formulated analogues of principles that we use
intuitively in everyday life.170 As two Australian judges put it, ‘[t]he fun-
damental object of statutory construction in every case is to ascertain the
legislative intention . . . The rules [of interpretation] . . . are no more than
rules of common sense, designed to achieve this object.’171
For many centuries, the common law has recognised that the object
of all interpretation ‘is to determine what intention is conveyed either
expressly or by implication by the language used’, or in other words, ‘to
give effect to the intention of the [law-maker] as that intention is to be
gathered from the language employed having regard to the context in
connection with which it is employed’.172 This has often been said to be
‘the only rule’, or ‘the fundamental rule of interpretation, to which all
others are subordinate’.173 This is a rule that leading cases and textbooks
on statutory interpretation in Britain, Australia, Canada and the United
States have affirmed for a very long time.174 Indeed, it can be found at least
as far back as the fifteenth century: Chrimes reports that it ‘was certainly
established by the second half of the fifteenth century’, and by Henry VII’s
reign was ‘sufficiently established to be clearly stated several times from
the bench’.175
170
This thesis is most comprehensively defended in G. Miller, ‘Pragmatics and the Maxims
of Interpretation’ Wisconsin Law Review (1990) 1179. For strong support, see D. Pearce
and R. Geddes, Statutory Interpretation in Australia (3rd edn) (Sydney: Butterworths,
1988), pp. 15 and 63. See also F. Bowers, Linguistic Aspects of Legislative Expression
(Vancouver: University of British Columbia Press, 1989), pp. 8–9.
171
Cooper Brookes (Wollongong) Pty Ltd v. F.C.T. (1981) 35 ALR 151 at 169–70 per Mason
and Wilson JJ.
172
Maxwell, On the Interpretation of Statutes, p. 1; Attorney-General v. Carlton Bank [1899]
2 QB 158 at 164 per Lord Russell.
173
Respectively, Sussex Peerage Case (1844) 8 ER 1034 at 1057 per Tindall C.J.;
Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 CLR 129
at 161 per Higgins J.
174
Maxwell, On the Interpretation of Statutes, p. 1; Halsbury’s Laws of England (4th edn)
Vol. 44, para. 522; Bennion, Statutory Interpretation, pp. 345–7; Langan, Maxwell
on the Interpretation of Statutes, p. 28; H. Black, Handbook on the Construction and
Interpretation of the Laws (St. Paul, Minn.: West Pub. Co., 1896), 35ff.; Singer, Sutherland
Statutory Construction, 22–3; Driedger, Construction of Statutes, pp. 105–6; P.A. Cote,
The Interpretation of Legislation in Canada (2nd edn) (Quebec, 1991) at pp. 4–5.
175
S.B. Chrimes, English Constitutional Ideas in the Fift eenth Century (New York,
1966 reprint), p. 294. See also P. Hamburger, Law and Judicial Duty (Cambridge,
Mass.: Harvard University Press, 2008), pp. 52–8. Many early authorities which con-
sistently attest to the crucial role of legislative intention in statutory interpretation are
sovereignty and statutory interpretation 265
The crucial point is that all this turns on the ideas of legislative intention
and purpose. When judges interpret provisions non-literally in order to
give effect to Parliament’s presumed intentions or purposes, they are still
acting as Parliament’s faithful agents. If we were to jettison the ideas of
intention and purpose, it would be much more difficult both to justify and
to limit a judicial power to interpret non-literally. All non-literal inter-
pretation would be creative rather than cognitive, guided by the judges’
values (including ‘common law values’) rather than Parliament’s. The
judges would then have effective supremacy over statute law, and legis-
lative power superior to that of Parliament itself, since they always have
the ‘last word’ at the point of application of the law. That would amount
to even more power than the ‘dual’ or ‘bi-polar’ sovereignty that some
English judges have recently claimed on behalf of the judiciary.180
179
Bennion, Statutory Interpretation, p. 338.
180
See Goldsworthy, The Sovereignty of Parliament, p. 2.
10
I Introduction
Some critics portray the doctrine of parliamentary sovereignty as a myth
that conceals the true nature of constitutionalism in Britain and other
common law jurisdictions.1 In reality, they say, Parliament and the courts
are engaged in a ‘collaborative enterprise’, with sovereignty divided
between them;2 or the constitution is ultimately based on a common
law ‘principle of legality’ which the courts, rather than Parliament, have
ultimate authority to interpret and enforce.3
Sometimes the critics really seem to be suggesting that the constitu-
tion is evolving inexorably in this direction. In fact, there are at least four
different claims they might be making, which are not all mutually com-
patible. The first is that Parliament was never sovereign: that the doctrine
of parliamentary sovereignty was always mistaken as a matter of law. The
second is that, even if Parliament is accepted as sovereign today, this is a
relatively recent deviation from a venerable constitutional tradition that
should now be restored. The third is that even if Parliament was once sov-
ereign, recent developments mean that it no longer is. The fourth is that
even if Parliament was and still is sovereign, times are rapidly changing,
and it is unlikely to retain sovereignty for much longer. Those who make
the second, third or fourth claim often argue that parliamentary sover-
eignty is a doctrine of judge-made common law, which the courts may
therefore unilaterally curtail. That argument has already been refuted.4
In this chapter, the critics’ claims about the past, present and future of
parliamentary sovereignty will be examined.
1
E.g. Philip A. Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’ King’s
College Law Journal 15 (2004) 321 at 333.
2
Ibid ., 334; A. Kavanagh, Constitutional Review Under the UK Human Rights Act
(Cambridge: Cambridge University Press, 2009), p. 414.
3
S. Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: the Controlling Factor of
Legality in the British Constitution’ Oxford Journal of Legal Studies 28 (2008) 709.
4
See Chapter 2 , above.
267
268 Parliamentary Sovereignty
II The past
A Doctor Bonham’s case and the common law tradition
In a recent book defending ‘common law constitutionalism’, Douglas
Edlin seems to make the second claim (despite rhetoric that is often more
sweeping): that although Parliament is generally regarded as sovereign
today, this is a relatively recent deviation from a constitutional tradition
that should now be restored.5
Edlin frankly concedes that parliamentary sovereignty ‘dominates
English legal minds today’6 and might seem to have ‘become irretrievably
imbedded in the collective psyche of the English legal community’;7 that
an ‘attenuated role of common law courts [is] assumed by current English
legal practice’;8 and that the English judiciary is ‘wholly captivated and
captured by the dogma of absolute parliamentary supremacy’.9 Almost
the only support in current English judicial thinking that he cites for his
strong version of common law constitutionalism is the courts’ treatment
of privative clauses, exemplified in the Anisminic case,10 and Lord Steyn’s
reasoning in Simms, which Edlin discusses at length.11 He says that these
cases ‘show that the burgeoning of parliamentary sovereignty has not
swept from the English legal landscape’ older common law principles.12
Yet Edlin concedes that Lord Steyn’s reasoning is ‘exceptional’ and ‘extra-
ordinary’; that he did not claim any judicial power to overrule statutes;
and that ‘most English judges’ would still agree with Lord Hoff man’s
more restrained approach.13 Surprisingly, Edlin does not cite the unprece-
dented obiter dicta questioning parliamentary sovereignty of Lords Hope
and Steyn in Jackson v. Attorney-General,14 which would have provided
him with better ammunition.
Edlin therefore concedes that he must demonstrate that what he
calls ‘common law review’ of the legality of statutes can be ‘introduced’
into and ‘adapt even to the English legal environment’,15 which will
5
Douglas E. Edlin, Judges and Unjust Laws, Common Law Constitutionalism and the
Foundations of Judicial Review (Ann Arbor: University of Michigan Press, 2008).
6
Ibid., p. 174. 7 Ibid., p. 178; see also p. 173. 8 Ibid., p. 175. 9 Ibid., p. 183.
10
Anisminic v. Foreign Compensation Commission v. Secretary of State for the Home
Department, ex parte Simms [2000] 2 AC 115, discussed in Section III, Part B, below.
11
Edlin, Judges and Unjust Laws, pp. 159–61, 178 and 186 (on Anisminic), and 178–87 (on
Simms).
12
Ibid., p. 194. 13 Ibid., pp. 182, 183 and 186–7.
14
R (Jackson) v. Attorney-General [2006] 1 AC 262.
15
Edlin, Judges and Unjust Laws, pp. 10 and 169.
Challenging parliamentary sovereignty 269
16
Ibid., pp. 170 and 177. 17 Ibid., p. 187. 18 Ibid., pp. 176, 183 and 187. 19 Ibid., p. 177.
20
Ibid., p. 184. At pp. 74–9, Edlin also discusses a dictum of Lord Mansfield in Omychund
v. Barker (1744) 1 Atk 22; 26 Eng Rep 15. But that dictum provides no support for judicial
review of legislation.
21
Edlin, Judges and Unjust Laws, p. 7 (emphasis added).
22
Ibid., p. 27 (emphasis added).
23
Notably, Edlin fails to respond to the evidence and arguments in Chapter 2 of this book,
although an earlier version of it was previously published in a book edited by him:
J. Goldsworthy, ‘The Myth of the Common Law Constitution’, in D. Edlin (ed.), Common
Law Theory (Cambridge: Cambridge University Press, 2007), ch. 8.
24
I. Williams, ‘Dr Bonham’s Case and “Void” Statutes’ Journal of Legal History 27 (2006)
111; P. Hamburger, Law and Judicial Duty (Cambridge Mass: Harvard University Press,
2008), ch. 8 and Appendix I. R. Helmholz, ‘Bonham’s case, Judicial Review and the Law
of Nature’ (2009) J. of Legal Analysis 325. Hamburger disagrees with Williams at ibid., p.
