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( 155 .)


Campbell in Wauchope and continued]. Here, the courts look to the parliamentary roll and
sees bills (the 1949 Act, and then the 2004 Act) which have not passed both Houses. The
issue concerns no question of parliamentary procedure such as would, and could only, be the
subject of parliamentary inquiry, but a question whether, in Lord Simon™s language, these
Acts are ˜enacted law™. My second reason is more practical. The appellants have raised a
question of law which cannot, as such, be resolved by Parliament. But it would not be
satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems
to me necessary that the courts should resolve it, and that to do so involves no breach of
constitutional propriety.

Lord Nicholls: . . . These proceedings are highly unusual. At first sight a challenge in court
to the validity of a statute seems to offend the fundamental constitutional principle that
courts will not look behind an Act of Parliament and investigate the process by which it
was enacted. Those are matters for Parliament, not the courts. It is for each House to judge
the lawfulness of its own proceedings. The authorities establishing this principle can be
found gathered in Pickin v British Railways Board [1974] AC 765 . . . In the present case
the claimants do not dispute this constitutional principle . . . Their challenge to the
lawfulness of the 1949 Act is founded on a different and prior ground: the proper inter-
pretation of section 2(1) of the 1911 Act. On this issue the court™s jurisdiction cannot be
doubted. This question of statutory interpretation is properly cognisable by a court of law
even though it relates to the legislative process. Statutes create law. The proper interpre-
tation of a statute is a matter for the courts, not Parliament, This principle is as fundamental
in this country™s constitution as the principle that Parliament has exclusive cognisance
(jurisdiction) over its own affairs.

The House of Lords unanimously upheld the validity of both the Parliament
Act 1949 and the Hunting Act 2004. Along the way several of their Lordships
commented on various aspects of the sovereignty of Parliament. We shall
examine a number of these comments later in this chapter (pp 71“4).

(b) Territorial extent of sovereignty: post-colonial independence
Britain is still an imperial power. To this day it continues to possess a number
of ˜overseas territories™, as they are now called. Matters of imperial law continue
to come before the British courts. R (Bancoult) v Secretary of State for the Foreign
48 British Government and the Constitution

and Commonwealth O¬ce [2001] QB 1067 (on which, see Tomkins [2001]
PL 571), R (Bancoult) v Secretary of State for the Foreign and Commonwealth
O¬ce [2006] EWHC (Admin) 1038 and R v Secretary of State for Foreign and
Commonwealth A¬airs, ex p Quark Fishing [2005] UKHL 57 are three recent
examples, the former cases concerning an appalling (and ongoing) episode in
the government of the British Indian Ocean Territory (otherwise known as the
Chagos Islands) and the latter case concerning South Georgia and the South
Sandwich Islands. That said, however, it is of course the case that the vast
majority of the nations formerly included within the British Empire have now
obtained their independence (from the British Parliament, if not always from
the Crown “ many countries in the Commonwealth continue to recognise the
Queen as head of state). Post-colonial independence poses a number of legally
di¬cult questions for the doctrine of parliamentary sovereignty. The granting
of independence to a former colony requires legislative power to be transferred
from Westminster to the newly independent state. How may this be achieved?
We saw above that, as Dicey explained, Parliament ˜may make or unmake any
law whatever™. Suppose that Parliament passes a statute granting independence
to a former colony or Dominion. What would be the legal e¬ect of a later
Parliament repealing that legislation, and reasserting its right to make laws for
the territory?
First, it may be argued (with equivocal support from Dicey, The Law of
the Constitution (1885), p 69 note) that Parliament can surrender its sover-
eign authority over particular territory to some other body of persons. The
Statute of Westminster 1931 may be thought to have accomplished this.
The Statute removed existing limitations of the competence of Dominion
Parliaments and reinforced this conferment of legislative power with a provi-
sion, in section 4, intended to give a legal underpinning to the convention
(itself rea¬rmed in the preamble to the Statute) that the United Kingdom
Parliament should not legislate for a Dominion without its consent. Section 4

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall
extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless
it is expressly declared in that Act that that Dominion has requested, and consented to, the
enactment thereof.

(The ˜Dominions™ to which the Act applied in 1931 were Canada, Australia,
New Zealand, South Africa, the Irish Free State and Newfoundland, all of
them at that time autonomous members of the British Commonwealth, owing
a common allegiance to the Crown.)
In more recent times Acts have been passed to transfer sovereign authority
to former colonies and dependencies which have gained independence. In most
of these independence Acts the renunciation of legislative competence was
49 The ideas of the constitution

not quali¬ed by a ˜request and consent™ provision such as that in section 4 of
the Statute of Westminster. For example, the Zimbabwe Act 1979, section 1(2),

On and after Independence Day Her Majesty™s Government in the United Kingdom shall have
no responsibility for the government of Zimbabwe; and no Act of the Parliament of the United
Kingdom passed on or after that day shall extend, or be deemed to extend, to Zimbabwe as
part of its law.

