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The basis of legal sovereignty
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THE BASIS OF LEGAL SOVEREIGNTY
H. W. R. WADE
THE great South African case of Harris v. Minister of the Interior 1
will have turned the thoughts of many lawyers to the subject
of legal sovereignty. Under English law the principle of the
sovereignty of Parliament, " the dominant characteristic of our
political institutions," 2 is supposed to be something very simple
and clear—and so indeed it appears in its classic exposition in
the pages of Dicey. But the classic exposition is now widely
controverted; an example may be taken from the recent remark
of the Lord President of the Court of Session 3 :
" As is well known, the conflict between academic logic and
political reality has been emphasised by the recent South
African decision as to the effect of the Statute of Westminster
—Harris v. Minister of the Interior."
What is more, on the rare occasions when courts in England or
the Commonwealth find themselves concerned with the validity
of Acts of Parliament, further conflicts are revealed in the comments
of text-writers who discuss these cases. There seems to be a
widening rift between the orthodox propositions which the courts
lay down and the speculative deductions of critics who delve
deeper beneath the surface towards the bedrock of constitutional
theory. Inferences which to many people would seem to be
1 1952 (2) S. 428; [1952] 1 T.L. 1245; Keir and Lawson Cases in Con-
stitutional Law (4th ed.) 506. For comment on the case see 68 L.Q.
285; 65 Harv.L. 1361; 30 Can.B. 692, 734; 31 Can.B. 52. After
losing this case the South African Government attempted to achieve its ends
by establishing special courts for such questions, since the legislature has
power to establish courts of law without recourse to the " entrenched " proce-
dure; but the Act constituting Parliament itself into such a court was held
illegal: Minister of the Interior v. Harris and Others, 1952 (4) S. 769.
The government has now procured legislation for increasing the number of
appellate judges and the number of Senators: Appeal Court Quorum Act,
1955; Senate Act, 1955.
A most valuable commentary on the principal case will be found in
Professor D. V. Cowen's two articles on " Legislature and Judiciary " in
15 M.L. 282 and 16 M.L. 273, to which as will be seen the present
article is much indebted. Its object is not to survey further the voluminous
literature on sovereignty, but to attempt .to bring to a head the current
controversies on the subject. In a sense, therefore, it starts at the point
where Professor Cowen leaves off, for after his excellent account of the
background and the arguments of both sides he concludes that the fundamentals
of the subject are " fluid, elusive and obscure."
2 Dicey, Law of the Constitution (9th edition by Professor E. C. S. Wade), 39.
3 MacCormick v. Lord Advocate, 1953 S. 396 at p. 412.
172
C.L. The Basis of Legal Sovereignty 173
merely corollaries of propositions laid down by the courts can be
shown to conflict with the beliefs of such authorities as Dicey,
Anson, Sir Ivor Jennings, Sir David Keir, Professor Lawson and
Professor Friedmann. Nor are they all of the same mind among
themselves. The more deeply the subject is explored, the more
one is inclined to suspect that the bedrock will turn out to be
quicksand.
All writers on sovereignty are bound to deal in improbable
examples. One has to ask what would happen if Parliament tried
to abdicate, or to alienate its powers, or to impose restrictions
on future legislation after the manner of the South African
entrenched clauses. In England these may seem academic
questions; but the improbable case will often throw light on the
actual. For example, all the argument in Harris v. Minister of
the Interior proceeded on the assumption that the central question
—whether the " entrenched " clauses of the South African con-
stitution were still entrenched since the Statute of Westminster—
was; a strictly legal one, to which there was a right or a wrong
answer, according to the existing law. But, if one first considers
the abstract question of the alienability of sovereign power, one
may reach the conclusion that the issue before the South African
courts was fundamentally different from any other ordinary legal
issue, and that the courts were really called upon for a political
or legislative decision, having no " law " to guide them, but having
to create new law in a situation which should strictly be called
revolutionary. The theoretical analysis, if it is accepted, then
makes it easier to understand the reasoning followed by the Appel-
late Division in deciding the case.
Another case which is bound to be in the forefront of the
discussion is Att.-Gen. for New South Wales v. Trethowan,* the
well-known decision of the Judicial Committee of the Privy Council.
Although that case was, on a narrow view, no more than a
decision on a particular provision of the Colonial Laws Validity
Act, 1865, its highly interesting set of facts has been made the
basis of some remarkable predictions about the power of the
Parliament of the United Kingdom. After nearly twenty-five years
it is still a source of thought-provoking comments, which doubtless
has not yet run dry. This is all the more remarkable since the
case in no way raised any question of the validity of acts of a
sovereign legislature, but was rather concerned with subordinate,
or delegated, legislative power. This paradoxical situation is
typical of the subject, for the English courts have hardly ever
* [1932] A. 526.
