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Government Under a Book of Rules
A Citizens' and Politicians' Manual of the Constitutional Basis of Government in Australia, by John Pyke

[Previous Chapter: The "American" Extension - Limits on Legislative Power as well as Executive Power]

Chapter 4:
The English Anomaly - Unlimited Legislative Power

As noted in the last chapter, in most modern democracies it is taken for granted that a Constitution limits the power both of the executive government and the legislature - but Britain has preserved the notion of the sovereignty of Parliament. Because English concepts influenced the early development of representative government in the Australian colonies, the anomalous English notion of a "sovereign" Parliament has had some influence here (especially in respect of the States) - so we had better explore what it means and how it developed.

How it developed is a pretty simple story. You will have noticed that in the history told in the previous two Chapters, the fight against the Kings' claims to absolute power was led, always, by the leaders of the Parliament. In the Civil War, the Roundheads fought in the name of, and for the cause of, the Parliament. In the Glorious Revolution, the invitation to William and Mary was issued by the leaders of Parliament, and the Bill of Rights was a promise made by the new King and Queen to Parliament, which, when you read it, clearly claims to limit only executive power. The power claimed by the Stuart Kings was absolute power - to which, they had claimed, they had a divine right. So, by a sort of logic of inheritance, Parliament inherited.... absolute power, or "sovereignty" as legal scholars call it.

Nobody wrote a reasoned theory of this at the time - it was just the way it happened. In fact Sir Edward Coke, who might have written a reasoned theory, placed his bets each way. As judge, he said in Dr Bonham's case (1610):

...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 and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.
But as learned text-writer, in the Institutes of the Law he said of the Parliament si jurisdictionem [spectes], est capacissima - "if you regard its jurisdiction, it is most capacious".

The Parliament proceeded to prove the capaciousness of its power over the next few centuries. Perhaps the most dramatic demonstration was in 1716. When the Parliament had been elected in 1714 the Triennial Act 1694 (which limited the term of Parliament to 3 years) was part of the law of the land, and you might think an Act like that was binding on the members elected while it was law - that after three years their mandate as representatives of the people would simply have expired. Yet the Parliament enacted the Septennial Act 1716, not just providing that future Parliaments could have a longer term but extending its own life by 4 years, because the government feared it would lose power if an election had to be held on time in 1718. [Of course they offered all sorts of specious justifications - see Erik Gable's paper on this.]

Moreover, occasionally the Parliament would enact something that was supposed to have force "for all time coming" - and then later disregard it. The two classic examples were the two Acts of Union in which the Parliament put the Treaties of Union (with Scotland and Ireland) into binding form. Each of them included sections that the Parliament pretended to be making unrepealable:

You can see that the two Acts made provisions about religion of a kind that would come to be seen as too restrictive in a more tolerant age. When they did, the Parliament simply forgot about the promises of unrepealability - it first passed laws that were inconsistent with the "unrepealable" sections, and later expressly repealed them. [There's a moral here, isn't there? If you want to give constitutional provisions a special status, you don't make absolute claims to unrepealability - you merely require that they be amended by some difficult, but achievable, procedure. Then if they later seem outdated, Parliament, or Parliament and the People, can amend them - but if it does so by observing the special procedure this will reinforce the idea that some constitutional provisions can have special status, rather than undermining it. For more on this point see Chapter 6.]

As Parliament exercised its power in such a sweeping way, the courts forgot about their earlier claims that they could declare an Act of Parliament invalid.   [Earlier claims, after all, had been based on the idea of natural law, which was a doctrine of the Catholic church, so in post-Reformation England it seemed like heresy or treason to mention that!]   In Ex parte Selwyn (1872), Canon Selwyn alleged that the Irish Church Disestablishment Act 1869 was invalid, being inconsistent with the Act of Settlement, and that the Queen was in breach of her Coronation Oath in assenting to it. Cockburn CJ and Blackburn J held that it was simply beyond the Court's power to question the validity of an Act of Parliament. In R v Jordan (1967) an application for legal aid, to challenge the racial vilification provisions of the Race Relations Act 1965 on the grounds that it curtailed free speech, was refused because, the Court said, the ground of the application was "completely unarguable". And in Pickin v British Railways Board (1974) the Judicial Committee of the House of Lords unanimously confirmed that they had no power to declare an Act (even a "private" Act, to which special procedures applied) invalid. Lord Simon said that Britain's...

peculiar feature in constitutional law is the sovereignty of Parliament. This involves that, contrary to what was sometimes asserted before the eighteenth century, and in contradiction to some other democratic systems, the courts in this country have no power to declare enacted law to be invalid.
Lord Reid made it seem that the spectre of the Civil War still haunted the dreams of the Law Lords:
For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigation as the respondent seeks could easily lead to such a conflict...