625, n. 7. Edlin ( Judges and Unjust Laws, ch. 5) presents arguments to the contrary, but
fails to refer to Williams (Hamburger’s book was not available to him), or to undertake
anything like their detailed comparative analysis of the contemporaneous use of words
270 Parliamentary Sovereignty
reading of Coke’s judgment, (a) the precedents there cited provided only
‘tenuous support’ for Coke’s views;25 and (b) Coke’s supposed attempt to
establish judicial review of statutes was ‘defeated’ by subsequent events
in England.26 Even if Edlin’s now discredited interpretation of Coke
were correct, it is very difficult to see how the failed attempt of a single
judge to promote judicial review of statutes, which had only tenuous sup-
port in precedent, could characterise ‘England’s authentic common law
heritage’.27
McLean and McMillan ignore my own previous effort to show that the
Diceyan theory is descriptively accurate and normatively defensible, even
in relation to the pre-1707 Scottish Parliament and the constitutional
effect of the Act of Union.31 They might be more interested in the conclu-
sions of a Scottish historian, Julian Goodare, who has written extensively
on the nature of the authority of the Scottish Parliament before 1707. Here
is his conclusion:
Parliament in its full sense – that is, estates and crown – was very much a
sovereign body. It had not always been one, but it became one in the course
of the sixteenth century. Traditional accounts of the Scottish Parliament
have often said that it was not sovereign, but this is wrong. What I mean
by sovereignty is the exercise of untrammelled power by a government.32
This conclusion is restated, and the extensive evidence and argument for it
set out in full, in The Government of Scotland 1560–1625, where Goodare
asserts that in Scotland before 1707 ‘parliamentary sovereignty was well
understood and rigorously adhered to’.33
On the other hand, J.D. Ford regards Goodare’s thesis as ‘impressive
but ultimately unpersuasive’.34 Ford cites cases in which Scottish judges
decided: (a) that statutory provisions had fallen into desuetude due to
contrary popular usage, although this appears to have been occasion-
ally controversial and sometimes difficult to distinguish from statutory
interpretation;35 or (b) that a statute had not come into force because
it had not been accepted by the people, although the judges could also
declare that, in the public interest, the statute would be enforced in
future.36 The significance of these cases is difficult to evaluate. They do
not suggest that Parliament’s authority was limited by fundamental
laws, but rather that its statutes had to have some influence on public
behaviour in order to be recognised as legally efficacious. It is not clear
whether, when statutes were held not to have such an influence, this was
31
Goldsworthy, The Sovereignty of Parliament, pp. 165–73.
32
J. Goodare, ‘Scotland’s Parliament in its British context 1603–1707’, in H.T. Dickinson
and M. Lynch (eds.), The Challenge to Westminster; Sovereignty, Devolution and
Independence (East Lothian: Tuckwell Press, 2000), 22 at p. 24.
33
J. Goodare, The Government of Scotland 1560–1625 (Oxford: Oxford University Press,
2004), p. 86.
34
J.D. Ford, ‘The Legal Provisions in the Acts of Union’ Cambridge Law Journal 66 (2007)
106 at 136, n. 137.
35
J.D. Ford, Law and Opinion in Scotland During the Seventeenth Century (Oxford: Hart
Publishing, 2007), pp. 322–4, 326 and 428.
36
Ibid., pp. 326–7.
272 Parliamentary Sovereignty
37
Ibid., p.478. 38 Quoted in ibid., 479, n. 29.
39
Edlin, Judges and Unjust Laws, pp. 173–4 and 177–8; The Hon. E.W. Thomas, ‘The
Relationship of Parliament and the Courts’ Victoria University of Wellington Law Review
5 (2000) 9; Joseph, ‘Parliament, the Courts and the Collaborative Enterprise’, 321, 333
and 345; Rt Hon. Dame Sian Elias, ‘Sovereignty in the 21st Century: Another Spin on the
Merry-go-round’ Public Law Review 14 (2003) 148, 150 and 151.
Challenging parliamentary sovereignty 273
40
As Elias suggests, the foundation of a legal system does not necessarily consist of one
master rule of recognition. There might be a number of rules that ‘interact and cross-
refer’: Elias, ‘Sovereignty in the 21st Century’, 151, quoting Neil MacCormick.
41
P. Joseph, Constitutional and Administrative Law in New Zealand (3rd edn)
(Wellington: Thomson/Brookers, 2007), p. 544.
42
Elias, ‘Sovereignty in the 21st Century’, 150.
43
Goldsworthy, The Sovereignty of Parliament, pp. 13–16.
44
Elias, ‘Sovereignty in the 21st Century’, 151; see also 156 (‘explicit analysis of constitu-
tional principle’) and 162 (on protecting the essential democratic process).
45
See Goldsworthy, The Sovereignty of Parliament, pp. 253–9. Also, the judicial decisions in
Australia, Canada and India that Elias refers to are all of doubtful correctness.
46
See Chapter 7 above.
274 Parliamentary Sovereignty
are moral rather than legal, and they are enforced not by legal remedies
dispensed by courts, but by popular rebellion that dissolves the constitu-
tion. He regarded the legislature as the supreme power within the con-
stitution, subject only to a higher power outside the constitution – the
community as a whole – which, if the legislature abused its trust, could
dissolve the constitution and establish a new one, in which some new
legislature would be legally supreme.47
The truth in the widespread belief that the doctrine of parliamentary
sovereignty was firmly established by the Revolution of 1688 is that the
Whig theory of the constitution prevailed over that of the Tories. Within
a short period, most Tories had accepted that Parliament could control the
royal succession and all of the Crown’s prerogatives.48 But throughout the
eighteenth century, the consensus that Parliament had legally unlimited
authority was not based on the Hobbesian thesis that the supreme power
within any state has a right to virtually absolute obedience. Constitutional
thought was much more sophisticated than that. The Whig theory – that
in the face of tyranny, popular rebellion might be justified – was gener-
ally accepted. But it was also believed, not unreasonably, that the law itself
should not recognise any limits to Parliament’s authority (even though
moral limits were acknowledged), or countenance rebellion in any cir-
cumstances, because of the risk that such limits would be construed too
broadly, and rebellion incited too easily by demagogues.49 It was also often
observed that the moral limits to legislative authority were too vague and
controversial to be legally serviceable.50 No doubt the Whigs, when they
acquired power, deliberately downplayed the right of resistance, but the
Lockean theory remained intact. And this is the constitutional theory
that was propounded by Blackstone.51
It is true that in the nineteenth century, legal philosophy in Britain
came to be dominated by Austin’s theory. But Austin explicitly rejected
Hobbes’s demand of almost absolute obedience to the established sov-
ereign, and acknowledged that resistance to tyranny might be justified
in extreme cases.52 Dicey agreed with this,53 but also distanced himself
from Austin’s general philosophy of law. Dicey astutely suggested that,
rather than the doctrine of parliamentary sovereignty being derived from
Austin’s theory, that theory was a generalisation drawn from English law,
and owed its rapid acceptance to the familiarity of English jurists with the
47
See Goldsworthy, The Sovereignty of Parliament, pp. 151–3.
48
Ibid., pp. 159–64. 49 Ibid., pp. 173–81. 50 Ibid. 51 Ibid., pp. 19 and 181–3.
52
Ibid., p. 19. 53 Ibid.
Challenging parliamentary sovereignty 275
60
Ibid., p. 335. 61 Ibid., p. 334. 62 Ibid., p. 336. 63 Ibid., p. 342.
64
Ibid., p. 322. See also Joseph, Constitutional and Administrative Law in New Zealand (3rd
edn), pp. 543–5.
65
Concise Oxford Dictionary of Current English (6th edn) (Oxford: Clarendon Press, 1976),
p. 224.
66
Goldsworthy, The Sovereignty of Parliament, pp. 58 and 89–90.
67
See ibid., Index, p. 318, under ‘Parliament, as highest court, not subject to appeal’.
68
Ibid., pp. 151 and 160.
Challenging parliamentary sovereignty 277
69
R. Ekins, ‘The Myth of Constitutional Dialogue: Final Legal Authority, Parliament and
the Courts’ (2004) Bell Gully Public Lecture, 5 (unpublished, on fi le with author).
70
Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’, 332 and 335.
71
Goldsworthy, The Sovereignty of Parliament, Index, p. 318, under ‘Parliament as incorp-
orating checks and balances’, and ‘Parliament as principal guardian of liberty’.
72
Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’, 322.
73
Ibid., 337.
74
Jeff rey Goldsworthy, ‘Parliamentary Sovereignty and Statutory Interpretation’, in
R. Bigwood (ed.), The Statute: Making and Meaning (Wellington: LexisNexis, 2004),
p. 187. See Chapter 9, above.
278 Parliamentary Sovereignty
75
Goldsworthy, ‘Parliamentary Sovereignty and Statutory Interpretation’, pp. 189–93 and
206–8.
76
Ibid., p. 209. 77 Goldsworthy, The Sovereignty of Parliament, pp. 250–2.
78
Goldsworthy, ‘Parliamentary Sovereignty and Statutory Interpretation’, 191.
79
Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’, 324.
80
Ibid., 330. 81 Ibid.
Challenging parliamentary sovereignty 279
Parliaments were ever truly sovereign. People are entitled to change their
minds. Yet Joseph’s earlier certainty, based on impressive research and
lucid analysis, surely raises doubts about his current claim that parlia-
mentary sovereignty is a ‘latter-day myth’ resulting from ‘sleight of hand’
and ‘lazy thinking’.89 There is considerable evidence even in his new
critique that the doctrine of parliamentary sovereignty is not a ‘myth’.
Much of this article concerns very recent developments, which in his
opinion show that Parliament, today, is not sovereign. These develop-
ments include the enactment of the Human Rights Act 1998 (UK) and
the way its application is challenging orthodox understandings of statu-
tory interpretation; the relatively recent expansion of judicial review in
administrative law, and its supposed incompatibility with parliamentary
sovereignty; the influence of proportionality analysis; and so on. But evi-
dence of this kind does not show that Parliament was not sovereign in
the past. Quite the contrary, insofar as Joseph acknowledges that these
are recent developments, it suggests the opposite. He argues that these
developments require ‘new’ constitutional theorising, which a conserva-
tive judiciary has not yet embraced.90 At most, all this strongly suggests
incipient change, not long-standing practice. Recent judicial innovations
may require new theories, and may constitute a challenge to the doctrine
of parliamentary sovereignty. But they cast very little light on the nature
of parliamentary authority in the past.
