The main questions concerning English governance addressed by medieval theorists were: (a) the division of authority between the Church, headed by the Pope, and the king; (b) the extent to which the king was bound by law and custom; (c) whether he was bound to act with the counsel and consent of his magnates; and (d) whether he could legitimately be resisted or even deposed for violating moral, religious, customary or legal constraints.

The Best Argument for Originalism

The best argument for originalism is simple, straightforward, and powerful:

1. A constitution, like any other law, necessarily has a meaning that pre-exists judicial interpretation of it.

2. The meaning of a law is part (perhaps all) of what it is; therefore, to change the meaning of a law is to change the law.

3. The original meaning of a constitution is neither its original literal meaning (called “sentence meaning” by philosophers) nor its originally intended meaning (“speaker's meaning”); it is, instead, its “utterance meaning,” which is determined by a restricted range of evidence, extra-textual as well as textual, of what its founders intended it to mean.

4. When a constitution itself requires that it be changed only by some special democratic procedure, this binds judges as well as other officials. The judges must not change the constitution – or, by inference from Proposition 2, its meaning – by purporting to “interpret” it.

5. Any judge who violated that requirement would flout the constitution itself, the rule of law, the principle of democracy, and (in many federal systems) the principle of federalism.

6. When interpreting such a constitution, the judges’ primary duty is to reveal and clarify its pre-existing meaning. When that meaning is insufficiently determinate to resolve the case at hand, their secondary duty is to act creatively and supplement it. To supplement the meaning of the constitution is not to change it.

Two additional propositions respond to popular but misguided non-originalist criticisms:

1. Although judges must not deliberately change the constitution, there are at least four ways in which constitutional law can and does legitimately evolve over time. To that considerable extent, originalism is perfectly consistent with “common law constitutionalism” and “living constitutionalism.”

2. Consistent application of any constitutional theory, including originalism, might lead to grave injustice in a particular case. Judges might then be morally bound to disobey the constitution while pretending to obey it. But a theory justifying occasional “noble lies” about what the constitution means is not a theory about what it really means.

Introduction

One of the most important questions not settled by the doctrine of parliamentary 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. A requirement as to procedure 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 legislation. 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 intentions with unmistakable clarity in order to avoid subsequent misunderstandings; 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 enforceable requirements as to procedure or form are consistent with parliamentary 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 qualification, admittedly, gives rise to questions of degree.

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 legitimately be governed by common law principles. The answers to those questions depend partly on more basic issues concerning the legal foundations of the two bodies of law, and their respective status. The orthodox 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’ constitution 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 simply a part of the common law’. For Trevor Allan, it follows that ‘the common law is prior to legislative supremacy, which it defines and regulates’. This theory has become so popular that even the British government 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 derived’, he replied, ‘The source of the legislative powers is the common law.’

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 parliamentary sovereignty, which reposes primary responsibility for protecting 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 parliamentary sovereignty. In Canada, judicial enforcement of the Charter of Rights 1982 is for the most part subject to s. 33, which permits legislatures by express provision to override most of the rights protected by the Charter. To that extent, the principle of parliamentary sovereignty has been retained, although in practice the power of override is seldom used.

This 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 subordinate 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 authority, 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 contradicting either its sovereignty or the principle of majoritarian democracy (Chapters 7 and 8). The third theme is a detailed account of the relationship between parliamentary sovereignty and statutory interpretation, 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).

Introduction

How statutes are interpreted is crucial to the implementation of the doctrine of parliamentary sovereignty. The doctrine maintains that every statute that Parliament enacts is legally valid, and therefore that all citizens and officials, including the courts, are legally obligated to obey it. The courts' legal obligation is therefore to interpret and apply every statute in a way that is consistent with Parliament's legal authority to enact it, and their corresponding obligation to obey it. In a small number of cases, what is called ‘interpretation’ might be tantamount to disobedience 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 principles by ‘presumptions’ of legislative intention, the judicial response to statutes in cases such as Anisminic and Factortame, all raise questions about the relationship between statutory interpretation and parliamentary 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 first is normative and deductive.

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. But the doctrine gives rise to a well-known conundrum: can Parliament's authority 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’. On the former view, parliamentary sovereignty is a potential obstacle to effective constitutional reform: any statute purporting 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 subordinate its authority to a constitutionally entrenched Bill of Rights, to a federal 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.

The ‘notwithstanding clause’

Section 33 of the Canadian Charter of Rights famously provides that Canadian legislation ‘may expressly declare … that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter’. This ‘notwithstanding’ or ‘override’ clause enables legislatures to override those specified sections of the Charter, and the rights they protect, although only for renewable five-year periods.

Section 33 is said to have been ‘included in the Charter for the very purpose of preserving parliamentary sovereignty on rights issues’. But this exaggerates its effect. It is limited in scope, and by no means preserves the law-making powers previously enjoyed by Canadian parliaments. It does not authorise the amendment or repeal of any provisions of the Charter; it does not authorise the override of all Charter rights; and it authorises override only for five-year periods.

Many supporters of the Charter have strongly criticised s. 33 on the predictable ground that it is incompatible with the main purpose of constitutionally entrenching rights. As they see it, that purpose is to protect rights from being overridden by legislation – in other words, to prevent precisely what s. 33 expressly permits. On their view, what the Charter purports to grant with one hand, it takes away with the other.