With the evidence before them that Parliament always assumed sovereignty and the courts never seriously challenged it, the writers of legal texts accepted that it was part of English constitutional law. In the 1760s, Blackstone said that Parliament exercised "that absolute despotic power, which must in all kingdoms reside somewhere" (see longer extract). He also said a few things that seemed to contradict this claim - see Murdoch University's E Law journal for an article, by a learned Spaniard, which emphasises the doubt that Blackstone and other earlier writers felt. However, in my view the thing demonstrated by his quotes is that, although the claim of Parliament to sovereignty made the earlier writers feel extremely uneasy, none of them could present any evidence that it was not a good description of how the English system of government worked. In the absence of an agreed higher law that the courts could appeal to, none of the writers could ever offer a convincing theory that would help courts decide when an Act was valid and when one was not, and courts never actually took the step of declaring an Act invalid. Even C H McIlwain, who argued strongly, in The High Court of Parliament and its Supremacy (1910) that the Parliament had once been bound by the common law, conceded that after 1688 Parliament "assumed as of right those very powers it formerly denounced" (p 373).

So when Professor Dicey famously declared in 1885 that the principal feature of the Law of the Constitution was the sovereignty of Parliament (the other main feature being the rule of law, discussed in Chapter 2) he was not propounding some sort of ideology of his own, he was simply describing things as they were. As he put it, the Parliament had "under the English constitution, the right to make or unmake any law whatever".

[As to whether the sovereignty of Parliament was actually a good thing, Dicey seemed ambivalent. In Law of the Constitution, frequently reprinted between 1885 and 1908, he maintained the claim that, though the rule of law and the sovereignty of Parliament might appear opposed to each other, in fact they reinforced each other.   (In the context of English history, perhaps this made some sense - the executive had always been the most dangerous branch and the Parliament had always led the opposition, in the name of liberty. Though workers might have had bad memories of the Combination Acts, Parliament had never done anything to oppress or harass members of Dicey's class.)   But in Law and Opinion in England in the Nineteenth Century, 1905 (published in between the revisions of Law of the Constitution) Dicey made it clear that, as a crabby old conservative, he thoroughly disapproved of some of the more collectivist laws that Parliament had recently enacted in the exercise of its sovereignty, which was "an instrument well adapted for the establishment of democratic despotism". Oddly, he takes no credit in this later book for having made the sovereignty of Parliament well-known, but attributes it to Blackstone and Bentham! Even as he grumbles about it, however, he still accepts the sovereignty of Parliament as fact.]

Even the English "Constitution" Amendable by Parliament

This fact of parliamentary sovereignty meant that in England (despite the title of Dicey's book!) there was, and still is, no "constitution" or "constitutional law" as we in Australia, and most of the rest of the world, understand it - no "higher" level of law under which even an Act of Parliament can be declared invalid. Of course this has to be qualified. The English invented the notion of constitutional, meaning limited, government, though they only ever imposed limits on the executive. In a more limited sense England (and, since 1706, the United Kingdom) does have a "Constitution", consisting of the principles of Magna Carta, the Petition of Right, the Bill of Rights, the Act of Settlement, some common-law doctrines and some unwritten conventions, but - it must be repeated - all of the significant limits apply only to executive power, and any part of this "Constitution" could be changed by Act of Parliament. Though the basic principles of Magna Carta and the Bill of Rights still stand, the original documents have in fact been amended by Parliament - if you look at the English "Statutes in Force" today (you'll probably have to go to a Law School Library - they're not available on the Web yet) you will find that only two sections of Magna Carta are still in force in England, and that Article 11 of the Bill of Rights has been amended so that jurors in trials of high treason no longer have to be freeholders. That is, the English Bill of Rights has a lesser status in constitutional law than the American Bill of Rights - we saw in Chapter 3 that James Madison, the mover of the amendments that became the Bill, was aware that the English Bill "raised a barrier only against the power of the Crown" and that the Americans intended, in binding the legislature as well, to raise a much stronger barrier. [For more detail on this, see Haft-Truths About the English Inheritance.]

