Online Publications

The UK’s Uncodified Constitution – Parliamentary Sovereignty and the Rise of Common Law Constitutionalism

Introduction

The United Kingdom does not have a codified constitution. Rather than in a single written document, its constitution is contained in Acts of Parliament, treaties, principles and conventions. This ‘unwritten’ constitution rests on two central concepts – the rule of law and parliamentary sovereignty. The former being the idea that the nation, people, and the government should be governed by law and the latter that Parliament is the country’s supreme law making authority.

In recent years, the traditional conception of parliamentary sovereignty in the United Kingdom has been under assault, such that some consider that it is a “misleadingly partial truth.”01Colin Turpin, British Government and the Constitution: Text, Cases and Materials 39 (4th ed. 1999). The challenges to this traditional cornerstone of the constitution have been both internal and external to the kingdom. Membership of the European Union and incorporation of the European Convention of Human Rights have assailed the orthodox understanding of parliamentary supremacy from abroad, while devolution and the prospect of Scottish independence have threatened it from within.

The most recent challenger to the parliamentary supremacy orthodoxy has again come from within the United Kingdom. In Jackson v. Attorney-General, members of the House of Lords asserted that there may be fundamental common law values which restrict the sovereignty of Parliament and which would justify the courts’ refusal to apply Acts of Parliament.02Jackson v. A-G [2005] UKHL 56, [2006] 1 A.C. 262 (appeal taken from Eng.). Jackson and the cases which followed have deepened doubts about the absoluteness of parliamentary sovereignty, representing the first line of authority in which British jurists have contemplated using the theory of common law constitutionalism as a response to extreme or unthinkable parliamentary enactments.

This paper discusses the rise of common law constitutionalism in the United Kingdom and its potential impact on the theory of parliamentary sovereignty. It begins by examining the traditional notion of parliamentary sovereignty in the United Kingdom and the challenges it has faced. It then considers the rise of common law constitutionalism before juxtaposing the British experience of common law constitutionalism with that of another system founded on Westminster principles: New Zealand. As a Commonwealth companion and former colony of the United Kingdom, New Zealand is an apt point of comparison and contrast for the British system it grew out of. Like the United Kingdom, its constitution is uncodified and its judiciary has expressed some sympathy for the concept of common law constitutionalism.

Parliamentary Sovereignty

The theory of parliamentary sovereignty posits that Parliament, that is the House of Commons, House of Lords, and Monarch acting together, is the supreme lawmaker. It can make or unmake any law it wishes and any law it does produce is the highest form of law in the United Kingdom. The traditional conception of parliamentary sovereignty is traceable to the seventeenth century and Parliament’s struggle for power with the Crown, which culminated in the Glorious Revolution.03Albert V. Dicey, Introduction to the Study of the Law of the Constitution 64–70 (Emlyn C. S. Wade ed., MacMillian 10th ed. 1965). The illustrious Sir William Blackstone, whose Commentaries on the Laws of England was first published in 1765, encapsulated the theory of parliamentary sovereignty in his comments about the hierarchy of laws:

I know it is generally laid down . . . that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it…for that were to set the judicial power above that of the legislature, which would be subversive of all government.04William Blackstone, Commentaries on the Laws of England Vol. 1 62 (New York, Collins and Co. 1828).

Dicey, writing in the late nineteenth century, provided, what has since become, the orthodox view of parliamentary sovereignty. He asserted that:

[t]he principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament . . . has, under the English constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. 05Dicey, supra note 3, at 39.

Dicey characterized his conception of the theory as having a positive and a negative element.06Id. The positive limb addresses Parliament’s law making power – Parliament has a comprehensive lawmaking ability and can create any law whatsoever. The negative limb, which some have characterized as an immunity,07Pavlos Eleftheriadis, Parliamentary Sovereignty and the Constitution, 22 Can. J. L. & Juris. 267, 268 (2009). holds that the legality of an Act of Parliament cannot be challenged in any court; Parliament’s laws are immune from change or unmaking by any other body or person.
The domination of the British judicial and constitutional landscape by the orthodox understanding of parliamentary sovereignty is demonstrated by a long line of cases. Particularly, there is a vast wealth of twentieth century case law subscribing to the Diceyan view. Those cases have varied in the degree to which they have emphasized the different limbs of Dicey’s theory, but have been unanimously emphatic in subscribing to it. In Cheney v. Conn, Ungoed-Thomas J held that:

[w]hat the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest form of law in this country, is illegal.08Cheney v. Conn [1967] 1 All E.R. 779.

Similarly, Lord Reid noted both elements of Dicey’s theory in Madzimbamuto, observing that:

[i]t is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.09Madzimbamuto v. Lardner-Burke [1968] 1 A.C. 645 (PC) 723 (appeal taken from S. Rhod.).