C.L. The Basis of Legal Sovereignty 175
a referendum; and that, as one must also postulate if the example
is to hold good for a sovereign legislature, any repealing Act not
so approved should be void and of no effect. Next suppose that
Parliament, wishing to retrace its steps, passes a repealing Act
by its ordinary procedure, with no referendum, and the royal
assent is duly given. Is the repeal effective? The orthodox answer
is in the affirmative, and at least three well-known judicial decisions
can be cited: Vauxhall Estates, Ltd. v. Liverpool Corporation 6 ;
Ellen Street Estates, Ltd. v. Minister of Health 7 ; and British
Coal Corporation v. The King.* The first two cases turned on
the provision of the Acquisition of Land (Assessment of Compen-
sation) Act, 1919, that the provisions of any Act authorising
acquisition of land, if inconsistent with the Act of 1919, " shall
cease to have or shall not have effect." Provisions which were
in certain respects inconsistent were made by the Housing Act,
1925, and it was argued that the words of the Act of 1919 made
it proof against the implied repeal which would otherwise have
occurred. This argument was rejected by the judges, and, in the
second case, by the Court of Appeal. In the Vauxhall Estates case
Avory J. said 9 :
" It must be admitted that such a suggestion as that is
inconsistent with the principle of the constitution of this
country. Speaking for myself, I should certainly hold, until
the contrary were decided, that no Act of Parliament can
effectively provide that no future Act shall interfere with its
provisions."
And in the Ellen Street Estates case Maugham L. said 10 :
" The legislature cannot, according to our constitution, bind
itself as to the form of subsequent legislation, and it is impos-
sible for Parliament to enact that in a subsequent statute
dealing with the same subject-matter there can be no implied
repeal. If in a subsequent Act Parliament chooses to make
it plain that the earlier statute is being to some extent repealed,
effect must be given to that intention just because it is the
will of the legislature."
It is important to note that Maugham L.'s statement is parti-
cularly concerned with the impossibility of requiring any particular
form for subsequent legislation, for thus his remarks extend equally
well to our imaginary example of an Act purporting to make itself
6 [1932] 1 K. 733.
7 [1934] 1 K. 590.
8 [1935] A. 500.
9 At p. 743.
10 At p. 597
176 The Cambridge Law Journal [1955]
unrepeatable except after a referendum. Since Parliament's power
to repeal is unqualified, it is no more possible to prescribe effectively
that a repealing Act shall be in some particular form or be enacted
by some special procedure than that there shall be no repeal at
all, or no repeal within a certain period of time. But, since
questions of " manner and form" (a phrase drawn from the
Colonial Laws Validity Act, 1865 lx) figure so prominently in this
subject, it is worth while emphasising that the question of form
was squarely before the court in the Vauxhall Estates and Ellen
Street Estates cases. This was because counsel conceded that the
Act of 1919 would have to yield to an express repeal, but
contended that its language protected it from implied repeal where
some later Act merely contained some inconsistent provision. In
other words, he contended that in 1919, by enacting that incon-
sistent provisions " shall not have effect," Parliament had altered
the rule of law which says that where two Acts of Parliament
conflict, the later repeals the earlier by implication. Since he
conceded that an express repeal would have been effective, he
was arguing in effect that the Act of 1925 was defective in form
for the purpose of repealing the Act of 1919, for want of some
formula expressly effecting the repeal. In rejecting this argument
the courts were for the same reason holding that it was just as
impossible for an Act to be made proof against implied repeal
as against express repeal. Even if this was the intention of the
Act of 1919 (which as a matter of construction was at least doubt-
ful), the will of an earlier Parliament must give way to the will
of a later Parliament. Here, therefore, were two decisions where it
was held that the law-making process was not at the mercy of
Parliament for the time being, but was guarded by the courts
in order that future Parliaments might be unfettered. That the
courts should have the function of guarding 1 this doctrine against
the provisions of an Act of Parliament is not really surprising,
since it is only an application of the principle that Parliament
cannot bind its successors. Nevertheless the conclusion that there
exists a rule of law which Parliament is incompetent to alter
challenges further analysis.
The third case, British Coal Corporation v. The King, is
familiar to all students for the memorable remark of Lord Sankey
L. (delivering the judgment of the Judicial Committee of the
Privy Council) about the possibility of repeal of the Statute of
Westminster, by which legislative independence was given to the
Dominions 12 :
11 s. 5.
