transformation in the british common-law constitution

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FROM UNWRITTEN TO WRITTEN:

TRANSFORMATION IN THE BRITISH COMMON-LAW CONSTITUTION

Christopher D. Jenkins

Institute of Comparative LawFaculty ofLaw

McGill University, Montréal

March, 2002

A Thesis submitted to the Faculty of Graduate Studies and Researchin partial fulfillment of the requirements of the degree of Master of Laws (LL.M.)

© Christopher D. Jenkins 2002

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ABSTRACT

This thesis proposes that the United Kingdom's constitution is changing so as to

incorporate written principles that restrain Parliament throughjudicial review. This

model originates in the common law as well as the orthodox theories of Blackstone and

Dicey. It is supported by the ultra vires doctrine and provides a basis for judicial review

of Parliament itself. As constitutions may accommodate written and unwritten elements,

along with various means of enforcement and change, they are defined by how strongly

they reflect underlying norms. This expressive function, with a shift in the mIe of

recognition endorsingjudicial review, democratically legitimizes constitutional texts as

positivist expressions of popular will binding Parliament. Furthermore, through

common-Iaw adjudication, courts may constitutionalize statutes or treaties coming over

time to represent shifting norms. This "quasi-written" common-Iaw constitution is

already emerging in the United Kingdom, as illustrated through cases based upon the

Human Rights Act and the European Communities Act.

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RÉSUMÉ

Cette Thèse tente de démontrer les changements auxquels la Constitution du Royaume

Uni est soumis en vue de permettre l'introduction de principes de droit écrits tendant à

limiter les pouvoirs du Parlement par le biais d'un contrôle de constitutionnalité.

L'origine d'un tel modèle relève non seulement de la common law mais également des

théories orthodoxes développées par Blackstone et Dicey. Il trouve son expression dans

la doctrine de l'excès de pouvoir (ultra vires) et constitue le fondement du contrôle de

constitutionnalité des actes parlementaires. Alors que les constitutions concilient tant des

règles écrites que non écrites, s'accommodent des changements et de diverses méthodes

d'application, elles se définissent par la manière avec laquelle elles reflètent les normes

sous-jacentes de la communauté. Cette fonction expressive, en témoigne le changement

dans l'énoncé et l'application du contrôle de constitutionnalité, permet aux textes

constitutionnels d'être légitimés de manière démocratique en tant qu'expression

positiviste d'une volonté populaire liant le Parlement. De plus, les cours, au cours du

procédé juridictionnel, peuvent donner valeur constitutionnelle à des traités ou lois

donnant expression à ces normes. Les décisions fondées sur les dispositions du Human

Rights Act et de l'Acte des Communautés Européennes témoignent de l'émergence

actuelle, au Royaume-Uni, d'une constitution de common law« quasi-écrite ».

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ACKNOWLEDGEMENTS

The time spent in the LL.M. program at McGill University has been the mostintellectually stimulating of all my academic studies, while my time spent in Montréalhas been among the best in my life. Neither aspect ofthis experience could have beenpossible without the people who l have met along the way. First, thanks must go to mysupervisor Professor H. Patrick Glenn for his guidance on my thesis and the opportunityto assist him on sorne very interesting research topics. Aiso to Professor Stephen Scottfor answering my occasional questions with patience and expertise. In fact, thanks to thewhole McGill Faculty of Law, for proving that there is more to law than memorizing theRule against Perpetuities and other black letter what-nots, as weIl as for generouslyawarding me a much needed and appreciated Greenshields scholarship.

As for those back home, l thank my parents and grandparents for raising me right andmaking the sacrifices. My life-Iong friends, who are the finest fellowship one could hopefor and have loyally encouraged me to go there and back again. And to the hills ofAppalachia - its hollers may be too narrow for me anymore (at least for now) but itshoneyed memories bring me down to Earth and remind me just who it is that l really am.

In regard to moments outside of the library (ofwhich there were in sorne respects toomany and in others too few ...), l will carry fond memories of dancing late, waterballoons, and most excellent martinis. A couple or so individuals have on their ownmade it aIl worth it. Cheers to Ed, Christian, and Chris for the many good times andmany pints. To Karla, with smiles, for being so full of life and pulling me back from thebrink. Then of course there is Rundle-Bundle, one of the most cheerful, positive, justplain delightful girls l have ever known. Nor can l forget the ever generous ClementineSallée, who was not only helpful enough to translate my thesis abstract into French, butalways seems to make me grin in spite ofmyself. Finally, most heartfelt appreciation toSarah for supporting my decision to come to McGill in the first place. Little did we knowthen that it was a fork in the road. Best wishes for the future and God Bless.

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CONTENTS

1. INTRODUCTION 1

II. THE COMMON-LAW FOUNDATIONS OF LIMITED GOVERNMENT

AND JUDICIAL REVIEW 5

A. Blackstone and Dicey: Theories ofParliamentary Sovereignty 5

B. Foundational Principles as a Restraint upon Parliarnent 15

C. Judicial Review in Common-Law Thought 23

D. The Ultra Vires Doctrine as Cornrnon-LawJudicial Review 37

E. Surnrnary 52

III. THE CONSTITUTIONALIZATION OF WRITTEN TEXTS 57

A. Characteristics of a Constitutional System 57

1. Paradigrnatic and Definitive Constitutions 58

2. Flexible and Rigid Constitutions 75

B. Positivist Foundations for a Written Constitution 89

1. An Alternative Positivist Model 90

2. Written Constitutions as ExpressionsofPopular Sovereignty 96

C. Cornrnon-Law Adjudication andthe Constitutionalization ofWritten Texts 101

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D. Overview: The United Kingdom'sQuasi-Written Constitution 108

1. The Human Rights Act 1998 111

2. The European Communities Act 1972and European Community Law 116

E. Summary 121

IV. CONCLUSION 126

BIBLIOGRAPHY 129

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1. INTRODUCTION

In recent years, the British constitution has undergone remarkable changes due to

further integration into the European Union, the passage of the Human Rights Act 1998,

and devolution. 1 These developments have affected the constitutional order of the United

Kingdom by demanding that Parliament conforrn to substantive limitations on its exercise

of legislative authority. The Human Rights Act, for example, by implementing the

European Convention on Human Rights into domestic law, protects certain fundarnental

individual rights from government infringement.2 European integration and devolution

also create other sources of law in the United Kingdom, thus potentially threatening the

unitary state. While this constitutional reforrn has occurred through treaty or domestic

legislation, which theoretically remain subordinate to Parliarnent, the written instruments

mentioned above nevertheless have special status and significance in the British

constitution. These documents reflect changing notions about the proper extent of

parliamentary authority and the institutional role of the judiciary in enforcing accepted

1 See Treaty Establishing the European Community, Nov. 10, 1997, O.J. (c 340) 3 (1997) [hereinafterTreaty ofRome]. The Treaty ofRome created the European Economie Community in 1957 and has sincebeen amended several times. The United Kingdom was not a founding member, but joined later andthrough the European Communities Act 1972 (U.K.), 1972, c. 68 [hereinafter European Communities Act],gave Community law domestic effect. See O. Hood Phillips, Paul Jackson, and Patricia Leopold,Constitutional and Administrative Law, 8th ed. (London: Sweet and Maxwell, 2001) at 110-11; HumanRights Act 1998 (D.K.), 1988, c. 42 [hereinafter Human Rights Act]; The devolution oflaw-makingauthority to regional assemblies within the United Kingdom results from the Scot/and Act 1998 (D.K.),1998, c. 46 [hereinafter Scot/and Act], the Northern Ire/and Act 1998 (D.K.), 1998, c. 47 [hereinafterNorthern lreland Act], and the Government of Wales Act 1998 (U.K.), 1998, c. 38 [hereinafter Wales Act].

2 Convention for the Protection ofHuman Rights and Fundamental Freedoms, 4 November 1950 D.N.T.S.221, Eur. T.S. 5 [hereinafter European Convention on Human Rights, European Convention, orConvention] .

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norms. They, along with unwritten principles, are developing into a "quasi-written"

constitution restraining Parliament and enforceable by the judiciary. This constitutional

change is not a break from British legal tradition, but instead represents a transition to an

alternative, albeit previously rejected, path of constitutional development. The

incorporation of written texts into this framework is compatible with the alternative

constitutional model and can take place through a graduaI process of common-Iaw

adjudication.

This paper suggests that the shift from a completely unwritten to a partially

written constitution occurs on two levels. Part II argues that orthodox constitutional

theory, as articulated by Blackstone and Dicey, already has embedded within it strains of

thought conducive to the idea of a limited Parliament with a judiciary capable of

exercising review over primary legislation. Blackstone and Dicey, therefore, essentially

placed a preferred emphasis upon positive law and political, rather than judicial,

processes without completely undermining counter-arguments that support a limited

Parliament. These alternative arguments themselves have a long history in the common

law tradition. Blackstone's naturallaw theory contains ideas found in other places such

as the judicial opinions ofEdward Coke. It accordingly offers a solid foundation upon

which to assert a common-Iaw power ofjudicial review to ensure that Parliament does

not legislate contrary to higher legal principles. Dicey, in justifying parliamentary power

by virtue of its moral accountability to the electorate, replaces the concept ofnaturallaw

with democratic principles. As Dicey justifies parliamentary supremacy on this account,

he too invites counter-arguments for legal restraints upon legislative actions that are

contrary to democratic norms. The otherwise orthodox theories ofBlackstone and Dicey

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ironically offer a starting point from which to shift to an alternative common-Iaw

constitutional arrangement in which parliamentary authority is restrained by fundamental,

democratically based principles enforceable in sorne effective manner by judicial review.

Independent, common-Iaw review power already exists in the ultra vires doctrine, which

allows courts to restrain executive action. This doctrine illustrates how courts can limit

govemment action based upon common-Iaw principles, and suggests that they may soon

claim to exercise such review power against Parliament itself.

Part III then shows how the common-Iaw constitution can incorporate written

principles. It explains that constitutions may be either paradigmatic or definitive, in that

the former provides a legally unenforceable model for governance while the latter

imposes strict mIes subject to judicial review and beyond which govemment cannot act.

A constitution can also be flexible or rigid in form. The flexible constitution requires no

special amending procedures, while a rigid constitution establishes significant procedural

obstacles to its alteration. These concepts are not exclusive, however, and constitutions

may exhibit mixed characteristics existing upon a sliding scale. Accordingly, the

existence of a constitution depends upon its normative force in the system rather than its

means ofjudicial enforceability or mode of change. Furthermore, texts can express sorne

fundamental principles in writing, leading to a mix of written and unwritten norms.

These written norms have a positivist aspect as reflecting the will of the popular

sovereign. In a democratic system, this popular will has supreme authority over the

subordinate legislature. The judiciary can also exercise dual sovereignty with Parliarnent

in representing the e1ectorate. Written constitutional texts are accordingly just a manner

of expressing the popular will, while judicial review exists as a democratically endorsed

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means to enforce it against government encroachment. The democratic role of the

judiciary aIso means that courts can assess the normative value of certain documents

within the community. As certain statutes or treaties increasingly represent foundational

assumptions about good governance, courts can constitutionalize them as legally

enforceable limitations upon Parliament. Courts can do this through a graduaI process of

common-law adjudication sensitive to Parliament's legislative function and broader

political assumptions within the community. This process can result in varying degrees

of entrenchment and judicial enforceability. Such constitutional change is already

occurring in the United Kingdom, as illustrated by judicial treatment of the Human Rights

Act and the European Communities Act, and represents a transition to an alternative

common-Iaw, "quasi-written" constitution that effectively limits Parliament's exercise of,

if not formaI daim to, sovereignty.

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II. THE COMMON-LAW FOUNDATIONS OF LIMITED GOVERNMENT AND JUDICIAL

REVIEW

A. Blackstone and Dicey: Theories of Parliamentary Sovereignty

The doctrine ofparliamentary supremacy, as A. V. Dicey wrote, is the "very

keystone" of the British constitution.3 Parliament itself is unable to bind or restrict its

own future actions, courts cannot question or refuse to give effect to its enactments, and

aIl other law-making bodies in the United Kingdom are subordinate to it.4 While

Parliament remains supreme in theory up to the present time, there exists an alternative

conception of the unwritten, common-Iaw constitution that remains a basis for reform and

offers a foundation for a new constitutional settlement in the United Kingdom.

Arguments for an unwritten constitution encompassing these concepts have historical

precedent, support contemporary ultra vires judicial review, and lie embedded within the

orthodox theory of parliamentary sovereignty itself. As George Winterton states,

"[nJowhere is the development of this doctrine [of parliamentary sovereigntyJ

demonstrated more clearly than in the writings ofBlackstone and Dicey."s An initial

3 A. V. Dicey, Introduction to the Study ofthe Law ofthe Constitution, 10th ed. (London: MacMillan,1965) at 70.

4 Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law, 8th ed. (London: Penguin,1998) at 67.

5 George Winterton, "The British Grundnorm: Parliamentary Supremacy Re-examined" (1976) 92 L.Q.Rev. 591 at 596.

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examination and comparison of Blackstone's and Dicey's ideas, however, show that they

can support counter-arguments promoting judicial review and limited legislative

authority based upon naturallaw or democratic conceptions of the public good.

William Blackstone, like Dicey later, recognized the supreme legislative power of

Parliament. Parliament, he wrote, had authority "so transcendent and absolute, that it

cannot be confined, either for causes or persons, within any bounds. . .. It can, in short,

do every thing that is not naturally impossible; and therefore sorne have not scrupled to

calI it's power, by a figure rather too bold, the omnipotence ofparliament.,,6 An act of

Parliament was thus the supreme law of the land, binding throughout the realm, and

alterable only by another act ofParliament.7 Such extensive legislative power, however,

rested upon two important foundations that underlay Blackstone's constitutional mode!.

First, Blackstone's justification for parliamentary sovereignty depended upon a

constitution properly balanced through its representation of competing political and social

forces. Second, he acknowledged naturallaw, along with its close connection to the

common law, as a moral limitation upon Parliament's authority. Dicey, in his support of

parliamentary power, would go beyond the balanced constitution in favor of one

answerable to the electorate, while likewise substituting the idea of democratic public

good for naturallaw as a moral restriction upon legislative power.

Blackstone's defined Parliament as an assembly composed of the Commons, the

Lords temporal and spiritual, and the Crown. Gnly these three forces acting together

comprised the sovereign Parliament and were able to make law, itself supreme

6 Blackstone cited Edward Coke for this proposition. Sir William Blackstone, Commentaries on the Laws ofEngland, vol. l, 15th ed. (London: A. Strahan, 1809) at 160-61.

7 Ibid. at 184-85.

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throughout the realm. The Crown, Lords, and Commons balanced each other, their

competing interests creating political tensions within Parliament itself that effectively

restrained its exercise of limitless authority.8 Dicey also defined Parliament as under

c1assic Blackstonian theory; it consisted of the Crown, Rouse of Commons, and Rouse of

Lords assembled.9 The Crown in Parliament so comprised possessed absolute and

unlimited legislative power, having the "right to make or unmake any law whatever."l0

The concept ofParliament's sovereignty, according to Dicey, was the "one fundamental

dogma of English constitutionallaw."ll As Dicey is regarded as formulating the modem

theory underlying parliamentary sovereignty, it is his ideas that will be first examined.

In characterizing the nature ofParliament's sovereignty, Dicey drew a c1ear

distinction between legal and political sovereignty. Parliament was, he asserted, the

ultimate legal sovereign possessing boundless legislative authority. While Parliament

remained legally supreme, however, the electorate, along with the Lords and Crown,

possessed political sovereignty. This distinct political sovereignty in no way restricted

the authority ofParliament to make law. Dicey explained the difference between his two

concepts ofsovereignty:

[T]he sovereign power under the English constitution is c1early "Parliament." Butthe word "sovereignty" is sometimes employed in a political rather than in astrictly legal sense. That body is "politically" sovereign or supreme in a state thewill ofwhich is ultimately obeyed by the citizens of the state. In this sense of theword the electors of Great Britain may be said to be, together with the Crown and

8 Ibid. at 50-51, 153-55, 159-60.

9 Dicey, supra note 3 at 39.

10 Ibid. at 39-40.

11 Ibid. at 145.

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the Lords, or perhaps, in strict accuracy, independent1y of the King and the Peers,the body in which sovereign power is vested. 12

The e1ectors ofParliament, then, were politically sovereign. Their existence, however,

did not affect the abi1ity of the 1egally sovereign Parliament to act.

Dicey, in distinguishing between p01itica1 and 1ega1 sovereignty, criticized John

Austin's description of sovereignty in the United Kingdom. First, Dicey comp1ained that

Austin confused the concepts ofp01itica1 and 1ega1 sovereignty. Austin characterized

sovereign power as existing in the Crown, Bouse of Lords, and the Commons in the form

of the e1ectorate, rather than the Bouse of Commons itse1f. This view, Dicey asserted,

was inconsistent with the genera1 understanding of 1awyers about parliamentary

sovereignty, as the e1ectorate was c1early a separate concept from the Bouse of Commons

as an institution. It further conflicted with Austin's own conception of the sovereign as

the supreme 1aw-making authority.13 In Eng1and, Dicey c1arified, such supreme 1aw-

making authority resided in the body ofPar1iament distinct from the e1ectorate itse1f.

Contrary to Austin's c1aim, Parliament was not "in any 1ega1 sense a 'trustee' for the

e1ectors," meaning that the e1ectorate had no share in the sovereign power to make 1aw. 14

Austin had confused or overlooked this critica1 separation of1ega1 and politica1

sovereignty, Dicey be1ieved. As an illustration of the distinction, Dicey referred to the

Septennial Act of 1715, which extended the life ofPar1iament from three to seven years. 15

12 Ibid. at 73.

13 Ibid. at 71-73; Carol Harlow, "Power from the People? Representation and Constitutional Theory" inPatrick McAuslan and John F. McEldowney, eds., Law, Legitimacy, and the Constitution (London: Sweetand Maxwell, 1985) 62 at 71-72.

14 Dicey, ibid. at 73-75.

15 Ibid. at 44; Septennial Act, 1715 (D.K.), 1 Geo. l, c. 38; "[T]here is no single statute which is moresignificant either as to the theory or as to the practical working of the constitution than the Septennial Act."

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The importance of this statute, as Dicey' s explanation makes c1ear, is that it demonstrates

that Parliament's legislative authority exists wholly independently ofits legitimacy as a

representative of the politically sovereign electorate. The parliamentary members in

1716 were e1ected under the Triennial Act of 1694, which limited the duration of

Parliament to three years. 16 With the passing of the Septennial Act, however, Parliament

extended itselfbeyond the period oftime for which the e1ectorate had chosen it. In doing

so, Parliament ceased to be representative of the electorate, as it then owed its existence

to its own exercise of legal power, rather than to the choice of its electors. Such an

exercise ofparliamentary power infringed English principles regarding a representative

legislature, but remained legally valid. 17 The Septennial Act thus demonstrated that "in a

1egal point of view Parliament is neither the agent ofthe e1ectors nor in any sense a

trustee for its constituents.,,18

Dicey's distinction between legal and political sovereignty had two important

implications. First, it suggested that the interests between the legal and political

sovereigns did not necessarily coincide. While the legal and political sovereigns were

"intimately connected together," Dicey made it c1ear that they were nonetheless

separate. 19 The legislature was not a "trustee" for the electors. Parliament, as the legal

sovereign, could act as it wished, subject only to the power of electors to express their

will through elections or altering the constitution in sorne way. Second, Dicey

16 Triennial Act, 1694 (D.K.), 6 & 7 Will. & Mar., c. 2.

17 Ibid. at 44-48.

18 Ibid. at 47-48; Dicey further wrote that "the Septennial Act is at once the result and the standing proof ofsuch Parliamentary sovereignty." Ibid. at 48.

19 Ibid. at 74-76.

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recognized democratic foundations for the British constitution and the morallegitimacy

behind parliamentary action.20 Although Parliament was in no way a trustee for the

electorate, it nevertheless could be expected to act upon the will of the political

sovereign. Despite the legal omnipotence of Parliament, the will of the electorate existed

independently as a potential standard by which to assess legislative acts. This democratic

element thus complimented the notion that the interests of the electorate and Parliament

were potentially different. The will of the electorate acted as a moral obligation and

check upon the otherwise all-powerfullegislature, although it lacked any legal effect.21

The distinction between political and legal sovereignty, while recognizing the

legal primacy ofparliamentary acts over electoral will, thus offers a converse position

favoring the constitution's democratic foundations. Although Parliament remains legally

supreme, it derives its morallegitimacy from democratic principles.22 It was precisely

for this reason that the Septennial Act was distasteful, despite its legality; it offended the

notion that Parliament was to be chosen by and representative of the politically sovereign

electorate. The electoral accountability of Parliament, while not legally mandated,

nevertheless remains a central principle of the modem British constitution. Parliament

should reflect the will of the electorate, even ifnot obligated to do so in law. As Dicey

explained:

For, as things now stand, the will of the electorate, and certainly ofthe electoratein combination with the Lords and the Crown, is sure ultimately to prevail on allsubjects to be determined by the British govemment. The matter may indeed becarried a little further, and we may assert that the arrangements of the constitution

20 Ibid. at75-76.

21 Harlow, supra note 13 at 73-74.

22 Lord IIVine of Lairg, "Sovereignty in Comparative Perspective: Constitutionalism in Britain andAmerica" (2001) 76 N.YU. L. Rev. 1 at 13-14 [hereinafter "Comparative Perspective"].

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are now such as to ensure that the will of the electors shal1 by regular andconstitutional means always in the end assert itself as the predominant influencein the country. But this is a political, not a legal fact. 23

Parliament, though not a trustee of the electorate in law, stil1 remains political1y and

moral1Y accountable to it.

In regard to the political sovereign itself, Dicey's focus upon the e1ectorate

reflected the democratic norms that had become increasingly important in British

politicallife. Although the political sovereign, in theory, remained composed of the

Crown, the Lords, and the electorate, the electorate was by far the pre-eminent force.