Again, in Manuel v. Attorney-General, the Court emphasized the negative limb of the Diceyan view:

I am bound to say that from first to last I have heard nothing in this case to make me doubt the simple rule that the duty of the court is to obey and apply every Act of Parliament, and that the court cannot hold any such Act to be ultra vires. Of course there may be questions about what the Act means, and of course there is power to hold statutory instruments and other subordinate legislation ultra vires. But once an instrument is recognised as being an Act of Parliament, no English court can refuse to obey it or question its validity.10Manuel v. A-G, [1982] EWCA (Civ) 77 [86] (Eng.).

Challenging the Supremacy of Parliament

Beginning with the United Kingdom’s accession to the European Economic Community (“EEC” – the forerunner to the European Union (“EU”)) in 1973, a number of changes to the British constitutional make-up have meant that, “the Diceyan concept of absolute, illimitable sovereignty of Parliament seems to stand in need of some revision.”11Turpin, supra note 1, at 40. Indeed, it has been asserted that a “new political environment is emerging in which a legal doctrine of legislative supremacy appears at least anomalous.”12Mark Elliott, United Kingdom: Parliamentary Sovereignty under Pressure, 2 Int’l J. Const. L. 545, 553 (2004).

Membership of the European Union

As Turpin observes, “the ambiguous and mutable status of the principle of parliamentary sovereignty has become apparent in the context of Community law.”13Turpin, supra note 1, at 353. The European Communities Act was enacted by Parliament in 1972 to give effect to its intention to join the EEC.

Prior to the United Kingdom’s entry into the EEC, the European Court of Justice had articulated a principle of supremacy of European law over domestic statute, stating that, “[t]he Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law that binds both their nationals and themselves”.14Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, 593–94 (1964) (holding that, “[by] creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”). This was recognized by the House of Lords in Factortame, the law Lords finding that priority must be given to European law over domestic law, as the supremacy of European law was “well established . . . long before the United Kingdom joined [the EU]. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.”15R v. Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) 1 A.C. 603 at 658–59 (HL 1991).

That position is seemingly inconsistent with Dicey’s assertion that, “no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament”16Dicey, supra note 3, at 39. as any legislation which conflicts with EU law will not be applied by the courts. However, it has been argued that EU membership has not been the death knell of parliamentary sovereignty as it is within Parliament’s power to reclaim its full sovereignty by withdrawing from Europe. In that sense, it has been suggested that the surrender of sovereignty in relation to EU law may be better characterized as a waiver or suspension.17Turpin, supra note 1, at 39.

European Convention of Human Rights

The enactment of the Human Rights Act 1998 (“HRA”), giving domestic effect to much of the European Convention on Human Rights, has also challenged the traditional notions of parliamentary sovereignty. Although, the HRA explicitly respects the principle of parliamentary sovereignty,18582 Parl Deb HL (5th ser.) (1997) col. 1227–1312 (UK). See sections 3, 4, and 10 of the HRA (prohibiting the striking down of legislation on the basis of incompatibility with the Act, and providing for declarations of incompatibility to be made and for remedial action to be taken by a Minister or by Parliament). Elliott considers that the power to derogate from the rights contained in the HRA and the aforementioned Convention appears notional and highlights a statement made during consideration of the Human Rights Bill in the House of Lords by Lord Borrie:

[t]he political reality will be that, while historically the courts have sought to carry out the will of Parliament, in the field of human rights Parliament will carry out the will of the courts . . . [T]he intention of the Bill surely is that government and Parliament will faithfully implement any declaratory judgment made by the High Court.19Elliott, United Kingdom: Parliamentary Sovereignty under Pressure, supra note 12, at 553 (quoting 582 Parl Deb HL (5th ser.) (1997) col. 1275–76 (UK)).

Indeed, as Lord Borrie predicted, judicial declarations of incompatibility have proved influential. Writing in 2011, Elliott noted that fourteen of nineteen declarations of incompatibility had been remedied by the enactment of fresh legislation and a further four had been remedied prior to the declaration in question being issued.20Mark Elliott, Interpretative Bills of Rights and the Mystery of the Unwritten Constitution, 4 N. Z. L. Rev. 591, 610 (2011).

Devolution

The devolution of legislative and administrative powers from the Westminster Parliament in varying degrees to sub-national authorities in Scotland, Wales, and Northern Ireland is another potential challenge to the Diceyan theory of parliamentary sovereignty.21See Scotland Act 1998, c. 46 (UK); Government of Wales Act 1998, c. 38 (UK); and Northern Ireland Act 1998, c. 47 (UK) (granting devolution of legislative and administrative powers from the Westminster Parliament to subnational authorities in Scotland, Wales, and Northern Ireland). The Westminster Parliament retains the power to legislate for each of the regions and can theoretically revoke each of the devolutions as it pleases. The political enforceability of those powers is, however, questionable. For example, given the recent machinations and developments regarding Scottish identity and independence, it seems extremely unlikely that it would be politically (or even legally) viable for Westminster to break constitutional convention that it does not legislate for Scotland except with the agreement of the Scottish legislature.22See Elliott, United Kingdom: Parliamentary Sovereignty under Pressure, supra note 12, at 554 (commenting on the development of that constitutional convention. Given that convention, going a step further and revoking the Scottish legislature’s ability to legislate borders on the unimaginable.).