12 At p. 520.
178 The Cambridge Law Journal [1955]
immediately afterwards to abolish the legislature without its
consent and to continue legislating by his personal decree.
" But if the prince has not supreme power, but the rule
is that the courts accept as law that which is made in the
proper legal form, the result is different. For when the prince
enacts that henceforth no rule shall be law unless it is enacted
by him with the consent of the legislature, the law has been
altered, and the courts will not admit as law any rule which
is not made in that form. Consequently a rule subsequently
made by the prince alone abolishing the legislature is not
law, for the legislature has not consented to it, and the rule
has not been enacted according to the manner and form required
by the law for the time being.
" The difference is this. In the one case there is sove-
reignty. In the other, the courts have no concern with
sovereignty, but only with the established law. ' Legal
sovereignty ' is merely a name indicating that the legislature
has for the time being power to make laws of any kind in the
manner required by the law. That is, a rule expressed to
be made by the King, ' 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,'
will be recognised by the courts, including a rule which alters
this law itself. If this is so, the ' legal sovereign ' may impose
legal limitations upon itself, because its power to change the
law includes the power to change the law affecting itself.
" This may be illustrated by a recent decision of the
Judicial Committee of the Privy Council."
Trethowan's case is then given, apparently intended as an
example of a " legal sovereign " able to impose legal limitations
on itself. The main theme is then taken up again " :
" The law is that Parliament may make any law in the manner
and form provided by the law. That manner and form is
provided, at present, either by the common law or by the
Parliament Act of 1911. But Parliament may, if it pleases,
provide another manner and form. Suppose, for instance,
that the present Parliament enacted that the House of Lords
should not be abolished except after a majority of electors
had expressly agreed to it, and that no Act repealing that
Act should be passed except after a similar referendum. There
is no law to appeal to except that Act. The Act provides
a new manner and form which must be followed unless it
17 At p. 144.
C.L. The Basis of Legal Sovereignty 179
can be said that at the time of its passing that Act was void
or of no effect."
Applying these alternatives to the Statute of Westminster,
section 4, the author states 18 :
" It is not possible to rebut this argument (sc. that
Parliament can lay down a binding manner and form for
future legislation) except by saying that this provision (sc.
s. 4) is void. The power of Parliament given by law, it must
be said, is not a power to pass any legislation whatever,
but a power to pass any legislation which does not limit its
own authority. Since this is a matter of common law, this
must be proved by decisions of the courts. No such proof
can be offered (though for that matter no such proof can be
offered that the other is the correct interpretation)."
Apart, therefore, from arguments founded on what Parliament
has actually done, such as the amendment of the sacrosanct terms
of the Union with Scotland Act, 1706 19 —and Jennings allows
that these, so far as they go, support Dicey 20 —we are told that
the legal position is completely obscure.
Professor Friedmann has gone further, and has stated quite
positively that the United Kingdom Parliament can bind its
successors. Discussing Trethowan's case, he writes 21 :
" Because the Colonial Laws Validity Act laid it down that
non-sovereign Parliaments, such as the New South Wales
Legislature, could make laws respecting their constitutional
powers and procedure only ' in such manner and form as may
from time to time be required by any Act of Parliament... ,'
this question has become mixed up with the distinction between
' sovereign ' and ' non-sovereign ' legislatures, which is irrele-
vant to this problem. In fact, this provision of the Colonial
Laws Validity Act only formulates a position which exists
just the same for ' sovereign legislatures ' operating under
flexible constitutions, that is, with a machinery of constitu-
tional change by simple statute. The recent shortening of
the veto power of the House of Lords from two years to one
year has brought this out... any change in the legislative
process itself must be effected in the manner and form of
the existing provisions. That a Parliament cannot fetter its
1 8 At pp. 145-6.
19 See Dicey, Law of the Constitution, 9 t h ed., 65-6, and J e n n i n g s , The Law
20 and the Constitution, 3rd ed., pp. 146-7.
B u t now see MacCormick v. Lord Advocate, note 29 below.
2' I n a n article in 24 Australian L. J. 103 (1950), at p. 104.
C.L. The Basis of Legal Sovereignty 181
of Parliament." Then, after a quotation from Trethowan's case, 24
they say 25 :
"... a Parliament having the same composition as the
Parliament which passed the Act requiring a referendum, and
using the same procedure, could repeal that Act. But this
only means that a skilful draftsman would protect-—or, to use
the term common in South Africa, entrench—the Act by pro-
viding that no Bill purporting to repeal it should have effect
unless approved by referendum."