Dicey himselfwas building upon both past British political theory, which maintained a

balance of social forces, and practice, through which the electorate had increased in

political influence. Dicey made it c1ear that "in a political sense the electors are the most

important part of, we may even say are actual1y, the sovereign power, since their wil1 is

under the present constitution sure to obtain ultimate obedience. . .. The electors are a

part of and the predominant part of the political1y sovereign power.,,24 Throughout the

nineteenth century, not only had the House of Commons come to dominate the

constitutional arrangement and eliminated the practical working of a balanced

constitution, but government reforms had also dramatical1y expanded the suffrage.25 By

Dicey's time at the tum of the century, ministerial responsibility and effective ministerial

exercise of prerogative powers had also seriously eroded the balanced Parliament of

Blackstone's conception. Parliament had come to defer to the government, which it


24 Ibid. at 75-76.

25 Lord Irvine, "Comparative Perspective," supra note 22 at 12.

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supported in power, in many ways only acting as an approving body for government

policyand as a forum for the opposition's dissent. Ministers' exercise of the formidable

executive powers in the name of the Crown further centralized authority in the hands of

the government. The constitution, as Dicey knew it in practice, was not so carefully

balanced as Blackstone, rightly or wrongly, had imagined it to be.26 Thus, while

Blackstone could trust Parliament with supreme legislative power due to built-in political

tensions, Dicey could not. He instead articulated his distinction between political and

legal sovereignty - and emphasized the ascendancy of the electorate within the political

sovereign - thereby giving democratic legitimacy to the omnipotent Parliament. He thus

simultaneously recognized the legal supremacy of Parliament, while at the same time

ascribing ultimate influence and control over it to the politically sovereign electorate.

This connection between the otherwise distinct sovereign powers justified Parliament's

limitless legislative authority. The electorate's supreme political authority translated into

supreme legal authority exercised by its chosen representatives in Parliament: to trust

Parliament was to trust the people. In comparison, Blackstone did not rely solely upon

electoral accountability in controlling parliamentary supremacy, though he recognized its

raIe. Blackstone complimented the British constitution on its mixed nature of

democracy, aristocracy, and monarchy, while briefly pointing to elections as a political

26 In contemporary times, with the virtual extinction of personal Crown discretion and the completesubordination of the House of Lords to the Commons, the idea of the balanced constitution can no longerbe said to hold at aH. Blackstone, supra note 6 at 51, wrote of such a possible situation that "if ever itshould happen that the independence of any one of the three [Crown, Lords, and Commons] should be lost,or that it should become subservient to the views of either of the other two, there would soon be an end ofour constitution."; Also, as 1. A. G. Griffith, "The Common Law and the Political Constitution" (2001) 117L.Q. Rev. 42 at 52, writes, "[i]t is not and never has been the function ofParliament to govem. Theprincipal role of the Govemment majority in the House ofCommons is to sustain ministers in office."; EricBarendt, "Separation ofPowers and Constitutional Govemment" [1995] Pub. L. 599 at 614.

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check on Parliament.27 By Dicey's time, the ascendancy of the Commons within both the

legal and political sovereigns meant that such balance no longer existed. Instead,

democratic accountability to the electorate circumscribed the exercise of otherwise

unlimited parliamentary power and normatively justified it.28 By according such

accountability a place in formaI constitutional theory, Dicey suggested that the electorate

was morally, even ifnot legally, supreme to Parliament.

While Blackstone and Dicey differed on the justifications for parliamentary

supremacy, they both relied upon political as opposed to legal checks upon legislative

action. Blackstone's balanced constitution, as already explained, accomplished this

through powerful institutional checks that were absent from Dicey's modem

constitutional model. Blackstone could support the legislative supremacy ofParliament

because its mixed and balanced nature created internaI political tensions that prevented it

from acting tyrannically.29 Related to his idea that Parliament is accountable to the

electorate, however, Dicey recognized another distinction between external and internaI

checks upon the exercise of legislative, as well as executive, power. These were the only

actuallimitations upon Parliament that Dicey admitted, and he characterized them in

terms ofpolitical, not legal, efficacy.3o The strictly political nature of such checks was a

27 These different forms of governrnent were reflected, respectively, in the Commons, Lords, and theCrown. Blackstone, ibid. at 48-51, 155-56; Blackstone further considered the statutory tirne-lirnits for thelife of a Parliament as necessary to make it responsive to the common good through regular elections. Ibid.at 169-70.

28 Paul Craig, "Public Law, Political Theory and Legal Theory" [2000] Pub. L. 211 at 220-22 [hereinafter"Public Law"].

29 Ibid. at218-20.

30 de Smith and Brazier, supra note 4 at 98-99, identify six political factors that lirnit Parliament. These are1) international obligations, 2) constitutional conventions, 3) practicability of enforcing the law, 4) fear ofelectoral backlash, 5) the influence of interest groups, and 6) the Governrnent's lack of an overall majorityin the Rouse of Commons.

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corollary to the concept of omnipotent sovereignty in Parliament. This legal sovereignty

was unitary and illimitable; as such, no other government institution could restrict or

share its exercise of authority. Externallimits, as the term implies, were independent of

Parliament itself. These externallimits, which applied to any sovereign, "consists in the

possibility or certainty that his subjects, or a large number ofthem, will disobey or resist

his laws.,,31 Such instances of disobedience, or even rebellion, could result from the

sovereign's arbitrary or extreme changes in popularly entrenched ideals or values. As

examples of such untouchable values as they existed in his own time, Dicey suggested

any attempt to impose an Episcopal Church in Scotland, abolish the monarchy, or

disenfranchise the popular electorate. These external checks and the values that

supported them depended upon the "present state of the world.,,32 Certain parliamentary

acts that the populace may once have found acceptable might no longer be, just as

previously intolerable actions might become appropriate or welcome. Externallimits

could therefore change over time, resulting in the possibility that constitutional principles

could adapt to changing social needs and attitudes.33 InternaI checks, in contrast, related

solely to the normative values held by a law-maker himself. Regardless of the legal

power to do as he willed, Dicey believed that the lawmaker would not act against certain

fundamental ideals central to his own belief-system. Dicey wrote, for example, that a

Muslim ruler would never think to outlaw the practice ofIslam, just as Louis the

Fourteenth would never have imagined to carry out a Protestant Reformation.34 In the

31 Dicey, supra note 3 at 76-77.

32 Ibid. at 79.

33 Ibid. at 79.

34 Ibid. at 80.

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United Kingdom, these internaI checks have traditionally come from such deep-rooted

values as respect for representative govemment, democratic accountability, and the mIe

oflaw. Democratie ideals, while greatly esteemed by the populace at large and serving

as an external check, also restrict in considerable degree the actions ofParliament due to

their internaI influence upon its members.

B. Foundational Principles as a Restraint upon Parliament

Blackstone's endorsement ofparliamentary supremacy, however, conflicted with

his other central tenet of the supremacy naturallaw. He described naturallaw as

originating from God, immutable, and directing the actions ofmen. Through reason,

mankind could discover these natural principles and apply them to various and particular

worldly circumstances.35 Naturallaw, as understood by man, was superior to any

contrary human law, which was consequently not binding. Blackstone wrote that "no

human laws are of any validity, if contrary to [naturallaw]; and such of them as are valid

derive all their force, and all their authority, mediately or immediately, from this

original.,,36 Blackstone continued, "if any human law should allow or enjoin us to

commit [a crime against naturallaw], we are bound to transgress that human law, or else

we must offend both the natural and the divine. ,,37 Blackstone is unc1ear at first how he

intended to resolve this blatant contradiction between the supremacy ofParliament and

naturallaw. Daniel Boorstin has suggested that Blackstone himself saw no such

35 Blackstone, supra note 6 at 38-39,41-42.

36 Ibid. at 41[a]. Due to a printing error, this edition designates two pages as 41.

37 Ibid. at 42.

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contradiction, as he found naturallaw to be at the same time prescriptive and descriptive.

Naturallaw dictated principles to which man-made law must conforrn, while those laws

themse1ves, particularly common law, were evidence ofnaturallaw. Through reason,

mankind discovered, but did not create, pre-existing first principles oflaw. Blackstone

thus intimately connected the mysterious and divine with the rational and human. He

accordingly found English law to be both inforrned by and representative ofnaturallaw,

thereby complimenting its excellence and limiting criticism against it. 38

Blackstone, in characterizing English law as representative of discovered first

principles, seemed unable to imagine Parliarnent realistically legislating in a manner

blatantly contrary to naturallaw. Blackstone nevertheless implied a solution to such a

problem. Naturallaw, while binding upon Parliarnent, had only moral and not legal

effect. 39 An act ofParliament that offended against naturallaw principles therefore did

not necessarily create an obligation of obedience upon the subject. The subject might

even have a moral dutY to disobey the law in question, which would remain legally in

force. Such a position advanced an early positivist version ofthe law, in which the law

itself and its moral content could remain separate.40 Yet such a moral distinction between

naturallaw and acts ofParliarnent threatens Blackstone's unity between them.

Parliarnent would remain the supreme legal power, even ifnotoriously acting contrary to

38 Daniel 1. Boorstin, The Mysterious Science ofthe Law: An Essay on Blackstone 's Commentaries(Chicago: University of Chicago Press, 1941) at 23-25,30,49-56.

391. W. Gough, Fundamental Law in English Constitutional History (Oxford: Clarendon Press, 1961) at190.

40 Such a tension also exists in the writings of sorne positivist thinkers who assert that individuals mayjustifiably disobey immorallaws, although such laws are not invalid under the rubric of lex iniusta non estlex; Lord Irvine, "Comparative Perspective," supra note 22 at 10-11; James R. Stoner, Common Law andLiberal Theory: Coke, Hobbes, and the Origins ofAmerican Constitutionalism (Lawrence, Kansas:University Press of Kansas, 1992) at 167-68.

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the ruorally supreme dictates ofnaturallaw. Blackstone essentially admitted this

possibility by writing that "ifthe parliament will positively enact a thing to be done

which is unreasonable, l know ofno power in the ordinary forms of the constitution, that

is vested with authority to control it.,,41 Ajudicial power to reject such an unreasonable

law would "set the judicial power above that of the legislative, which would be

subversive of aIl government.,,42 The only option open to the courts was to interpret the

statute as far as possible with higher principles of law, but to give effect to Parliament's

c1ear intent.43 Blackstone's constitution therefore relied upon the balanced constitution,

as weIl as the extemal political checks of the general electorate and parliamentarians'

internaI guidance by reason, in preventing Parliament's legislating against naturallaw.44

In any case, restraint was to be found not in the courts but through the political process

only. Blackstone thus fundamentally intertwined the aspirational principles ofnatural

law with positive acts ofParliament, thereby giving precedence to the legislative

process.45

Dicey's distinction between the political and legal sovereigns is comparable to

Blackstone's interrelationship between naturallaw and the omnipotent Parliament. Both

present very similar conceptions of the moral obligation of Parliament to higher moral

41 Blackstone, supra note 6 at 91.

42 Ibid. at 91.

43 Ibid. at 83-84, 87, 89; Gough, supra note 39 at 189.

44 Although Blackstone makes it fairly plain that judges cannot substitute their own reason for that of thelegislators, there arises the broader question of to what extent a judge may continue to ignore his personalmoral responsibility to refuse to obey an act of Parliament against naturallaw. This jurisprudentialproblem, however, is well beyond the scope of the paper.

45 David Lieberman, The Province ofLegislation Determined: Legal theory in eighteenth-century Britain(Cambridge: Cambridge University Press, 1989) at 40,49

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authority and the problems that such a dichotomy presents. As just discussed, Blackstone

constructed a theory that placed naturallaw as morally superior to par1iamentary acts.

Still, he continued to recognize the legal ability ofPar1iament to contravene first

principles. Bath naturallaw and Parliament remained supreme in their respective spheres

- naturallaw in the moral one, and Parliament in the legal one. Dicey, by characterizing

sovereignty as bath legal and political, presented the same relationship between

Par1iament and higher legal principles as did Blackstone. Dicey certainly did not

consider naturallaw as constituting a reference point for the moral validity of law.

Instead, Dicey made Par1iament accountable to the politically sovereign e1ectorate. The

electorate was the ultimate source of legitimacy for Parliament; Par1iarnent was chosen

by the electorate and morally obligated to act on its behalf. Acts of the supreme

Par1iament, then, were theoretically expressions of popular will. Dicey wrote, "the

difference between the will of the sovereign and the will of the nation was terrninated by

the foundation of a system ofreal representative governrnent. ... To prevent the

divergence between the wishes ofthe sovereign and the wishes of subjects is in short the

effect, and the only certain effect, ofbonâ fide [sic.] representative governrnent.,,46 Thus

external and intemallimitations would become "absolutely coincident" to ensure

Par1iament's responsiveness to the people.47 Blackstone similar1y considered

parliamentary acts as expressions of naturallaw principles, to which legislation was

morally bound to adhere.

46 Dicey, supra note 3 at 83 .

47 Ibid. at 84.

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Higher principles, discoverable through reason and experience, were generally

discernable through a determination ofwhat acts served the public welfare. Blackstone

and Dicey shared two basic ideas in this regard, both compatible with one another. First,

they asserted a higher authority to which Parliament was morally, but not legally,

answerable. For Blackstone this was naturallaw, while for Dicey it was the political

sovereign in the form of the electorate. Second, both recognized the need for

parliamentary acts to serve the public. In Blackstone's theory, this requirement meant

that Parliament sought to implement principles ofnaturallaw. While Dicey did not

explicitly comment on the concept ofpublic good, it is an easy presumption that he

would have considered acts for the public welfare to reflect the desires of the electorate.

Such a conclusion is a natural inference from his insistence that Parliament act on behalf

of the political sovereign. In this way, Blackstone and Dicey were able to equate

beneficent parliarnentary acts with the requirements of either naturallaw or

democratically accountable govemment. Both theories offered a means for legitimizing

acts ofParliament, while suggesting moral limitations upon the exercise of otherwise

illimitable legal authority.48 These moral limitations derived from fundamental principles

of naturallaw or democratic govemment that existed anterior and superior to legislative

authority.

Blackstone and Dicey, however, failed to adequately address the problems

resulting from the contradiction ofpairing parliamentary sovereignty with another,

morally supreme source of legallegitimacy. Faced with giving precedence to a higher,

moral authority or legislative will, both chose the latter. In the event of a conflict

48 Lord Irvine, "Comparative Perspective," supra note 22 at 13-15.

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between naturallaw or popular will against parliamentary act, Blackstone and Dicey

admitted that Parliament prevailed. Despite recognizing a more abstract but higher

authority for law, both writers ultimately embraced a preference for positivism in the

fonn of legislative act. Acts ofParliament, while ostensibly reflecting naturallaw or

democratic will, received priority because they were certain and were matters of fact,

rather than abstract principles requiring discovery through the courtS.49 Taking this

positivist approach, both writers rejected the authority of the judiciary to declare

parliamentary acts offending higher principles to be invalid.50 Still, the deference to

parliamentary supremacy in the face of strong support for either naturallaw or the

political sovereignty of the electorate presents a problem ofjustification. Although

Blackstone and Dicey both suggested, and even admitted, that Parliament could legally

act against the interests ofthe public good, they did so only reluctantly. Instead,

Blackstone and Dicey attempted to escape the problem by equating parliamentary acts, at

least in ordinary cases, to expressions ofnaturallaw or popular wilL There remains,

49 Jeffrey Jowell, "Of Vires and Vacuums: The Constitutional Context of Judicial Review" [1999] Pub. L.448 at 455-56 [hereinafter "Vires and Vacuums"], notes the abstract nature ofhigher foundationalprinciples, while recognizing their graduaI realization in a way that seems consistent with the common-lawand political processes described by Blackstone and Dicey: "[C]onstitutional principles are not mIes. Theylack that element of specificity. They are prescriptive in character but indeterminate in content. Theircontent crystallizes over time when concrete problems throw up the need to settle competing daims ofpower and authority and rights. Judging these daims requires a strong empirical sense that allows anevaluation, within the bounds of democracy's inherent requirements, of changes in practice andexpectations. New principles emerge by a process of accretion reflecting a constitution's changingimperatives and shifting settlements. These are based upon altering notions of the proper scope ofgovemmental power as well as upon other fundamental social values which become endorsed over time.[footnotes omitted]"

50 T. R. S. Allan, "The Politics of the British Constitution: a response to Professor Ewing's paper," [2000]Pub. L. 374 at 375 [hereinafter "Response"], writes that "[t]he doctrine of absolute parliamentarysovereignty has nourished, and been sustained by, a general embrace of legal positivism: legal rights andobligations being essentially matters offact[,] ... their merits and consequences for the common good werematters ofjudgment for politics." He further remarks, ibid. at 376, that "[t]he dominance oflegalpositivism and the uncritical acceptance ofunquaillified parliamentary sovereignty were remarkablefeatures of a jurisdiction based on the common law, which is inherently antithetical to both."

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however, an obvious tension between this connection of first principles and electoral will

with parliarnentary act. Blackstone and Dicey tried to get around this difficulty, however,

through their particular characterization of the political process; this process centered

upon the search for the public good.

Blackstone, as previously mentioned, believed that naturallaw found expression

in laws that served the public good. The common law, based upon experience and a

judicial reasoning process that sought to discover naturallaw, continued both to apply

tradition and to adapt to societal needs. 51 As a representative body, Parliament also

sought to do the public good through the legislative process. First principles were

capable of expression in very different forms, tailored to a society' s particular

circumstances, while sorne laws concemed matters indifferent to naturallaw and

involving only the regulation of societal relations.52 Even if the common law or

Parliament indeed erred in following fundamental principles ofnaturallaw, Blackstone

believed such error was unintentional due to man's faulty reason. It was Parliament's

manifest desire to contravene such principles that Blackstone found highly unlikely, even

though grudgingly recognizing that body's legal supremacy in such an event. In the

normal judicial and legislative process, however, he seemed to imagine a self-correcting

51 A comment by T. R. S. Allan, "The Rule of Law as the Rule of Reason: Consent and Constitutionalism"(1999) 115 L.Q. Rev. 221 at 239 [hereinafter "Consent and Constitutionalism"], illustrates the connectionbetween the common law and the public good in a manner that reflects the Blackstonian conception: "Thecommon law articulates the content of the common good, according to the society's shared values andtraditions. The judges are its authoritative exponents because their role is to express the collectiveunderstanding, by interpretation of the precedents, as a basis for the impartial determination of particulardisputes. The special strength of the common law, as a foundation for constitutional government, lies in itsinherent commitment to rationality and equality."

52 One example that Blackstone gave ofsuch an indifferent matter is the law ofbankruptcies. Blackstone,supra note 6 at41-42, 53-55.

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process premised upon a reasoned search for the public goOd.53 The balance of forces

within the constitution would facilitate this search by ensuring that no one estate would

dominate to the detriment of other societal interests.54

Dicey, in comparison, also seemed to envision that Parliament would act for the

public good. Rather than evidencing principles ofnaturallaw, however, the public good

would represent the will of the electorate. Parliament also might occasionally err in

serving the public interest, but its ultimate accountability to the electorate resulted in a

self-correcting democracy. Through this democratic process of accountability and self-

correction, Parliament would eventually right poorly made or unjust laws.55 Like

Blackstone, Dicey also imagined any parliamentary deviations from the public good to be

occasional and unintentional, with express actions contrary to the electoral will as highly

improbable. Dicey thereby erected a constitutional structure in which Parliament' s

legitimacy to act remains fundamentally linked with its pursuit of the public goOd.56 Sir

John Laws eloquently relates this premise in regard to the modem constitution:

53 Blackstone, ibid. at 47-48, wrote: "In general, all mankind will agree that government should be reposedin such persons in whom those qualities are most likely to be found, the perfection of which is among theattributes ofhim who is emphatically styled the Supreme Being; the three general requisites, 1mean, ofwisdom, of goodness, and of power: wisdom to discem the real interest of the community; goodness toendeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intentioninto action. These are the natural foundations of sovereignty, and these are the requisites that ought to befound in every well-constituted frame of govemment." Ibid. at 40-42, 46-48, 91.

54 Paul Craig, "Prerogative, Precedent, and Power" [hereinafter "Prerogative"] in Christopher Forsyth andIvan Hare, eds., The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour ofSirWilliam Wade QC (Oxford: Clarendon Press, 1998) 65 at 75.

55 Dicey, supra note 3 at 82-84; Craig, "Public Law," supra note 28 at 227; Lord Irvine, "ComparativePerspective," supra note 22 at 15-16.

56 To legislate in accordance with sorne conception of the public good could also be seen as a necessaryelement of the rule oflaw. The rule oflaw therefore encompasses the public good, and both interrelate torestrain Parliament morally. Allan, "Consent and Constitutionalism," supra note 51 at 237, 243. Thus,"Dicey's theory of the rule oflaw may best be understood as a model of govemance in accordance with adeterminate conception of the common good, whose concrete requirements in particular cases would be

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The government's constituency is the whole body of such citizens; and ademocratic government can have no remit but to act in what it perceives to betheir best interests. It may get it wrong, and let the people down. But it cannotknowingly do so, for that would be to act in bad faith; and no government canjustify its own bad faith by pointing to the fact that it was elected by the people.That would be to assert that the electorate endorsed in advance the government'sright deliberately to act against its interests, which is an impossible proposition.

Thus the free will ofevery citizen is a premise of aH the government's dealingswith the people, and so conditions its dutYto act in good faith towards them.57

Parliament was therefore moraHy obligated to act for the public good, which could be

realized either through naturallaw and the requirements ofrepresentative democracy,

depending upon either Blackstone's or Dicey's framework. For both Blackstone and

Dicey, however, the corrective process for laws not reflecting the public good was a

political one not subject to judicial evaluation. Despite their attempts to equate positive

act with fundamental principle, though, neither jurist could completely gloss over the gap

that existed between the two concepts. While Blackstone and Dicey were reluctant to

recognize it, their theories failed in the end to offer adequate protection against a real

threat ofParliament contravening foundational principles oflaw.