The Common Thread

There is widespread agreement that these changes to the British constitution have fundamentally changed the traditional understanding of parliamentary sovereignty, as “it is no longer, if it ever was absolute . . . [S]tep by step, gradually but surely, the English principle of absolute sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.”23Jackson, supra note 2, at 104. However, each of these qualifications to the traditional theory of parliamentary sovereignty is linked to parliamentary action and more specifically an Act of Parliament. In this way, the theory “continues to embody a considerable and wide-ranging power . . . a power not misdescribed as supreme.”24Turpin, supra note 1, at 39. In that sense, the characterization of these threats to parliamentary sovereignty, as originating both inside and outside the kingdom, was somewhat artificial.
In contrast to the threats to parliamentary sovereignty described in this section, Parliament exercises no control over the more recent challenge presented by common law constitutionalism.

Common Law Constitutionalism

Common law constitutionalism has been characterized as a “family of theories about constitutional adjudication.”25Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482, 1482 (2007). Those theories rest on the claim that fundamental values embedded in the common law affect the sovereignty of Parliament in the same way which a codified supreme constitution might. Within that family of theories, there exists both weak and strong conceptions of the theory. Advocates of strong common law constitutionalism argue that the common law’s fundamental rights or values impose substantive restrictions on the sovereignty of Parliament. By contrast, weak common law constitutionalism acknowledges that the common law cannot invalidate legislation, but rather only control its interpretation.26For an overview of the topic, see J. Goldsworthy, Unwritten Constitutional Principles, in Expounding the Constitution: Essays in Constitutional Theory 277–312 (Grant Huscroft ed., 2008) (giving an overview of common law constitutionalism).

Advocates of both incarnations of the theory argue that the common law rights are apt to fulfil this overarching role as they are moral and developed from public reason through a continuous and evolutionary history.27Thomas Poole, Back to the Future? The Theory of Common Law Constitutionalism, 23 O. J. L. S. 435, 450 (2003). By contrast, legislation is characterized as, “amoral, imperfect as a mode of public reason, and both transient and potentially capricious.”28Id.

The origins of common law constitutionalism can, like those of parliamentary sovereignty, be traced to the seventeenth century. In 1610, Sir Edward Coke, the Chief Justice, wrote the majority judgment in Dr. Bonham’s Case.29Dr. Bonham’s Case (1609) 77 Eng. Rep. 646; 8 Co. Rep. 113b. Dr. Bonham, a physician, had been fined, and eventually imprisoned, by the Royal College of Physicians for practicing medicine without the requisite license. The College sued Dr. Bonham and Dr. Bonham sued the College for trespass to the person. In deciding the case, the Chief Justice, writing for the majority, held that, as the College received half of the fines levied, they were acting as judge in their own case, something which the law fundamentally could not countenance. He observed, in relation to the statutes relied on by the College in support of its case, that:

it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Acts to be void.30Id.

Coke subsequently repeated the sentiment expressed in Dr. Bonham’s Case, observing that, “if there be repugnancy in a statute . . . the common law disallows and rejects it”31Rowles v. Mason (1612) 123 Eng. Rep. 892, 2 Brown 192, 198. and his theory found some support with his successor as Chief Justice.32Day v. Savadge (1614) 80 Eng. Rep. 235, Hobart 85, 87; Sheffield v. Radcliffe (1615) 80 Eng. Rep. 475, Hobart 334, 336. In spite of this, the idea that the courts could hold Acts of Parliament to be void largely receded with the rise of the theory of parliamentary sovereignty in the later seventeenth century.

The remnants of Coke’s dicta lingered down the centuries, but the notion that there was any judicial ability to review the constitutionality of Acts of Parliament was discredited.33See The City of London v. Wood (1701) 88 Eng. Rep. 1592, 12 Mod 669 (CP) (discrediting the idea of reviewing the constitutionality); see also Karen Grau, Parliamentary Sovereignty: New Zealand – New Millennium, 33 Victoria U. Wellington L. Rev. 351, 352–55 (2002) (discussing the notion of judicial ability to review the constitutionality of Acts of Parliament). By the mid-1970s, Lord Reid, reaffirming the centrality of parliamentary sovereignty to the constitution, described the idea as obsolete:

I must make it plain that there has been no attempt to question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law or nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete. 34British Railways Board v. Pickin [1974] A.C. 765, 782 (HL).