89
Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’, 321.
90
Ibid., 322 including n. 4, 321–3, 327, 340, 342–5.
Challenging parliamentary sovereignty 281
itself, which does not vindicate the theory of common law constitution-
alism. Moreover, this would not affect parliamentary sovereignty in New
Zealand, or in other Commonwealth jurisdictions where the doctrine
exists in attenuated form. But other grounds for challenging parliamen-
tary sovereignty might entail some version of common law constitution-
alism, and potentially affect every common law jurisdiction.
101
T. Endicott, ‘Constitutional Logic’ University of Toronto Law Journal 53 (2003) 201;
A. Halpin, ‘The Theoretical Controversy Concerning Judicial Review’ Modern Law
Review 64 (2001) 500, esp. at 501–6.
102
M. Elliott, ‘Legislative Intention Versus Judicial Creativity? Administrative Law as a
Co-operative Enterprise’, in Forsyth (ed.) Judicial Review and the Constitution, pp. 347–8,
above.
103
See Chapter 9, Section II, Part A(2).
104
Ibid., Section II, Part B, above.
105
M. Aronson, B. Dyer and M. Groves, Judicial Review of Administrative Action (3rd edn)
(Sydney: Lawbook Co., 2004), pp. 101–2.
284 Parliamentary Sovereignty
grounds of review. Yet Craig’s common law theory might be the most
plausible explanation of some other grounds of review.
We have, then, many possible explanations of the grounds of review
to choose from, and they may not all be justifiable on the same basis.
But judicial review is not unique in raising these difficult theoretical
questions. Consider, again, the decision in Riggs v. Palmer, concerning
the murderer who claimed the right to an inheritance under his vic-
tim’s will.106 Although the New York statute dealing with wills did not
expressly exclude murderers from inheriting, the state’s Court of Appeals
held that it did exclude them, by interpreting it in the light of the common
law principle that no-one may profit from his own wrong. This decision
has been explained in terms similar to each of the various theories of judi-
cial review that have been mentioned:
(1) Although the legislators had no conscious intention concerning mur-
derers inheriting, it was reasonable to understand the statute in the light
of tacit, background assumptions that can be taken for granted.107 This
is equivalent to Forsyth’s and Elliott’s ‘modified’ ultra vires theory.
(2) The judges engaged in ‘equitable’ interpretation along Aristotelian
lines, adding to it a qualification needed to prevent damage to an
important principle that the legislature itself would probably have
chosen to avoid had it addressed the question.108 This is related to
Aronson’s, Dyer’s and Groves’ theory.
(3) The legislature had no relevant intention one way or another; but pre-
cisely for that reason, it did not purport to ‘cover the field’, and left
room for the operation of independent, common law principles.109
This is similar to Craig’s theory.
(4) The judges attributed to the legislature an artificial, ‘constructive’
intention, based on common law principles, that helped to make the
statute ‘the best that it can be’ (to use one of Dworkin’s expressions).110
This is equivalent to one aspect of Allan’s theory.111
106
(1889) 115 NY 506, 22 NE 188.
107
R. Dworkin, ‘Reflections on Fidelity’ Fordham Law Review 65 (1997) 1799 at 1816. See
also Chapter 9, Section IV, end of Part C, above.
108
See, for example, Jim Evans’s theory of equitable exceptions: J. Evans, ‘Reading
Down Statutes’, in R. Bigwood (ed.), The Statute; Making and Meaning (Wellington:
LexisNexis, 2004), p. 123.
109
D. Farber, ‘Courts, Statutes, and Public Policy: the Case of the Murderous Heir’ Southern
Methodist University Law Review 53 (2000) 37.
110
R. Dworkin, Law’s Empire (Cambridge, Mass: Belknap Press, 1986), pp. 351–2.
111
See Trevor Allan’s discussion of Riggs in Allan, ‘Legislative Supremacy and Legislative
Intention: Interpretation, Meaning, and Authority’, 696–703.
Challenging parliamentary sovereignty 285
(5) In effect, the decision subordinated the statute, and the will of the
legislature, to common law principles (contrary to the American doc-
trine that the legislature is supreme as long as it does not violate limits
imposed by the state or national Constitution).112 This is equivalent to
another aspect of Allan’s theory.113
The most important point is that in the case of judicial review, there is
no good reason to accept (5). I would also reject (4), on the ground that
it reduces to (5). This is because, if legislative intentions are not real, but
artificial ‘constructs’ that are essentially fictions, then we must pierce
through the fiction to ascertain the underlying reality – which must be
(5) (since all the other alternatives depend to some extent on legislative
intentions being real).
As for (1), (2) and (3), the right choice will probably vary, depending
on the particular ground of review in question. Although the choice is
of analytical interest, it may be of little practical importance. What is of
great practical importance is whether, by interpreting a statute as subject
to some unexpressed qualification, a court is being faithful to Parliament’s
purposes, insofar as these have been clearly communicated, or whether it
is really overriding them, and the statute, to give effect to its own policy
preferences. There appears to be no good reason to think that this is gen-
erally true of the judicial review of administrative decision-making. One
exception may be the courts’ treatment of some privative clauses that pur-
port to oust their jurisdiction to review administrative action.
112
A. Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992), pp. 136–7;
F. Schauer, Playing By the Rules: a Philosophical Examination of Rule-Based Decision
Making in Law and Life (Oxford: Clarendon Press, 1991), pp. 209–10; both critically dis-
cussed in Chapter 9, Section IV, Part A, above.
113
T.R.S. Allan, ‘Legislative Supremacy and Legislative Intention: Interpretation, Meaning,
and Authority’, 699, quoted in Chapter 9, Section IV, end of Part B, above.
114
Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147, [1969] 2 WLR 163.
115
For example, H.W.R. Wade and C.F. Forsyth, Administrative Law (7th edn) (Oxford:
Oxford University Press, 1994), p. 737; Thomas, ‘The Relationship of Parliament and the
Courts’, 27.
286 Parliamentary Sovereignty
can be made. The first is that even Trevor Allan, no friend of parliamen-
tary sovereignty, has justified the decision in that case on the orthodox
ground of presumed legislative intention. He said that ‘[i]t is quite as
reasonable to suppose that Parliament intended the courts to superin-
tend the Foreign Compensation Commission, as regards the extent of its
jurisdiction, as to suppose the contrary. Far more reasonable – it would
seem almost absurd to think that Parliament intended the Commission’s
activities to be free from all legal control.’116 Allan has not subsequently
changed his mind.117 And as I have previously observed, judges who pre-
sume that Parliament did not intend to violate some important common
law principle ‘do not deliberately flout the doctrine of parliamentary sov-
ereignty unless they know that there is clear, admissible evidence that it
did intend to do so’.118
Many scholars believe that judges routinely evade privative clauses by
lying about Parliament’s likely intention in enacting them.119 Aronson,
Dyer and Groves use the term ‘disingenuous disobedience’.120 Sir William
Wade referred to ‘the logical contortions and evasions’ to which judges
were ‘driven’ by privative clauses, although he added that their stance
should be condoned rather than criticised.121 Justice E.W. Thomas recom-
mends that we candidly admit what the judges have been doing: ‘I know
of no rule of law or logic which would make judicial disobedience more
palatable simply because it is done covertly.’122
Let us assume that the Court did knowingly disobey Parliament. The
second possible response was outlined in my earlier book:
It must also be admitted that in some . . . cases, the judges’ claim to be
faithful to Parliament’s implicit intention has been a ‘noble lie’, used
to conceal judicial disobedience. But such cases are relatively rare, and
the fact that the lie is felt to be required indicates that the judges them-
selves realise that their disobedience is, legally speaking, illicit. The lie
also preserves Parliament’s freedom, after reconsidering its position, to
116
T.R.S. Allan, ‘Legislative Supremacy and the Rule of Law: Democracy and
Constitutionalism’ Cambridge Law Journal 44 (1995) 111 at 127.
117
T.R.S. Allan, Constitutional Justice; a Liberal Theory of the Rule of Law (Oxford: Oxford
University Press, 2001), pp. 211–12.
118
Goldsworthy, The Sovereignty of Parliament, p. 252.
119
See, e.g., C. Saunders, ‘Plaintiff S157: A case-study in common law constitutionalism’
Australian Journal of Administrative Law 12 (2005) 115 at 117 and 125.
120
Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd edn), p. 830.
121
Sir William Wade, Constitutional Fundamentals (rev’d edn) (London: Stevens & Sons,
1989), p. 86.
122
Thomas, ‘The Relationship of Parliament and the Courts’, 27.
Challenging parliamentary sovereignty 287
override the judges by enacting new legislation expressing its intention
more clearly.123
127
G. Lindell, ‘The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance
From the United Kingdom?’ Public Law Review 17 (2006) 188 at 195; D. Nicol, EC
Membership and the Judicialization of British Politics (Oxford: Oxford University Press,
2001), p. 182.
128
See Chapter 7, Section III, above.
129
E.g., A. Young, Parliamentary Sovereignty and the Human Rights Act (Oxford: Hart
Publishing, 2008), ch. 1; A. Kavanagh, Constitutional Review Under the UK Human
Rights Act (Cambridge: Cambridge University Press, 2009), ch. 11.
130
A.V. Dicey, An Introduction to the Study of the Law of the Constitution (10th edn),
E.C.S. Wade, (ed.) (London: Macmillan, 1959), p. 40.
Challenging parliamentary sovereignty 289
131
As for implied repeal, see Kavanagh, Constitutional Review, pp. 315 and 297; Craig,
‘Report on the United Kingdom’, 210.