C. Judicial Review in Common-Law Thought

The subordination ofthe judiciary to Parliament was a logical consequence of the

doctrine ofparliamentary sovereignty. Blackstone, while discussing at length the

constitutional position of the legislature and the executive, offered no discussion of the

judiciary as a distinct government institution. While the Crown, Lords, and Commons

settled by judges in accordance with precedent, interpreted as a consistent body oflegal principle. [footnoteomitted]" Ibid. at 243.

57 Sir John Laws, "Law and Democracy" [1995] Pub. L. 72 at 83.

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checked and balanced each other, Blackstone's exclusive identification ofthe branches of

government as the legislative and executive suggested that the courts had no power of

review or institutional role in his constitutional mode!.58 Dicey similarly declared that the

courts could not question an act ofParliament as contrary to the public good: "[J]udges

know nothing about any will ofthe people except in so far as that will is expressed by an

Act of Parliament, and would never suffer the validity of a statute to be questioned on the

ground ofits having been passed or being kept alive in opposition to the wishes of the

electors.,,59 As to any suggestion in Blackstone that laws contrary to those ofnature were

void, Dicey allowed "a very qualified interpretation" which supported only an approach

to statutory interpretation.60 The courts therefore could do no more than interpret and

apply a statute, without questioning its validity. Dicey and Blackstone thus envisioned a

constitutional order based upon the sovereignty of Parliament, without any legal

limitations on its authority throughjudicial review. Notwithstanding the conclusions of

Dicey and Blackstone, however, there exist elements within the thought of each that

support a constitutional model restraining parliamentary authority through judicial

review. These elements have also historically existed within common-Iaw thought.

Judicial review can therefore rest upon the theoretical foundations of Blackstone and

Dicey, along with historieal precedent, in order to limit legislative authority within a

common-Iaw framework.

58 Blackstone, supra note 6 at 146-47.


60 Ibid. at 62-63.

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By speaking ofboth naturallaw and the sovereignty ofParliament in absolute

terms, Blackstone created an inevitable tension between the moral and the strictly legal.

In Blackstone's concept oflaw, acts ofParliament reasonably promulgated embody

naturallaw, which are themselves the sole source oflegal validity. By constructing such

a parallel between positive and naturallaw, Blackstone neatly avoided any real

discussion intended to resolve a direct conflict between the two. While he did state that

an act ofParliament remains supreme even ifmanifestly umeasonable, he seemed to

regard such a contingency as remote at best. He instead relied upon the balanced

constitution, political accountability to the electorate, and rationallegal process to

produce legislation promoting the public good and thereby representing naturallaw. By

even recognizing the slightest possibility of disjunction between natural and positive law,

however, Blackstone revealed the limitations ofhis characterization ofnaturallaw

principles as simultaneously prescriptive oflaw and represented in turn by English law.

To admit the possibility of a rupture required a c1ear choice between parliamentary

authority that is illimitable or legally restricted by foundational principles, whether they

be expressed through the unwritten common law, statutes, or written documents. Despite

his fundamental reliance upon naturallaw as the fountainhead oflegallegitimacy,

Blackstone's final deference to the will ofParliament places him on the side of

positivism. His position on naturallaw, however, cannot be undervalued based upon his

embrace ofparliamentary supremacy. The principles ofnaturallaw still serve as an

internaI check upon the actions of legislators, while externally limiting Parliament by

providing a moral standard for the subjects' obligation to obey. Blackstone's reliance

upon naturallaw also lays strong foundations for a theory ofjudicial review intended to

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enforce foundational principles as legallimitations upon the legislative power.

Blackstone's conclusion that parliamentary will prevails is not a necessary one, and

accordingly counter-ernphasis may be placed upon his naturallaw theory to allow judicial

review of primary legislation.

The idea that courts through judicial review might restrain Parliament based upon

first principles is not a novel inference from Blackstone's theory. Indeed, judicial review

had existed as a concept within English legal and political thought for sorne time before

Blackstone penned his Commentaries. Sir Edward Coke and American revolutionaries

most notably supported this alternative view of English constitutionalism, itself firmly

grounded in the unwritten cornrnon law. Although the doctrine ofparliamentary

supremacy remains orthodox in contemporary law, these aIder common-Iaw arguments

for judicial review of parliamentary acts still provide foundations for the ultra vires

doctrine, as well as a potentially broader power of review restraining parliamentary acts

themselves.61 Common-Iaw judicial review, prernised upon either a written or unwritten

constitution, thus offers a solid basis for significant constitutional reform in the United

Kingdom, while still maintaining direct continuity with British tradition. A brief

discussion ofjudicial review in English legal history demonstrates the emphasis that can

be put upon Blackstone's naturallaw theory in supporting arguments for a limited

Parliament.

The rnost famous statement ofjudicial review in English law is that made by Sir

61 For a good comparison of the two opposing visions of British constitutionalism as premised upon either alimited or omnipotent Parliament, see T. R. S. Allan, "Faimess, Equality, Rationality: ConstitutionalTheory and ludicial Review" [hereinafter "Constitutional Theory"] in Forsyth and Hare, supra note 54, 15at 15-18.

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Edward Coke in Dr. Bonham's Case, decided in 1610.62 Legal scholars and historians

have much debated the full significance and import ofthis case. For this discussion,

however, a brief examination of it is sufficient to illustrate the venerable roots ofjudicial

review doctrine in the common-Iaw tradition. In Bonham's Case, Thomas Bonham

brought an action for false imprisonment against the Royal College ofPhysicians for

having had him jailed for practicing medicine without a license. The Royal College,

founded under letters patent issued by Henry VIII and subsequently reaffirmed, claimed

authority under those instruments to require a license of all medical practitioners in

London. The college also possessed statutory authority to fine and imprison those

practicing without a license or improperly. Bonham, who was a doctor ofmedicine from

the University of Cambridge, claimed an exception under the same statutes that exempted

graduates from Oxford and Cambridge from the requirement of a license when practicing

outside ofLondon. When Bonham refused to pay the fine levied by the Royal College, it

ordered him arrested and thrown in jail. The resuiting lega1 contest thus centered upon

the scope of the statutes. The Royal College claimed authority in all instances to license

medical practitioners in London, notwithstanding their graduation from Oxford or

Cambridge. Bonham, however, asserted the statutes to imply the exception for Oxford

and Cambridge graduates practicing outside of London to apply to the capital city, as

well. The correct interpretation of the statute thus seemed to be the main issue in the

case. Coke, however, approached the case from an unexpected and significant angle,

based upon the Royal College's jurisdiction to imprison and its authorization to take a

share ofthe fines that it itse1flevied.

62 8 Co. Rep. 113b (1610) [hereinafter Bonham 's Case].

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The statutes authorized the Royal College to punish errant practitioners in two

instances. First, they allowed the Royal College to impose fines on those individuals

practicing medicine without a license. Second, they further allowed the Royal College to

impose fines upon or order imprisonment of those individuals improperly practicing

medicine. Coke, contrary to the position taken by the Royal College, drew a clear

distinction between these two grounds of punishment. The power to imprison for

improper practice ofmedicine did not, he concluded, extend to only unlicensed practice.

Instead, such improper behavior essentially referred to malpractice.63 The Royal College

made no such allegation against Bonham whom they accused only of not having a

license. This being the case, the Royal College lacked the jurisdiction under the statutes

to imprison Bonham under the circumstances. This reasoning was clearly one of

statutory interpretation only, as Coke was relying upon the language of the acts

themselves to discem their meaning. 64

Another of the reasons that Coke gave in denying the Royal College power to

imprison Bonham is perhaps one of the most controversial statements in the history of

Englishjurisprudence. Having already found that the text of the statutes themselves did

not give the Royal College authority to imprison one practicing without a license, Coke

went further into the substance ofthe legislation. The Royal College, the Chief Justice

explained, could not rightly judge causes from which it expected to take a share of the

63 Bonham 's Case, supra note 62 at 117a-117b.

64 In explaining this distinction between the clauses authorizing punishment, Coke set forth four canons ofstatutory construction: "the best (a) expositor of aIlletters patent, and Acts of Parliament, are the letterspatent and the Acts of Parliament themselves by construction, and conferring (b) aIl the parts of themtogether, (c) optima statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum statutum; and (d)injustum est nisi tota Zegum inspecta una aliqua ejus particuZa propositajudicare veZ respondere." Ibid. at117a-117b.

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fines that it imposed. To do so would violate one of the first principles oflaw, well

established in the common law itse1f, that a party could not be a judge in its own cause.

In cases where statute and first principles conflicted, the common law would "controul

Acts ofParliament, 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....,,65 By

that statement, which he supported through a recitation of sorne precedent, Coke seemed

to suggest two concepts that would afterwards have great influence on common-Iaw

theory.66 First, higher law principles existed that were superior to the will ofParliament.

Second, the judiciary wielded inherent authority to adjudge void parliamentary acts

offensive to such principles.

The full import of Coke' s opinion in Bonham 's Case is uncertain.67 While he

without doubt sees a place for naturallaw reasoning and considerable judicial discretion

in statutory interpretation, it is unc1ear how far his theory extends as a basis for judicial

review ofparliamentary acts. Coke may have been advocating that first principles be

65 Ibid. at 118a.

66 T. F. T. P1ucknett, Studies in English Legal History (London: Hambledon Press, 1983) c. 14 at 45,examines in sorne detail the precedents cited by Coke and fmds that they weakly support the propositionthat the common law restrains Parliament. He conc1udes that "the theory which [Coke] believed to be theirlegal foundation must be credited to his own political thought rather than to that of his mediaeva1predecessors upon the Common Bench."; See also Stoner, supra note 40 at 56-58; Any weaknesses inCoke's use of precedent, however, do not necessarily detract from his influence upon later legaldevelopments.

67 1. W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore: JohnsHopkins University Press, 2000) at 160, writes in regard to Coke's jurisprudence on the relationshipbetween statute and common law that "scholarship may help us narrow the range and his possiblemeanings, but his language is so rich and ambiguous, and his writing so unsystematic, that he cannot bepinned down exactly." For discussion of the varying interpretations of Bonham 's Case, see ibid. at 154-60,183-84; Jeffrey Goldsworthy, The Sovereignty ofParliament: History and Philosophy (Oxford: ClarendonPress, 1999) at 111-12.

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applied when interpreting ambiguous statutes, so as only to interpret them consistently

with the cornmon law.68 As far as a general power to dec1are legislation void, Coke's

own words are subject to this narrower understanding. An act ofParliament "against

common right or reason, or repugnant" might very well have referred only to manifestly

absurd or self-contradictory laws.69 In such an instance, the common law would control.

As Coke analyzed the statutes in Bonham 's Case in a very textual manner, this narrower

interpretation ofhis words is arguably consistent with the reasoning throughout the rest

of his opinion.70 It is also more compatible with later developments in English

jurisprudence stressing judicial formalism, but allowing courts to interpret the will of

Parliament as incorporating generally accepted legal values consistent with natural

justice.71 Ifone accepts such an interpretation, Coke might likely have applied an

unreasonable statute ifParliament's intent was stated expressly and c1early. Although

refusing to acknowledge a full power ofjudicial review, this narrow interpretation of

Bonham 's Case stillleaves considerable room for judicial interpretation ofparliamentary

acts lacking express language showing intent to violate first principles.72 It also remains

68 Craig, "Public Law," supra note 28 at 213; Lieberman, supra note 45 at 53.

69 S. E. Thome, Essays in English Legal History (London: Hambledon Press, 1985) at 274-75.

70 Ibid. at 276; Gough, supra note 39 at 34-35.

71 "There is a presumption that parliamentary intention is primarily determined by the text and that aprovision is prima facie to be given its literaI meaning, taking into account its context. . .. [T]he traditionalformulation of the mIes is that only when the ordinary meaning leads to something unjust, anomalous,contradictory or is ambiguous can the courts say that Parliament intended a secondary meaning to be givento the provision." 1. Beatson, "The Role ofStatute in the Development ofCommon Law Doctrine" (2001)117 L.Q. Rev. 247 at 261.

72 Thome, supra note 69 at 277-78; "Coke had c1aimed that the common law was fundamental, and it wasan inevitable corollary ofthis theorem that the bench, as the sole repository ofthis common law, shouldregard itself as thereby endowed with authority to treat statutes with the widest discretion." Plucknett,supra note 66 at 50; Coke also may have seen Parliament as a high court rather than just a legislature andheld a fundamentally different view of its acts than later jurists. Instead ofbeing the dominant source oflaw as presently understood, statutes more simply dec1ared or c1arified the common law, or sought to "fill

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consistent with Blackstone's own contradictory exposition ofboth naturallaw and

parliamentary supremacy. Judges were to consider all acts ofParliament as conforming

to naturallaw, although the legislature might, albeit doubtfully, expressly decide to

abrogate its principles.73 Furthermore, the common law sought to express these higher

principles and thus provided a strong benchmark for interpreting statutes.

Whatever Coke's actual meaning, however, many ofhis contemporaries and

followers nevertheless regarded Bonham 's Case as supporting a power ofjudicial review

capable of striking down acts ofParliament, as well as the Crown.74 Thus, even

assuming for sake of argument that Coke did not propose a full judicial power to

invalidate primary legislation in all cases, subsequent interpretations (or

misinterpretations) ofhis ideas nevertheless asserted the primacy ofhigher legal

principles over contrary acts ofParliament,75 These strains ofthought were significant

enough to present a viable and alternative path of constitutional development, although

English law ultimately embraced parliamentary supremacy. During the period from the

English Civil War to the Glorious Revolution, for instance, Coke's theory was advanced

in the gaps." This closer re1ationship between common 1aw and statute wou1d give judges far morediscretion in interpreting statutes, and might even allow thern to refuse to app1y acts of Par1iament incertain cases. It might a1so exp1ain Coke's own apparent inconsistency between supporting a fundamenta11aw and a supreme Parliament. Stoner, supra note 40 at 54,57-68,60-61; de Smith and Brazier, supra note4 at 73; Charles Howard McIlwain, The High Court ofParliament and ifs Supremacy (New York: ArnoPress, 1979) at 147-49,291-92. G01dsworthy, supra note 67 at 114-19.

73 Lieberman, supra note 45 at 54-55.

74 Stoner, supra note 40 at 60; Tubbs, supra note 67 at 158-59; As for Coke himse1f, he again suggested theprimacy of common law over statute in the later case of Rowles v. Mason, 2 Brownl. & Golds. 192 (1612)at 198, as well as apparently contradicting himselfin later statements by asserting the suprernacy ofParliarnent. Ibid. at 183-84; Go1dsworthy, supra note 67 at 125-26, 142.

75 "Coke's ambitious p01itica1 theory is found not to be his, but the work of a 1ater generation of judges,commentators, and 1awyers." Thome, supra note 69 at 278; Lieberman, supra note 45 at 53-54;Go1dsworthy, ibid. at 122-24, rernarks however that those who did interpret Bonham 's Case so broad1ywere few.

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in its broader interpretation by royalists, as weIl as radical LeveIlers, seeking to fetter the

authority ofParliarnent.76 As for the royalists, sorne supporters of the prerogative argued

that the Crown's powers were thernselves an integral part of the cornrnon law. As such,

Parliarnent was unable to trarnple upon the prerogative and the judiciary possessed the

power to maintain the balance between Crown and Parliament. Of course, the possibility

that the judiciary, as the guardian of the cornrnon law, rnight provide legal protection for

the Crown against the legislature was unacceptable to Parliarnentarians.77 As for the

LeveIlers, they rernained a radical and short-lived rnovernent that could not counter the

growing support for parliamentary power. The Glorious Revolution of 1688, as

representing the final triurnph ofParliament over the Crown, effectively ended any

atternpts by royalists or radicals to rely upon Coke' s doctrine of a fundamentallaw to

control the legislature.78

The Glorious Revolution permanently altered the balance between Parliarnent and

the Crown and established Parliament as the suprerne law-rnaking authority in the realm.

The result was that the doctrine of parliamentary sovereignty and legislative suprernacy

became legal orthodoxy. It was against such unlirnited legislative power that radical

Whigs of the early eighteenth century appealed to natural rights and popular sovereignty

as restraints upon govemrnent.79 Despite sorne protestations and reservations by

76 While the Levellers did not necessarily support the common law, nor equate it with naturallaw as Cokesuggested, they nevertheless appealed to the concept of a fundamentallaw to which Parliament was legallysubject. Plucknett, supra note 66 at 52·54, 69; McI1wain, supra note 72 at 85-92; Winterton, supra note 5 at594-96; 1. H. Baker, An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990) at 24445; See generally Gough, supra note 39 at 105-11; Goldsworthy, ibid. at 135-37.

77 Gough, ibid. at 145-47,158-59; Goldsworthy, ibid. at 106-09.

78 Gough, ibid. at 160-61, 173; de Smith and Brazier, supra note 4 at 70-75.

79 While radical Whigs did propose that there were limits upon Parliament, they generally held the right of

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oppositionist thinkers, however, the doctrine of parliamentary sovereignty gained

ascendancy, as it proved to be a more politically palatable check against royal power and

more accountable to the electorate than was the judiciary. The English constitution thus

continued to develop along the path ofparliamentary supremacy, rejecting any power of

the judiciary to dec1are void acts ofParliament offensive to first principles of law. The

fact that English law embraced the doctrine ofparliamentary sovereignty, however, could

not wholly ec1ipse the influence of competing ideas ofjudicial review and limited

legislative power. As T. F. T. Plucknett writes:

[Coke's] leaming and prestige had made enough disciples on the bench tofamiliarize lawyers with the outlines ofhis thought, and eventually thestrangeness wore off until it became evident that the new thought could be graftedon to the common law. The [Glorious] Revolution came only just in time toprevent the conversion, and to make it finally c1ear that there was no place for itin English constitutionallaw.8o

The broad interpretation ofCoke's theory ofjudicial review, despite the victory of the

concept ofparliamentary sovereignty, had gained enough momentum to integrate itself

into common-Iaw constitutional thought - enough so as to survive into contemporary

times.

In the eighteenth century, the doctrine ofjudicial review manifested itself most

prominently in two places. First, Blackstone continued to support the concept ofnatural

law morally binding upon Parliament and providing a basis for judicial interpretation of a

statute. He went so far as to echo Coke in Bonham 's Case, stating that "acts of

resistance or political opposition to reside in the people, rather than in any power of judicial review.Goldsworthy, supra note 67 at 173-76; Marie P. McMahon, The Radical Whigs, John Trenchard andThomas Gordon: Libertarian Loyalists to the New House ofHanover (Lanham, Md.: University Press ofAmerica, 1990) at 38-39.

80 Plucknett, supra note 66 at 69.

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parliament that are impossible to be performed are ofno validity; and ifthere arise out of

them collaterally any absurd consequences, manifestly contradictory to common reason,

they are, with regard to those collateral consequences, void.,,81 As previously mentioned,

however, Blackstone was prepared to yield to the express will ofParliament in such

circumstances, and made this reservation clear.82 Blackstone thus expressed a position

compatible with a narrower interpretation ofCoke's theory in Bonham 's Case. 83 Despite

coming down on the side ofparliamentary sovereignty, Blackstone's theory nevertheless

perpetuated the continuing tension between a supreme legislature and the idea of

fundamental principles limiting its power. The theoretical foundations for a broad

judicial review theory thus continued to exist in Blackstone's work, although he himself

placed final emphasis upon the supremacy ofParliament.

Although the doctrine of parliamentary supremacy established itself as orthodoxy

in eighteenth-century Britain, the tension evident in Blackstone resolved itselfquite

differently in the American colonies, where an alternative theory of limited govemment

prevailed. As made clear in much colonial rhetoric in the years before the Declaration of

Independence, Americans considered themselves to be British subjects propounding

established constitutional doctrines from which Parliament was departing. American

revolutionary thought, then, represented a second crossroads in common-Iaw

constitutional development at which the colonies and Great Britain parted.84 While

81 Blackstone, supra note 6 at 90-91.

82 Ibid. at 91.

83 Stoner, supra note 40 at 173-74; McIlwain, supra note 72 at 309.

84 The first crossroads was the strugg1e between the Crown and Par1iament, cu1iminating in theconstitutional sett1ement of 1688.

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England had already chosen the path ofparliamentary supremacy, the American colonies

decided upon the other course seeking to subject the legislature to binding foundational

principles ofhigher law. American revolutionary ideas are therefore an important part of

common-Iaw constitutional thought and remain relevant to contemporary constitutional

debates in the United Kingdom regarding an alternative constitutional arrangement. 85

Accustomed to home mIe and resenting parliarnentary interference in domestic

matters, as well as informed by Cokian and Blackstonian ideas oflimited and balanced

govemment, American colonists championed common-Iaw constitutional principles as

restraining Parliament. 86 The situation in the colonies during the mid 1700s revisited

constitutional issues debated in England throughout most ofthe seventeenth century. As

Plucknett writes:

The sovereignty ofParliament was by no means so obvious an implication of the[Glorious] Revolution to people who had not lived in London during the criticalyears from 1685 to 1688. It is a cardinal fact that to the eighteenth-centuryAmerican the doctrine of a fundamentallaw was farniliar, and regarded as quiteconsistent with the common law scheme ofthings.87

To Americans, Parliarnent required restraint as much as did the Crown. The colonists

85 For a series of essays that illustrates just how fundamentally interrelated British and colonial Americanconstitutional and political ideas were, see generally l G. A. Pocock, ed., Three British Revolutions: 1641,1688, 1776 (Princeton, N.l: Princeton University Press, 1980); It is also interesting to note that there wassorne sympathy for colonial grievances in Great Britain. Of course, one must distinguish between Britisharguments in favor offundamental principles offering moral limitations upon Parliament's authority in thecolonies, as opposed to those Americans arguing for reallegal restraints. G. H. Guttridge, EnglishWhiggism and the American Revolution (Berkeley, Calif.: University ofCalifomia Press, 1963) at 63,8688; Goldsworthy, supra note 67 at 194-96; Edward S. Corwin, "The 'Higher Law' Background ofAmerican Constitutional Law" (1928) 42 Harv. L. Rev. 149 at 404; Gough, supra note 39 at 193-95.