Modern Common Law Constitutionalism

Despite Lord Reid’s resolute denial of its existence, common law constitutionalism came back into focus following a line of New Zealand cases in the 1970s and 1980s advocating the strong form of the theory.35See discussion infra. The antipodean judicial resurrection of the idea spurred extra-judicial speculation from the British judiciary in the mid-1990s, at the same time as parliamentary sovereignty was being assailed in the United Kingdom by the forces discussed above. Lord Woolf, for example, opined that judicial responses to an ‘unthinkable’ Parliamentary enactment might vary between weak and strong common law constitutionalism:

[s]ome judges might choose to [respond] by saying that it was an unrebuttable presumption that Parliament could ever intend such a result. I myself would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold.36Lord Woolf, Droit Public – English Style [1995] PL 57, 59.

His Lordship considered that his hypothetical limits would be no more than was necessary to preserve the rule of law and, as such, would not be too onerous an imposition on Parliament’s legislative ability.37Id. In a similar vein, Sir John Laws has argued that there exists a “higher order law” within the United Kingdom’s unwritten constitution which the courts have a responsibility to defend.38Sir John Laws, Law and Democracy [1995] PL 72. These extra-judicial views foreshadowed the judicial acknowledgement of common law constitutionalism that was to follow in Jackson.

Jackson v. Attorney-General

The Hunting Act 2004 controversially banned traditional methods of fox-hunting in the United Kingdom, prohibiting the hunting of wild animals using dogs. The Act was passed into law over the opposition of the upper house of Parliament, the House of Lords. The House of Lords had been deprived of its power to prevent legislation becoming law by the Parliament Act of 1911. The 1911 Act essentially limited the Lords to delaying the passage of legislation for up to three sessions of Parliament.39Section 2 of the Parliament Act of 1911 (UK) permits the presentation of a bill for the royal assent if, having been passed by the lower house, it had been rejected by the House of Lords in three successive parliamentary sessions, provided that there was a two-year gap between the second reading of the first attempt to legislate and the passage of the Bill by the Commons for the third time. The Parliament Act 1949, itself passed into law over the opposition of the House of Lords using the procedure in the 1911 Act, reduced the “waiting period” under the 1911 Act from three sessions to two. The Hunting Act had been presented for the royal assent, over the objection of the Lords, pursuant to the procedure created by the 1949 Act.

The plaintiffs in Jackson argued the procedure in the 1911 Act could not be invoked to pass amendments to itself as the House of Lords needed to consent to any changes to the procedure set out in the Parliament Act 1911. The argument continued that the Parliament Act 1949 was, therefore, invalid and that, consequently, the Hunting Act, passed using the procedure in the 1949 Act, was also invalid.

The House of Lords rejected this argument and upheld the 1949 Act and the Hunting Act as valid Acts of Parliament. Notably, however, in reaching that decision, three of the law Lords made obiter dicta comments regarding the power of the courts to review the compatibility of legislation with fundamental common law rights. Lord Steyn, Lord Hope, and Baroness Hale all questioned the application of the Diceyan formulation of parliamentary sovereignty to the modern United Kingdom.

Lord Steyn rejected the Attorney-General’s argument that the United Kingdom had an “uncontrolled constitution,” noting the limitations and challenges to parliamentary sovereignty discussed above. He then commented that although the supremacy of Parliament remained the general principle of the constitution:

[i]t is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.40Jackson, supra note 2, at 102 (Lord Steyn).

Like Lord Steyn, Lord Hope observed considered parliamentary sovereignty to be a common law construct41Id. at 126. and that consequently, “the courts have a part to play in defining the limits of Parliament’s legislative sovereignty.”42Id. at 107. Lady Hale provided a more circumspect endorsement of common law constitutionalism, observing that the courts would be suspicious of “and may even reject any attempt to subvert the rule of law.”43Id. at 159.

Parliamentary sovereignty was again at issue in AXA General Insurance Ltd v. HM Advocate.44AXA General Insurance Ltd. v. HM Advocate [2012] 1 A.C. 868 at 51. There, several insurance companies argued that Scottish legislation was irrational at common law and therefore outside of Parliament’s legislative ability. The Supreme Court rejected the argument, but Lord Hope appeared to rejoin critics of the dicta in Jackson, commenting:

[i]t is not entirely unthinkable that a government which has [the power of a large majority in the legislature] may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognize.

Although their Lordship’s obiter comments on fundamental rights mark a significant constitutional staging post,45Mark Elliott, The Sovereignty of Parliament, the Hunting Ban, and the Parliament Acts, 65 Cambridge L. J. 1, 4 (2006). it must be noted that the remaining judgments in Jackson propounded a more orthodox view of parliamentary sovereignty, labelling it “the bedrock of the British constitution.”46Jackson, supra note 2, at 9 (Lord Bingham) and 168 (Lord Carshwell). Consequently, the true extent of Jackson’s impact and its lasting impact on the United Kingdom’s constitution remains uncertain. Comparing the developments in the United Kingdom to those occurring in parallel in New Zealand may enable a more accurate prediction of the constitutional path ahead.