132
Th is is for two reasons. First, the earlier statute is ‘repealed’ only insofar as it is incon-
sistent with the later one. Therefore, if inconsistency arises only in particular circum-
stances, the operation of the earlier law should be unaffected – and able to be applied
‘distributively’ – in all other circumstances. ‘[I]f the provisions are not wholly inconsist-
ent, but may become inconsistent in their application to particular cases, then to that
extent the provisions of the former Act are excepted or their operation is excluded with
respect to cases falling within the provisions of the later Act’: Goodwin v. Phillips (1908)
7 CLR 1 at 7 (emphasis added) (Griffith C.J.). Secondly, the inconsistent provisions of the
earlier statute are not, as it were, expunged from the statute book: if the later statute were
to be formally repealed, the earlier one should be fully revived. For useful discussion,
see E.A. Driedger, Construction of Statutes (2nd edn) (Toronto: Butterworths, 1983),
pp. 231–5. Implied repeal due to inconsistency of statutes therefore seems identical to the
invalidity of state laws, when inconsistent with Commonwealth laws, under s. 109 of the
Australian Constitution.
290 Parliamentary Sovereignty
133
See Chapter 7, Section VII, above.
134
I here disagree with the position I previously took in J. Goldsworthy, ‘Parliamentary
Sovereignty and Statutory Interpretation’, in R. Bigwood (ed.), The Statute; Making and
Meaning, 187 at p. 201.
135
Chapter 7, Section IV, above.
136
A. Tomkins, Public Law (Oxford: Clarendon Press, 2003), pp. 117–19.
137
Ibid., p. 118.
138
[1934] 1 KB 590 at 597 (emphasis added), cited by Tomkins, Public Law, p. 107.
Challenging parliamentary sovereignty 291
Nick Barber and Alison Young, who distinguish between two different
‘models’ of implied repeal: the ‘conflict of norms model’ and the ‘con-
flict of subject-matter model’.139 According to the former, implied repeal
is triggered by any conflict between two statutory norms; according to the
latter, which Barber and Young endorse, implied repeal is triggered only
when the two norms ‘stand upon the same subject-matter’.140 Tomkins,
applying the second model, concludes:
The Merchant Shipping Act and the European Communities Act did
not deal with the same subject-matter. The one concerned fishing and
the other concerned the legal relationship between the United Kingdom
and the European Community. It is frankly preposterous to suggest that
there could have been an issue of implied repeal here: what provision of
the Merchant Shipping Act could be said to have impliedly repealed what
provision of the European Communities Act?141
Advocates of the fi rst model of implied repeal would reply that the EC
Act, together with relevant EC law, in effect required the court not to
apply the relevant provisions of the MS Act, whereas the MS Act – simply
by virtue of being an Act of Parliament – required the court to apply
them. The MS Act’s inconsistency with EC law would have been of no
legal consequence had it not also amounted to inconsistency with the
legal force conferred on EC law by the EC Act. The answer to Tomkins’
question is therefore: ‘the provisions of the MS Act that are inconsist-
ent with applicable EC laws, are also inconsistent with – and therefore
impliedly repeal – the provisions of the EC Act that confer binding force
on those EC laws.’ Can this conclusion be evaded by adopting the ‘con-
flict of subject-matters model’?
Many objections can be made to that model. One is that it is novel. The
leading texts on statutory interpretation do not mention it, and appear
instead to regard any unavoidable inconsistency between statutes as suffi-
cient to trigger implied repeal.142 In Ellen Street Estates, Maugham L.J. was
the only judge to treat the subject-matter of the laws as a significant con-
sideration, although he did not assert that implied repeal can occur only
when inconsistent laws deal with the same subject-matter.
139
N.W. Barber and A.L. Young, ‘The Rise of Prospective Henry VIII Clauses and Their
Implications for Sovereignty’ [2003] Public Law 112 at 115.
140
Ibid. For their endorsement, see 116 and 126–7.
141
Tomkins, Public Law, p. 119. See also E. Ellis, ‘Supremacy of Parliament and the
European Law’ Law Quarterly Review 96 (1980) 511 at 513.
142
See, e.g., F. Bennion, Statutory Interpretation (4th edn) (London: Butterworths, 2002),
pp. 254–5.
292 Parliamentary Sovereignty
Secondly, there does not seem to be any good reason why, if two stat-
utes are inconsistent, the fact that they deal with different subject-matters
should prevent implied repeal. Surely it is inconsistency between two laws
that gives rise to the need for implied repeal, regardless of the subject-
matters they are dealing with. If one provides that a must do x, and the
other that a must not do x, the fact that they do so while dealing with dif-
ferent subject-matters cannot help. As the inconsistency makes it impos-
sible for a court to fully apply both laws; one must therefore prevail, and
Parliament’s continuing sovereignty requires that it be the later one. Why
should the earlier law prevail over the later law just because they deal with
different subject-matters?
Thirdly, this suggests that, if a difference in their subject-matters is sig-
nificant, this must be because it indicates that the two laws are not, despite
appearances, inconsistent.143 It is clear that although two laws dealing
with quite different subject-matters can conflict, a difference in their
subject-matters may suggest that the laws should be interpreted so that
both can operate, side by side, confined to their respective subject-matters.
It is well established that a later, general law can be interpreted as impliedly
qualified, so that it does not interfere with an earlier, more specific law. If
Parliament in the earlier statute carefully settled a specific matter, and in
the later statute provided for more general matters without any clear indi-
cation (other than arguably careless language) of having intended to dis-
turb the earlier settlement, the later statute can be ‘read down’ by finding
it subject to an implied qualification making it inapplicable to the specific
matter. The maxim generalia specialibus non derogant (‘general things do
not derogate from special things’) is generally invoked in such cases.
By much the same reasoning, a later law dealing with one subject-matter
might be interpreted as impliedly qualified, so that it does not interfere
with an earlier law dealing with a different subject-matter, even if the two
laws would be inconsistent if construed literally. Indeed, Maugham L.J.
may have mentioned subject-matters because he had in mind cases involv-
ing general and specific laws.144 In a similar observation, Griffith C.J. of
the Australian High Court clearly intended to distinguish such cases: ‘. . .
where the provisions of a particular Act of Parliament dealing with a par-
ticular subject matter are wholly inconsistent with the provisions of an
earlier Act dealing with the same subject matter, then the earlier Act is
143
See also the full discussion in Young, Parliamentary Sovereignty and the Human Rights
Act, pp. 45–9.
144
Barber and Young acknowledge this in ‘The Rise of Prospective Henry VIII Clauses’, 116.
Challenging parliamentary sovereignty 293
assumed that a later law can be qualified, without impugning the sover-
eignty of Parliament. But can a later law be nullified?
One of the questions raised by Factortame is whether complete dis-
application of a statutory provision, or even the statute as a whole, could
in some cases follow from interpretation of that very statute. A lucid argu-
ment to this effect has been made by Geoffrey Lindell. He points out that
Parliament might intend that a particular statute should come into oper-
ation only if a certain condition is satisfied (such as that the statute does
not conflict with EC law); that a requirement to that effect would be effect-
ive if included in the statute itself; and that it should also be effective if
enacted in a previous statute, of general and ambulatory effect, purporting
to govern the operation of future legislation. Such a general and ambula-
tory requirement would operate as a ‘standing or continuing expression of
the notional will and intent of Parliament’, obviating the need to include
the requirement in every subsequent statute.148 Parliament should then be
deemed to adhere to that standing intention unless and until it is clearly
repudiated.
Lindell’s argument seems plausible to this point. But does it follow that
the disapplication of a statute for non-compliance with a precondition
laid down in a previous statute can plausibly be attributed to the inter-
pretation of the disapplied statute itself? Lindell cites Lord Bridge’s state-
ment that the relevant provisions of s. 2 of the ECA had ‘precisely the
same effect as if a section were incorporated’ in the MS Act.149 But even
if preconditions imposed by an earlier statute have much the same effect
‘as if’ they were expressly incorporated in the later, disapplied statute, the
fact remains that they were not so incorporated. It could just as plausibly
be said that a declaration in an earlier statute that all later statutes incon-
sistent with it are invalid, has the same effect ‘as if’ it were incorporated
in every later statute.150 Disapplication – which is a kind of invalidation –
cannot be converted into interpretation by means of a fiction.
148
Lindell, ‘The Statutory Protection of Rights and Parliamentary Sovereignty’, esp. at 194–5
(for an earlier version, see G. Lindell, ‘Invalidity, Disapplication and the Construction
of Acts of Parliament: Their Relationship With Parliamentary Sovereignty in the Light
of the European Communities Act and the Human Rights Act’ (1999) 2 Cambridge
Yearbook of European Legal Studies 399, esp. at 405–7). For a similar argument, see
T.C. Hartley, Constitutional Problems of the European Union (Oxford: Hart Publishing,
1999), pp. 172–3.
149
Lindell, ‘The Statutory Protection of Rights and Parliamentary Sovereignty’, quoting
R v. Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 AC 85 at 140.
150
Sir William Wade, ‘Sovereignty – Revolution or Evolution?’ Law Quarterly Review 112
(1996) 568 at 570.
Challenging parliamentary sovereignty 295
156
Chapter 9, Section II, Part B, above.
157
Young, Parliamentary Sovereignty and the Human Rights Act, pp. 44, 51, 55 and 62. On
the other hand, a passage towards the bottom of p. 56 is more difficult to reconcile with
continuing parliamentary sovereignty.
158
See Chapter 9, Section II, Part B, above.
298 Parliamentary Sovereignty
159
Nicol, EC Membership and the Judicialisation of British Politics.
160
Lindell, ‘The Statutory Protection of Rights and Parliamentary Sovereignty’, 195; Nicol,
EC Membership and the Judicialization of British Politics, p. 182.
161
P. Craig, ‘Britain in the European Union’, in J. Jowell and D. Oliver (eds.), The Changing
Constitution (6th edn) (Oxford: Oxford University Press, 2007), 84 at p. 97.