86 The philosophical influences upon the advocates of independence were varied, and included not onlycommon-law thought but such great political thinkers and naturallaw theorists as Locke, Puffendorf, andMontesqiueu among others. Bernard Bailyn, The Ideological Origins ofthe American Revolution, enl. ed.(Cambridge, Mass.: Belknap Press of Harvard University Press, 1992) at 27-28; Gordon S. Wood, TheCreation ofthe American Republic, 1776-1787 (Chapel Hill, N. C.: University of North Carolina Press forthe Omohundro Institute of Early American History and Culture at Williamsburg, Virginia, 1998) at 14-17.

87 Plucknett, supra note 66 at 69-70; See also Gough, supra note 39 at 55-56.

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found this restraint in the ancient common law, which protected the traditionally held

rights ofEnglishmen from arbitrary or unchecked government authority.88

Although the causes behind the American Revolution are complex, those

colonists opposing British power generally had three main concerns relevant to the debate

over limited government. First, the common law guaranteed liberty against arbitrary and

discretionary encroachment by government. Second, the common law dictated a

constitutional order ofbalanced government, which was upset by the rise of

parliamentary supremacy and ministerial authority. Finally, colonists further asserted

that the law also protected their tradition of internaI self-government from interference by

Parliament. These grievances were more than political differences; dissident colonists

insisted that they were fundamental principles of the English common law and, besides

restricting the Crown, restrained the authority of Parliament in America.89 American

revolutionary thought was thus firmly rooted in the English common law, but represented

a different and competing development ofit than had occurred in Great Britain.9o In the

American colonies, Coke's concept ofjudicial review had grown in prominence and

many Americans interpreted his decision in Bonham 's Case as supporting the judicial

invalidation oflegislative acts contrary to first principles.91 The ideas of Whig writers

88 Bai1yn, supra note 86 at 30-31.

89 See ibid. at 47, 70, 76-77, 124-25,202-203; Wood, supra note 86 at 200-201,352; Corwin, supra note 85at 401; Colonial arguments for home-mIe, bound only together by Parliament's common imperial policiesand allegiance to the Crown, arguab1y represent the first serious articulations of the 1ater imperial systemfounded upon self-goveming dominions. Stoner, supra note 40 at 185-86; McIlwain, supra note 72 at 35860,366-67; Go1dsworthy, supra note 67 at 207-08.

90 Wood, ibid. at 10, writes that the Americans "revolted not against the English constitution but on behalfof it"; Ibid. at 44-45; Lord Irvine, "Comparative Perspective," supra note 22 at 5.

91 Gough, supra note 39 at 32; McIlwain, supra note 72 at 309-10; Corwin, supra note 85 at 394-95;Goldsworthy, supra note 67 at 206.

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also fundamentally shaped American views of British constitutional theory.92

Blackstone's Commentaries, as the preeminent legal treatise of the day, likely further

educated American lawyers as to the concept of first principles restraining Parliament,

regardless ofhis actual support ofparliamentary sovereignty.93 The apparent

contradictions in his work and his own endorsement of a naturallaw theory, combined

with the colonists' acceptance of the ideas of Coke and Whig writers, invited an

alternative interpretation of the common law that rejected parliamentary supremacy in

favor of a constitution premised upon first principles.94

D. The Ultra Vires Doctrine as Common-Law Judicial Review

Notwithstanding the doctrine ofparliamentary sovereignty, a limited form of

judicial review exists in contemporary constitutional practice in the United Kingdom.

92 Bailyn, supra note 86 at 30-31,34-35,43; Suzanna Sherry, "The Founders' Unwritten Constitution"(1987) 54 U. Chi. L. Rev. 1127 at 1128-29; See also Helen K. Michael, "The Role ofNatural Law in EarlyAmerican Constitutionalism: Did the Founders Contemplate Judicial Enforcement of 'Unwritten'Individual Rights?" (1991) 69 N. Car. L. Rev. 421 at 425-27,447-48, and Leslie Friedman Goldstein,"Popular Sovereignty, the Origins of Judicia1 Review, and the Revival ofUnwritten Law"(1986) 48 J. ofPolitics 51 at 57, 62, who recognizes the influential role of Coke in American revolutionary thought, whileat the same time noting a counter-movement favoring expansive legislative discretion as the bestexpression ofpopular will. This latter idea might arguably be similar to Dicey's later theory ofparliamentary supremacy justified on democratic grounds, rather than on Blackstone's mixed constitutionand naturallaw theories; Gough, ibid. at 192; Corwin, ibid. at 4.

93 Stoner, ibid. at 162-63; David A. Lockmiller, Sir William Blackstone (Chapel Hill, N.C.: University ofNorth Carolina Press, 1938) at 169-70. It should be noted, however, that Blackstone was an opponent ofAmerican constitutional positions and clearly supported Parliament's right to legislate for the colonies as itpleased. His naturallaw theories in his widely read Commentaries were neverthe1ess subject to alternativeinterpretations. Ibid. at 172-74.

94 Albert W. Alschuler, "Rediscovering Blackstone" (1996) 145 U. Pa. L. Rev. 1 at 5-6,9-14; Lieberman,supra note 45 at 51-52; See also Corwin, supra note 85 at 405,407-08, who credits Blackstone for alsospreading the concept oflegislative supremacy throughout the colonies; Still, as Ian Loveland, "Public law,political theory and legal theory - a response to Professor Craig's paper" [2000] Pub. L. 205 at 205, writes,"Blackstone's influence on the architects of the American revolution is well known, and it always struckme as anomalous that they would arrive at a political destination which granted legal protection from barelegislative majorities to basic moral values ifthat view had no root in Blackstone's own work."

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This method ofreview is limited in scope, however, as it does not allow courts to

invalidate primary legislation. Instead, it only allows them to review executive action to

ensure its legality under act ofParliament and to strike down that which is ultra vires.95

This ultra vires power ofreview has allowed the judiciary increasingly to control the

executive branch by keeping it within its statutorily granted limits of decision-making.96

It therefore controls Parliament indirectly by interpreting enabling legislation that grants

decision-making authority to the executive in a way compatible with fundamental

principles. The ultra vires doctrine in two ways simultaneously supports orthodox

constitutional theory, while containing elements conducive to deve10ping it further as a

means to restrain Parliament. First, the ultra vires doctrine, formally at least, continues to

emphasize parliamentary supremacy over fundamental principles, while reflecting

Dicey's democratic norms and a narrower conception ofCoke's and Blackstone's idea of

judicial review. Second, the doctrine itself is wholly-judge made, suggesting sorne

degree ofinherent, common-Iaw power ofreview existing independently from

parliamentary control. Such a common-Iaw power is subject to broader judicial

development. The ultra vires doctrine thus illustrates the compatibility of the concept of

judicial review with the common law, while containing, like Dicey's and Blackstone's

theories, potential for far-reaching development placing restrictions upon Parliament.

The ultra vires doctrine has over the years become a fundamental part of British

constitutional practice. Courts have, by utilizing this doctrine, exercised significant

95 "In essence, the doctrine of ultra vires permits the courts to strike down decisions made by bodiesexercising public functions which they have no power to make." Stanley de Smith, et al., Principles ofJudicial Review (London: Sweet and Maxwell, 1999) at 95.

96 While there is a conceptual difference between secondary legislation which makes mIes andadministrative adjudication which sertIes particular daims, this discussion will refer to them both generallyin the context ofjudicial review. de Smith and Brazier, supra note 4 at 337-38.

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control over executive acts and administrative discretion.97 The purpose behind this

brand ofjudicial review is rather straight forward - courts review executive actions to

ensure that they remain within their statutory authorization. Any acts judged by the

courts to go beyond such grant of power are consequently void as ultra vires the agency's

or minister's legal powers.98 Therefore, as Jeffrey Jowell states, "[u]ltra vires rests

securely and wholly upon the supremacy of Parliament and leaves no doubt that the

courts in [the] system are subordinate to the legislature.,,99 The doctrine emphasizes the

legality of government decisions, rather than the substantive content of either them or the

authorizing primary legislation, by seeking to determine and apply Parliament's intent,100

Courts, by seeking only to give effect to Parliament's will, must necessarily forego such

substantive review. As the ultra vires doctrine rests upon legislative intent and the

question of legality, it promotes a manner ofjudicial review that is traditionally

formalistic. Consistent with such formalism, courts adjudicate in a manner intended only

to interpret and apply the statute as it is without assessing the value ofits content,lOl Ta

refuse to acknowledge or uphold government action otherwise authorized by Parliament

would be to ignore the statute in question and violate the doctrine of legislative

97 In doing so, judges "stand in a very real sense as the ultimate arbitrator ofthe balance between thedemands of effective government and individual interests." Ibid. at 506.

98 Ibid. at 518.

99 Jowell, "Vires and Vacuums," supra note 49 at 448.

LOO Ibid. at 449; Paul Craig, "Competing Models of Judicial Review" [1999] Pub. L. 428 at 428-29[hereinafter "Competing Models"]; Mark Elliott, "The Demise ofParliamentary Sovereignty? TheImplications for Justifying Judicial Review" (1999) 115 L.Q. Rev. 118 at 120 [hereinafter "JustifyingJudicial Review"].

LOL de Smith and Brazier, supra note 4 at 516, write that "[t]o a large extentjudicial review ofadministrative action is a specialized branch of statutory interpretation."; Paul Craig, "Fonna1 andSubstantive Conceptions of the Rule of Law: An Analytical Framework" [1997] Pub. L. 467 at 467[hereinafter "Analytical Framework"].

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supremacy. This formalistic method ofjudicial review reflects Blackstone's and Dicey's

own preference for positive legislation over unwritten legal principles intended to bind

the legislature.

Ultra vires review supports the doctrine ofparliamentary sovereignty by

recognizing courts as obligated to uphold and apply parliamentary intent. 102 In Diceyan

terms, the courts could be said to defer to parliamentary democracy, thereby recognizing

that the electorate, as political sovereign, possesses ultimate authority to determine the

public good as expressed by the legally sovereign but representative Parliament. Much

criticism against the extension ofjudicial review actually relies upon such a democratic

theory ofparliamentary sovereignty. To give full powers ofreview to the courts,

according to these concems, would be "countermajoritarian" or "anti-political," and

elevate un-elected, elite, and democratically isolated judges over the will of the politically

sovereign electorate. 103 This concept of ultra vires review fits weIl with Dicey's idea that

the will ofthe e1ectorate is the legitimizing force behind Parliament's actions. As

Parliament expresses the wishes of the electorate, at least ideally, the courts should

therefore defer to it in determining the public interest. Their raIe in interpreting and

applying legislation as written by Parliament recognizes the public good as best

determined politically, not judicially.104 While ultra vires review is compatible with

orthodox theory in that it gives effect to parliamentary intent, it still allows courts broad

\02 Christopher Forsyth, "Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty ofParliament and Judicial Review" [1996] Cambridge L.I. 122 at 136-37 [hereinafter "Fig Leaves"]; Jowel1,"Vires and Vacuums," supra note 49 at 448-49.

103 Richard Mul1ender, "Parliamentary Sovereignty, the Constitution, and the Judiciary" (1998) N. Ire.L.Q. 138 at 146, 148; Forsyth, ibid. at 140.

\04 de Smith, et al., supra note 95 at 20-21, 169-70.

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room to interpret legislation consistently with common-Iaw and constitutional principles,

such as the rule oflaw. Although committed in theory to apply the will ofParliament,

courts can take this interpretive license with statutes that are vague or do not expressly

abrogate the common law or the rule of law. They can accordingly construe them strictly

as to constrain executive decision-making that might violate fundamental norms. In the

end, ultra vires review reflects Blackstone's and Dicey's preference for positive law

should it conflict with higher principles. However, the doctrine nevertheless remains

compatible with their invocation of higher principles, in the form ofnaturallaw or

democratic accountability, as the legitimizing force behind man-made law, which courts

can apply in the absence of express language to the contrary. It also accommodates

Dicey's imperative that court's presume Parliament to legislate in accordance with the

rule of law and interpret legislation as to constrain executive discretion. 105 Courts have

thus traditionally implied to Parliament the intent to legislate consistently with

fundamental principles oflaw, just as did Blackstone and Dicey. This interpretive aspect

of ultra vires judicial review is consistent with a narrow understanding of Coke's

decision in Bonham 's Case, in which judicial reference to first principles is an

interpretive tool, ultimately subordinate to Parliament' s intent as expressed in statute.

The interpretive process used by the judiciary in ultra vires review, however,

strains the boundaries between formalistic and substantive scrutiny of secondary and

primary legislation. While courts invoke concepts such as natural justice, the rule of law,

or the common law in interpreting legislation and reviewing administrative actions, they

105 Dicey, supra note 3 at 413-14; Mark Elliott, "The Ultra Vires Doctrine in a Constitutional Setting: Stillthe Central Principle of Administrative Law" (1999) 58 Cambridge L.I. 129 at 142-45 [hereinafter "UltraVires Doctrine"].

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often do so to such an extent as to effectively manipulate the intent ofParliament and

adjudicate upon substantive matters. 106 This tendency suggests two other points. First,

courts may exercise the power of ultra vires review, not from Parliament's implied intent

that they do 50, but from their own inherent and independent common-law authority.

Second, by arguably exercising substantive review in the guise of the ultra vires doctrine,

courts are effectively following an alternative common-law theory of a limited

Parliament. The ultra vires doctrine, then, is already developing in a manner potentially

amenable to a more robust practice ofjudicial review that restrains Parliament, while

maintaining continuity with the common-law constitutional tradition.

The justification for ultra vires review has significant implications for the British

constitution, in that it either supports or weakens the doctrine ofparliamentary

sovereignty.107 As already mentioned, the ultra vires doctrine c1aims that courts enforce

the will ofParliament as expressed in statute by ensuring that secondary legislation is

legally made; they do not engage in substantive review of either. This dedication to

formalism touches upon the way in whichjudicial review is exercised, but stillleaves

unc1ear the constitutional source of the courts' power. An emphasis upon parliamentary

intent suggests that ultra vires review rests only upon an assumption that Parliament

intends the judiciary, as a subordinate institution, to interpret legislation consistently with

106 Natural justice, while an abstract concept, essentially requires "fair play" during the process of executivedecision-making. de Smith, et al., supra note 95 at 246-47,275. As such, "'naturaljustice' is said toexpress the close relationship between the common law and moral principles...." Ibid. at 249; de Smithand Brazier, supra note 4 at 527-28; The two bedrock principles ofnatural justice, from which others stem,are that concerned parties have opportunity to be heard, and that the adjudicator should be unbiased. Theseprinciples are embedded in the common law. Ibid. at 250; Jowel1, "Vires and Vacuums," supra note 49 at452-53.

107 Jowell, ibid. at 449.

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the common law and the mIe oflaw to restrict executive discretion. 108 In addition to the

notion that ultra vires review serves to preserve parliamentary authority against executive

as weIl as judicial encroachment, there remains the underlying normative c1aim that

Parliament is dedicated to the mIe oflaw. T. R. S. Allan describes it so:

[T]he mIe of law constitutes a bulwark against the deprivation of liberty throughexercise of arbitrary power. It encompasses principles ofprocedural faimess andlegality, equality and proportionality. Fully articulated, the mIe of law amounts toa sophisticated doctrine of constitutionalism, revealing law as the antithesis ofarbitrariness or the assertion of will or power. 109

It was such a concept ofthe mIe oflaw that Dicey proposed as a guide to Parliament' s

exercise ofotherwise supreme legislative authority. In the context ofjudicial review, it is

consistent with this view to assume that Parliament would intend the executive to

exercise its grant of authority under the same constraint and subject to scmtiny by the

courts.110 As Lord Woolf comments:

The sovereignty ofParliament is but an important aspect of the mIe oflaw. Thereare other principles which are part of the mIe oflaw, for example, that the publicare entitled to have resort to the courts; that the courts are for the resolution oftheir disputes; that it is the courts' responsibility to protect the public against theunlawful activities ofother inc1uding the executive; and that it is the responsibilityof the courts to determine the proper interpretation of the law.

Just as the courts respect Parliament's sovereignty, so the courts are entitled toassume that, absent very c1ear language to the contrary, Parliament, having passedlegislation, does not intend to interfere with the responsibilities of the courtsunder the mIe oflaw. Accordingly, when interpreting and applying the

108 Craig, "Public Law," supra note 28 at 236; Elliott, "Justifying Judicial Review," supra note 100 at 11920; de Smith, et al., supra note 95 at 18; This means, of course, that courts presume that Parliament doesnot intend to interfere with substantive or procedural common-law rights except where expressly indicatedor arising by necessary implication. Ibid. at 187-91; T. R. S. Allan, Law, Liberty, and Justice: The LegalFoundations ofBritish Constitutionalism (Oxford: Clarendon Press, 1993) at 266 [hereinafter LegalFoundations].

109 Allan, "Consent and Constitutionalism," supra note 51 at 223 .

!l0 Dicey, supra note 3 at 202-03,406-14; Lord Irvine, "Comparative Perspective," supra note 22 at 17.

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legislation, the courts assume Par1iament does not intent to interfere with thecourt's role in upholding the rule oflaw. [footnotes omitted] III

The rule of law acts as a check upon Par1iament, both intemally as a guide to its members

and extemally as a standard by which the public perceives its action; it also extends to

limit executive action. The rule oflaw thus interacts with parliamentary supremacy to

justify the ultra vires doctrine. However, Parliament's imputed delegation ofreview

powers to the courts remains, in the end, a political matter. IfPar1iament favored broad

or unfettered executive discretion, it could theoretically legislate to strip the judiciary of

any competence to declare secondary legislation void, although such a possibility is

politically unrealistic to say the least. 112 Under this approach, the ultra vires doctrine

rests upon no more than a judicial assumption that Parliament has a general and unstated

intent for courts to apply it; it therefore exists only at the sufferance ofParliament. 113

Although the political reality may be that Par1iament would never seriously curtail

or eliminate the power of ultra vires review, the position that the doctrine stems only

from implied legislative intent presents serious obstacles for its further development.

From this point ofview, the judiciary already seems to have stretched its judicial review

power to the constitutionallimit. The grounds upon which a court may now declare an

action to be ultra vires are nevertheless rather wide. Although a court can only declare

an executive action to be outside of the statutory grant of authority, it may scrutinize both

III Harry Woolf, "Judicial Review - The Tensions Between the Executive and the Judiciary" (1998) 114L.Q. Rev. 579 at 581 [hereinafter "Tensions"]; Lord Irvine, ibid. at 17, also writes that "[t]he role oflaw,and the values on which it is based, form a fundamental part of the constitutional environment within whichthe British doctrine of legislative supremacy subsists."

112 See Sir Stephen Sedley, "The Sound of Silence: Constitutional Law without a Constitution" (1994) 110L.Q. Rev. 270 [hereinafter "Sound of Silence"] at 285; For an example ofhow courts in the past haveavoided Parliament's attempts to limit judicial review, see the case ofAnisminic at 71, below.

113 de Smith, et al., supra note 95 at 17, 115-16.

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executive action and the statute in question in a manner bordering upon substantive

review. Ultra vires doctrine has developed so that courts may review executive actions

on grounds other than legality, such as irrationality and procedural impropriety, thus

delving into the decision-making process itself. Irrationality inc1udes decisions that are

also unreasonable, while procedural impropriety inc1udes a violation ofboth statutory

requirements and natural justice. Violations of either ofthese grounds could inc1ude

abuse of discretion, failure to consider relevant facts or evidence, or an absence of

reasons. 114 In reviewing executive actions on these criteria, however, courts continue to

elaborate upon a presumed parliamentary intent that executive action is authorized only if

it conforms to such principles. Again, such an assumption stems from a fundamental

understanding by the judiciary that Parliament desires to legislate and constrain executive

action in conformity with the mIe of law. Such inquiries, in theory, continue to focus

solely Parliament's intent and not motivating considerations or purposes. To pass

substantive judgment upon executive actions permissible under statute, not to mention

upon the primary legislation itself, would be to challenge the will ofParliament and

require an independent constitutional footing from which to assert the power ofreview.

The gray area between the procedural and substantive aspects of irrational or

unreasonable decision-making, however, suggests that ultra vires review based upon

parliamentary intent may not adequately explain judicial practice. An honest assessment

of the substantive issues that arise under concepts such as unreasonableness belie the

courts' increasingly bold forays into a judicial approach antithetical to orthodox ultra

114 Ibid. at 147-48.

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vires theory and potentially the doctrine ofparliamentary sovereignty.115 Another

indication that the parliamentary intent foundations of ultra vires doctrine may be an

inadequate justification for it is that courts also exercise review over executive acts

stemming from prerogative c1aims and having no direct connection to statutory

authorization. Such judicial authority could only result from the common-Iaw itself, and

presents the question ofhow review of prerogative actions could arise from the common

law, if ultra vires remains based upon parliamentary intent. The seemingly substantive

elements hiding within the ultra vires doctrine, as well as with the review ofprerogative

executive actions, suggest that the power of review may very well exist independently of

parliamentary intent. 116

Tt is also c1ear that the ultra vires doctrine is a judicially created one. That

Parliament desires judicial review of executive actions is an intention that has been

wholly implied by the courts. The grounds of review have similarly developed through

the judicial process alone and not through any parliamentary legislation. 117 Rather than

invoking an imagined parliamentary authorization for ultra vires review, one could

instead stress the doctrine's judicial origins as evidence ofthe courts' independence from

Parliament. Even though courts still in theory review secondary legislation only for

115 Of course, the question remains whether such judicia1 activity is inappropriate as contrary toparliamentary sovereignty or represents a new direction in constitutiona11aw that is to be accepted orembraced; Jowell, "Vires and Vacuums," supra note 49 at 452-53; Jeffrey Jowell, "Beyond the Rule ofLaw: Towards Constitutiona1 Judicia1 Review" [2000] Pub. L. 671 at 673 [hereinafter "Constitutiona1Judicia1 Review"].