The New Zealand Experience

In a 2014 case, in which convicted criminals challenged a statute disenfranchising prisoners, the New Zealand High Court observed that, “it is now recognized that it is no longer correct to say that Parliament’s freedom to legislate admits of no qualification whatever.”47Taylor v Att’y Gen. [2014] NZHC 1630. Brown J went on to cite the obiter dicta statements invoking common law constitutionalism made in Jackson. Although Brown J’s statement may not have been revolutionary in 2014, it would have been confronting for his predecessors on the High Court bench, the traditional position in New Zealand being that Parliament was sovereign.

Elliott notes that, “[i]t is an uncontroversial proposition that the constitutions on New Zealand and the United Kingdom share a great deal in common.”48Elliott, Interpretative Bills of Rights and the Mystery of the Unwritten Constitution, supra note 20, at 59. The New Zealand constitution and legal system has grown out of its colonial past and, consequently, closely resembles the Westminster system the British exported there. Strikingly, New Zealand’s constitution, like that of the United Kingdom, is uncodified and instead contained in a collection of statutes, principles, and conventions. In line with the United Kingdom, parliamentary sovereignty has traditionally been central to the New Zealand constitutional framework, for as Palmer notes:

[New Zealand] inherited the doctrine of parliamentary sovereignty from Westminster. Yet as a unitary state with no supreme law, no federalism, no written constitution and no membership of a supra-national body that binds domestic laws as does the EU, New Zealand now manifests the doctrine in an even purer form than the United Kingdom. It is one of the internationally distinctive aspects of our constitution.49Matthew S. R. Palmer, New Zealand Constitutional Culture, 22 N. Z. U. L. Rev. 565, 582 (2007).

This traditional commitment to parliamentary sovereignty has been articulated both in statute50Section 15(1) of the Constitution Act 1986 (NZ) provides that the Parliament of New Zealand “continues to have full power to make laws” and section 3(2) of the Supreme Court Act 2003 (NZ) provides that “[n]othing in this Act affects New Zealand’s continuing commitment to the rule of law and sovereignty of Parliament.” and in judicial decisions down the years. In Rothmans of Pall Mall (NZ) Ltd. v. Attorney-General, Robertson J asserted that, “[t]he constitutional position in New Zealand (as in the United Kingdom) is clear and unambiguous. Parliament is supreme and the function of the courts is to interpret the law as laid down by Parliament. The courts do not have a power to consider the validity of properly enacted laws.”51Rothmans of Pall Mall (NZ) v Att’y Gen. [1991] 2 NZLR 323, 330 (HC), approved by Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 157 (CA); see also Westco Lagan Ltd. v Att’y Gen. [2001] 1 NZLR 40.

Fundamentals

Despite this close adherence to and reliance on the doctrine of parliamentary sovereignty, in what some have described as a “quiet revolution . . . on the benches of the Court of Appeal”52John L. Caldwell, Judicial Sovereignty – A New View, [1984] NZLJ 357. and others have called “a series of remarkable dicta,”53Turpin, supra note 1, at 40. a strand of judicial authority emerged indicating that, “the doctrine might not be recognised by all courts as always complete in all circumstances.”54Palmer, supra note 49, at 583. That strand of authority began in L v. M where Cooke J (later Lord Cooke of Thorndon) observed that:

[i]t would be a strong and strange step for Parliament to attempt to confer on a body other than the Courts power to determine conclusively whether or not actions in the Courts are barred. There is even room to doubt whether it is self-evident that Parliament could constitutionally do so.55L v M [1979] NZLR 519, 527 (CA).

In a series of obiter dicta statements, over the next five years, Cooke J continued to allude to the existence of both weak and strong common law constitutionalism in New Zealand,56See Brader v Ministry of Transport [1981] 1 NZLR 73, 78 (CA) (“It may be added that the recognition by the common law of the supremacy of Parliament can hardly be regarded as given on the footing that Parliament would abdicate its function. It is not to be supposed that by the 1948 [Economic Stabilisation] Act the New Zealand Parliament meant to abandon the entire field of the economy to the Executive.”); see also Fraser v State Services Commission [1984] 1 NZLR 116, 121 (CA) (“this [a case concerning the right to a fair hearing] perhaps is a reminder that it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them.”). including commenting, as the British judiciary has, on the ability of Parliament to prevent access to the courts, that “we have reservations as to the extent to which in New Zealand even an Act of Parliament can take away the rights of citizens to resort to the ordinary Courts of law for the determination of their rights”57New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390 (CA). ; culminating with his statement in Taylor v. New Zealand Poultry Board, while discussing the ability of the legislature to deprive an individual of the right to silence, that: “I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them.” 58Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398 (CA).