In a heaven of orthodoxy inhabited by lawyers it is held that the transfers
of sovereignty e¬ected by the Statute of Westminster and the independence
Acts are in strict law only conditional, in that Parliament can at any time repeal
or disregard these enactments and resume its entire legislative authority over
the countries concerned. This was, indeed, the view expressed in an obiter
dictum of Lord Sankey, with reference to the application of section 4 of the
Statute of Westminster to the Dominion of Canada, in British Coal Corpn v R
[1935] AC 500, 520:

It is doubtless true that the power of the Imperial Parliament to pass on its own initiative
any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed,
the Imperial Parliament could, as a matter of abstract law, repeal or disregard s 4 of the

But he went on to say:

But that is theory and has no relation to realities.

The position taken by Lord Sankey as a matter of ˜abstract law™ was coun-
tered by the assertion of a South African judge (Stratford ACJ in Ndlwana
v Hofmeyr 1937 AD 229, 237) that ˜Freedom once conferred cannot be
revoked™. This was echoed by Lord Denning in Blackburn v Attorney General
[1971] 1 WLR 1037, 1040:

We have all been brought up to believe that, in legal theory, one Parliament cannot bind
another and that no Act is irreversible. But legal theory does not always march alongside
political reality. Take the Statute of Westminster 1931, which takes away the power of
Parliament to legislate for the Dominions. Can any one imagine that Parliament could or
would reverse that Statute? Take the Acts which have granted independence to the
Dominions and territories overseas. Can anyone imagine that Parliament could or would
reverse those laws and take away their independence? Most clearly not. Freedom once given
cannot be taken away. Legal theory must give way to practical politics.

These constitutional issues arose in the following case.
50 British Government and the Constitution

Manuel v Attorney General [1983] Ch 77, 95 (Sir Robert Megarry V-C)
The Canada Act 1982, making provision for a new constitution of Canada, had
been passed by the United Kingdom Parliament on a request submitted by the
Senate and the House of Commons of Canada with the agreement of nine of
the ten provincial governments. The claimants were Canadian Indian Chiefs
whose complaint was that the new constitution took away the special protec-
tion which had been accorded to the rights of the Indian peoples of Canada
under the prior constitutional arrangements. They sought a number of decla-
rations claiming that (1) the United Kingdom Parliament had no power to
amend the constitution of Canada so as to prejudice the Indian nations of
Canada without their consent; (2) the Canada Act 1982 was ultra vires and void.
The defendant, the Attorney General, moved that the statement of claim be
struck out as disclosing no reasonable cause of action.

Sir Robert Megarry: . . . On the face of it, a contention that an Act of Parliament is ultra
vires is bold in the extreme. It is contrary to one of the fundamentals of the British
Constitution. . . . As was said by Lord Morris of Borth-y-Gest [in British Railways Board v
Pickin, above] it is not for the courts to proceed ˜as though the Act or some part of it had
never been passed™; there may be argument on the interpretation of the Act, but ˜there must
be none as to whether it should be on the Statute Book at all™. . . .
Mr Macdonald [counsel for the claimants] was, of course, concerned to restrict the ambit
of the decision in Pickin v British Railways Board. He accepted that it was a binding decision
for domestic legislation, but he said that it did not apply in relation to the Statute of
Westminster 1931 or to the other countries of the Commonwealth. . . . [This point] is founded
upon the theory that Parliament may surrender its sovereign power over some territory or
area of land to another person or body. . . . After such a surrender, any legislation which
Parliament purports to enact for that territory is not merely ineffective there, but is totally
void, in this country as elsewhere, since Parliament has surrendered the power to legislate;
and the English courts have jurisdiction to declare such legislation ultra vires and void.
Before I discuss this proposition, and its application to Canada, I should mention one
curious result of this theory which emerged only at a late stage. In response to a question,
Mr Macdonald accepted that as the theory applied only to territories over which Parliament
had surrendered its sovereignty, it did not affect territories over which Parliament had never
exercised sovereignty. Thus if one adapts an example given by Jennings [The Law and the
Constitution (5th edn 1959)] at pp 170, 171, an English statute making it an offence to smoke
in the streets of Paris or Vienna would be valid, though enforceable only against those who
come within the jurisdiction, whereas an English statute making it an offence to smoke in
the streets of Bombay or Sydney would be ultra vires and void, and an English court could
make a declaration to this effect. At this stage I need say no more than that I find such
a distinction surprising.