162
See text to n. 133, above, and Chapter 7, above.
163
See Chapter 7, Section IV, above.
Challenging parliamentary sovereignty 299
164
Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’, 322; Elias,
‘Sovereignty in the 21st Century’, 157.
165
Jackson v. Attorney-General [2005] UKHL 56 at [102] per Lord Steyn, [104]–[107] per Lord
Hope, and [159] per Baroness Hale. See the comments of Tom Mullen, ‘Reflections on
Jackson v. Attorney-General: questioning sovereignty’ Legal Studies 27 (2007) 1 at 12–13.
166
Kavanagh, Constitutional Review, esp. ch. 11.
167
Ibid., p. 315. 168 Ibid., pp. 315 and 317.
169
Young, Parliamentary Sovereignty and the Human Rights Act, p. 53.
170
See Chapter 7, Section III, above.
171
Kavanagh, Constitutional Review, pp. 317 and 321.
300 Parliamentary Sovereignty
Britain’s domestic legal system.172 They are therefore irrelevant to the scope
of Parliament’s law-making authority as defined within that system.
In addition, she emphasises the HRA’s ‘legal pervasiveness and its
interpretive robustness’, especially the practical equivalence of the very
strong methods of ‘interpretation’ authorised by s. 3 of the Act, and par-
tial disapplication or invalidation.173 She claims that the courts have con-
strued s. 3 as authorising them to ‘rectify’ legislation by re-writing it, if its
operation would otherwise sometimes violate protected rights. This, she
suggests, is tantamount to partial disapplication of the legislation: dis-
application to the extent that its operation would otherwise violate those
rights. I argued in the preceding section that disapplication, when it is
authorised by and (as far as legal constraints are concerned) can easily be
avoided by Parliament itself, is not inconsistent with parliamentary sov-
ereignty, even if it is inconsistent with the second of Dicey’s definitional
criteria.174
Kavanagh places more emphasis on the power in s. 4 to issue declar-
ations of incompatibility between a statute and protected rights. She
maintains that, in practice, this power is (or is becoming) ‘similar to a
judicial strike-down power’, and therefore imposes substantial limits on
Parliament’s law-making functions.175 As she sees it, a practice or conven-
tion is developing that legislation will always be changed in response to
such declarations, and for a good reason: if the elected branches of gov-
ernment were to ignore a declaration, they would threaten the comity
between them and the judiciary, and ‘challenge the judges’ constitutional
role as the body empowered to pronounce authoritatively on the require-
ments of the law, including rights provisions’.176 Therefore, a declaration is
and should be ‘effectively final in almost all cases’.177
This robustly ‘constitutionalist’ understanding of the moral and pol-
itical obligations of the elected branches of government when handed
a declaration of incompatibility is highly debatable. One might wonder
why, if they should always feel obligated to accept and act on such declar-
ations, which are therefore ‘similar’ to formal invalidation, the HRA did
not take the more straight-forward route of giving the judges the power
to invalidate. Parliament’s very deliberate decision not to do so surely
172
Ibid., p. 321. 173 Ibid., p. 318–19. 174 See also Chapter 7, Section III, above.
175
Kavanagh, Constitutional Review, p. 287; see also pp. 285 and 289. Kavanagh says that
the ‘salient difference’ between these powers concerns the plight of the individual liti-
gant: ibid., pp. 287 and 290.
176
Ibid., pp. 286–7. 177 Ibid., p. 288.
Challenging parliamentary sovereignty 301
Rights should not be treated as truths that are objectively knowable only
to the supposedly apolitical legal mind, by which democratic decision-
making can be dispassionately judged. Of course the majority is not
always right – but then again, it is not always wrong, and the nub of the
problem is that there is no impartial, objective method capable of authori-
tatively determining when it is right or wrong. This does not mean that
judges have no role to play. As argued in Chapter 8, allowing aggrieved
litigants to seek non-binding judicial opinions about the impact of legis-
lation on their rights can add a further check or balance to the political
system, without diminishing its fundamentally democratic character. It
permits an appeal from the rough-and-tumble of politics to a ‘forum of
principle’, subject to a right of final appeal back to a consequently more
informed and conscientious legislature. But,
. . . [i]n a healthy democracy, responsible legislators would feel free to
override actual or anticipated judicial interpretations of constitutional
rights that, after careful and conscientious reflection, they do not agree
with. That, after all, is a power exercised by the judges themselves, when
they overrule previous judicial decisions that they have come to regard as
erroneous. They do not treat their predecessors, or expect their successors
to treat them, as infallible oracles.179
178
J. Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), p. 12.
179
Chapter 8, at p. 219–20, above. For a more extended defence of this idea, see D. Nicol,
‘The Human Rights Act and the Politicians’ Legal Studies 24 (2004) 451, esp. at 454–5.
302 Parliamentary Sovereignty
180
Kavanagh, Constitutional Review, pp. 128–32 and 408–11. For a defence of the dialogue
model see Young, Parliamentary Sovereignty and the Human Rights Act, pp. 118–30.
181
Ibid., pp. 315–16. 182 Ibid., p. 324.
183
Ibid., pp. 316 and 325. See also Joseph, Constitutional and Administrative Law in New
Zealand (3rd edn), p. 543: ‘Here, theory and reality disconnect: Parliament has absolute
power but some laws it cannot enact.’
184
M. Elliott, ‘Parliamentary Sovereignty and the New Constitutional Order: Legislative
Freedom, Political Reality, and Convention’ Legal Studies 22 (2002) 340; M. Elliott,
‘United Kingdom: Parliamentary Sovereignty Under Pressure’ International Journal of
Constitutional Law 2 (2004) 545, passim.
Challenging parliamentary sovereignty 303
194
A.V. Dicey, An Introduction to the Study of the Law of the Constitution (10th edn),
pp. 62–3.
195
Bropho v. Western Australia (1990) 93 ALR 207 at 215.
196
Kavanagh, Constitutional Review, p. 99.
197
See Chapter 7, Section III, above.
306 Parliamentary Sovereignty
198
Bropho v. Western Australia (1990) 93 ALR 207 at 215 per Mason C.J., Deane, Dawson,
Toohey, Gaudron and McHugh J.J.
199
Sir Anthony Mason, ‘Courts, Constitutions and Fundamental Rights’ in R. Rawlings
(ed.), Law, Society and Economy (Oxford: Clarendon Press, 1997), 273 at p. 281.
200
Ibid., 281–2.
201
Sir Anthony Mason, ‘Commentary’ Australian Journal of Legal Philosophy 27 (2002) 172
at 175. Not all judges agree, of course. Former Chief Justice Murray Gleeson stated that
the presumption that Parliament does not intend to overturn fundamental freedoms ‘is
not based upon a fiction’: The Hon Murray Gleeson, ‘Legality – Spirit and Principle’, The
Second Magna Carta Lecture, NSW Parliament House, Sydney, 20 November 2003, at
p. 11 (www.highcourt.gov.au/speeches/cj/cj_20nov.html).
202
L. Tremblay, ‘Section 7 of the Charter: Substantive Due Process’ (1984) 18 UBC Law
Review 201 at 242. See also Kavangh, Constitutional Review, p. 335.
Challenging parliamentary sovereignty 307
This line of thinking leads to the conclusion that the presumptions ‘can
be viewed as the courts’ efforts to provide, in effect, a common law bill of
rights – a protection for the civil liberties of the individual against inva-
sion by the state’.208 As Sir Rupert Cross put it, the presumptions oper-
ate ‘at a higher level as expressions of fundamental principles governing
civil liberties and the relations between Parliament, the executive and
the courts. They operate here as constitutional principles . . .’209 In the
United States, presumptions used in statutory interpretation have been
called ‘clear statement rules’, and their creation described as ‘quasi-con-
stitutional lawmaking’.210 In Britain, an analogy has been drawn between
the effect of interpretive presumptions, and that of ‘manner and form’
provisions that require express words or even a particular verbal formula
in order to amend or repeal legislation of a certain kind.211 Sir John Laws
203
Kavanagh, Constitutional Review, p. 115.
204
Ibid., p. 98.
205
Ibid., pp. 98, n. 39 and 105.
206
J. Burrows, ‘The Changing Approach to the Interpretation of Statutes’ Victoria University
of Wellington Law Review 33 (2002) 981 at 982–3, 990–5 and 997–8.
207
J. Finnis, ‘Nationality, Alienage and Constitutional Principle’ Law Quarterly Review 123
(2007) 417 at 417.
208
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (5th edn)
(Sydney: Butterworths, 2001), p. 131. Kavanagh cites many other expressions of this
view: Kavanagh, Constitutional Review, pp. 97–9.
209
J. Bell and G. Engle, Statutory Interpretation (3rd edn) (London: Butterworths, 1995),
166.
210
See W. Eskridge and P. Frickey, ‘Quasi-Constitutional Law: Clear Statement Rules as
Constitutional Lawmaking’ Vanderbilt Law Review 45 (1992) 593.
211
For example, T.R.S. Allan, ‘Legislative Supremacy and the Rule of Law: Democracy and
Constitutionalism’ Cambridge Law Journal 44 (1985) 111.
308 Parliamentary Sovereignty
These statements suggest that the presumptions are not really moti-
vated by genuine uncertainty about Parliament’s intentions; instead,
212
Sir John Laws, ‘Constitutional Guarantees’ Statute Law Review 29 (2008) 1 at 8.
213
Ibid., 1–2. 214 Ibid., 8.
215
R v. Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 131.
216
Lord Bingham of Cornhill, ‘Dicey Revisited’ [2002] Public Law 39 at 48.
Challenging parliamentary sovereignty 309
217
Dicey, An Introduction to the Study of the Law of the Constitution (10th edn), 413–14.
218
Kavangh, Constitutional Review, pp. 334–5.