Writing extra-judicially, Cooke clarified the basis of his argument:

[m]y submission is that the modern common law should be seen to have a free and democratic society as its basic tenet and, for that reason, to be built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of democratic courts . . . if a change, by legislation or otherwise, were seen to undermine either of them to a significant extent, it would be the responsibility of the Judges to say so. 59Sir Robin Cooke, Fundamentals [1988] NZLJ 158, 164.

The immediate response to Cooke J’s common law constitutionalism dicta was mixed. Although he received some indirect criticism at the time,60See, e.g., Builders Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372, 406 (NSWSC) (Kirby P); see also Michael Kirby, Lord Cooke and Fundamental Rights in The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon 331 (Paul Rishworth ed., 1997). academic comment also subsequently defended his position.61See, e.g., Paul Rishworth, Lord Cooke and the Bill of Rights, in The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon 293 (Paul Rishworth ed., 1997); see also Grau, supra note 33, at 302. Subsequent cases in the New Zealand courts have largely continued to adhere to the traditional notion of parliamentary sovereignty, without closing the door on the reasoning propounded by Cooke J.

The general approach of the courts is perhaps best captured by Baragwanath J in a case concerning a provision which precluded administrative judicial review of decisions.62Cooper v Att’y Gen. [1996] 3 NZLR 480 (HC). Although Baragwanath J ultimately did not have to resolve the fundamental question about the ability of Parliament to deprive citizens of access to the courts, 63Baragwanath J explicitly referred to the reservations that Cooke J had expressed in New Zealand Drivers’ Association, supra note 57. he referred to common law constitutionalism as, “an extra-judicial debate, which the good sense of parliamentarians and Judges has kept theoretical”64Cooper, supra note 62, at 484. and observed that in New Zealand both Parliament and the judiciary recognized that, “constitutional peace and good order are better maintained by adherence to conventions rather than judicial decision.”65Id. at 485. However, in what could be seen as an endorsement of weak common law constitutionalism, Baragwanath J emphasized the importance of statutory interpretation in keeping the legislature within the bounds of convention.

In Shaw, the Court of Appeal, writing more than fifteen years after Cooke J’s seminal judgments, affirmed the classic conception of parliamentary sovereignty quoting Robertson J’s assertion in Rothmans66Rothmans, supra note 51. before commenting that, “[t]he appellant’s grievance falls well short and certainly could not lead the Court to consider revisiting conventions so fundamental to New Zealand’s constitutional structure. We should not be taken to be expressing a view on the debate.” 67Shaw, supra note 51, at 158. Tellingly, the Court of Appeal, like Baragwanath J before it, left open the possibility of the courts exercising some form of common law constitutionalism, preferring not to comment on the matter.

In a recent decision regarding the validity of a warrant used to justify the search of a journalist’s home for allegedly hacked emails,68Hager v Att’y Gen. [2015] NZHC 3268. the High Court seemingly turned to a form of weak common law constitutionalism, using a common law right to control the interpretation of statute. The Court invoked the common law duty of candor of applicants for search warrants in finding that, “Parliament did not intend the enactment of those provisions to have the effect that a Judge issuing a media warrant that may involve journalistic privilege should not be explicitly made aware of that fact, and of the underlying principles and issues relevant in that context.”69Id. at [116].

Not only have the New Zealand courts repeatedly declined to rule out the possibility of strong common law constitutionalism being exercised by the courts, but they have also adverted to and been willing to invoke the theory of weak common law constitutionalism to protect fundamental rights. It is perhaps not surprising then that Brown J was willing to recognize that qualifications exist to Parliament’s legislative power.70Taylor, supra note 47.

Parliamentary Sovereignty in Peril?

Despite the recent developments in both the United Kingdom and New Zealand, the common law constitutionalism debate remains, for the most part, theoretical. Even though the discussion about common law rights and parliamentary sovereignty has now entered the judicial sphere, it is important to note that the views discussed here are far from universally held by the judiciary and no court has ever felt compelled to hold a statute invalid on account of its violation of fundamental rights. Parliamentary sovereignty does not appear to be in any immediate peril.

However, the New Zealand experience does demonstrate that the entry of these issues into the judicial sphere and their discussion is highly significant. As we have seen, common law constitutionalism is part of a family of ideas, which, until very recently, was widely regarded as being “obsolete.”71Pickin, supra note 34. Debate about common law constitutionalism by the United Kingdom’s most experienced jurists is far removed from being outmoded.