The claimants had argued that the Statute of Westminster had transferred
sovereignty to Canada, subject only to section 7 of the Statute by which the
51 The ideas of the constitution

United Kingdom Parliament retained power to enact amendments to the
Canadian Constitution (contained in the British North America Acts). This
power could be exercised (in what was argued to be the true meaning of
section 4, set out above) only on condition that the actual request and consent
of the Dominion had been forthcoming, and such consent must be expressed
by all the provincial legislatures and by the Indian nations of Canada as well as
by the federal Parliament. No such general consent of the Dominion had been
given, and without it the United Kingdom Parliament could not legislate for
Canada on any subject.

Sir Robert Megarry: . . . In the present case I have before me a copy of the Canada Act 1982
purporting to be published by Her Majesty™s Stationery Office. After reciting the request and
consent of Canada and the submission of an address to Her Majesty by the Senate and House
of Commons of Canada, there are the words of enactment:
˜Be it therefore enacted by the Queen™s Most Excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:™
There has been no suggestion that the copy before me is not a true copy of the Act itself, or
that it was not passed by the House of Commons and the House of Lords, or did not receive
the Royal Assent. . . . The Canada Act 1982 is an Act of Parliament, and sitting as a judge in
an English court I owe full and dutiful obedience to that Act.
I do not think that, as a matter of law, it makes any difference if the Act in question pur-
ports to apply outside the United Kingdom. I speak not merely of statutes such as the
Continental Shelf Act 1964 but also of statutes purporting to apply to other countries. If that
other country is a colony, the English courts will apply the Act even if the colony is in a state
of revolt against the Crown and direct enforcement of the decision may be impossible: see
Madzimbamuto v Lardner-Burke [1969] 1 AC 645. . . . Similarly if the other country is a foreign
state which has never been British, I do not think that any English court would or could
declare the Act ultra vires and void. No doubt the Act would normally be ignored by the
foreign state and would not be enforced by it, but that would not invalidate the Act in this
country. Those who infringed it could not claim that it was void if proceedings within the
jurisdiction were taken against them. Legal validity is one thing, enforceability is another.
Thus a marriage in Nevada may constitute statutory bigamy punishable in England (Trial of
Earl Russell [1901] AC 446), just as acts in Germany may be punishable here as statutory
treason: Joyce v Director of Public Prosecutions [1946] AC 347. Parliament in fact legislates
only for British subjects in this way; but if it also legislated for others, I do not see how the
English courts could hold the statute void, however impossible it was to enforce it, and no
matter how strong the diplomatic protests.
I do not think that countries which were once colonies but have since been granted
independence are in any different position. Plainly once statute has granted independence
to a country, the repeal of the statute will not make the country dependent once more; what
is done is done, and is not undone by revoking the authority to do it. . . . But if Parliament
then passes an Act applying to such a country, I cannot see why that Act should not be in
52 British Government and the Constitution

the same position as an Act applying to what has always been a foreign country, namely, an
Act which the English courts will recognise and apply but one which the other country will
in all probability ignore.

Sir Robert Megarry accordingly held that the claimants™ statement of claim
disclosed no reasonable cause of action. He concluded:

Perhaps I may add this. I have grave doubts about the theory of the transfer of sovereignty
as affecting the competence of Parliament. In my view, it is a fundamental of the English
constitution that Parliament is supreme. As a matter of law the courts of England recognise
Parliament as being omnipotent in all save the power to destroy its own omnipotence. Under
the authority of Parliament the courts of a territory may be released from their legal duty to
obey Parliament, but that does not trench on the acceptance by the English courts of all that
Parliament does. Nor must validity in law be confused with practical enforceability.

The claimants appealed. The Court of Appeal was content to assume in favour
of the claimants (while expressly refraining from deciding) the correctness of
the proposition ˜that Parliament can e¬ectively tie the hands of its successors, if
it passes a statute which provides that any future legislation on a speci¬ed
subject shall be enacted only with certain speci¬ed consents™. But was this what
Parliament had done in enacting section 4 of the Statute of Westminster? The
judgment of the court (delivered by Slade LJ) proceeded on the basis that precise
compliance with section 4 was necessary if the Canada Act 1982 was to be valid
and e¬ective. The attack on the validity of the Act failed. The Court of Appeal
construed section 4 of the Statute of Westminster as requiring no more than
a declaration in an Act that the Dominion had requested and consented to it.
The court thereby avoided having to decide the constitutional issues, whether
Parliament can e¬ectively renounce its sovereign legislative power in respect
of a particular territory, and whether it can make the consent of some other
body necessary for the validity of its Acts. On the other hand the judgment of
Sir Robert Megarry at ¬rst instance had left no room for doubt as to the answers
to these questions. (For further analysis, see Had¬eld [1983] PL 351 and
G Marshall, Constitutional Conventions (1984), ch XII.) Parliament has since
expressly renounced, without quali¬cation, its surviving legislative compe-
tences in respect of Canada (in the Canada Act 1982, s 2) and Australia
(Australia Act 1986, s 1).

(c) Continuing sovereignty and the ˜new view™


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( 155 .)