116 de Smith, et al., supra note 95 at 62-63. See a1so ibid. at 175-82 for a discussion of the review ofprerogative powers; Allan, "Constitutiona1 Theory," supra note 61 at 20; Dawn Oliver, "Is the Ultra ViresRule the Basis of Judicia1 Review?" [1987] Pub. L. 543 at 546-51.

117 Forsyth, "Fig Leaves," supra note 102 at 134-35; Andrew Ha1pin, "The Theoretica1 ControversyConceming Judicia1 Review," Book Review ofJudicial Review and the Constitution, ed. by ChristopherForsyth, (2001) 64 Mod. L. Rev. 500 at 505.

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compliance with Parliament's intent, rather than any inherent substance, increasingly

creative methods of statutory interpretation that promote concepts such as administrative

faimess and reasonableness further suggest an inherent judicial authority to practice a

broader scope ofreview. Ultra vires review, as an original creation of the courts and

having no express origins in legislative intent, could conceivably stand as a common-Iaw

restraint upon parliamentary authority. The fiction that the ultra vires doctrine derives

from Parliament' s intent consequently has been characterized as nothing more than a "fig

leaf;" it nominally supports the doctrine ofparliamentary supremacy while concealing the

fact that it is an independent, common-Iaw judicial power. 118 This common-Iaw position

enhances the judiciary as an independent branch of govemment inherently capable of

substantively scrutinizing executive acts, as well as the authorizing statute. 119 A

common-Iaw justification for judicial review, however, does not necessarily entail the

end of the doctrine ofparliamentary supremacy. Just as Parliament has the authority to

alter or abolish principles of the common law, so too could Parliament still daim the right

to modify or constrain judicial review based upon that ground. An inherent and

independently derived power ofreview might therefore remain subject to Parliament in

118 While Forsyth, "Fig Leaves," supra note 102 at 122-23, explains well the arguments for a common-lawpower ofreview, he clearly supports parliamentary sovereignty. This demands in his view the continuedacceptance of the ultra vires doctrine based upon implied legislative intent; de Smith, et al., supra note 95at 112-13, do not actually premise ultra vires review on the common law, but they do hase it uponindependent "princip1es oflawful or legitimate administration."; In the context of discussing Coke,Blackstone, and Dicey, Allan, Legal Foundations, supra note 108 at 269-70, writes: "We should thereforeconcede to Parliament its law-making supremacy, hut within the overall restraints of the constitutionalscheme as a wh01e. [footnote omitted] Statutes, properly enacted, are entitled to great respect, hut notun1imited deference: the warmth ofjudicia1 reception may 1egitimate1y vary with the gravity of theirassault, if such it he, on sett1ed rights and expectations. And the point at which restrictive interpretation inparticular cases shou1d he descrihed as 'disapplication' cannot he given philosophie precision." See ibid. at287; Allan, "Constitutiona1 Theory," supra note 61 at 23; Laws, "Law and Democracy," supra note 57 at79.

119 Jowell, "Vires and Vacuums," supra note 49 at 449.

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sorne degree. 120 This sort of review remains consistent with, if not nearly identical to, a

narrow interpretation of Coke's judicial review theory and Blackstone's reconciliation of

naturallaw with positivism. There is also nothing inconsistent between this position and

Dicey's view that parliamentary sovereignty exists alongside the mIe oflaw. 121 A

common-Iaw review power would have more in common with Coke and Blackstone than

orthodox ultra vires doctrine, as it would recognize higher constitutional principles as an

independent, even if subordinate, source of law. Courts might very well possess an

independent power to review legislation based upon sorne higher legal standard, such as

the mIe of law or even a constitutional document, yet exercise that authority subject to

ultimate legal sovereignty in Parliament. While positive acts ofParliament would still

prevail, courts might require express dec1arations to depart from constitutional principles

while even more strictly interpreting legislation so as to better protect procedural or

substantive rights. This version of common-Iaw review, compatible as it is with Coke

and Blackstone, as well as Dicey, represents the resurgence of a theory ofjudicial review

that has long roots in British legal history.

Without legislative intent as the sole benchmark for the legality of executive

decision-making, courts could eventually turn to other fundamental constitutional

principles, such as the mIe oflaw, as substantive limitations that take precedence over

Parliament's express intent. The grounds ofreview based upon procedural unfaimess

and unreasonableness already seem to possess sorne substantive content. 122 A

120 The practica1 ability of Parliarnent to restrict the ultra vires doctrine, however, wou1d rernain as slirn asit now does, due to politica1 barriers and widespread acceptance of the propriety of sorne degree of review;Forsyth, "Fig Leaves," supra note 102 at 126-27; Ha1pin, supra note 117 at 501.

121 Craig, "Cornpeting Mode1s," supra note 100 at 445.

122 Allan, "Consent and Constitutionalisrn," supra note 51 at 223; Jowell, "Vires and Vacuums,"

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development ofthis sort would not necessarily subvert democracy by restricting the will

ofthe legislature: on the contrary, imposing substantive restrictions on parliamentary

power can "vindicate the democratic ideal," which itself is premised upon individual

liberty.123 The mIe oflaw itselfis also inextricably embedded in the cornmon law. As

Lord Irvine suggests: "[T]he line which distinguishes adjudication on the va/idity of

legislation from questions of interpretation is not watertight. . .. The interpretive

framework which exists in the D.K. legal order is based on a system of rnorality which

can be traced back to the roots of the comrnon law...." [emphasis original]124 This

continuity lends strong credibility to the recognition of a common-Iaw basis for judicial

review, in that it still represents a strain ofEnglish legal tradition, altough an alternative

one that rnight have profound effects upon the constitution. 125 Of course, one might

continue to debate whether the rule of law, for exarnple, primarily guarantees only

procedural due process or has more substantive content constraining the scope or subject

supra note 49 at 455-56.

123 Sir John Laws, "Wednesbury" in Forsyth and Rare, supra note 54,185 at 195-96; Jowell,"Constitutional Judicial Review," supra note 115 at 675.

124 Lord Irvine, "Comparative Perspective," supra note 22 at 20; Allan, Legal Foundations, supra note 108at 205-06, recognizes an inherent tension in such a prospect between the judicial and policy-making roles.Re writes, "[i]t would be a mistake to belittle the nature of this challenge since it strikes at the core of aliberal conception of the rule oflaw. It questions the extent to which a democratic polity, incorporating thebasic elements of the separation of powers, can consistently permit considerations ofjustice and faimess...to govem the exercise ofpolitical power." It is because ofthis problem that common-Iaw principles, alongwith their underlying moral foundations, remain essential to guide substantive adjudication and preventinappropriate judicial discretion. See ibid. at 289-90.

125 Lord Irvine of Lairg, "Judges and Decision-Makers: The Theory and Practice of Wednesbury Review"[1996] Pub. L. 59 at 61 [hereinafter "Wednesbury Review"], writes in regard to an interpretation of Cokepromoting full judicial review that "[sJuch notions form no part of the modem law. . .. They becameobsolete when the supremacy ofParliament was fmally established by the revolution of 1688." Rowever,the notion of a restrained Parliament subject to judicial review is far from obso1ete; on the contrary, itseems to be increasingly relevant to contemporary developments, as evidenced by its resurgence withinlegal debates. The similarities between ultra vires doctrine and the ideas of Coke and Blackstone haveaIready been noted above.

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matter of govemment action. 126 In any case, an independent power ofjudicial review

might come to allow courts to invalidate executive acts while refusing to give effect to a

c1ear intent of Parliament that violates fundamental principles of law. l27 Courts would

thereby shift from a merely interpretive judicial approach, aimed simply at assessing the

compliance of executive action with parliamentary intent, to one focused upon the

substantive validity of the authorizing primary legislation.128

By basing judicial review upon the common law rather than on an implied

parliamentary intent, courts should have more flexibility and confidence in expanding the

ultra vires doctrine in the way discussed above. Common-Iaw review should allow

courts to feel more confident in scrutinizing secondary or even primary legislation against

higher legal principles, even ifParliament still c1aims the theoretical authority to override

it. A continued reliance ofthe doctrine upon implied legislative intent would on the other

hand limit the ability of the courts to expand judicial review powers by mooring them to

126 The concept of the role of1aw, while it certainly does mandate procedural standards offairness,nevertheless 1ikely suggests the adherence to certain substantive values. "[A] bare notion offorma11egalitycannot fumish a usefu1 conception of the ro1e of1aw." Allan, "Consent and Constitutionalism," supra note51 at 222; See a1so ibid. at 231-34; Allan, Legal Foundations, supra note 108 at 209; Laws, "Wednesbury,"supra note 123 at 199, writes that "[t]he common 1aw's challenge is now to define the substantive contentof the role of1aw...." Craig, "Ana1ytical Framework," supra note 101 at 482-83, counters that "[t]he factthat a particu1ar court has recourse to moral considerations or conceptions of justice or fairness whendeciding a case tells one nothing... as to whether that court is reasoning in a manner consonant with apositivist or non-positivist view of adjudication."; For a review of procedural and substantive notions of thero1e of 1aw, see generally ibid.

127 Allan, Legal Foundations, ibid. at 206, writes that "[t]he scope ofjudicial review shou1d be re1ated tothe evident risk of abuse ofpower."; Forsyth, "Fig Leaves," supra note 102 at 128-29, further suggests that"[t]he abandonment of ultra vires inevitab1y invo1ves the judicial review court in indirectly challenging1egislative supremacy."; Ibid. at 123, 134.

128 This is the distinction between judicia1 review in the United States and the United Kingdom. "Whi1e theemphasis [in the United States] is on mora1ity as a determinant of the validity of1egis1ation, the emphasis inthe United Kingdom is on morality as a determinant of the meaning of 1egis1ation." Lord Irvine,"Comparative Perspective," supra note 22 at 21.

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Parliament. 129 Under common-Iaw review, therefore, there may be more opportunities

for dynamic constitutional change when courts confront legislative infringement of the

mIe oflaw, for instance, or the government's obligations under the European Union and

the European Convention on Human Rights. 130 Cut loose from the limitations that a

legislatively implied review power imposes, courts could continue to develop the doctrine

in a way that does not worry about framing it in terms supportive of parliamentary

supremacy. A greater institutional independence of the judiciary may be desirable

considering the power of an executive backed by a majority in Parliament. To better

resist the power of the executive, "[i]t can therefore be argued that it is even more

important for the courts to develop the doctrines ofjudicial review on the common law

model.,,131 Common-Iaw review therefore enhances the constitutional position of the

judiciary. That courts have an area oflegal competence arising independently of

Parliament accepts that the judiciary is equal to Parliament. Sir Stephen Sedley has

suggested that such a situation may already exist with "dual sovereignty" exercised

through both Parliament and the judiciary.132 This position resembles the constitutional

129 Elliott, "Justifying Judicial Review," supra note 100 at 119.

130 Such change would likely occur through an evolutionary process. "Judicial review oflegislation can beassumed by a more drawn-out series of developments that allows time for the readjustment of ideas, ratherthan by the single stroke of Chief Justice Marshall's pen as in the early years of the United States." SirDavid Williams, "The Courts and Legislation: Anglo-American Contrasts" (2001) 8 Indiana 1. Global Leg.Stud. 323 at 328.

131 Craig, "Public Law," supra note 28 at 237; Williams, ibid. at 337, finds the lack of a clear separation ofpowers to be an impediment to judicial review: "Parliamentary sovereignty means, in essence, thesupremacy of the executive under our governrnent system, and the confusion of legislative and executivefunctions (especially when the senior judges are compromised) makes it aIl the more difficult for the courtsto assertjudicial review." A common-Iaw justification for judicial review should ameliorate this problemsomewhat by giving the judiciary more independence from both the legislature and executive; Barendt,supra note 26 at 605 .

132 Sir Stephen Sedley, "Human Rights: a Twenty-First Century Agenda" [1995] Pub. L. 386 at 388-89[hereinafter "Human Rights"]; Lord Woolf, "Droit Public - English Style" [1995] Pub. L. 57 at 69

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arrangement suggested by a broad interpretation ofCoke's opinion in Bonham 's Case

and a counter-emphasis upon Blackstone's naturallaw theory.133 It can also be

reconciled with Dicey by recognizing the mIe oflaw as an aspect of democratic

constitutionalism that takes precedence over parliamentary acts harmfui to liberty. In this

sense, the establishment of a common-Iaw power ofreview furthers what Lord Steyn has

pointed out to he three interacting constitutionai principles: the separation ofpowers, the

mIe oflaw, and constitutionalism.134 The judiciary could, for instance, restrain

Parliament by substantively reviewing primary legislation for compliance with the mIe of

law, thereby ensuring that legislation is compatible with democratic constitutional values.

Common-Iaw review allows for many options ofinterpretation and application and

arguably contains the theoretical seeds to grow into a full power to invalidate

parliamentary statutes. For these reasons, common-Iaw basedjudicial review offers great

potential for constitutional growth and the effective enforcement ofbinding principles

against Parliament.

E. Summary

The doctrine ofparliamentary sovereignty has remained the foundation of the

British constitution in modem times. Growing out of the English Civil War, the doctrine

established Parliament as the supreme legal authority in England. Blackstone offered in

[hereinafter "Droit Public"], also recognizes the courts and Parliament as "partners both engaged in acommon enterprise involving the upholding of the mIe of Iaw."

133 See Mullender, supra note 103 at 143-44.

134 Lord Steyn, "The Weakest and Least Dangerous Department of Government" [1997] Pub. L. 84 at 86;Jowell, "Vires and Vacuums," supra note 49 at 457-58, similarly suggests that the concept of "vires" canrest upon broader democratic and constitutional principles providing a framework for government action.

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his Commentaries what became the first authoritative justification for this doctrine,

articulating a balanced constitution. Central to his theory was a separation between the

legal authority ofParliament and the moral authority ofnaturallaw principles. Although

acknowledging the supreme will ofParliament, against which no other worldly power

could legally prevail, Blackstone also stressed naturallaw as the morally supreme and

legitimizing force behind man-made law. Any law that did not conform to these higher

principles was invalid. Blackstone's juxtaposition ofthese two positions, however,

created a tension that still exists in the unwritten constitution between higher order law

that morally limits a Parliament that legally can do as it wills. Blackstone attempted to

side-step this problem by finding that naturallaw not only prescribed positive law to meet

its requirements, but by also suggesting that the English common-Iaw and parliamentary

act were in actuality descriptive of these higher principles. This conformity resulted from

the search for the public good, as it occurred not only in the judicial development of the

common law, but also in the political process within Parliament. Furthermore, unlimited

legal authority in Parliament was practically restrained through the competing interests of

the Crown, Lords, and Commons. Blackstone therefore preferred to pursue the public

good, and thus the search for first principles, through the political process. Still, the

centrality ofnaturallaw to Blackstone's theory provided an alternative foundation for

judicial power to limit Parliament legally based upon first principles. Such a power of

judicial review represented a competing view ofthe British constitution. This alternative

vision had been earlier suggested by Coke in Bonham 's Case and received advocates

among those both within England and especially the American colonies who opposed

unfettered parliamentary authority. Blackstone, while ultimately preferring the

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supremacy ofParliament, nevertheless fonnulated an orthodox constitutional theory that

contained within it the doctrinal foundations for sorne measure ofjudicial review that

could conceivably restrain Parliament.

Later, Dicey modified Blackstone's theory in two significant ways. While

reinforcing the doctrine ofparliamentary sovereignty, Dicey's recognition of the

balanced constitution was in many ways hollow. The House of Commons had long since

come to dominate the government, making any justification ofparliamentary sovereignty

based upon the balanced constitution realistically untenable. Dicey recognized the power

of the Commons and accordingly emphasized its democratic origins. Parliament was

legally sovereign and all-powerful; however, it remained accountable to the electorate.

Although having no legal authority, the electorate was the political sovereign and the

pursuit of its interest legitimized parliamentary acts. The electorate, under Dicey' s

democratic constitutional model, became morally but not legally superior to Parliament.

Furthennore, Dicey departed from Blackstone by giving no place to naturallaw.

However, by elevating the electorate to a position ofmoral superiority to the legislature,

he effectively substituted democratic will for naturallaw. Just as Blackstone assumed

that parliamentary acts could satisfy naturallaw principles by acting for the public good,

Dicey suggested that legislating for the public good presumptively coincided with

electoral will. External political pressures and internaI normative values also realistically

restrained Parliament, so that judicial review remained subordinate to the political

process. Dicey further justified unlimited parliamentary power upon its value as a

democratic expression of electoral will. For these reasons, Dicey remained reluctant to

explore the possibility that Parliament might act against the public interest, although he

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briefly admitted that in such a case Parliament would prevail. Dicey also implied that the

interests ofParliament and the electorate might not necessarily agree, as indicated by his

insistence that Parliament was in no way legally bound to act in trust for the electorate.

Dicey' s democratic theory invites arguments that the normative significance of the public

good and fundamental democratic ideals might indeed restrain Parliament from acting

against them.

The work of Blackstone and Dicey, though contributing to the development of

modem orthodox constitutional theory, nevertheless contain theoretical undercurrents

supportive of an alternative constitutional order. The concept of a limited Parliament,

subject to sorne review power in the courts, represents a distinct if non-dominant strain of

common-Iaw constitutional thought. The tensions found in Coke, Blackstone, and Dicey,

however, continue to exist in the form of ultra vires judicial review. For years now,

courts have been reviewing and even invalidating secondary legislation as ultra vires a

statutory grant of power. Ostensibly, the ultra vires doctrine supports parliamentary

sovereignty by ensuring that executive actions do not go beyond the limits that

Parliament intended. However, courts regularly interpret statutes creatively and review

executive actions upon such abstract grounds as procedural unfairness and

unreasonableness as to foray into substantive review. Such practices elevate the

constitutional position of the judiciary and weaken the parliamentary sovereignty

doctrine. Furthermore, the ultra vires doctrine is wholly judge made. Sorne might argue

that it nevertheless represents an implied intent ofParliament that courts promote the rule

oflaw. However, a realistic assessment suggests that ultra vires review is a common-Iaw

doctrine. The implications ofthis common-Iaw origin, even ifpowers ofreview initially

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remain subordinate to the express will ofParliament, is that the judiciary can better assert

itself as an independent branch of government. It would also have more possibilities to

develop review doctrines free from a theoretical reliance upon the legislature, and could

potentially assert a right to invalidate acts of Parliament. Ultra vires review thus

presently blurs the line between substantive and formalistic adjudication, and

increasingly calls into question the institutional place of the judiciary and the continuing

validity ofparliamentary supremacy. The recognition of the common-Iaw ongins of

ultra vires review and its potential for broader development is also consistent with sorne

of the ideas of Coke, Blackstone, and Dicey. Just as orthodox constitutional theory

contains within it theoretical elements supporting a limited Parliament subject to a

common-Iaw power ofjudicial review, it can likewise accommodate written

constitutional norms.

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III. THE CONSTITUTIONALIZATION OF WRITTEN TEXTS

A. Characteristics of a Constitutional System

As discussed in Part II, the unwritten nature of the British constitution does not

necessarily prec1ude judicial review of primary legislation. The common law can impose

legally enforceable limits upon both Parliament and the Crown, based upon the rule of

law and the democratic foundations of government. A subsequently adopted, written

constitutional document therefore is not a originating source of either parliamentary

limits or a judicial review power, which precede it, but is a means of expressing these

principles of limited government. In this sense, constitutional texts graft onto the

underlying, alternative common-Iaw framework. A constitutional document facilitates

judicial review should that enforcement mechanism already exist in sorne form. A text

does not guarantee on its own the normative value ofjudicial review, nor is its adoption a

necessary result of the existence ofjudicial review. Constitutional systems may

accordingly vary both in the extent to which they rely upon judicial or political methods

of enforcement, and combine written and unwritten e1ements. This section suggests that

constitutions differ in how strictly or exc1usively they guide or limit govemment action.

They can be paradigmatic through the assertion of legally non-binding but generally

observed principles of good governance or definitive in that they establish enforceable

parameters beyond which government cannot act. They also exhibit varying degrees of

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rigidity and flexibility in their ability to change, whether through legislative measures,

adjudication, or special amending procedures. Furthermore, these characteristics can

equally describe written or unwritten constitutions. The defining feature of a written

constitution, therefore, is its normative value as an instrument expressing and

memorializing the institutional arrangements and their substantive boundaries which exist

as normative assumptions about government.

1. Paradigmatic and Definitive Constitutions

One of the fundamental purposes of a constitution is to order the politicallife of a

society by providing a system of rules according to which government institutions

function. This framework may inc1ude the determination ofhow laws are created, the

relative powers between legislative, executive, and judicial branches, or the recognition

of certain fundamental rights possessed by individual citizens. A constitution may also

provide general statements of principles establishing a context within which government

and laws operate. 135 A constitution, then, speaks to the issues ofboth institutional

arrangement and substantive goveming principles. As Walter F. Murphy writes, "[t]he

goal of a constitutional text must. .. be not simply to structure a government, but to

construct a political system, one that can guide the formation of a larger constitution, a

'way oflife' that is conducive to constitutional democracy.,,136 Murphy's definition

135 Walter F. Murphy identifies four possible functions of a Constitution as a charter for government, aguardian of rights, a symbo1 ofpo1itica1 or national consciousness, or as a means of "allowing a nation tohide its fai1ures behind idealistic rhetoric." Walter F. Murphy, "Constitutions, Constitutiona1ism, andDemocracy" [hereinafter "Constitutions"] in Douglas Greenberg, et al., eds., Constitutionalism andDemocracy: Transitions in the Contemporary World, excerpts reprinted in Vicki C. Jackson and MarkTushnet, Comparative Constitutional Law (New York: Foundation Press, 1999) 195 at 197.