This appears to mean that under English law—for it is clear
from the context that the United Kingdom Parliament is under
discussion—it is only a matter of choosing the right words for
Parliament to be able to enact entrenched clauses which will be
unrepealable except in accordance with those clauses. And, once
again, it appears to be assumed that Trethowan's case is an example
which would hold equally good in the United Kingdom. Thus
what is said to be a special subject of doubt, limited to the question
of Parliament's composition, turns out to be wide enough to include
the usual examples of " manner and form."
The exception could therefore swallow up the rule, and how
it can be reconciled with the English cases is not explained.
Would it really be possible, by the use of what is said to be a
" simple device," for the United Kingdom Parliament to make
an Act virtually unrepealable by requiring any repealing Act to
be approved by, say, ninety per cent, of the electors in a
referendum? 26 Yet hard on the heels of a conclusive quotation
from the Ellen Street Estates case follows this statement that
to entrench Acts of the United Kingdom Parliament is only a
matter of drafting.
These passages show how little confidence the leading authorities
have in the classical theory of sovereignty which Dicey propounded.
2 1 T h e quotation is the well-known passage from the j u d g m e n t of Dixon J.
(as he then was) in the H i g h Court of Australia, 44 C. L. R. at p. 426,
in which h e discussed the possible outcome of a case of the same type in
E n g l a n d. H e suggested t h a t if an Act was passed without a referendum
to repeal an Act which purported to be repealable only after a referendum,
" the courts might be called upon to consider whether the supreme legislative
power in respect of the m a t t e r had in truth been exercised in the m a n n e r
required for its authentic expression and by the elements in which it h a d
come to r e s i d e. " And he added t h a t " the answer to this question, w h e t h e r
evident or obscure, would be deduced from the principle of p a r l i a m e n t a r y
supremacy over the l a w. "
T h i s is a carefully guarded s t a t e m e n t. If, as Keir a n d L a w s o n a p p e a r
to infer, it h i n t s at the conclusion t h a t the courts would hold t h a t sovereign
power had " come to reside " in some body different from P a r l i a m e n t as
at present constituted, t h a t assumes a revolution in t h e legal system, as is
explained below.
2 5 4th ed., 7.
26 Cf. Professor F r i e d m a n n ' s r e m a r k s in 24 Australian L. J. at p. 105.
182 The Cambridge Law Journal [1955]
Most of the writers who have been quoted appear to realise that
somewhere in the background is a rule of English law that
Parliament cannot bind its successors. But as soon as an
example is provided, as by Trethowan's case, they hasten to abandon
this rule and suggest arguments for its opposite. These arguments
must be tested in two ways: first, are they supported by judicial
authority; secondly, can they lay claim to superior logic?
As to authority, the one and only case on which these revolu-
tionary theories have been founded is Trethowan's. That case
may be disposed of in a moment for anyone who believes in
the distinction made by Dicey—and made also, it may be added,
by the judges who decided the case—between sovereign and
subordinate legislatures. The legislature of New South Wales was
subject to the Colonial Laws Validity Act, 1865—an Act of the
sovereign Parliament at Westminster—which provided in section 5
that legislation contrary to Imperial statute was void and that
constitutional amendments must be made " in such manner and
form as may from time to time be required by any Act of
Parliament, letters patent, order in council, or colonial law for
the time being in force in the said colony." The Bill which, without
a referendum, was designed to repeal the earlier Act which declared
that it should not be repealable except after a referendum, was
undoubtedly not framed in accordance with the law " for the
time being in force." It was therefore unlawful, like any other
act of delegated power which exceeds its appointed limits. Thus
the United Kingdom Parliament, by prescribing the conditions for
the validity of legislation of the Parliament of New South Wales,
could enable it to do the one thing which the superior legislature
was incompetent to do, i., to bind its successors. There is no
paradox here. The sovereign Parliament's inability to bind its
successors arises from exactly the same cause—continuing legal
omnipotence—as the subordinate legislature's subordination. The
point was very well put by Dixon J. (as he then was) 27 :
" The difficulty of the supreme legislature lessening its own
powers does not arise from the flexibility of the constitution.
On the contrary, it may be said that it is precisely the point
at which the flexibility of the British constitution ceases to
be absolute. Because it rests upon the supremacy over the
law, some changes which detract from that supremacy cannot
be made by law effectively. The necessary limitations upon
the flexibility of the constitution of New South Wales result
from a consideration of exactly an opposite character."