310 Parliamentary Sovereignty
Th is leads to the third option, which is that the courts have waged a
stealthy, and ultimately successful, campaign to acquire – or usurp –
authority to protect ‘constitutional’ values of their choice, by imposing
a kind of manner and form requirement on Parliament. 224 As Jeff rey
Jowell more charitably puts it, ‘consciously or unconsciously, [the judges]
were chipping away at the rock of parliamentary supremacy by mak-
ing it increasingly difficult for Parliament to authorise the infringement
of the rule of law and . . . fundamental rights’.225 When we are strongly
attracted to a particular conclusion, we are sorely tempted to assess evi-
dence selectively, and bend or stretch logic. Even if we try to resist the
temptation, we may fail at the subconscious level. In other words, even
if we do not lie, we may delude ourselves. Th is is a universal human
trait, which judges share with the rest of us. If they believe that a statute
would otherwise infringe rights, they may be strongly motivated to pre-
vent the infringement through interpretation. If it is not possible to do
so through orthodox methods that are consistent with parliamentary
sovereignty, they may be tempted to adopt a ‘spurious interpretation’.226
Th is amounts to ‘put[ting] a meaning into the text as a juggler puts
coins, or what not, into a dummy’s hair, to be pulled forth presently with
an air of discovery’.227
To adopt either the second or third options is to lend support to the
claim that, rather than being subordinate to Parliament, the judiciary
now shares sovereign power with it. It might then seem legitimate for
the judiciary to enlarge its share of sovereignty by adding to the consti-
tutional values that it protects, or strengthening the method by which it
protects them. For example, in a jurisdiction lacking a statutory Bill of
Rights, the courts might introduce one ‘through the back door’, by devel-
oping a common law bill of rights that protects the same rights as a statu-
tory bill and provides the same level of protection. Or the courts might
ramp up the strength of the ‘presumptions’, by advancing from strict
interpretation to invalidation of legislation. If the former is tantamount
to partial disapplication, why not – in a sufficiently extreme case – assume
the power of full disapplication? After all, that is precisely what common
224
See the comments of J. Evans, ‘Controlling the Use of Parliamentary History’ New
Zealand Universities Law Review 18 (1998) 1 at 44.
225
J. Jowell, ‘Parliamentary Sovereignty Under the New Constitutional Hypothesis’ Public
Law 562 (2006) 575 (emphasis added).
226
R. Pound, ‘Spurious Interpretation’ Columbia Law Review 6 (1907) 379.
227
Ibid., 382.
312 Parliamentary Sovereignty
law constitutionalists such as Trevor Allan claim that the courts, in some
cases, already do.228
F Constitutional statutes
Lord Justice Laws (with the agreement of Crane J.) has recently pro-
posed a novel explanation of the effect of the European Communities
Act 1972 (UK) (‘the EC Act’), in authorising the judicial ‘disapplication’
of statutes that are inconsistent with European Community laws that it
makes binding. He suggests that the EC Act is just one of a number of
‘constitutional statutes’ that can now be amended or repealed only by
express words, and not mere implication.229 Th is suggestion could be
endorsed on relatively orthodox grounds: it is plausible to think that
some statutes are of such constitutional importance that Parliament is
very unlikely to intend to interfere with them, and should therefore be
presumed not to intend to do so in the absence of clear, express words to
the contrary. Th is is especially plausible when, as in the case of the EC
Act itself, the statute expressly provides that future legislation incon-
sistent with it should not be applied. What is remarkable about Laws
L.J.’s judgment is his repeated and emphatic claim that the basis of his
suggestion is not legislative intent, but ‘the common law’. Parliament, he
insists, cannot bind its successors by stipulating as to the manner and
form of future legislation.230 The doctrine of implied repeal, ‘which was
always the common law’s own creature’, can only be changed ‘by our
own courts, to which the scope and nature of Parliamentary sovereignty
are ultimately confided’.231
The courts may say – have said – that there are certain circumstances in
which the legislature may only enact what it desires to enact if it does so by
express, or at any rate specific, provision.232
courts.243 It cannot truly follow from this false premise either that the
doctrine of implied repeal was ‘the common law’s own creature’, or that
the courts have authority to modify the doctrine by holding that some-
times the legislature may only legislate if it does so ‘by express, or at any
rate specific, provision’.244 If, as Laws L.J. insists, Parliament itself lacks
authority to impose requirements as to manner or form upon its legisla-
tive power,245 it would be very surprising if the courts had authority to do
so. The first, orthodox justification of ‘constitutional statutes’ should be
preferred.
G Constitutional principles
It is often observed that the courts’ attitude towards parliamentary
authority is changing, for various reasons that include statutory innova-
tions such as the EC Act, the HRA and devolution, and increased judicial
interest in the protection of rights.246 Paul Craig, for example, believes
that the new judicial power to disapply legislation inconsistent with EC
law makes the prospect of the judges assuming a similar power to dis-
apply legislation inconsistent with rights ‘less novel or revolutionary’.247
Kavanagh, whose focus is on the HRA, agrees:
Once we begin to refi ne the doctrine of parliamentary sovereignty by
admitting the legitimacy of legal limits on Parliament’s power, then this
begs the question of what value remains in articulating these issues in
terms of sovereignty at all . . . [T]he immensely important obiter dicta
contained in Jackson . . . are important signposts to a subtle change in con-
stitutional culture . . . They are a signal that the judiciary no longer wishes
to play a part in maintaining fairytales . . . The HRA is, albeit slowly and
incrementally, contributing to a change in how we understand constitu-
tional law . . . and has begun to unleash the constitutional imagination in
order to reassess the theoretical foundations of UK constitutional law.248
243
Thoburn v. Sunderland City Council [2003] QB 151 at [60].
244
Ibid. 245 Ibid., [59]. 246 E.g., Craig, ‘Report on the United Kingdom’, at 215.
247
Ibid., 218. 248 Kavanagh, Constitutional Review, pp. 413–15.
249
Joseph and Elias both advert to this phenomenon: Joseph, ‘Parliament, the Courts, and
the Collaborative Enterprise’; Elias, ‘Sovereignty in the 21st Century’, 161.
Challenging parliamentary sovereignty 315
250
R. Chambers, A Course of Lectures on the English Law Delivered at the University of
Oxford 1767–1773, T.M. Curley (ed.) (Madison: University of Wisconsin Press, 1986),
vol. I, p. 141.
251
H. Brougham, ‘Review of Inquiry into the Rise and Growth of the Royal Prerogative in
England, by James Allan’ Edinburgh Review 52 (1830) 139 and 142.
252
J. Austin, The Province of Jurisprudence Determined , H.L.A. Hart (ed.) (London:
Weidenfeld & Nicholson, 1954), pp. 257–8; Dicey, Introduction to the Study of the Law
of the Constitution, pp. 24–7 and Part III. See also Goldsworthy, The Sovereignty of
Parliament, pp. 190–2.
253
Vestey v. Inland Revenue Commissioners [1980] AC 1148 at 1174.
254
Thoburn v. Sunderland City Council [2003] QB 151 at [63]-[64] per Laws L.J. See R v.
Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 131 per
Lord Hoff mann; Jeff rey Jowell, ‘Beyond the Rule of Law: Towards Constitutional Judicial
Review’ Public Law 671 (2000) 675, 682 and 683; D.L. Keir and F.H. Lawson, Cases in
Constitutional Law (4th edn rev.) (Oxford: Clarendon Press, 1959), p. 10; Lord Devlin,
‘Judges as Lawmakers’ Modern Law Review 39 (1976) 1 at 14.
316 Parliamentary Sovereignty
In its present state of evolution, the British system may be said to stand at
an intermediate stage between parliamentary supremacy and constitu-
tional supremacy . . . Parliament remains the sovereign legislature . . . But
at the same time, the common law has come to recognise and endorse the
notion of constitutional, or fundamental, rights.255
255
International Transport Roth GmbH v. Secretary of State for the Home Department [2002]
EWCA Civ 158; [2002] 3 WLR 344 at [71].
256
Sir John Laws, ‘Illegality and the Problem of Jurisdiction’, in M. Supperstone and
J. Goldie (eds.), Judicial Review (2nd edn) (London: Butterworths, 1997), 4.17.
257
Lord Irvine of Lairg, ‘The Impact of the Human Rights Act: Parliament, the Courts and
the Executive’ Public Law (2003) 308 at 310.
258
Elias, ‘Sovereignty in the 21st Century’, 160; Thomas, ‘The Relationship of Parliament and
the Courts’, 8; Joseph, ‘Parliament, the Courts, and the Collaborative Enterprise’, 342.
Challenging parliamentary sovereignty 317
Judges are often keen to dispel any impression that they are engaged
in attempting to change the constitution. Laws L.J., for example, speaks
of ‘the common law’ coming to recognise the existence of constitutional
rights.259 In Thoburn’s case, he observes that the traditional doctrine of
sovereignty has been modified ‘by the common law’: ‘the common law
has in recent years allowed, or rather created, exceptions to the doctrine
of implied repeal: a doctrine which was always the common law’s own
creature’.260 This apparent attribution of change to ‘the common law’ as an
autonomous and (even more mysteriously) active agent is intriguing. The
declaratory theory of judging, which modern judges often disparage as a
‘fairy tale’, apparently on some occasions still has some merit or utility.
There are two possible explanations of this style of rhetoric. The cynical
explanation is that judges such as Laws L.J. are ducking for cover, seek-
ing to avoid political flak by pretending that in constitutional matters the
common law somehow evolves by itself, rather than being changed by
them. When judges speak as if the common law is an autonomous and
active agent, and they are merely its dutiful spokesmen, they are using the
common law like a ventriloquist’s dummy.