136 Walter F. Murphy, "Civil Law, Common Law, and Constitutiona1 Democracy" (1991) 52 La. L. Rev. 91at 129 [hereinafter "Constitutiona1 Democracy"].

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includes two important observations concerning the nature of a constitution. First, a

constitution has the dual purpose ofboth arranging govemment institutions and

establishing their roles. In most western constitutions, this involves sorne notion of

separation ofpowers between legislative, executive, and judicial branches. l3? Second,

there is a distinction between a constitutional text and the constitution itself. This

distinction, however, does not discount a functional relationship between the two, as an

enduring constitutional text must correspond with or express underlying normative ideals

about the nature of government. A constitution may also exist in unwritten form, as has

traditionally been the case in the United Kingdom, but this unwritten nature may blur the

line between more abstract constitutional principles and the formaI articulation of

rules. l38

Generally, a constitution tends to be either paradigmatic or definitive in how

strictly it orders the political system. To say that a constitution is paradigmatic suggests

that it is a statement ofprinciples to which govemment action should adhere, but which

act as guidelines rather than legally enforceable rules. l39 A paradigmatic constitution

operates primarily upon the underlying normativity, finding salience in its continued

representation ofbasic values held by both private citizens and members of govemment.

137 While British political thought has long had the notion of a separation of executive and legislativefunctions, see John Locke, The Second Treatise on Civil Government (Buffalo, N.Y.: Prometheus Books,1986) at 80-88, Montesquieu offered one of the most notable and influential arguments for a tri-partitedivision that included the judiciary. See Baron de Montesquieu, The Spirit ofthe Laws, ed. and trans. AnneCohler, Basia Miller, and Harold Stone (Cambridge: Cambridge University Press, 1989) at 156-64.

138 Phillips, Jackson, and Leopold, supra note 1 at 8-9; A. W. Bradley and K. D. Ewing, Constitutional andAdministrative Law, l2th ed. (London: Longman, 1997) at 8.

139 The choice of the word "paradigmatic" for this characteristic is due to a constitution's "exemplary"nature. As conceptualized in this paper, the constitutional paradigm is not only representative ofhowgovemment regularly functions in fact, but is also aspirational in that it promotes particular ideals or rulesto which govemment should conform. See The New Shorter Oxford English Dictionary, vol. 2 (1993), s.v."paradigm."

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It creates a pattern or ideal for the workings of government, inc1uding institutional

arrangements, substantive government powers, rights concepts, and so forth. Whatever

arrangements a paradigmatic constitution makes in this regard, however, they are nothing

more than non-binding statements ofprinciple guiding, but not legally requiring,

government action or forbearance. The government remains free to disregard the

principles promoted by the constitution. Govemment actions may therefore be legal

despite being unconstitutional in the sense that they are contrary to the constitutional

paradigm. Opposition to such unconstitutional govemment action must take the form of

political pressure or resistance that may fail to prevent or correct the violation. Legal

c1aims that may arise in the courts arguing for the invalidity or inapplicability of

government actions due to their unconstitutionality cannot succeed. Dicey's conception

of the British constitution is perhaps the best example of a paradigmatic constitution,

dependent as it is on parliamentary supremacy restrained only by external and internaI

limits. Political forces alone restrict govemment and the application of constitutional

principles is in the end a political, not judicial, process. The paradigmatic constitution

constructs a value system the success ofwhich continues to depend upon its voluntary

acceptance by members of government. It also easily permits exceptions or departures

from its basic principles when the govemment feels it is necessary to pursue an

overriding policy, whether supported or not by the general electorate. 140 The judiciary,

without full authority to strike down legislation, nevertheless may continue to exercise

wide latitude in the extent to which it refers to constitutional principles when interpreting

140 The section on rigidity and flexibility at 75, be1ow, however, supposes a distinction between theoccasional departure from a generally followed principle, and the habituaI practice inconsistent with it orblatant changes in the mIe itse1f that effectively amend the constitution thereafter.

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or applying statutes and administrative regulations. In short, the paradigmatic

constitution acts as a moral compass for the legislative, executive, and judicial branches

and relies sole1y upon its normative hold upon government members for its continued

observance, lacking any formaI enforcement mechanisms in law.

The alternative nature of a constitution is one that is definitive. While such a

constitution certainly asserts general governing principles having normative force among

the population at large and government actors, its role is more formaI and irnposing. A

definitive constitution establishes rules for the operation of institutional structures and

their procedures or sets out substantive government powers subject to sorne legal control.

Government actions contrary to its provisions are either void and have no effect ab initia,

or provisionally effective subject to mandatory correction by the government. 141 A

constitution is definitive because it attempts to circumscribe the limits of government

actions beyond which they cannot, as opposed to should not, stray. Govemment actors

are motivated to conform to constitutional principles and rules not only from fidelity to

their ideals, but also out of concem that conflicting actions williegally fail. For a

constitution to be definitive, sorne effective measure ofjudicial review is probably best

suited to articulate better the metes and bounds of government authority and enforce

compliance. Among constitutional democracies, judicial review and the invalidation of

statutes is a preferred means for enforcing constitutionallimits upon legislative and

141 The Canadian cases ofA. G. Manitoba v. Forest, [1979] 2 S.C.R. 1032 and Reference re ManitobaLanguage Rights, [1985] 1 S.C.R. 721, illustrate the idea ofprovisional validity. In the frrst case, theSupreme Court ofCanada ruled that all Manitoba statutes enacted only in English violated a provision ofthe provincial constitution requiring that legislation be in both English and French. Such English-onlylegislation was therefore unconstitutional and invalid. The subsequent decision found that, notwithstandingthe unconstitutional promulgation of all English-only legislation in Manitoba, those laws would continue tobe temporarily valid until constitutional requirements were satisfied by their translation in to French.

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executive actions. 142 Canada and the United States are good examples of definitive

constitutional arrangements in the common-Iaw tradition, as their constitutions establish

strictly enforceable procedural requirements in the making of law, its application

according to the rule oflaw, and substantive limits grounded in federalism and bills of

rightS. 143

While it is useful to make a broad generalization as to whether a constitution as a

whole tends to be paradigmatic or definitive in effect, these descriptive terms may be

particular to specifie written provisions or unwritten principles. Furthermore, the labels

of "paradigmatic" and "definitive," for purposes ofunderstanding, evoke a dichotomous

vision of the constitution as either completely dependent upon the political will to abide

by guiding principles or policed by ajudicial power to invalidate legislation. In actuality,

a constitution may consist ofboth paradigmatic and definitive elements subject to varying

degrees ofjudicial review.

American constitutionallaw offers sorne good examples illustrative of this

phenomenon within the context of a constitutional jurisprudence usually considered as

firmly anchored upon a written text. The United States federal judiciary, ever since the

case ofMarbury v. Madison, has claimed and regularly exercised a power to review

congressionallegislation, invalidating that which it finds unconstitutional. l44 However,

142 See Alec Stone, "Abstract Constitutional Review and Policy Making in Western Europe" in Donald W.Jackson and C. Neal Tate, Comparative Judicial Review and Public Policy (Westport, Conn.: GreenwoodPress, 1992) 41 at 41 and Dieter Grimm, "Constitutional Adjudication and Democracy" in ibid., 103 at104-05. "Nevertheless, [judicial review] is not a universal or necessary element of a democraticconstitution." Jutta Limbach, "The Concept of the Supremacy of the Constitution" (2001) 64 Mod. L. Rev.1 at 5.

143 See generally Peter H. Russell, "The Growth of Canadian Judicial Review and the Commonwealth andAmerican Experiences" in Jackson and Tate, ibid., 29.

144 1 Cranch (5 U.S.) 137 (1803) [hereinafter Marbury]; The power ofjudicial review is not stated in the

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there are a few constitutional issues, termed "political questions," that the Supreme Court

has deemed nonjusticiable and committed for resolution to the Congress or President. 145

Political questions present constitutional principles or written mIes that cannot legally

bind Congress or the President. As the term indicates, these are issues left only to

political resolution and having no legal enforcement, despite their constitutional status

and purpose of guiding government action. The determination ofwhat constitutes a

political question under the United States Constitution rests upon several considerations.

Justice Brennan, writing for the Court in Baker v. Carr, elaborated these factors: 146

It is apparent that several formulations which vary slightly according to thesettings in which the questions arise may describe a political question, althougheach has one or more elements which identifies it as essentially a function oftheseparation of powers. Prominent on the surface of any case held to involve apolitical question is found a textually demonstrable constitutional commitment ofthe issue to a coordinate political department; or a lack ofjudicially discoverableand manageable standards for resolving it; or the impossibility of decidingwithout an initial policy determination of a kind clearly for nonjudicial discretion;or the impossibility of a court's undertaking independent resolution withoutexpressing lack of the respect due coordinate branches of government; or anunusual need for unquestioning adherence to a political decision already made; orthe potentiality of embarrassment from multifarious pronouncements by variousdepartments on one question. 147

The Supreme Court has found, for instance, that political questions encompass much of

Constitution, but was inferred by Chief Justice John Marshall. David P. Currie, The Constitution in theSupreme Court: The First Hundred Years, 1789-1888 (Chicago: University of Chicago Press, 1985) at 71.Currie also remarks, ibid. at 71, n. 49, that "Marshall overstated his case badly by asserting that judicialreview was 'essentially attached to a written constitution' [quoting Marbury, ibid. at 177]."

145 See Ronald E. Rotunda and John E. Nowak, Treatise on Constitutional Law: Substance and Procedure,vol. l,3d ed. (St. Paul, Minn.: West Group, 1999) at 311, § 2.16.

146 369 U.S. 186 (1962) [hereinafter Baker]. Baker concemed a challenge to the apportionrnent of e1ectiondistricts for Tennessee's General Assembly, which did not accurate1y reflect population distribution. TheCourt dismissed a c1aim that the issue was a political question, breaking with contrary precedent such asColegrove v. Green, 328 U.S. 549 (1946). It instead found the c1airnjusticiable under the FourteenthAmendment's mandate that no state "deny to any person within its jurisdiction the equal protection of thelaws." In doing so, Baker elaborated upon the defmition ofa political question.

147 Baker, ibid. at 217.

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the conduct offoreign affairs, as weIl as the article IV, section 4 mandate that "[t]he

United States shaIl guarantee to every State in this Union a Republican Form of

Government.,,148 The Congress or President retains discretion to interpret the

Constitution in these areas, free from judicial scrutiny and subj ect only to other political

controls. 149

The controversy over the adoption ofthe Twenty-seventh Amendment is a good

example ofhow Diceyan extemallimits can restrain political action in areas remaining

nonjusticiable, even within a written constitutional system. This amendment was

originaIly part of the twelve proposed amendments, drafted by James Madison, which the

First Congress submitted to the states for ratification in 1789.150 The provision that

would later become the Twenty-seventh Amendment mandated that "No law varying the

compensation for the services of the Senators and Representatives shaIl take effect until

an election ofRepresentatives shaIl have intervened.,,151 In the package ofproposed

148 David Beatty, "Law and Politics" (1996) 44 Am. 1. Comp. L. 133 at 133-34; In Mora v. McNamara, 389US. 934 (1967), for examp1e, the Supreme Court denied a petition for certiorari in a challenge against thelegality of the Vietnam War. In Luther v. Borden, 7 How. (48 US.) 1 (1849) and Pacifie States Tel. andTel. Co. v. Oregon, 233 US. 118 (1912), the Court found that the determination of a legitimate orrepublican form of state govemment involved political considerations outside of the judicial role. Baker,ibid., re-affirmed the nonjusticiability of political questions under the guarantee clause, although itcharacterized the apportionment of legislative districts as an equal protection problem.

149 Justice Brennan' s description in Baker of what issues constitute a political question, it should be noted,echo British justifications for a judicial formalism that denies the courts the power to invalidate legislationby Parliament or stray from its intent. Arguments against judicial review of a substantive nature rest uponthe assertion that judges are an appointed elite not democratically responsible to the electorate. Thesearguments also assert that the judiciary is institutionally ill equipped to conduct the same fact-findingmissions and weigh policy options, as can the legislature. Furthermore, the British notion of separation ofpowers has been different than that in the United States. Whereas the American understanding places thejudiciary in an independent position to check legislative action straying beyond constitutionallimits, theBritish approach has been to characterize judicial review of statutes as an infringement upon the function ofthe legislation branch. See supra note 103 and accompanying text; Griffith, supra note 26 at 66.

150 Richard B. Bernstein, "The Sleeper Wakes: The History and Legacy of the Twenty-SeventhAmendment" (1992) 61 Fordham L. Rev. 497 at 498-99.

151 The ten proposaIs that did receive ratification constitute the Bill of Rights. Incidentally, under the US.

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amendments, Congress did not provide a time limit for acceptance by the states.

Nevertheless, the ten amendments that now comprise the Bill of Rights received

ratification rather promptly by 1791, while the salary provision did not. However,

through the years, several states had occasionally ratified the proposed salary amendment

out of frustration with perceived problems in Congress. 152 In 1992, over two hundred

years after the introduction of the original twelve proposed amendments, the state of

Michigan ratified the salary provision, thus meeting the three-fourth requirement. 153 The

incredibly long time-period between the amendment' s introduction and its passage raised

questions as to whether article V implied a reasonable period for ratification. 154 The

Supreme Court, however, had already adjudged that controversies under the article V

amending procedures might present political questions unsuitable for judicial review. In

Leser v. Garnett, the Court refused to consider a claim that alleged improprieties in the

ratification process of two states meant that the Nineteenth Amendment failed to receive

approval of three-fourths of the states as required under article V. 155 The closest judicial

precedent to the controversy over the Twenty-seventh Amendment was the 1939 case of

Coleman v. Miller, which concemed a challenge to Kansas' ratification of a proposed

Const. art. 1, § 2 elections for the House of Representatives take place every two years.

152 Bernstein, supra note 150 at 537-38.

153 Ibid. at 539.

154 Ibid. at 542-43; See Stewart Dalzell and Eric J. Beste, "Is the Twenty-Seventh Amendment 200 YearsToo LateT' (1994) 62 Geo. Wash. L. Rev. 502 at 503-05.

155 258 U.S. 130 (1922). Leser departed from previous language in Dillon v. Gloss, 256 U.S. 368 (1921),that the U.S. Const. art. V implied a reasonable time period for ratification; The U.S. Const. amend. XIXprovides that "[t]he right of the citizens of the United States to vote shaH not be denied or abridged by theUnited States on account of sex."

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amendment thirteen years after Congress had submitted it to the states.156 The Court

decided that whether the passage of time or changed circumstances meant that the

proposed amendment was no longer amenable to ratification was a nonjusticiable

political question best left to Congress. In regard to the Twenty-seventh Amendment,

several members of Congress public1y expressed reservations and suggested that the

passage oftime might indeed prec1ude ratification of the amendment. 157 No judicial

challenge to the validity of the amendment arose, however, and extemal politicallimits

effectively controlled the congressional response to the controversy. Considering the

subject matter of the amendment and the possible electoral consequences should

Congress reject a widely popular measure intended to limit its ability to raise the salary of

its own members, it recognized the Twenty-seventh amendment. 158 This incident

illustrates how significant constitutional issues can remain nonjusticiable and under the

province of the legislature, even within a written constitution providing for full judicial

review in most cases. It also reveals the restraining influence ofpolitical pressure upon a

legislature that is acting under nonjusticiable constitutional provisions. Although the

United States Constitution relies heavily on judicial review, the political question

doctrine means that sorne constitutional mIes or principles are essentially paradigmatic in

that they suggest legally unenforceable govemment obligations or courses of action.

156 307 U.S. 433 (1939). The proposed amendment would have overturned Supreme Court decisionsinterfering with congressional regulation of child laboT. It never received ratification by three-fourth of thestates.

157 Bernstein, supra note 150 at 540-42.

158 Ibid. at 498,542; Action by Congress followed that of the Archivist of the United States, who hadpromptly certified the amendment as valid pursuant to his statutory authority. Ibid. at 540.

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The Canadian constitution strikes an interesting balance between political and

judicial detennination of constitutional issues in regard to its Charter ofRights and

Freedoms. 159 Section 33 of the Constitution Act 1982 allows Parliament or a provincial

assembly to dec1are that a statute will have effect notwithstanding a possible violation of

certain guarantees in the Charter. 16û As Peter W. Hogg explains, "[I]t is obvious that

there is room for argument over the question ofwhich institutions should have the power

to detennine questions of rights. The British solution is the doctrine of parliamentary

sovereignty.... The American solution is judicial review.... The power of override

places Canada in an intennediate position.... [B]y virtue of s. 33, a judicial decision to

strike down a law for breach of s. 2 or ss. 7 to 15 of the Charter is not final. The judicial

decision is subject to legislative review.,,161 Such a dec1aration automatically lapses in

effect after five years, requiring Parliament or the assembly to consider its possible

extension for another five-year period. 162 The effect ofthis provision is that the

legislative branch retains the ultimate authority to legislate contrary to certain rights

159 Canadian Charter ofRights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedu1e B to theCanada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter ofRights or Charter].

160 Constitution Act, 1982, s. 33(1), being Schedu1e B to the Canada Act 1982 (U.K.), 1982, c. Il, statesthat "Parliament or the 1egis1ature of a province may express1y declare in an Act of Parliament or of thelegislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provisionincluded in section 2 or sections 7 to 15 of the Charter." Section 33 therefore does not allow the overrideof guaranteed democratic rights (ss. 3-5), mobility rights (s. 6), language and education rights (ss. 16-23),and the enforcement provision (s. 24). Joseph Eliot Magnet, Constitutional Law ofCanada: Cases, Notesand Materials, vol. 2, 8th ed. (Edmonton: Juri1iber, 2001) at 204-05.

161 Peter W. Hogg, Constitutional Law ofCanada, student ed. (Scarborough, Ont.: Carswell, 2000) at 773;This interaction, sometimes rnaybe tension, becomes more apparent as the Constitution Act, 1982, ibid., s.52 express1y gives the judiciary authority to exercise review, as "any 1aw that is inconsistent with theprovisions of the Constitution is, to the extent of the inconsistency, ofno force or effect." Whi1e suchreview initially focused upon federalism concems, whi1e still respecting parliamentary sovereignty of thefedera1 and provincia11egis1atures within their respective jurisdiction. In this sense, the existence of a"notwithstanding" clause in both the Canadian Bill ofRights, infra note 207, s.2 and the Charter ofRights,supra note 159, s. 33(1) represent restrictions, not en1argements or grants, oflegis1ative authority.

162 Constitution Act, 1982, ibid., ss. 33(3),33(4).

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protected in the Charter ofRights and Freedoms .163 Section 33, however, does establish

manner and form restrictions on Parliament' s or the assemblies' ability to contravene the

Charter ofRights by requiring that "[t]he declaration must be confined to the rights

specified in s. 33; it must be specifie as to the statute that is exempted from the Charter,

and as to the rights that are overridden; and it may not be given retroactive effect. These

requirements are mainly formaI, and ... are not very demanding."I64 The implications of

this for judicial review are that the courts can only review the constitutional validity of a

section 33 declaration based upon its compliance with these formaI criteria; they cannot

scrutinize it upon substantive grounds. 165 This means that in the absence of an express

declaration under section 33 the judiciary exercises review, including a power of

invalidation, over primary legislation. 166 Nevertheless, Parliament and the assemblies

retain sovereign authority to legislate contrary to specified Charter provisions, thereby

preventing any substantive judicial review of the statute in question in such an instance.

This balance betweenjudicial and legislative authority recognizes the popularly elected

legislature as making uitimate determinations as to the political necessity of a Charter

override. 167 It thereby accommodates the doctrine of parliamentary sovereignty.168 The

163 However, Michael Mandel, The Charter ofRights and the Legalization ofPolities in Canada (Toronto:Thompson Educational Publishing, 1992) at 79, writes that "section 33 is not an override of the Charter ataH, but is a refusaI to let the legal profession have the final say in politics."

164 Hogg, supra note 161 at 771; Ibid. at 769.

165 Ibid. at 771-72.

166 See Patrick Monahan, The Charter, Federalism and the Supreme Court ofCanada (Toronto: CarsweH,1987) at 99-100.

167 Hogg, supra note 161 at 773-74; "The power of override... makes judicial review suspensory only."Ibid. at 774.

168 See Monahan, supra note 166 at 118-20.

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fact that Parliament has never invoked the notwithstanding clause, and the provincial

assemblies in only a few instances, suggests the influence that Charter values and section

33 have in erecting political barriers to restrain legislative action. 169 This unique hybrid

of parliamentary sovereignty and American-style judicial review demonstrates

paradigmatic traits in that the legislature is in the end legally competent to adhere to or

disregard Charter rights and values at its discretion. The functional reality, however, is

that courts in Canada regularly and aggressively review, and even invalidate, primary

legislation upon substantive Charter grounds in the absence of a section 33

declaration. l7O In this sense, derogable Charter guarantees still operate in a definitive

manner to restrain government action and encourage judicial review. It must be noted,

too, that section 33 allows the override of only most, but not all, provisions ofthe

Charter. l71 Exempted rights remain completely entrenched against legislative

encroachment and construct a strongly definitive constitutional model enforceable by

judicial review. The Canadian Charter ofRights illustrates how a constitution can

exhibit both paradigmatic and definitive characteristics through the sophisticated

interaction between the judicial and political branches, and have provisions that rely

differently upon legal or political controls for their enforcement. Hogg nicely describes

169 The Federal government has never invoked Section 33. Quebec, however, has used it twice. After theenactment of the Charter, the goveming Parti Québecois, which had been opposed to the Constitution Act,1982, added a blanket notwithstanding clause to aIl existing provincial statutes. It also made such adeclaration in regard to legislation requiring that aIl signs in Québec be irI French. Robert 1. Sharpe andKatherine E. Swinton, The Charter ofRights and Freedoms (Toronto: Irwin Law, 1998) at 54-57. "Theonly province other than Quebec to invoke the override was Saskatchewan, in an effort to protect back-towork legislation introduced during a labour dispute." Ibid. at 57.