" In Trethowan'x case, 44 C.L. at p. 427. See also at p. 426 for the contrast
between sovereign and subordinate legislatures.
184 The Cambridge Law Journal [1955]
of the type here in controversy is or is not conform to the pro-
visions of a Treaty, least of all when that Treaty is one under
which both Scotland and England ceased to be independent states
and merged their identity in an incorporating union." 32 Since
he also mentions the possibility that "nowadays there may be
room for the invocation of an ' advisory opinion' from the
International Court of Justice," 33 it seems that the Lord President's
" fundamental law " is something quite different from the ordinary
" law " which municipal courts enforce. He appears, indeed, to
safeguard himself very carefully against any suggestion that the
courts would hold Parliament unable to repeal the Union Act,
and to concern himself rather with the political propriety of
doing so.
The theory that Parliament can, under English law, lay fetters
on future Parliaments is thus, as Jennings admits, unsupported
by authority. Jennings however says that the orthodox view—
Dicey's view—also requires legal proof, and that apart from the
dictum in British Coal Corporation v. The King,3i " no such proof
can be offered." 35 But if the Ellen Street Estates case 36 is not
such proof, what is? The Court of Appeal there held, as a
necessary part of their decision, that " the legislature cannot,
according to our constitution, bind itself as to the form of sub-
sequent legislation." What more could be asked? It is not
every day that the validity of Acts of Parliament is challenged
in English courts, and one can hardly expect a long line of decisions.
A long line of professional opinions is however easily produced.
Bacon, 37 Coke 38 and Blackstone 39 are all in agreement, and every
English judge who has touched on the point has supported the
fundamental doctrine which they laid down. Why has it become
the fashion, merely because of Trethowan's case, to present this
simple English theory of Parliamentary sovereignty as if it were
full of darkness and doubt, or only some kind of bee in Dicey's
bonnet?
The explanation is probably to be found in the alluring argument
so skilfully set out by Jennings. If he appears to underrate the
3 3 " 1953 R. at p. 413.
Ibid.
####### ••>* 3 N o t e 12, a b o v e.
3 6-> The Law and the Constitution, 3rd ed., p. 146.
3 7 Notes 7 and 10, above.
See the passages quoted by Dicey, p. 64 note 2, and by Professor Cowen
in 16 M. L. E. at p. 291 from Bacon's Works, 1859 eel., Vol. V I , 159-
and Vol. V I I , 370. As to the following passage about Parliament's alleged
ability to extinguish or transfer its power, see note 69 below.
as 3 9 4 Inst. 42.
Comm. i, 9 0 : " A c t s of Parliament derogatory from the power of subsequent
parliaments bind n o t. " The phrase derives from Coke, 4 Inst. 42.
C.L. The Basis of Legal Sovereignty 185
legal authority against his view, no one can deny the attractions
of his own reasoning. The essence of his point is that legal
sovereignty is a doctrine of law, and that since Parliament can
change the law in any way it likes it can alter the law about
itself, and the operation of its Acts, just as well as the law about
anything else. The law is, he suggests, that a rule expressed
to be made by Crown, Lords and Commons will be recognised
by the courts, including a rule which alters this law itself. Parlia-
ment has often legislated about itself, and it is tempting to treat
the Parliament Acts, 1911 and 1949 (as Jennings, like Keir and
Lawson, does treat them) as Acts which alter the law as to
the manner and form of the exercise of the sovereign legal power.
Jennings indeed dislikes the term " sovereign," 40 in its legal sense,
for this very reason, since he inclines to the view that Parliament's
legal power rests on a legal rule, established in the courts, that
" the courts accept as law that which is made in the proper legal
form." Possibly that theory is made more plausible by the fact
that the same rule is found in the Colonial Laws Validity Act. But
that, in view of the entirely different nature of delegated power,
can be no more than an analogy. However, if the law is that
the courts recognise whatever is enacted in " the proper legal
form," then it seems to follow that an Act passed contrary to
the requirements of some previous Act (for example, without a
referendum) would not be passed " in the proper legal form "
and so would not be a valid Act of Parliament. Therefore
Parliament can bind its successors as to manner and form, and
the " sovereignty " of future Parliaments is qualified and precarious.
It can at least be conceded that this would be a perfectly
possible state of affairs. There is no absurdity in supposing that
the Imperial Parliament could be subject to the same restrictions
as the Parliament of New South Wales, i., that the common
law and the Colonial Laws Validity Act are similar in effect.