But I would prefer to accept a non-cynical explanation. Earlier, I
pointed out that rules of recognition, and other unwritten constitutional
rules, are constituted by a consensus among senior legal officials. I also
suggested that this is what people might mean, when they describe such
rules as common law rules: in other words, that the rules and principles
of the ‘common law constitution’ are customs of legal officialdom, which
the judges did not create, and cannot change, unilaterally.261 Mark Elliott
has developed a similar theory, according to which Laws L.J.’s common
law constitution is best understood in terms of constitutional conven-
tions crystallising into law.262 The existence of constitutional conven-
tions requires consensus among legal officials, including members of the
elected branches of government. If Elliott is right, the common law con-
stitution also depends on such a consensus, and can change only if that
consensus changes. If this is an accurate account of what Laws L.J. means
by ‘the common law’, in constitutional matters, then he is not being dis-
ingenuous when he speaks as if it is at least partly independent of judicial
259
See text to n. 256, above.
260
[2002] EWHC 195 (Admin); [2002] 1 CMLR 50 at [59]-[60].
261
See end of Chapter 2 , above.
262
Elliot, ‘Parliamentary Sovereignty and the New Constitutional Order’, 362–76.
318 Parliamentary Sovereignty
opinion, and potentially subject to changes that the judiciary neither initi-
ates nor controls. The evolution of custom is beyond any one institution’s
deliberate control. If so, then Laws L.J. is not a legal revolutionary at all: he
is merely predicting evolutionary, consensual, and therefore uncontro-
versial, change.
INDEX
319
320 index
Brougham, Henry, 315 statutory presumptions, 305–12
Burgess, Glenn, 38 theory, 281
consensual change theory, 7, 107, 123,
Callis, Robert, 31 125–29, 318
Canada, 79, 109 constituent power theory, 110–11,
Charter of Rights, 11, 103, 201, 116–18, 152–54, 158–59, 161,
202–05, 206–07, 216, 219, 221 163, 166, 172
legislatures’ powers, 215–24 Constitution Act (NSW), 144, 151–69
rule of law, 58 constitutional principles, 1, 5, 9, 16, 81,
Supreme Court, 16, 58 101, 140, 307, 314–18
history, 268–80 constitutional rights, 9
Chambers, Sir Robert, 315 common law, 304–12, 317–18
citizens hybrid models, 11
legal obligations, 88–89 litigation effects, 213–17
moral authority, 86 objections to, 205–11
political participation, 9, 10, 206–8, constitutional statutes, 1, 9, 185, 299,
213–17, 224 312–14
rule of law, 62, 64, 83–87, 232 constitutions
CLVA see Colonial Laws Validity Act amendments, 70, 111
1865 common law, 14–56
Coke, Sir Edward, 3, 18–19, 21, 28, historical record, 18–47
30–34, 46, 269 philosophical analysis, 47–56
collaborative model, 275–80 fundamental rights, 103
Colonial Laws Validity Act 1865, homogenisation, 79–105
153–75, 191, 197, 200 hybrid models, 79–80, 105
common law, 3 interpretation of, 101–4
authority to expound, 21–47 reforms, 91
British constitution, 96 traditional models, 104
constitutional rights, 304–12, 317–18 see also unwritten constitutions
constitutionalism, 1, 2, 4, 6, 7, 12, constructivism, statutory
14–56, 69, 101, 113–14, 281, interpretation, 230, 254–63
303–4, 316–17 continuing sovereignty theory, 109,
definition, 2 112–13, 118–22, 128–30
historical defence, 18–47 conversational interpretation, 254, 256
philosophical analysis, 47–56 Cooper, Lord, 270
tradition, 268–70 Court of Chancery, 28, 29
evolution of, 5 courts
lex & consuetudo Parliamenti, 32 legislative rule application, 98–99
nature of, 20, 49–50 parliamentary authority, 116,
norms, 49 136–37, 275–80
parliamentary sovereignty, 115 procedural self-embracing
primum mobile, 31 sovereignty, 138–40
rights, 5, 8, 12, 93, 98, 185, 278, 305, rule of law, 85, 277
313 rules of recognition, 127, 128
royal authority, 36 statutory interpretation, 225
scope of, 20–21, 25 see also judges; judicial. . .
statutory interpretation, 264 Craig, Paul, 281, 284, 287, 314
statutory law, 253 Cromartie, Alan, 30, 33, 40
index 321
Cross, Sir Rupert, 307 Ellesmere, Lord Chancellor, 28, 29, 32
Crown prerogative see royal authority Elliott, Mark, 54, 281, 282, 284, 302,
customary law, 23–24, 28, 35, 40, 42, 303, 317
69, 124 ellipses, statutory interpretation,
236–38
Davies, Sir John, 25, 34, 46 England
declarations of incompatibility, collaborative model, 275–80
statutes and protected common law, 19–47, 268–70
rights, 12, 79–80, 209, 300, 302, see also Britain; United Kingdom
304 equity, 28–29, 31, 74
democracy, 1, 9–13, 76–77, 80–83, European Community Act 1972 (UK),
86–90, 202–24, 278, 301 1, 9, 117, 123, 139, 280, 287–88,
concept of law, 92–5 291, 294, 296, 299–300, 312
constitutional reforms, 77, 116, 118, Evatt, Justice, 142, 143, 148–49, 150,
133–40 170, 172–73, 195
constitutional rights, 101–5, 202–24 express words, legislative amendments,
debilitation of, 212, 217 195, 201
rule of law, 58, 61, 67, 70, 71, 76–78,
82–84, 95–96, 104 Factortame decision, 115, 117, 139, 225,
Denning, Lord, 241 287–98
Detmold, Michael, 120, 121 Filmer, Sir Robert, 36
Diamond, Martin, 212 finance bills, 186, 187, 189, 190, 194,
Dicey, A.V., 1, 3, 7–8, 43–44, 60, 66, 76, 199
83, 95, 112, 118, 121–23, 125, Finch, Sir Henry, 31
145, 181, 188, 270–71, 274, 288, Finnis, John, 91, 92, 307
289, 299–300, 305, 309, 315 First Institute (Coke), 32
different subject-matters, implied fit requirement, statutes, 257
repeal doctrine, 290–93 Ford, J.D., 271
disapplication of statutes, 294–95, 311 form requirements, legislation, 138,
discretionary power, 67, 77 174–201
Dixon, Justice, 155, 156, 157, 162, 163, Forsyth, Christopher, 281, 282, 284
168–69, 171, 184, 191, 197 Fortescue, Sir John, 26
Doctor Bonham’s case, 19, 269–70 Fuller, Lon, 83, 87, 252
Doe, Norman, 25 fundamental custom, 44, 191
dominion independence, 107–09, 113, fundamental or basic rights, 5, 15, 82,
118–22, 128, 130–37 94, 99, 100, 103, 105, 258, 276,
double entrenching provision, 144 278, 301, 304, 307–8, 310–11, 316
drafting errors, statutes, 244
due process, 83, 87, 102 Game, Governor, 147
Dworkin, Ronald, 50, 52, 53, 130, 253, Germany, 229–30
254–56, 260, 261–63 Goldsmith, Lord, 14
Goodare, Julian, 271
Ecclesiastical Court, 28 The Governance of Britain (Green
Edlin, Douglas, 17, 227, 268–70 Paper), 7
Edward the Confessor, 23 Grattan Bushe, H., 171
Ekins, Richard, 189, 191, 235n, 259 Gray, Charles, 30
electorate see citizens Greenberg, Janelle, 42
Elkins, Jeremy, 253 Grice, H.P., 242
322 index
Griffith, Chief Justice, 292 interpretive presumptions, 8, 98–99,
Griffith, J.A.G., 73 181–85, 225, 241–42, 265, 278,
grounds of review, 283 304–11, 313, 316
invalidation, statutes, 260
Hale, Sir Matthew, 38–41 Irvine, Lord, 97, 316
Hanson, Donald, 27
hard cases, 122–23, 130, 131, 132 Jackson v. Attorney-General (2005)
Harris v. Minister of Interior (1952), UKHL, 5, 8, 16, 113, 177–79,
173 200, 268, 270, 299, 314
Hart, H.L.A., 49, 54, 90, 109, 124, 128, James I, 29, 33, 35
129, 252 Jennings, Ivor, 7–8, 44–45, 115, 171,
Hayek, F.A., 57, 70 175
Hedley, Thomas, 4, 31 Joseph, Philip, 275–80
Henry I, 23 Jowell, Jeff rey, 311
Henry VIII, 34, 40 judges
hereditary right, 26 authority of, 15, 51, 52, 55, 85, 86,
Herle, Charles, 37 93, 105
Heuston, R.F.V., 8, 175 and democratic process, 209
Hobbes, Thomas, 70, 272, 273 dissenting views, 6
Hoff mann, Lord, 248, 308 fidelity to law, 93, 252, 265, 286
Hogg, Peter, 204, 215 political principles, 168
House of Lords, 179, 285, 287 powers of, 74–75, 76, 220, 251–54
Human Rights Act 1998 (UK), 1, 12, presumptions use, 309
79, 97, 103–04, 185, 201, 205, protection of rights, 100
208, 225, 280, 299–304, 305, rules acceptance, 54
313, 314 statute rewriting, 310–12
Huscroft, Grant, 218 statutory interpretation, 98–99, 226,
hybrid constitutional models, 79–80 230–32, 238, 241, 242, 243, 248,
259, 264, 266, 271, 277–79
immoral or unjust legislation, 59, 64, see also courts
91–93, 227, 252, 308 judicial review, 4, 64, 202–24
Imperial Parliament, 107, 119, 147, 153, administrative action, 1, 9, 280–86,
154–55, 162, 166 309, 316
implications, statutes, 244–47 Human Rights Act 1998 (UK),
implied repeal doctrine, 1, 8, 115, 182, 299–304
195, 200, 289–93, 299, 312–14, legislation 4–5, 9–12, 57, 62, 64, 67,
317 75, 79–80, 94, 102, 104–5, 201,