170 Russell, supra note 143 at 37.

171 See supra note 160.

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this anomalous situation as promoting "dialogue" between the legislative and judicial

branches. 172

The British constitution, much more so than the American or Canadian, has

traditionally been paradigmatic in that there is no formaI mechanism that can limit

Parliament's legislative power. Constitutional principles are nonjusticiable and

dependent sole1y upon political checks. There appear to be only two legal "mIes" that

absolutely restrain Parliament under orthodox theory and that one might term definitive

of the constitutional order. The first is the doctrine ofparliamentary supremacy itself, the

inverse proposition ofwhich is that Parliament cannot limit its own substantive powers;

Parliament can always undo the actions of its predecessors. 173 The second constitutional

mandate is that an act ofParliament is only that which passes through the Rouses of

Commons and Lords and receives the Royal Assent. An action that fails to achieve this

is not law and courts will give it no effect. 174 Rowever, one might argue that even this

procedural requirement is ultimately a political question, as well, since courts will do no

more than inquire as to whether the act in question appears on the rolls ofParliament.

Courts will question neither the actual internaI parliamentary process nor the giving of

Royal Assent, instead accepting the rolls as conclusive evidence that the act has been

172 Rogg, supra note 161 at 662; Mark D. Walters, "The Common Law Constitution in Canada: Return ofLex Non Scripta as Fundamental Law" (2001) 51 U.T.L.I. 91 at 138, a1so writes: "Under the modem courtparliament dialogue paradigm, neither courts nor legislatures are supreme, but both contribute ideas fromdistinctive perspectives to an ongoing discussion about the best normative structure for Canadian society."

173 Bradley and Ewing, supra note 138 at 58-59,66.

174 There is sorne question as to how far Parliament can change the manner and form in how it makes law.Such changes, however, involve the law-making procedure and not substantive parliamentary powers. TheParliament Acts of 1911 and 1949, infra note 165, for example, disallowed the Rouse ofLords itstraditional right of veto, replacing it with a limited power of delay. The Rouse of Lords Act of 1999 alsorestructured the composition of the upper Rouse by limiting the right of hereditary peers to sit, but withoutotherwise majorly affecting its legislative function. Bradley and Ewing, ibid. at 59-60.

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constitutionally adopted. 175 Other than these two primary mIes, Parliament may act

freely, subject only to Diceyan internaI and externallimitations. Still, while courts

cannot substantively review parliamentary acts and have traditionally followed a

formalistic style of adjudication, they nevertheless exercise considerable control over

govemment. Part II has already discussed how courts directly restrain executive action

through the ultra vires doctrine, while also indirectly controlling Parliament by

interpreting legislation, sometimes quite creatively, in conformity with constitutional

principles. The English judiciary has asserted such controls even in the face ofprivative

clauses through which Parliament has attempted to disallow any judicial review of

secondary legislation made under an enabling statute, as illustrated in Anisminic v.

Foreign Compensation Commission. 176 At issue in that case was a challenge to a

decision of the Commission to reject sorne claimed compensation. In delegating

authority to the Commission, Parliament had added a privative clause declaring that no

decisions ofthat body were reviewable in court. The House of Lords nevertheless found

that the Commission's decision was ultra views and interpreted the ouster clause as not

preventing review of administrative action that was a nullity from the outset. l77 As

Anisminic shows, "for practical purposes the distinction between application and

interpretation of statutes is (in a sense) a matter of degree: there is necessarily an

uncertain border between restrictive interpretation and non-application (in the particular

case).,,178 Regardless ofthe highly paradigmatic nature ofthe parliamentary sovereignty

175 Bradley and Ewing, ibid. at 70-71.

176 [1969] 2 A.c. 147 (H.L.) [hereinafter Anisminic].

177 Allan, Legal Foundations, supra note 108 at 65-66.

178 Ibid. at 65; See Mark Elliott, The Constitutional Foundations ofJudicial Review (Oxford: Hart

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model, adjudicative measures in practical effect give sorne legal efficacy to constitutional

principles. The more active courts are in this regard, the more definitive the British

constitution will become. 179

The above exarnples from British, Canadian, and Arnerican law illustrate the

fluidity ofthe concepts of a paradigmatic or definitive constitution. A constitution,

whether written or unwritten, may rely upon judicial and political enforcement of its

provisions to varying degrees. However, to characterize a constitution as either

paradigmatic or definitive is only a convenient term of generalization, wherein exist

many shades of gray. As Lord Irvine of Lairg explains:

Constitutional supremacy and parliamentary sovereignty are often perceived asconcepts which are polemically opposed to one another, given that the formerlimits legislative power and entrenches fundarnental rights, while the latterembraces formally unlimited power and eschews the entrenchment ofhumanrights. However, the better view is that they represent two different parts of acontinuum, each reflecting differing views about how the judiciary and the otherinstitutions of govemment ought to interrelate.

This conceptualization follows (in part) from the fact the notions of constitutionaland legislative supremacy are themselves elastic. ...

. . . Since they are each catholic principles which accomodate a range ofviewsconceming institutional interrelationship, it is meaningless to suggest that they areinevitably opposed to one another. . .. [T]he two theories are best thought of asdifferent parts of a spectrum ofviews conceming how judges should relate to theother branches of govemment [emphasis original] .180

Publishing, 2001) at 30-34 [hereinafter Constitutiona! Foundations].

179 Griffith, supra note 26 at 44, recognizes such a conceptual shift from a political, or paradigmatic, regimeto a legal, or definitive, one. Griffith writes, quoting Sedley, "Sound of Silence," supra note 112 at 273,"[Sedley] does not advocate a written constitution but re-asserts ms cIaim that 'the common law itself hasboth the capacity and the obligation to move in the next generation towards a principled constitutionalorder.' This is to regard the Constitution as a legal rather than ... a political construct" [footnote omitted].

180 Lord Irvine, "Comparative Perspective," supra note 22 at 7-8. While Lord Irvine comments in thecontext ofhuman rights, his observation equally applies to other areas ofpublic law, such as the mIe oflaw, devolution, and the primacy ofEuropean Community law.

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Thîs "spectrum" allows room for different kinds and degrees of enforcement mechanisms

within a constitutional model, and for sophisticated relationships between the judicial and

political branches. 181 Accordingly, the political or legal protection available for

constitutional principles does not necessarily add to or detract from their normative value

within the community. It is instead such normativity, rather than any particular extent of

judicial review, that is of paramount concem and allows one to say that a nation has a

constitution.182 Likewise, the normative value of a written text in expressing these

principles is the definitive consideration in characterizing it as a constitutional document,

regardless ofthe extent ofits legal enforceability.183

Just as the British and American constitutions rely differently uponjudicial

review, they also draw differently upon textual references. In either political culture,

however, underlying normative values of constitutionalism precede constitutional

form. 184 A constitution is instrumental to constitutionalism not only through its

181 Ibid. at 18.

182 Goldsworthy, supra note 67 at Il, comments that "it may be going too far to regard judicial enforcementas a necessary condition for a norm to be classified as a law."; Ruth Gavison, "The Role of Courts in RiftedDemocracies" (1999) 33 Israel L. Rev. 216 at 226-27.

183 Goldsworthy, ibid. at 11-12.

184 T. R. S. Allan, "Constitutional Rights and Common Law" (1991) Il Oxford 1. L. Stud. 453 at 460-61,468, 477 [hereinafter "Constitutional Rights"]; Constitutionalism is an abstract concept that, while open todiffering definitions, is often taken to require democratic government, adherence to the IUle of law, sorneform of separation ofpowers, and sometimes substantive restrictions on government authority. These basicvalues can lead to different conclusions about the form of the constitution, as illustrated by arguments bothsupporting and rejecting judicial review due to separation of powers. Murphy, "ConstitutionalDemocracy," supra note 136 at 105-09, points out, however, that a constitution and constitutionalism arenot necessarily linked, as a constitution might reject democratic or rights concerns. He further makes adistinction between constitutionalism as requiring substantive limitations upon government and democratictheory that relies only upon political checks. Gavison, supra note 182 at 223-24, suggests such labels canbe confusing, as democratic government is highly valued by those supporting either judicial or politicalchecks. This thesis rejects Murphy's distinction between constitutionalist and democratic thought, insteadasserting that constitutionalism is simply the cornmitrnent to the basic ideals just described. The form ofthe resulting constitution, whether establishing legal or politicallimitations on government authority, is aninstrumental means to the realization of constitutionalism. Lord Irving, "Comparative Perspective," supra

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establishment of clear institutional structures and substantive rules, but also in its manner

of expression. It is through this expressive fonn that political and legal institutions find

guidance in articulating or following underlying constitutional principles.185 In the

United States, courts first look to the written Constitution in restraining government,

while British courts directly refer to the rule oflaw and common-Iaw rights that

traditionally do not derive from a textual source. 186 Canada, having a constitution

"similar in Principle to that ofthe United Kingdom" has in contrast long recognized that

a constitution can consist ofboth written and unwritten elements.187 Courts ofan three

countries, however, do in fact refer to both written and unwritten sources of law when

adjudicating constitutional issues.188 In comparing Canada and the United States in this

regard, Murphy remarks:

[Canadians] distinguished between the constitutional document and thelarger constitution. Indeed, the Canadian Constitution Act, 1982, lists a series ofother texts imbued with constitutional status, and the Canadian Supreme Courthas accepted that the broader constitution includes custom and tradition. In theUnited States, however, scholars, judges, and other public officiaIs seldom speakso clearly. Often "the constitution" to which they refer seems cotenninus with the

note 22 at 2. Thus, the United Kingdom and the United States have shared values of constitutionalism,while having very different constitutions. Limbach, supra note 142 at 51, rnakes the same point incomparing the United Kingdom and the Federal Republic of Germany.

185 See Anthony King, Does the United Kingdom still have a Constitution? (London: Sweet and Maxwell,2001) at 3-6.

186 P. S. Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law (Oxford: ClarendonPress, 1987) at 43-47; David A. Strauss, "Common Law Constitutional Interpretation" (1996) 63 U. Chi. L.Rev. 877 at 885, writes, however, that the "written [American] constitution has, by now, become part of anevolutionary common law system...."

187 Walters, supra note 172 at 91-92,97-100; Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, preamble,reprinted in R.S.C. 1985, App. II, No. 5.

188 Strauss, supra note 186 at 890, comments that "[t]he written constitutiona1ism of the United States hasmuch more in common with the unwritten constitution of Great Britain than it does with the writtenconstitutionalism of a newly formed Eastern European state - or, for that matter, than it does with thewritten constitutionalism of, say, the postwar German Federal Republic or the Fifth French Republic in itsfirst decade."

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text of 1787 as amended. AImost equally as often, however, "the constitution"imp1icit in their arguments goes far beyond that document to includeinterpretations, practices, traditions, and "original understandings" conveniently,ifnot always accurately, ascribed to founders or emendators.189

Written and unwrirten constitutiona1 principles, then, must not exist exclusively of one

another. 190 The extent to which British and American courts refer to unwritten and

written sources oflaw, and how determinative or influential those sources are, exist on

extremely opposite ends of a spectrum. In the United Kingdom and the United States,

foundational texts occupy different amounts of "constitutional space." Both constitutions

also have different compositions in regard to the form ofwritten texts that they primarily

use. The American Constitution is one coherent, integrated document, whi1e British

textual sources exist as a conglomeration oftreaties and statutes. 191 These written

constitutional principles also vary in the United Kingdom and United States in how far

they are paradigmatic or definitive in impact, to the extent that courts will actually rely

upon them in reviewing legislative and executive actions.

2. Flexible and Rigid Constitutions

Just as constitutions vary in how strictly they limit government action through

189 Murphy, "Constitutional Democracy," supra note 136 at 114-15; Murphy further writes, ibid. at 105,that "a constitution need not employa written text, and indeed, probably is never fully encapsulated in adocument. ..." Conversely, it would seem remarkable if an unwritten constitution, such as that of theUnited Kingdom, never had reference to particularly significant legal or political documents.

190 Richard H. Fallon, Implementing the Constitution (Cambridge: Harvard University Press, 2001) at 111,flatly states that "the United States has an unwritten as weIl as a written constitution. [footnote omitted]"He further asserts, ibid. at 113-14, 116, that the written Constitution exists alongside an unwritten, moregeneral constitution comprised of such elements as binding precedent, historical practice, and normsguiding adjudication.

191 Even though formaI theory accords such documents no legal status different from ordinary statute, it stillacknowledges their special role in influencing British constitutional development. Phillips, Jackson, andLeopold, supra note 1 at 18-19; de Smith and Brazier, supra note 4 at 21-22.

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their reliance upon fonnal mIes and enforcement mechanisms, sa too can they exhibit

different dynamics of change. Dicey recognized this important aspect of constitutions by

characterizing them as either flexible or rigid. 192 These two ideas closely relate to

whether a constitution is paradigmatic or definitive, although they remain distinct in

conceptualization. Whereas the tenns "paradigmatic" and "definitive" refer to whether

limitations upon govemment power rely upon binding legal mIes or moral force for

effect, "flexibility" and "rigidity" concem the ease with which such limitations can

change. These concepts reflect institutional competencies within the system in regard to

legislative and judicial powers to alter basic constitutional mIes. They also touch upon

the way in which the constitution fundamentally adapts to or accommodates shifting

political nonnativity in society.

A flexible constitution, as the tenn implies, is one that is very amenable to

change, having few or no special amending procedures. 193 One ofthe most obvious

examples of flexibility is the British constitution.194 The constitution is paradigmatic in

that the Parliament can enact any law it wishes, whether or not it violates other

constitutional principles. Altematively, it is also flexible because Parliament can alter

constitutional principles themselves and establish new baselines for govemment action.

Parliament has done this in the past by establishing mIes for the succession to the Crown,

declaring union with Scotland, and extending the suffrage. 195 Recent constitutional

changes have included the refonn of the House of Lords, continuing integration into the

192 Dicey, supra note 3 at 91, 127-28.

193 Ibid. at 127; de Smith and Brazier, supra note 4 at 10; Phillips, Jackson, and Leopold, supra note 1 at 6.

194 Dicey, ibid. at 91; de Smith and Brazier, ibid. at 15.

195 Dicey, ibid. at 41-44, 130.

76

European Union, devolution, and the passage of the Human Rights Act. All ofthese

significant constitutional measures were achieved through the legislative process,

requiring nothing more than a simple majority in Parliament. Despite formally having no

legaIly binding affect on Parliament, these acts have aIl had great impact upon the

constitution.196 As Dicey pointed out, certain laws in Britain are constitutional as they

"affect the fundamental institutions of the state, and not because they are legally more

sacred or difficult to change than other laws."l97 There is therefore no distinction in form

between a regular statute and constitutional enactment, although their normative value

may vary greatly.198 A partial reason for the lack of formaI recognition of constitutional,

as opposed to regular, acts is that Parliament is more than a legislative assembly; it is also

a "constituent assembly" empowered to alter the constitution.199 Dicey justified such

amendatory powers themselves, incIuded within the doctrine of parliamentary

sovereignty, by the democratic foundations ofParliament. Restricting Parliament's

power to change the constitution would be to limit its abi!ity to respond to the will ofthe

politically sovereign electorate and its shifting values about constitutional government.200

So far, the idea of a flexible constitution would seem to entai! nothing more than

parliamentary sovereignty and the paradigmatic form of constitution. Dicey himself

confused these notions. "A 'flexible' constitution," he wrote, "is one under which every

196 See Robert Hazell, "Reinventing the Constitution: Can the State Survive?" [1999] Pub. L. 84 at 84-87.


198 Ibid. at 89; See Phillips, Jackson, and Leopold, supra note 1 at 8-9 and Goldsworthy, supra note 67 at11-12.

199 Dicey, ibid. at 89.

200 Ibid. at 72-76; See also Goldsworthy, supra note 67 at 228.

77

law of every description can legally be changed with the same case and in the same

manner by one and the same body."ZOl To Dicey, "[a] 'rigid' constitution is one under

which certain laws generally known as constitutional or fundamentallaws cannot be

changed in the same manner as ordinary laws."zoz Dicey made no distinction between

Parliament's role in legislating against constitutional principles and changing the

principles themselves. However, there is nevertheless a conceptual difference between a

paradigmatic and flexible constitution. Just as Part II suggests, it is conceivable that in

the near future a British court might directly overrule or "disapply" an act ofParliament

that clearly conflicts, for example, with the guarantees of the Human Rights Act. Such a

situation would be a judicial attempt to make the principles upon which the act relies

more definitive in nature. However, Parliament could still preserve the sovereign power

to amend or repeal these principles themselves, altering the boundaries within which the

judiciary might otherwise restrain it. A situation would then arise in which Parliament is

legally bound to the restrictions it places upon itself as long as they remain in force, but

can alter that framework on a fundamental and lasting basis, rather thanjust acting in

violation of it.

The Canadian constitution demonstrates this approach in some instances, as weIl

as its counter-example, in which Parliament cannat change the constitution but can

legislate against it. Section 44 of the Constitution Act, 1982 provides that "Parliament

may exclusively make laws amending the Constitution of Canada in relation to the

201 Dicey, ibid. at 127.

202 Ibid. at 127.

78

executive govemment of Canada or the Senate and House of Commons. ,,203 Parliament

has used this procedure only once to adjust the number of seats in the House of Commons

and allocate them among the provinces.204 While the unilateral amending authority of the

federal Parliament is very narrow in scope, section 45 provides that "the legislature of

each province may exclusively make laws amending the constitution of the province."Z05

Both sections 44 and 45, giving to Parliament and the provincial assemblies respectively

narrow and broad authority for unilateral constitutional amendment, reflect the flexibility

found in the British constitution under the doctrine ofparliamentary sovereignty.Z06

Despite this flexibility, however, the existence ofjudicial review in Canada means that

federal and provincial courts can nevertheless review and strike down primary legislation

that offends constitutional provisions otherwise subject to unilaterallegislative

amendment.

Another, even clearer situation in which Parliament is legally subject to self-

imposed restrictions that it may alter at any time arises with the Canadian Bill of

203 The scope ofthis provision is expressly limited, however, by sections 41 and 42. These sectionsrespectively require unanimity among provinces on certain matters and general amending proceduresregarding proportiona1 representation in the House of Commons, as well as the powers and selection ofsenators. See Stephen A. Scott, "The Canadian Constitutiona1 Amendment Process" in Paul Davenport andRichard H. Leach, eds., Reshaping Confederation: The 1982 Reform ofthe Canadian Constitution(Durham, N.e.: Duke University Press, 1984) 249 at 277-78.

204 Constitution Act, 1985 (Representation), R.S.C. 1985, Appendix II, No. 47; Section 44 of theConstitution Act, 1982, supra note 160, rep1aced section 91(1) of the Constitution Act, 1867, supra note187, which gave similar amending power to Parliament. See Hogg, supra note 161 at 89-90.

205 This authority, like that of the federal Parliament pursuant to section 44, is express1y circumscribed bythe genera1 amending procedures of section 41. See Scott, supra note 203 at 278-79.

206 The unilateral amending powers of the Parliament and provincial assemb1ies are also limited in so far asthat must conform to the Charter ofRights pursuant to section 32. The Charter does not restrainamendment under the other amendment procedures requiring a combination of federal and provincialapproval. Hogg, supra note 161 at 74, 703-04.

79

Rights.207 The Bill ofRights guarantees protection against federai infringement of several

substantive and procedural rights.2°8 Section 2 requires that courts construe and apply aIl

other laws consistently with the rights and freedoms contained in the Bill, unless

Parliament expressly declares in a statute that it should have effect notwithstanding.209

This clause is certainly a rule of construction, mandating that courts interpret statutes

according to its principles as far as it is possible to do so. However, the Supreme Court

of Canada has read section 2 to have a broader application. In the case ofR. v. Drybones,

the Supreme Court found that section 2 was more than a rule of construction, but required

courts to declare that inconsistent acts ofParliament are "inoperative.,,210 Drybones was

an appeal against the conviction of an aboriginal man found guilty under the Indian Act

ofbeing intoxicated off a reserve.211 The Supreme Court found that the law in question

violated section 1(b) of the Bill ofRights, guaranteeing equality before the law. Because

section 2 of the Bill required that Parliament give an express declaration of override,

which it had failed to do, and the particular provision of the Indian Act could not be

construed as compatible, it became inoperative. Writing for the majority, Ritchie 1.

207 S.C. 1960, c. 44; R.S.C. 1985, Appendix III [hereinafter Bill ofRightsl

208 The Bill ofRights, ibid., protects such rights as freedom ofreligion, freedom of speech and the press,fair trial, equality before the law, and protection against self-incrimination. The provisions in the Bill ofRights were mostly superceded by the Charter ofRights, except for the Bill's guarantees of due process forthe taking of property, and a fair hearing for the determination of rights and obligations. The Bill aiso on1ylimits the federal, but not provincial, government, whereas the Charter applies against both. Hogg, supranote 161 at 640, 647-48.

209 The Bill ofRights, ibid., s. 2 states: "Every law of Canada shaH, uniess it is expressly declared by an Actof the Parliament of Canada that it shaH operate notwithstanding the Canadian Bill of Rights, be soconstrued and applied as not to abrogate, abridge or infringe, or to authorize the abrogation, abridgement orinfringement of any of the rights or freedoms herein rrecognized and declared."

2\0 [1970] S.C.R. 282 [hereinafter Drybonesl

2ll Section 94, R.S.C. 1952, c. 149.

80

explained this effect: "1 think a declaration by the courts that a section or portion ofa

section of a statute is inoperative is to be distinguished from the repeal of such a section

and is to be confined to the particular circumstances of the case in which the declaration

is made."ZlZ The Bill therefore constructed a defmitive legal model of rights protection,

and still does so in a couple of instances not covered by the Charter ofRights.113

Nevertheless, Parliament remains free to amend or even repeal the Bill ofRights at will as

it technically remains a regular statute.