At least until the adoption of the European Convention on Human Rights, even the basic principles of the rule of law and separation of powers existed in England only by grace of the Parliament. The principle that the executive is subject to the law could have, in theory, been changed by an Act saying "the Prime Minister has power to do anything he likes, including making new laws". And the independence of the (higher) judiciary existed, of course, because of an Act of Parliament - the Act of Settlement 1701 - which, according to the governing theory, Parliament could repeal at any time. If Parliament had passed a law giving the Prime Minister power to execute people, or the Labour Party caucus the power to conduct trials, the people may have had a remedy at the ballot box or by rioting in the streets, but the courts would have said (as they said in Pickin's case, above) "the courts in this country have no power to declare enacted law to be invalid". Even the principle that every adult can vote was only granted by grace of Parliament (in response, to be sure, to riots in the streets, women chaining themselves to the railings outside Parliament, and so on) and in legal theory could be repealed by Parliament at any time. This may seem so unlikely that it makes the legal theory seem pretty suspect, but this is still the theory that is taught in English law schools and stated and restated by English judges.

The UK Parliament may have surrendered some aspects of its sovereignty in recent years, as Great Britain has bound itself more tightly into the European Union - though it hasn't really surrendered much so far. For example, under the Human Rights Act 1988, section 4, a court can declare that an Act is incompatible with one of the rights mentioned in the European Convention on Human Rights, but even that does not make the Act invalid. [Whether Parliament could surrender its sovereignty - say by an Act declaring certain principles to be fundamental and amendable only by a vote of the people at a referendum - was debated by English constitutional scholars throughout the 20th century. Sir Ivor Jennings said it probably could, while E C S (Emlyn) Wade, the editor of the later editions of Dicey's Constitutional Law, said it was the only really fundamental principle of the English constitution and couldn't. A younger, and unrelated, Wade - H W R (Sir William) Wade - also argued in 1955 that the courts would not recognise a surrender of sovereignty, but then backed off a little and said "well, if it did happen, it would amount to a revolution", and admitted "revolutions can and do occur". But in his Hamlyn Lectures in 1980 he said "surely it is time this country grew up constitutionally", and suggested that a legal revolution could be easily achieved by requiring the judges to take a new oath of office, declaring allegiance to the new constitutional order.] But how the notion may develop in the future (and how the Jennings versus Wade and Wade versus himself debates may be resolved) is not particularly relevant to Australia. What is more relevant here is that at the time when Australia was colonised, and when the colonies first achieved responsible government, and when the Commonwealth was formed and for some years after, the sovereignty of the UK Parliament over both England and Australia was an accepted legal rule.

Effect in Australia

The fact that, in England, the Parliament has sovereign power has had several consequences for Australia.

Exercise of Sovereignty by the UK Parliament

In 1770, Captain James Cook "took possession" of eastern Australia for His Majesty George III - see Chapter 7 for the development of the rules of law under which the British presumed to have the power to do such things. All the relevant territory became, in British law, part of His Majesty's dominions. The British Parliament therefore was presumed to have sovereign power to make laws affecting it, as the Parliament was not just the Parliament of the United Kingdom but the Imperial Parliament, the sovereign Parliament over the whole British Empire, even though there were no representatives of the colonies sitting at Westminster. [This, of course, was precisely what caused the American colonists to revolt in 1776!] The formation of the colonies was authorised by Acts of the Imperial Parliament, and then, as the colonists started to demand greater self-government, the first Constitution Acts of the colonies were either authorised by more Imperial Acts or directly enacted by the Imperial Parliament. These Constitution Acts (as we'll see in more detail in Chapter 8) had 2 significant features: This double effect was reinforced by the passage of the Colonial Laws Validity Act 1865 (the "CLV Act"). As the name implies, the main purpose of the Act was to confirm that the colonial Parliaments had broad powers to make valid laws, but it also restated and reinforced some of the limits on the powers of colonial Parliaments. [More details of its provisions are noted in Chapters 8 and 9.] This tendency to grant power and qualify it in the same breath had the contradictory effects noted under the next two headings.