incompatibility declarations, statutes 202–24, 268–70
and protected rights, 12, 79–80, traditional model, 80
209, 300, 302, 304 judicial supremacy, 12, 15, 217
independence of dominions justiciability, 20n, 82, 124, 187–89,
see dominion independence 199–201
indeterminacies, 123, 127–28, 132–34,
236–39, 250, 278 Kanaha, Tsvi, 217
institutional authority, 84–87 Kavanagh, Aileen, 241, 299–300, 302,
intentionalism see legislative 303–04, 306, 310, 313, 314
intentions Kent, Chancellor, 227
Interpretation Acts, 295 King, Chief Justice, 165
index 323
king’s powers see royal authority power limitation, 71–72
Knopff, Rainer, 213, 215, 216, 219 power transfers, 209
Kramer, Adam, 240 liberal democracy see democracy
limitation of parliamentary authority,
Lakin, Stuart, 6 106–40
Lang, Jack, 142, 143, 145–47, 148, 149, 169 Lindell, Geoff rey, 294, 295
Latham, Richard, 7–8, 115, 167, 171, literalism, statutory interpretation, 81,
175 234–43, 244, 256, 260
Latham, Sir John, 170 Locke, John, 273, 275
law Long Innes, Justice, 150, 155, 158
authority limits, 274 Loughlin, Martin, 60
bindingness 187–89
concept of, 87–95, 188 MacKenzie, Sir George, 272
validity, 91–93, 187–89 mandatory requirements, legislation,
see also legal . . . ; legislation; 180, 185
legislative . . . ; legislatures; manner and form, 1, 7, 64, 114, 125, 138,
statutes; statutory 154, 156, 157, 158, 160–66, 170,
interpretation 171, 173, 175–78, 184, 186, 191,
Laws, Lord Justice, 15, 56, 308, 312–18 193–98, 273, 307, 309, 311–12
Leeson, Howard, 218 Marmor, Andrei, 252
legal bindingness, 187–89 Marshall, Geoff rey, 203
legal interpretation, processes, 230–32 Marshall, John, 74
see also statutory interpretation Mason, Sir Anthony, 306
legal norms, 5, 20, 48–49, 50, 51, 68, 92, Maugham, Lord Justice, 291
188, 293 McConnell, Michael, 262
legal obligations, 88–89, 90 McIlwain, C.H., 18
legal positivism, 43, 48, 49, 61n, 75, 81, McTiernan, Justice, 148, 155,
86, 87–95, 111, 130–34, 272 158, 167
legal revolution, 2, 4, 6, 7, 107–8, monarchy see royal authority
111–12, 123–26, 128, 318 Moore, Michael, 8, 256–58, 260
legality principle, 2, 52, 83, 267, 308, moral criteria, legal validity, 91,
315 92–93
legislation, procedure requirements, Morton, F.L., 213, 215, 216, 219
174–202 Mullan, Tom, 5
see also statutes Mulroney, Prime Minister, 218, 221
legislative intentions, 293–98, Murphy, Liam, 91
316
evidence of, 247–51 Nazi statutes, 90
indispensability of, 232–66 New Zealand, 2, 10, 11, 79, 82, 105, 107,
legislative mistakes, rectification of, 109, 123, 225–26, 231, 279
295–97 notwithstanding or override clauses,
legislative supremacy, 8, 11, 14–16, 7, 8, 9, 103, 180, 201, 202–05,
45, 57–78, 80, 99, 170, 227–31, 220, 301
249–50, 253, 260, 269
legislatures objective meanings, statutes, 249
continuing plenary power, 192, 193, Oliver, Peter, 7, 106–18, 125, 126–37
195, 200 omissions, statutes, 244–47
mandatory procedures, 76 ordinary procedures, legislation,
override powers, 202–24 176–79
324 index
override clauses, see notwithstanding Prynne, William, 36
clauses
Owen, Justice, 150, 159, 161 Quebec, 218, 220–22
quorum requirements, 188–89, 190,
Parker, Henry, 38 192, 193, 194, 196
Parliament (UK), 196, 199, 200
Parliament Acts 1911 and 1949 (UK), Raz, Joseph, 63, 64, 67
176, 177, 189, 191 reason, and rule of law, 69, 85
parliamentary authority reconstitution, see Parliament,
abdication theory, 118–22 reconstitution of
challenges to, 267–318 referendums, 125, 134–35, 138–40,
continuing theory, 109, 112–13, 141–73, 175–76, 186, 197–200
118–22, 128–30 restrictive procedures, legislation, 8,
limitation of, 106–40 176–79, 186, 193
official consensus changes, retrospective legislation,
122–26 64–66, 74, 90
Oliver’s theory, 126–37 Rich, Justice, 159, 162, 163, 167
self-limitation, 114–22 Riggs v. Palmer (1889) (US), 241, 251,
theories, 113–37 253, 256, 257, 259, 263, 284–85
philosophical origins, 272–75 rights, see constitutional rights
self-limitation, 114–22 Roe v. Wade (1973) (US), 215
statutory interpretation, 225–66 royal authority, 20, 23–42, 46–47,
traditional model, 80 272–74
parliamentary privilege, 20, 26–27, royal succession, 26, 31
32–33, 37, 41, 46, 150–51, rule of law, 1, 4, 5, 7, 9, 16–17, 57–78, 80,
188–89 82–89, 91, 95–105, 107, 108, 137,
Peden, Sir John, 143, 145, 147, 150 140, 150, 168, 172, 232, 246–50,
Pocock, J.G.A., 18, 41 254, 257, 260, 269, 276–77, 282,
Pound, Roscoe, 227, 231 311
prerogative, royal, 3, 20–21, 24, 27, concept of law, 87–95
31–32, 35, 40–41, 46–47, 273–74 content of, 61–63
presuppositions courts’ role, 277
and common law, 305–12 fundamental rights, 103
statutory interpretation, 182–85, institutional authority, 84–87
238–43, 246 as law, 95–101
privative clauses, 268, 285–87 as legal principle, 58
Privy Council, 163, 165, 167 legislative sovereignty, 57–78
procedural fairness see due process in liberal democracies, 82–84, 104
procedurally self-embracing theory, as political principle, 58–63
114–15 thick conceptions, 62, 63–78
procedural requirements thin conceptions, 61
enforceability limits, 189–96 rules of recognition, 6–7, 54–55, 70,
interpretive presumptions contrast, 96, 100, 107, 110–18, 122–30,
182–85 134, 136, 139, 186, 192, 199, 201,
legislation, 174–202 272–73, 313, 317
policy considerations, 179–82
validity limits, 189–96 Schauer, Frederick, 252, 253
variety, 186 Scotland, 270–72
index 325
Searle, John, 239 absurdity, 237, 240, 243, 252, 265
section 33 see Canada, legislatures’ ambiguity, 236–37
power clarifying interpretation, 236–43
Selborne, Lord, 293 constructivism, 254–63
Selden, John, 37–38 creativity in, 230, 232, 243–47, 297
self-embracing theories, 114–16, 127, ellipsis, 237–38
130, 133, 134, 137–40 implications, 244–47
self-entrenching provision, 144 judicial override, 251–54
separation of powers, 85, 97, 100 legislative intentions
Soraya case, 229–30 alternatives to, 251–63
South Africa, 9, 79, 149, 173 evidence of, 247–51
South Eastern Drainage Board v. indispensability of, 232–47
Savings Bank of South Australia presuppositions, 238–43
(1939), 184 Steyn, Lord, 16, 51, 232–33, 249, 268
Sovereignty of parliament Street, Chief Justice, 149, 161, 165, 168
continuing, 106–07, 112–13, 116, Summers, Robert, 74, 228
118–20, 124–25, 128, 136, super majority requirements,
154–56, 174, 176, 192, 197, 292 legislation, 139, 141, 198–99
historical origins, 22–47, 268–67
nature or definition of, 1, 109–11, Tamanaha, Brian, 19
119–20, 175–76, 179–82, 277, Thoburn v. Sunderland City Council,
288–90, 302–03 185, 312–15, 317
philosophical origins, 272–75 Tomkins, Adam, 47, 49, 290–91
self-embracing, 106–7, 111–18, 122, Trethowan v. Attorney-General (NSW),
126–27, 129–30, 132–40, 156, 172 7, 141–73, 175, 191, 197–98, 200
special procedural requirements, background, 141–49
legislation, 176–77, 193, 194, consequences, 169–73
198, 199 legal logic, 166–69
standard procedures, legislation, parliamentary privilege, 150–51
176–79 political principle, 166–69
standard quorum requirements, Tubbs, James, 21, 24, 25
188–89, 190, 192, 194, 196
standing commitments, 181, 244, ultra vires theory, 225, 281–83, 284
295–96, 298, 305–6, 309 United Kingdom, 279
State Parliaments (Australia), 160 constitution, 137
statutes and European Community laws,
and common law, 14, 49, 305–12 287–304
directives, 184 see also Britain; England; Parliament
disapplication of, 294–95, 311 (UK)
drafting errors, 244 United States, 81, 253
fit requirement, 257 Bill of Rights, 13, 79, 81–2, 110–11,
intended audience, 248 203
judges’ authority, 51 Constitution, 17, 75n, 201, 204, 215,
objective meanings, 249 221, 263
omission corrections, 244–47 judicial supremacy, 12
presumptions, 240–43 legislative supremacy, 226–28, 250,
statutory interpretation, 225–66, 253
293–98, 304 quorum requirements, 188
326 index
United States (cont.) Waldron, Jeremy, 10, 68, 205–09, 210,
statutory interpretation, 226, 250, 211, 213, 217, 219, 222, 301
264, 307 Walker, Geoff rey de Q., 60
Supreme Court, 5, 227–28 Walters, Mark, 16
Upper Houses, State Parliaments Ward, Ian, 4
(Australia), 141, 145, 169, 187 Whigs, 273, 274
Whitelocke, Bulstrode, 72
vagueness in the law, 64, 75, 92, 104, Wilberforce, Lord, 313, 315
111, 231, 274 Woolf, Lord, 97
Vaughan, Sir John, 39 written constitutions, 48, 81,
101–04
Wade, E.C.S., 43
Wade, H.W.R., 45, 120, 121, 123, 286 Young, Alison, 125, 291, 297, 299, 313