That the supposition is contrary to all available English authority
may for the moment be forgotten while its purely logical impli-
cations are explored. But, if it is to stand against the weight
both of judicial decisions and of centuries of general agreement,
something more is needed than an absence of absurdity. A rival
theory must at least be logically stronger than the conventional
theory if it is to be worth discussing. From the pride of place
which Jennings gives to his own theory it is clear that he favours
*° The Law and the Constitution, 3rd ed., 138-40. Jennings truly says that
legal sovereignty is a lawyer's concept expressing the relations between
Parliament and the courts. But his statement that it is "not sovereignty
at all," because it is not the same as political sovereignty, is hard to follow.
C.L. The Basis of Legal Sovereignty 187
But to deny that Parliament can alter this particular rule of law
is not so daring as it may seem at first sight; for the sacrosanctity
of the rule is an inexorable corollary of Parliament's continuing
sovereignty. If the one proposition is asserted, the other must be
conceded. Nevertheless some further justification is called for,
since there must be something peculiar about a rule of common
law which can stand against a statute.
The peculiarity lies in this, that the rule enjoining judicial
obedience to statutes is one of the fundamental rules upon which
the legal system depends. * That there are such rules, and that
they are in a very special class, is explained with great clarity
by Salmond":
" All rules of law have historical sources. As a matter of
fact and history they have their origin somewhere, though
we may not know what it is. But not all of them have legal
sources. Were this so, it would be necessary for the law
to proceed ad infinitum. in tracing the descent of its principles.
It is requisite that the law should postulate one or more
first causes, whose operation is ultimate and whose authority
is underived.... The rule that a man may not ride a bicycle
on the footpath may have its source in the by-laws of a
municipal council; the rule that these by-laws have the force
of law has its source in an Act of Parliament. But whence
comes the rule that Acts of Parliament have the force of law?
This is legally ultimate; its source is historical only, not legal.
... It is the law because it is the law, and for no other
reason that it is possible for the law itself to take notice of.
No statute can confer this "power upon Parliament, for this
would be to assume and act on the very power that is to be
conferred." 44
Once this truth is grasped, the dilemma is solved. For if
no statute can establish the rule that the courts obey Acts of
Parliament, similarly no statute can alter or abolish that rule.
The rule is above and beyond the reach of statute, as Salmond
so well explains, because it is itself the source of the authority
tit statute. 45 This puts it into a class by itself among rules of
4 3 Jurisprudence, 10th ed. (by Dr. Glanvilla Williams), 155. Professor Cowen
in 15 M.Li. 294 mentions this passage in connection with the present
status in South Africa of the South Africa Act, 1909, but not in connection
with the wider questions raised in his second article in 16 M.L. 273. For
the similarity between Salmond's " ultimate legal principle " and Kelsen's
Grundnorm, see J. W. Jones, Historical Introduction to the Theory of Laic,
4 4 22G.
4 5 Italics supplied.
The same point is made by Professor E. C. S. Wade, following Mr. E. T. E.
L a t h a m , in the 9th ed. of Dicey, p. xxxviii: " Where the purported sovereign
188 The Cambridge Law Journal [1955]
common law, and the apparent paradox that it is unalterable
by Parliament turns out to be a truism. The rule of judicial
obedience is in one sense a rule of common law, but in another
sense—which applies to no other rule of common law—it is the
ultimate political fact upon which the whole system of legislation
hangs. Legislation owes its authority to the rule: the rule does
not owe its authority to legislation. To say that Parliament can
change the rule, merely because it can change any other rule,
is to put the cart before the horse.
For the relationship between the courts of law and Parliament
is first and foremost a political reality. Historical illustrations of
this are plentiful. When Charles I was executed in 1649 the courts
continued to enforce the Acts of the Long Parliament, the Rump,
Barebones' Parliament, and the other Commonwealth legislatures.
For a revolution took place, and the courts (without any authority
from the previous sovereign legislature) spontaneously transferred
their allegiance from the King in Parliament to the kingless
Parliaments. In other words, the courts altered their definition
of " an Act of Parliament" and recognised that the seat of
sovereignty had shifted. This was a political fact from which
legal consequences flowed. But in 1660 there was a counter-
revolution : Charles II was restored, and it was suddenly discovered
that all Acts passed by the Commonwealth Parliaments were void
for want of the royal assent. The courts, again without any prior
authority, shifted their allegiance back to the King in Parliament,
and all the Commonwealth legislation was expunged from the
statute book. 46 The " glorious revolution " of 1688 was, in its
legal aspect if in no other, much like the revolution of 1649,
for the courts, recognising political realities but without any legal
justification, transferred their obedience from James II to William
and Mary. Had the Jacobite rebellions of 1715 and 1745 succeeded,
the courts might once again have held all intervening legislation—
including the Bill of Rights and Act of Settlement—void for lack
of the assent of the proper monarch. 47 The fact that William and
is anyone but a single actual person, rules are required to ascertain the
will of the sovereign. They must be observed as a condition of the validity
of legislation. The rules are therefore logically superior to the sovereign."