Then when the colonies decided to federate, even though the text of the Commonwealth Constitution was drafted in Australia and approved by referendum in all the colonies, it was taken for granted that the way to give it legal effect was to ask the sovereign Imperial Parliament to enact it - so our national Constitution is all squeezed into section 9 of the Imperial Commonwealth of Australia Constitution Act. [Again, see Chapter 8 for more details.] For some time after 1901, I suppose everyone in Britain and Australia would have taken it for granted that the Imperial Parliament's power to "make and unmake any law" would have applied even to the Commonwealth of Australia Constitution Act - if the colonists had decided before, say, 1914, that federation had been a mistake, they would have asked the Imperial Parliament to repeal the Constitution and the British would very likely have agreed. But, as we will see in Chapter 9, gradually the British authorities recognised that the "Dominions" (a word whose meaning included, at first, only the former colonies with a substantial white population, but was later extended to the other colonies) should be recognised as "autonomous communities within the British Empire, equal in status, in no way subordinate one to another". As we will also see in Chapter 9, Australia was slow to act on this offer of independence, but eventually our governments started to act like the governments of a fully independent nation. [But we will see in the last section of this Chapter that Australian lawyers were slower to adapt to the idea of independence!]

Giving Australians Practice in Accepting Judicial Review of Legislation

Before the passage of the Constitution Acts the powers of the colonial Governors had been strictly limited by their Commisssions and Royal Instructions and by doctrines of the common law, and questions about the legality of their actions were raised frequently enough in the local courts, or referred to the Privy Council or the legal advisers to the Colonial Office. Even under the Constitution Acts, the fact that colonial Parliaments had some limits on their powers meant that citizens could still challenge the validity of legislation in the courts, and sometimes succeed. The fact that there was a right of appeal to the (Judicial Committee of the) Privy Council from most colonial court decisions meant that sometimes these cases would end up in the Privy Council. Colonists got used to the idea that the validity of legislation could be examined by the courts, including the highest Imperial tribunal. Parliament may be sovereign in Britain, but colonial governments and parliaments were subordinate and could not be trusted with sovereign power. Something of a paradox resulted from the fact that in the most significant case decided by the Privy Council (Powell v Apollo Candle Co, below) the legislation was held valid - as politicians and citizens were told that the powers of their parliaments were "plenary and ample" (see next paragraph), the case also reinforced the idea that the validity of legislation could be reviewed by the judiciary. This was an important part of the background to the Constitutional Conventions at which the Commonwealth Constitution was drafted - it meant that a power-limiting Constitution which could be enforced by the judiciary was not an unfamiliar idea.

Encouraging Pretensions to Sovereignty by Australian Parliaments

In the earlier stage of Powell v Apollo Candle Co, in 1884, the Supreme Court of New South Wales had used its power of judicial review to declare that a section of the Customs Regulation Act authorising the executive to fix customs duties by regulation was invalid because the parliament could not delegate its powers. The Privy Council had already held that colonial laws could authorise the making of delegated legislation in two earlier cases - R v Burah on appeal from India in 1878 and Hodge v R on appeal from Canada in 1883 - but news of those cases doesn't seem to have reached New South Wales in time for the Supreme Court to consider them, so in the Powell case, in 1885, the Privy Council had to state the principles again. Having noted that the colonial legislatures were subject to some limits on their powers, imposed by their own Constitution Acts or other Imperial Acts, the Privy Council held, for the third time, that the authority given to a colonial parliament was "as plenary and as ample, within the limits prescribed..., as the Imperial Parliament in the plenitude of its power possessed or could bestow" - and this included the power to delegate legislative power to another body. [I have added the two different kinds of emphasis to make sure, dear readers, that you notice that there is a positive thing and a negative thing being said here.]

This meant that, subject to the rarely-exercised sovereignty of the UK Parliament, and subject to a very few restrictions imposed in their own Constitution Acts, each colonial Parliament was the virtual sovereign, as good as the sovereign, within its colony. If the colonies had achieved independence from Britain as six separate colonies, the Parliaments might well have inherited sovereignty over their territories and people from the UK Parliament. However, the situation changed dramatically at federation. The Commonwealth of Australia Constitution Act - as we noted above, another exercise of sovereignty by the Imperial Parliament - created a new Commonwealth Parliament and changed the parliaments of the colonies into parliaments of the States - and placed so many limits on the powers of both the Commonwealth and State Parliament, removeable only by a vote of the people of the Commonwealth under section 128, that none of them could henceforth have any claim to being "sovereign". As Chapters 12, 14 and 15 will make clear, we have adopted the "American" concept of constitutionalism, discussed in the previous Chapter.