As Mullen observes, the most obvious question arising from the current debate is whether it will be a step along the road to a revised understanding of the United Kingdom’s constitutional arrangements such that judges may one day hold legislation invalid on the basis of its incompatibility with fundamental rights.72Tom Mullen, Reflections on Jackson v. Attorney General: Questioning Sovereignty, 27 Legal Studies 1, 17 (2007). Although it might be too soon to give a fully informed answer to Mullen’s question, the change in judicial attitudes in New Zealand since Cooke J’s first obiter dictum speculation about fundamental rights indicates that some change is likely.

Although fundamental change may be glacial and “if all goes well in a given society [the prospect of invalidating an Act] will not seriously arise”,73Cooke, supra note 59, at 159. the constitutional conversation must continue because, as Australian Chief Justice Robert French observed while giving the 2014 Robin Cooke Lecture, “[i]t keeps alive an informed consciousness of what we can properly regard as essential characteristics of democratic government in the common law tradition. It maintains an alertness to developments which may, although we hope they never will, require a more active consideration of its application.” 74Robert French, Chief Justice, High Court of Australia, Common Law Constitutionalism at the Robin Cooke Lecture (Nov. 27, 2014), available at http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj27nov2014.pdf.

References   [ + ]

01. Colin Turpin, British Government and the Constitution: Text, Cases and Materials 39 (4th ed. 1999).
02. Jackson v. A-G [2005] UKHL 56, [2006] 1 A.C. 262 (appeal taken from Eng.).
03. Albert V. Dicey, Introduction to the Study of the Law of the Constitution 64–70 (Emlyn C. S. Wade ed., MacMillian 10th ed. 1965).
04. William Blackstone, Commentaries on the Laws of England Vol. 1 62 (New York, Collins and Co. 1828).
05. Dicey, supra note 3, at 39.
06. Id.
07. Pavlos Eleftheriadis, Parliamentary Sovereignty and the Constitution, 22 Can. J. L. & Juris. 267, 268 (2009).
08. Cheney v. Conn [1967] 1 All E.R. 779.
09. Madzimbamuto v. Lardner-Burke [1968] 1 A.C. 645 (PC) 723 (appeal taken from S. Rhod.).
10. Manuel v. A-G, [1982] EWCA (Civ) 77 [86] (Eng.).
11. Turpin, supra note 1, at 40.
12. Mark Elliott, United Kingdom: Parliamentary Sovereignty under Pressure, 2 Int’l J. Const. L. 545, 553 (2004).
13. Turpin, supra note 1, at 353.
14. Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, 593–94 (1964) (holding that, “[by] creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”).
15. R v. Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) 1 A.C. 603 at 658–59 (HL 1991).
16. Dicey, supra note 3, at 39.
17. Turpin, supra note 1, at 39.
18. 582 Parl Deb HL (5th ser.) (1997) col. 1227–1312 (UK). See sections 3, 4, and 10 of the HRA (prohibiting the striking down of legislation on the basis of incompatibility with the Act, and providing for declarations of incompatibility to be made and for remedial action to be taken by a Minister or by Parliament).
19. Elliott, United Kingdom: Parliamentary Sovereignty under Pressure, supra note 12, at 553 (quoting 582 Parl Deb HL (5th ser.) (1997) col. 1275–76 (UK)).
20. Mark Elliott, Interpretative Bills of Rights and the Mystery of the Unwritten Constitution, 4 N. Z. L. Rev. 591, 610 (2011).
21. See Scotland Act 1998, c. 46 (UK); Government of Wales Act 1998, c. 38 (UK); and Northern Ireland Act 1998, c. 47 (UK) (granting devolution of legislative and administrative powers from the Westminster Parliament to subnational authorities in Scotland, Wales, and Northern Ireland).
22. See Elliott, United Kingdom: Parliamentary Sovereignty under Pressure, supra note 12, at 554 (commenting on the development of that constitutional convention. Given that convention, going a step further and revoking the Scottish legislature’s ability to legislate borders on the unimaginable.).
23. Jackson, supra note 2, at 104.
24. Turpin, supra note 1, at 39.
25. Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482, 1482 (2007).
26. For an overview of the topic, see J. Goldsworthy, Unwritten Constitutional Principles, in Expounding the Constitution: Essays in Constitutional Theory 277–312 (Grant Huscroft ed., 2008) (giving an overview of common law constitutionalism).
27. Thomas Poole, Back to the Future? The Theory of Common Law Constitutionalism, 23 O. J. L. S. 435, 450 (2003).
28. Id.
29. Dr. Bonham’s Case (1609) 77 Eng. Rep. 646; 8 Co. Rep. 113b.
30. Id.
31. Rowles v. Mason (1612) 123 Eng. Rep. 892, 2 Brown 192, 198.