^s Maitland, Constitutional History, 282. In Heath v. Pryn (1670) 1 Vent. 14
counsel had the hardihood to challenge an Act of the Restoration Parliament:
" The plaintiff's counsel would have denied the Act of 12 Car. to be an
Act of Parliament because they were not summoned by the King's writ;
but the judges would not admit it to be questioned, and said, that all
the judges resolved, that the Act being made by King, Lords and Commons
they ought not now to pry into any defects of the circumstance of calling
47 them together.. ."
Maitland, Constitutional History, 284-5.
190 The Cambridge Law Journal [1955]
of law that the distinction is fundamental. For in the one case,
that of the sovereign legislature, there is an ultimate fact which
the legislature is itself powerless to change by legislation; while
in the other, that of the non-sovereign legislature, the authority
of its Acts can at any time be modified by the superior legislature.
That is why, as a matter of law, the United Kingdom Parliament
can empower the Parliament of New South Wales to do the one
thing which it is itself powerless to do, to wit, bind its successors.
Trethowan's case is a perfect illustration.
If this is correct, Dicey, and the many others who have held
similar views, are on firmer ground than their critics—not only
because they have the support of such judicial authority as can
be collected, but also because there happens to be a rational
foundation for what English lawyers have commonly believed.
All arguments seem to combine in support of the view that the
United Kingdom Parliament is, in the eyes of the English courts,
a continuously sovereign legislature, which cannot bind its suc-
cessors as to "manner and form" or anything else; and that
if a " skilful draftsman" attempted to entrench an Act of the
United Kingdom Parliament by forbidding repeal except after a
referendum, that Act like any other could be repealed by an
ordinary Act of Crown, Lords and Commons without a referendum.
To suggest the contrary is to assume a revolution, in which the
courts must be taken to have abandoned their loyalty to the legis-
lature as now constituted; but, since this is something which no
legislation can bring about, it is a purely political forecast.
Of course, revolutions can and do occur. Nor need we go
back to the seventeenth century for examples, for something of
the kind is undoubtedly in progress within the British Common-
wealth. South Africa provides the clearest example. The one
point which was agreed on all hands in Harris v. Minister of the
Interior was that the Parliament of the Union of South Africa
was a sovereign legislature. Thirty years ago it was undoubtedly
a subordinate legislature, for it was subject to the Colonial Laws
Validity Act just like the Legislature of New South Wales. 51 During
these years the seat of sovereign legal power has therefore shifted
from Westminster to Pretoria. How has this come about? One
naturally answers that it is the result of the Statute of Westminster,
1931, and of South Africa's own Status of the Union Act, 1934,
which in section 2 declared:
this problem," i., to the discussion of Trethowan's case. He is therefore
compelled to differ from the conclusions so convincingly stated by Dison J.:
see p. 182, above.
" R. v. Ndobe, 1930 A. 484, at 492-3.
C.L. The Basis of Legal Sovereignty 191
" The Parliament of the Union shall be the sovereign legis-
lative power in and over the Union, and notwithstanding
anything in any other law contained, no Act of the Parliament
of the United Kingdom and Northern Ireland passed after
the eleventh day of December, 1931, shall extend, or be
deemed to extend, to the Union as part of the law of the
Union, unless extended thereto by an Act of the Parliament
of the Union."
But such a purely legal answer can easily be shown to be inade-
quate; for it does not explain what would happen if, to take Lord
Sankey's example, the United Kingdom Parliament were to attempt
to amend or repeal the Statute of Westminster. Most people would
predict, if they were willing to consider so unlikely an event,
that English judges would be bound to uphold the United Kingdom
Parliament's power to repeal or amend the Statute, 52 but that
South African judges would not. 53 The repealing Act would thus
be ineffective in South Africa, and the South African courts would
have thrown off their allegiance to the United Kingdom Parliament.