However, generations of Australian lawyers were brought up on English textbooks in general* and the words of A V Dicey in particular, reinforced by the quote about "plenary and ample powers" from Powell's case, with little or no emphasis on the "within limits" qualification. They were conditioned to think that the normal situation for a Parliament was to be sovereign - though then they learned about the many specific limits on the legislative powers of both State and Commonwealth Parliaments. Influenced by their legal advisers, politicians, in both State and Commonwealth Parliaments - though the State politicians are the worse offenders recently - learned to use the rhetoric of parliamentary sovereignty: a Bill of Rights or Freedom of Information legislation, the surrender of parliamentary power to try breaches of parliamentary privilege or to determine politicians' entitlements, or almost any reform that protects citizens' rights, would "detract from the sovereignty of parliament". There are of course real questions to be answered when debating any of these issues - how much of its powers should a parliament surrender, and to what extent should it remain free to change its mind later? - but these questions are not answered by ranting about the sovereignty of parliament. You can further reduce a power that is already limited or you can decide not to, but you can't "detract" from something that simply doesn't exist.

[*When I studied law in 1975-7 there was still no home-grown Australian text on Contract Law, though there was an Australian adaptation of an English text, and an Australian case book. At least there were some local texts on Constitutional Law, though most of them assumed that students knew the history, and concentrated on expounding Commonwealth powers.]

Reluctant Acceptance of Independence by Australian Lawyers

Another effect of the constant repetition to law students of the words of A V Dicey was that Australian lawyers continued to believe in the theory that the UK Parliament was, and would always be, sovereign over Australia, and to teach Dicey's theory to their students, long after our governments had started to act as the governments of an independent nation-state. Even as recently as 1985, in Kirmani v Captain Cook Cruises Pty Ltd, you find the judges applying "traditional legal theory" [ie, Dicey's theory] to work out whether the UK Parliament had given the Commonwealth Parliament the power to repeal an old British Act within the harbours and rivers of a State - and only after many pages of "traditional legal theory" do you find Justice Deane saying "It may, however, be necessary at some future time to consider whether traditional legal theory can properly be regarded as providing an adequate explanation of the process which culminated in the acquisition by Australia of full "independence and Sovereignty"" (look for para 37). The influence of Dicey had Australian lawyers (and some politicians who listened to the lawyers) still thinking like colonial subjects, long after all other Australians had assumed that we were citizens of a free and independent nation. Our lack of confidence in the ability to do things ourselves even led to us asking the former Imperial Parliament to enact a copy of the Australia Act 1986, just in case the version enacted by the Commonwealth parliament was ineffective. [Details of this will be found in Chapter 10.]

Only in 1992 do you find some of the judges starting to explore the notion that the Australian people, not the UK Parliament, might actually hold sovereign power in Australia! (See Australian Capital Television v The Commonwealth, Nationwide News v Wills.) And even now, as we will again see in Chapter 10, you can't count a majority of the judges in any one case saying it, so we can't yet say it is part of the "ratio" of any case, though it is pretty clear that a majority of the current judges do believe it. But, as I will show in the "Limits" chapters, there are plenty of cases which emphasise the fact that none of our parliaments are sovereign.

Non-Binding Status of Historical Constitutional Documents

A final effect of the doctrine of sovereignty is that, just as Magna Carta, the Bill of Rights and the Act of Settlement can be amended by the British Parliament, so they can be amended by Australian parliaments. As we will see in Chapter 8, these Acts were "received" at settlement as part of the law of the colonies, but they were not "paramount law" of the kind that could not be affected by colonial legislation. So, although selected sections of them are still part of the law in all States, they does not have any "supreme law" status and can be amended by the State Parliaments, either expressly or simply by passing an inconsistent law. This will be discussed in more detail in the Chapter 6.
To the next Chapter, on the other big idea from Britain, The Development and Spread of Cabinet Government,
or to Chapter 6, which expands on some of the ideas in this ChapterThe Magna Carta Myth and Bill of Rights Baloney - Half-truths About the English Inheritance
Written by John Pyke, with a little help from DiDa!. Copyright reserved, but I licence any person to make a copy of this work for his or her own use, and copies for non-profit distribution to family or friends, and I licence teachers in schools or universities to make (or authorise the making of) multiple copies for non-profit distribution to their students, in each case subject to the condition that authorship is attributed to me and that this notice is fully included in the copy. First posted 5th February 2002. Minor amendments June 2006.