32. Day v. Savadge (1614) 80 Eng. Rep. 235, Hobart 85, 87; Sheffield v. Radcliffe (1615) 80 Eng. Rep. 475, Hobart 334, 336.
33. See The City of London v. Wood (1701) 88 Eng. Rep. 1592, 12 Mod 669 (CP) (discrediting the idea of reviewing the constitutionality); see also Karen Grau, Parliamentary Sovereignty: New Zealand – New Millennium, 33 Victoria U. Wellington L. Rev. 351, 352–55 (2002) (discussing the notion of judicial ability to review the constitutionality of Acts of Parliament).
34. British Railways Board v. Pickin [1974] A.C. 765, 782 (HL).
35. See discussion infra.
36. Lord Woolf, Droit Public – English Style [1995] PL 57, 59.
37. Id.
38. Sir John Laws, Law and Democracy [1995] PL 72.
39. Section 2 of the Parliament Act of 1911 (UK) permits the presentation of a bill for the royal assent if, having been passed by the lower house, it had been rejected by the House of Lords in three successive parliamentary sessions, provided that there was a two-year gap between the second reading of the first attempt to legislate and the passage of the Bill by the Commons for the third time.
40. Jackson, supra note 2, at 102 (Lord Steyn).
41. Id. at 126.
42. Id. at 107.
43. Id. at 159.
44. AXA General Insurance Ltd. v. HM Advocate [2012] 1 A.C. 868 at 51.
45. Mark Elliott, The Sovereignty of Parliament, the Hunting Ban, and the Parliament Acts, 65 Cambridge L. J. 1, 4 (2006).
46. Jackson, supra note 2, at 9 (Lord Bingham) and 168 (Lord Carshwell).
47. Taylor v Att’y Gen. [2014] NZHC 1630. Brown J went on to cite the obiter dicta statements invoking common law constitutionalism made in Jackson.
48. Elliott, Interpretative Bills of Rights and the Mystery of the Unwritten Constitution, supra note 20, at 59.
49. Matthew S. R. Palmer, New Zealand Constitutional Culture, 22 N. Z. U. L. Rev. 565, 582 (2007).
50. Section 15(1) of the Constitution Act 1986 (NZ) provides that the Parliament of New Zealand “continues to have full power to make laws” and section 3(2) of the Supreme Court Act 2003 (NZ) provides that “[n]othing in this Act affects New Zealand’s continuing commitment to the rule of law and sovereignty of Parliament.”
51. Rothmans of Pall Mall (NZ) v Att’y Gen. [1991] 2 NZLR 323, 330 (HC), approved by Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 157 (CA); see also Westco Lagan Ltd. v Att’y Gen. [2001] 1 NZLR 40.
52. John L. Caldwell, Judicial Sovereignty – A New View, [1984] NZLJ 357.
53. Turpin, supra note 1, at 40.
54. Palmer, supra note 49, at 583.
55. L v M [1979] NZLR 519, 527 (CA).
56. See Brader v Ministry of Transport [1981] 1 NZLR 73, 78 (CA) (“It may be added that the recognition by the common law of the supremacy of Parliament can hardly be regarded as given on the footing that Parliament would abdicate its function. It is not to be supposed that by the 1948 [Economic Stabilisation] Act the New Zealand Parliament meant to abandon the entire field of the economy to the Executive.”); see also Fraser v State Services Commission [1984] 1 NZLR 116, 121 (CA) (“this [a case concerning the right to a fair hearing] perhaps is a reminder that it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them.”).
57. New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390 (CA).
58. Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398 (CA).
59. Sir Robin Cooke, Fundamentals [1988] NZLJ 158, 164.
60. See, e.g., Builders Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372, 406 (NSWSC) (Kirby P); see also Michael Kirby, Lord Cooke and Fundamental Rights in The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon 331 (Paul Rishworth ed., 1997).
61. See, e.g., Paul Rishworth, Lord Cooke and the Bill of Rights, in The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon 293 (Paul Rishworth ed., 1997); see also Grau, supra note 33, at 302.
62. Cooper v Att’y Gen. [1996] 3 NZLR 480 (HC).
63. Baragwanath J explicitly referred to the reservations that Cooke J had expressed in New Zealand Drivers’ Association, supra note 57.
64. Cooper, supra note 62, at 484.
65. Id. at 485.
66. Rothmans, supra note 51.
67. Shaw, supra note 51, at 158.
68. Hager v Att’y Gen. [2015] NZHC 3268.
69. Id. at [116].
70. Taylor, supra note 47.
71. Pickin, supra note 34.
72. Tom Mullen, Reflections on Jackson v. Attorney General: Questioning Sovereignty, 27 Legal Studies 1, 17 (2007).
73. Cooke, supra note 59, at 159.
74. Robert French, Chief Justice, High Court of Australia, Common Law Constitutionalism at the Robin Cooke Lecture (Nov. 27, 2014), available at http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj27nov2014.pdf.

You Might Also Like