That means that a revolution has already taken place. Although
the South African courts acknowledge and obey the Status of the
Union Act, 1934, they cannot rely purely upon its legal pedigree:
for that in turn is derived from the Statute of Westminster, and
the Statute of Westminster in its own turn rests upon the authority
of the United Kingdom Parliament—the very authority which
South Africa has now repudiated. The more rational explanation
is that the South African courts have followed the movement
of political events, the movement summed up in the report of
the Imperial Conference which declared that the United Kingdom
and the Dominions were " in no way subordinate one to another
in any aspect of their domestic or external affairs,"5i and in
the defiant judicial dictum that " freedom once conferred cannot
be revoked." 55 The provision quoted from the Status of the
Union Act may be compared to the confirmatory Act of William
and Mary's Convention Parliament 50 —it states a political fact
which the courts also recognise. When sovereignty is relinquished
in an atmosphere of harmony, the naked fact of revolution is
not so easy to discern beneath its elaborate legal dress. But it
must be there just the same, and South Africa must have made
32 See Professor E. C. S. Wade's introduction to Dicey, 9th ed., xlviii; cf.
K. C. Wheare, The Statute of Westminster and Dominion Status, 5th ed
153-7, 246-7. 53 See Professor Cowen in 15 M.L. 294, note 47.
«: Cmd. 2768 (1926).
'j Note 14, above.
•> 6 1 Gul. & Mar. sess. 1, c. 1 (confirming Parliaments authority); 1 Gul. &
Mar. sess. 2, c. 2 (the Bill of Bights, 1689, confirming the title to the Crown).
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The basis of legal sovereignty
Module: Contract Law (LAWS10021)
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THE BASIS
OF
LEGAL SOVEREIGNTY
H. W. R.
WADE
THE
great South African case
of
Harris
v.
Minister
of the
Interior1
will have turned
the
thoughts
of
many lawyers
to the
subject
of legal sovereignty. Under English
law the
principle
of the
sovereignty
of
Parliament,
" the
dominant characteristic
of our
political institutions,"
2 is
supposed
to be
something very simple
and clear—and
so
indeed
it
appears
in its
classic exposition
in
the pages
of
Dicey.
But the
classic exposition
is now
widely
controverted;
an
example
may be
taken from
the
recent remark
of
the
Lord President
of
the Court
of
Session
3:
" As
is
well known,
the
conflict between academic logic
and
political reality
has
been emphasised
by the
recent South
African decision
as to the
effect
of the
Statute
of
Westminster
—Harris
v.
Minister of
the
Interior."
What
is
more,
on the
rare occasions when courts
in
England
or
the Commonwealth find themselves concerned with
the
validity
of Acts
of
Parliament, further conflicts
are
revealed
in the
comments
of text-writers
who
discuss these cases. There seems
to be a
widening rift between
the
orthodox propositions which
the
courts
lay down
and the
speculative deductions
of
critics
who
delve
deeper beneath
the
surface towards
the
bedrock
of
constitutional
theory. Inferences which
to
many people would seem
to be
1
1952 (2) S.A. 428; [1952] 1 T.L.E. 1245; Keir and Lawson Cases in Con-
stitutional Law (4th ed.) 506. For comment on the case see 68 L.Q.B.
285;
65 Harv.L.B. 1361; 30 Can.B.E. 692, 734; 31 Can.B.B. 52. After
losing this case the South African Government attempted to achieve its ends
by establishing special courts for such questions, since the legislature has
power to establish courts of law without recourse to the " entrenched " proce-
dure; but the Act constituting Parliament itself into such a court was held
illegal: Minister of the Interior v. Harris and Others, 1952 (4) S.A. 769.
The government has now procured legislation for increasing the number of
appellate judges and the number of Senators: Appeal Court Quorum Act,
1955;
Senate Act, 1955.
A most valuable commentary on the principal case will be found in
Professor D. V. Cowen's two articles on " Legislature and Judiciary " in
15 M.L.B. 282 and 16 M.L.E. 273, to which as will be seen the present
article is much indebted. Its object is not to survey further the voluminous
literature on sovereignty, but to attempt .to bring to a head the current
controversies on the subject. In a sense, therefore, it starts at the point
where Professor Cowen leaves off, for after his excellent account of the
background and the arguments of both sides he concludes that the fundamentals
of the subject are " fluid, elusive and obscure."
2
Dicey, Law of the Constitution (9th edition by Professor E. C. S. Wade), 39.
3
MacCormick
v.
Lord
Advocate,
1953 S.C. 396 at p. 412.
172
https://doi.org/10.1017/S0008197300013726 Published online by Cambridge University Press
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