Both the unilateral amending procedures and the Bill ofRights highlight the

conceptual distinction between constitutional principles that are strongly definitive of

practice yet highly flexible in their susceptibility to change. The Canadian constitution

provides other examples, however, where it is not so easily amended but yet still pennits

legislative override. While section 45 grants sweeping authority to provincial assemblies

to amend the provincial constitutions, the federal Parliament can only do so within the

very narrow confines of section 44. Otherwise, fonnal modification of the Canadian

constitution must proceed along three other avenues that raise a considerable barrier to

fonnal amendment. Section 38 (1) ofthe Constitution Act, 1982 requires that a proposed

amendment on a matter not reserved for a stricter process receive authorization by

resolutions ofboth Rouses ofParliament and two-thirds of the provinces having at least

212 Drybones, supra note 210 at 294; It would seem conceivable, then, that courts could "disapply" a law inone instance as in violation of the Bill ofRights, but give it full effect under a different set ofcrrcumstances. This situation, however, has never arisen before the Canadian courts.

213 See supra note 208; In the cases following Drybones, however, the Supreme Court took a very narrowinterpretive approach to the provisions of the Bill ofRights and never again found federallaw to beincompatible and hence inoperative. Nevertheless, in Hogan v. R., [197512 S.C.R. 574 at 597, the Courtdid characterize the Bill as "quasi-constitutional" in nature. Sharpe and Swinton, supra note 169 at 15-16.

81

fifty-percent ofthe national population.214 Additionally, any proposed amendment that

would affect only a particular province or provinces, but not all ofthem generally,

requires under section 43 the approval of only those provinces concemed along with that

of Parliament. Section 41 sets forth the most arduous amendment process by requiring

unanimity of the provinces, along with resolutions by both Houses ofParliament. This

almost impossible standard applies to matters dealing with the Queen, the Govemor

General, and the provincial Lieutenant Govemors. It also encompasses minimum

provincial representation in the House of Commons, the use of the English or French

language, the composition of the Supreme Court of Canada, as well as a change of

section 41 itself. As for the Charter ofRights, its alteration must proceed according to

the general amendment procedures of section 38.215 The "notwithstanding" clause,

however, gives Parliament and the provincial assemblies authority to declare an express

derogation from the Charter. They accordingly possess the authority to legislate contrary

to the Charter, though they cannot amend it. Parliament and the assemblies in sorne

instances therefore have sole authority to amend the federal and provincial constitutions

while otherwise bound to act consistently with them subject to judicial review. In

contrast, the Charter allows them to legislate blatantly against its guarantees despite

denying them the unilateral ability to amend it permanently. In these ways, the Canadian

constitution illustrates the conceptua1 difference between a constitution's paradigmatic or

definitive nature in imposing mIes, and its flexibility or rigidity regarding change.

214 The remainder of section 38 tailors this general amending procedure for proposaIs that would alterprovincial powers or rights, and offers provinces the choice to "opt out" of any such amendment. SeeHogg, supra note 161 at 74-84.

215 Ibid. at 652, n. 6.

82

The distinction between the process of permanently changing constitutional

provisions and legally enforcing them also exists in American constitutionallaw. The

American Constitution can only be amended formally under the strict procedures of

article V.216 The American Constitution is rigid in that constitutional changes come

about in a manner different from that of ordinary legislation. Such change requires the

participation of state legislatures or special ratifying conventions in addition to that of the

Congress. Although the American Constitution is generally definitive in setting legal

boundaries on government action, sorne aspects like political questions remain

nonjusticiable and paradigmatic in nature. Nevertheless, even those provisions or

principles that are nonjusticiable are still subject to formaI, rigid amendment procedures

in contrast to the greater flexibility of the British constitution?l?

The concepts of flexibility and rigidity, however, are more complex than what

their basic definitions might suggest. InformaI methods of constitutional change can be

just as significant and influential, perhaps even more so, than formaI modifications of

mIes and principles.21S One way in which informaI amendment can come about is

through changingjudicial interpretations.219 This interpretive aspect may make a

constitution less rigid than it appears to be through the formaI amending process, just as

216 D.S. Const. art V requires: "The Congress, whenever two-thirds ofboth Houses shaH deem it necessary,shaH propose Amendments to this Constitution, or, on the Application of the Legislatures oftwo-thirds ofthe several States, shaH caH a Convention for proposing Amendments, which, in either Case, shaH be validto aH Intents and Purposes, as part ofthis Constitution, when ratified by the Legislatures ofthree-fourths ofthe several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratificationmay be proposed by the Congress...."

217 Christopher L. Eisgruber, Constitutional Self-Government (Cambridge: Harvard University Press, 2001)at 21-22.

218 Bradley and Ewing, supra note 138 at 5.

219 See William N. Eskridge, Jr. and John Ferejohn, "Super-Statutes" (2001) 50 Duke L.I 1215 at 1267-68.

83

political pressures may erect strong barriers to change within a very flexible system. The

constitutional jurisprudence of the United States is replete with examples of significant

judicial modification. The United States Supreme Court has, for example, changed the

constitutionallandscape by expanding the interpretation of the commerce clause as weIl

as the taxing and spending power, striking down segregation laws, and broadening the

scope of the Bill ofRights.22o Through adjudication, the Supreme Court has allowed the

Constitution to remain responsive to ever-changing societal needs and political values.221

Judicial "amendment" makes the American Constitution much more flexible than it

would seem from an exclusive focus upon article V amending procedures. Like that of

the United States, the British constitution has also evolved outside of direct parliamentary

reform by statute. Conventions have developed over long periods of consistent political

practice and reflect normative ideas about how the constitution should function in fact, if

not in law?22 AIso, the judiciary has impacted the workings of the constitution, ifnot its

formaI theory, through its articulation and increasing use ofultra vires review.223 As

already discussed in Part II, ultra vires judicial review allows the courts effectively to

control Parliament and the executive, while intense political pressures would make the

revision or curtailment of the judicial review process itself anything but flexible.

Political pressures would also restrict parliamentary "amendments" of other basic

220 See Bernard Schwartz, A History ofthe Supreme Court (New York: Oxford University Press, 1993) at233-38,275-84; Strauss, supra note 186 at 884,905.

221 There are rnany critics of "judicial activisrn" or broad interpretation, particularly among thoseadvocating strict adherence to the original intent of the framers. Such criticisms, however, highlight theextent to which the judiciary has impacted constitutional change. See James A. Gardner, "The PositivistFoundations of Originalism: An Account and Critique" (1991) 71 Boston U. L. Rev. 1 at 6-7.

222 Bradley and Ewing, supra note 138 at 26.

223 See Laws, "Law and Democracy," supra note 57 at 78-79.

84

constitutional principles, just as they prevent or restrain its periodic departure from those

alreadyestablished. One final example of the complexity ofthe concepts of flexibility

and rigidity is the doctrine of parliamentary sovereignty itself. It is the one fundamental

constitutional rule impervious to formaI change by Parliament. Parliament cannot

substantively restrict its own future exercise of sovereign powers, while courts cannot

attack them under orthodox theory.224 The persistence ofparliamentary supremacy

remains entrenched in theory, although it appears to be eroding in practice.

Although Dicey did not draw the more subtle distinction between a constitution's

dynamic of change and its imposition of rules, he commented on the connection between

its rigidity and written form. Dicey made two good observations in this regard. First,

conceming the British constitution, he remarked that the lack of a written form resulted

from its susceptibility to legislative alteration. This causal relationship, he emphasized, is

very different from the contrary argument that the British constitution is highly flexible

because it is unwritten.225 Dicey's point is important in that it identifies the primary role

of normative foundations from which a written or unwritten constitution develops. The

form of the constitution does not give rise to ideals of limited govemment, judicial

review, or extra-Iegislative amendatory procedures. Instead, normative assumptions

about these matters precede the formaI constitution. A written constitution is just an

expression of already existing principles. Dicey wrote:

When a country is govemed under a constitution which is intended either to beunchangeable or at any rate to be changeable only with special difficulty, theconstitution, which is nothing else than the laws which are intended to have acharacter ofpermanence or immutability, is necessarily expressed in writing....

224 Goldsworthy, supra note 67 at 15.


85

Where, on the other hand, every law can be legally changed with equal ease orwith equal difficulty, there arises no absolute need for reducing the constitution toa written fOlID, or even for looking upon a definite set of laws as specially makingup the constitution.226

A constitution cornes after certain principles about the nature of government have arisen

within a political culture. Dicey was therefore correct in conceptualizing constitutional

principles as antecedent to constitutional fOlID. However, he erred when he asserted that

a written document "necessarily" results from a rigid constitution. A constitution may be

definitive in how strictly it binds ordinary legislation, or rigid in its resistance to change,

but remain unwritten in fOlID. Part II has already discussed at length this possibility in

suggesting that Britain's unwritten constitution can reject parliamentarysovereignty and

accommodate more extensive judicial review in continuity with its common-Iaw roots.

While it might be fair to say that a written document "tends" to result from a rigid or

definitive constitution, as its written fOlID better memorializes and provides surer

guidance as to its principles, such a relationship is not necessary.

Although Dicey was incorrect in believing a written document necessary to a rigid

constitution, he rightly suggested that a highly flexible constitution could nevertheless

take written or unwritten form. Even the British constitution, based upon Dicey's model

of parliamentary sovereignty, could hypothetically be a written one:

But it is a mistake to think that the whole law of the English constitution mightnot be reduced to writing and be enacted in the fOlID of a constitution code....[T}he constitution ofEngland might easily he turned into an Act ofParliamentwithout suffering any material transformation ofcharacter, provided only that theEnglish Parliament retained . .. the unrestrictedpower ofrepealing or amendingthe constitutional code. [emphasis added]227

226 Ibid. at 90.

227 Ibid.

86

Dicey's example again characterizes a written constitution as a means of expressing

goveming principles, although it might lack any legal enforcement mechanisms or special

amending procedures. The separation of form from function was so different as to allow

Dicey to imagine even the United Kingdom with a written constitution.228 The fact that

the British constitution, as described by Dicey, did not distinguish between especially

constitutional or regular laws went to their nature as being paradigmatic and flexible. It

did not prevent the recognition of laws being constitutional in the sense that they

reflected fundamental political normativity in a way that most other statutes did not.

The concepts of a flexible or rigid amending process is more complex than the

terms suggest on their own, even though general characterizations remain useful and

convenient for analyzing constitutional systems. Definitive constitutions may indeed

tend to be more rigid, and paradigmatic ones more flexible, although the relationship

between the enforceability ofmIes and their dynamic ofchange is not a necessary one.

Prior discussion on paradigmatic constitutions touched upon the role of a written or

unwritten constitution in imposing enforceable parameters upon govemment, but it is

helpful briefly to reconsider such a relationship in light ofrigidity and flexibility. While

the flexible British constitution is traditionally subject to legislative alteration, its

foundational and by far most important principle, the doctrine ofparliamentary

sovereignty, ironically remains so rigid as to have ossified. The only avenue open to

modify the doctrine of parliamentary sovereignty is that which Dicey himself foresaw for

228 When considering many of the Commonwealth nations, such as Canada and Australia, it appears that"the Westminster system of govemment is not inherently incompatible with a written constitution."Bradley and Ewing, supra note 138 at 6.

87

overly rigid constitutions - revolution.229 Dicey, of course, was apprehensive of "violent

subversion," but revolution may also occur in a more peaceful and surreptitious

manner.230 The revolution necessary to change the doctrine ofparliamentary sovereignty

would be a quiet one, brought about by a shift in the mIe of recognition and the

acceptance ofa competing common-Iaw model oflimited government.231 Accompanying

such constitutional transformation could also be reliance upon written expressions of the

principles underlying it and defining Parliament's new limits. British courts have

increasingly relied upon higher written law, such as the regulations of the European

Community and its founding treaties, in interpreting legislation and exercising ultra vires

review. Other texts, such as the Human Rights Act and devolution statutes, will also

likely have such prominence. These documents arguably have already become

foundational of contemporary constitutional practice and refiect widely held values about

the nature ofBritish government. Such statutes and their roles are indicative of a change

already taking place in regard to the exercise ofparliamentary sovereignty. Before

discussing in more detail how the judiciary relies upon these documents as constitutional

texts restraining government, however, the next section suggests that documents can

normatively bind Parliament as positivist expressions of the popularly sovereign

electorate's democratic will.


230 Ibid. at 129.

231 Mullender, supra note 103 at 144, writes that "[t]o move from our present constitutiona1 order to one inwhich the judiciary occupied such a position of constitutionai primacy wouid . .. invoive a 'break in Iegaicontinuity' to which the term 'revolutionary' couid properly be applied [quoting Sir William Wade,Constitutional Fundamentals (1980) at 36]." Mullender is correct that such change wouid berevolutionary, but only in the limited sense that it would sever continuity with the doctrine ofparliamentarysovereignty. However, it would break with neither the common-law tradition nor the suppressed elementsof its theory that actually support such a constitutional arrangement; Goldsworthy, supra note 67 at 245-46.

88

B. Positivist Foundations for a Written Constitution

Because a constitution may exhibit mixed characteristics, it is a text's normative

value in expressing its underlying principles that is determinative of its recognition as a

constitutional document. This understanding of a written constitution raises questions,

however, as to the origins and authority of its values. It is the democratic foundation of

these governing principles that partly distinguishes constitutionalism from arbitrary

rule.232 Even under the doctrine ofparliamentary sovereignty, the legally unfettered

authority ofParliament is subject to moral restraints resulting from its democratic

accountability. Dicey's justification for parliamentary sovereignty accepts that

fundamental values of constitutionalism and the rule of law promote the public good and

give context to Parliament's exercise of authority. However, the recognition of

fundamental principles that restrain Parliament, either morally or perhaps legally, goes

back further than Dicey, as shown by Blackstone's theory ofnaturallaw and Coke's

opinion in Bonham's Case. The reconciliation of such higher law notions with a

democratic justification for legislative power results in a conception of the public good

that has a moral daim superior to and binding upon Parliament. When constitutional

principles derived from this notion of the public good are put in writing, that text

becomes a positivist expression of popularly sovereign will which courts may apply in

restraining Parliament.


89

1. An Alternative Positivist Model

Within the alternative common-Iaw constitution, paramount principles can not

only exist in unwritten fonn, but they may find expression in written texts, as weIl. The

entrenchment of documents is compatible with the British embrace ofpositivism, despite

the fact that this school ofthought underlies the doctrine ofparliamentary sovereignty.233

The alternative common-Iaw constitution can incorporate written documents based upon

three positivist premises. First, there must be a re-orientation in the locus of sovereignty,

so that the poiitically sovereign electorate becomes superior to the legally sovereign

Parliament in setting restrictions on govemment action. In this way, the constitutional

order cornes to rest upon popular, not legislative, sovereignty. This approach favors

acceptance ofHart' s "mIe ofrecognition" over Austin's simpler conception ofone

sovereign, law-making authority. Second, the exercise ofpowers by govemment

institutions then results from the electorate's delegation of sovereign authority to them;

such delegation divides between the legislative and the judicial branches. In this way, the

judicial enforcement of constitutional provisions becomes a legal manifestation of

external electoral restraints upon legislative action, translating popularly sovereign will

into a fonn of enforceable state action upon Parliament. Finally, written constitutional

documents have a function similar to legislative statutes. They express the will of the

popular sovereign in clear terms that command or prohibit action by the Parliament

subordinate to it. It is their expression, not of substantive principles and values as such,

but ofthe popular sovereign's force ofwill that gives them moral authority.

233 Atiyah and Sunnners, supra note 186 at 225-29; Lord Irvine, "Comparative Perspective," supra note 22at 10.

90

Constitutional texts are also subject to judicial interpretation and application in much the

same way as a regular enabling statute authorizing administrative the making of

secondary legislation. Courts can review primary legislation to ensure that Parliament

has acted within its grant of power and not ultra vires.

The doctrine ofparliamentary sovereignty represents a form of positivism as set

forth by John Austin.234 Austin's version ofpositivism, upon which more sophisticated

theories remain based, has three basic propositions.235 First, there must be an identifiable

sovereign, whose command is authoritative.236 Second, these commands impose general,

sanctionable obligations upon the populace or certain of its segments and receive habituaI

obedience from them.237 FinaHy, there is no necessary connection between promulgated

law and moral standards or content,238 Orthodox British legal theory rests on Austin's

ideas, as the Crown in Parliament is the supreme legal sovereign whose will, as expressed

in law, is binding throughout the realm. The law is unquestionable because of the

presence of a higher law-making entity, which does not exist, or its incompatibility with

accepted morals or values.239 Although Blackstone recognized that Parliament's will

must ultimately prevail, his theory differed from modern positivism as he recognized

naturallaw as a source of morallegal norms that he struggled to reconcile with

234 See Goldsworthy, supra note 67 at 4.

235 Austin himself drew upon the ideas of other thinkers, particularly Jeremy Bentham. See W. L. Morison,John Austin (Stanford: Stanford University Press, 1982) at 66-67; Anthony J. Sebok, "MisunderstandingPositivism" (1995) 93 Mich. L. Rev. 2054 at 2061-62.

236 John Austin, The Province ofLegislation Determined, 2d ed. (London: John Murray, 1861) at 5. Sebok,ibid. at 2064-65.

237 Austin, ibid. at 8-11; Sebok, ibid.

238 Austin, ibid. at 3; Sebok, ibid. at 2063-64.

239 Goldsworthy, supra note 67 at 9-11.

91

omnipotent legislative power.240 AIso, these naturallaw standards were abstract and

required "discovery" through the reasoning process in the courts or Parliament.241 The

positivist notion oflaw as the command of the sovereign rejected Blackstone's approach,

instead emphasizing the morally independent will of the legislature.242 This was the

conception of the British constitution that most influenced Dicey and now underlies

modem orthodox theory. The Austinian positivist doctrine of parliamentary sovereignty

resists any attempt to circumvent it and place limits upon the legislative power.243 The

imposition of legal restraints upon Parliament, however, does not entail a retum to natural

law theories or require a rejection ofpositivism. Rather, limited govemment can also rest

upon positivist foundations that legitimize written constitutional documents as commands

of another, but popular, sovereign.

The center-point for constitutional change in the United Kingdom, and the

reliance upon written documents, is a rejection of Austin's basic model in favor ofone

like that ofH. L. A. Hart. Hart's positivist theory does better than Austin in describing

more complex constitutional systems that incorporate ideas such as judicial review or

lack one supreme, law-making sovereign, as federalism does,z44 At the center ofHart's

240 Frederick Schauer, "Legal Positivism and the Contingent Autonomy of Law" in Tom Campbell andJeffrey Goldsworthy, eds., Judicial Power, Democracy and Legal Positivism (Aldershot, D.K.: AshgateDartmouth, 2000) 215 at 217.

241 See 15-16, above.

242 R. George Wright, "Does Positivism Matter?" in Robert P. George, ed., The Autonomy ofLaw: Essayson Legal Positivism (Oxford: Clarendon Press, 1996) 57 at 65.

243 See R. W. M. Dias, Jurisprudence, 5th ed. (London: Sweet and Maxwell, 1985) at 348-51.

244 See H. L. A. Hart, The Concept afLaw (Oxford: Clarendon Press, 1961) at 103, 78-79; The distinctionsbetween Austin and Hart are many, and the reasoning ofboth is carefui and full of nuance. Additionally,many other prominent thinkers and commentators have contributed to the understanding, criticisms, andfurther development of their ideas. However, a thorough analysis of the jurisprudential debate onpositivism is far beyond the scope and purposes of this thesis. This work is concerned with constructing a

92

theory is his distinction between primary and secondary mIes. The primary kind consists

of the rights and duties between individuals, while thesecondary type describes the

means by which primary mIes come into being, change, or are extinguished.245 Certain

types of secondary mIes, however, do not owe their existence or validity to any other

higher, defining mIes. Such a "mIe of recognition" is the ultimate mIe of the legal

system from which aU others derive validity.246 This fundamental mIe cannot be validate

on its merits and exists as a political or social fact based upon its acceptance by judges,

government officiaIs, and members of the community.247 The mIe supplants Austin's

more basic notion oflaw as the command of a single sovereign.248 In this way, law is

more than a simple command enforceable by the power of its issuing sovereign. Rather,

the authority oflaw derives from the populace's perception ofits validity and their

obedience to it due to its promulgation according to secondary mIes and, on the most

fundamentallevel, the mIe ofrecognition.249 The mIe of recognition itself, while existing

as fact, may rest upon possibly complex normative values about the nature of

government. It must not necessarily be a blind and substantively unconsidered

assumption. To the contrary, it may take various forms that reflect considerable

normative content.25Û For instance, the mIe of recognition might simply remain the

straightforward, workable, and acceptable theoretical basis upon which the British constitution can moreeasily shift to incorporate written documents in limiting govemment power.

245 Ibid. at 91-92.

246 Ibid. at 97, 102, 105-06.

247 Ibid. at 98-99; Go1dsworthy, supra note 67 at 98-99.

248 Hart, ibid. at 64-67, 92, 97, 102.

249 Ibid. at 75.

250 Jules Coleman, "Authority and Reason" in George, supra note 242, 287 at 302, summarizes that mIe of

93

unwritten doctrine ofparliamentary sovereignty. Altematively, however, it might place

limits on legislative authority, grant review powers to the judiciary, and recognize a

written text as the expressive instrument of popular will.251 In this way, the legal

competencies of aU govemment institutions, as well as the constitutional status of a

written text, receive their authority as foundationai sources of law from ongoing

endorsement by the political community at large. Although the mIe of recognition is a

social fact, intrinsicaUy having no normative content, it nevertheless is a descriptive

concept to which normative values may attach by virtue of their acceptance among

officiaIs and the electorate.252

Hart' s mIe ofrecognition offers an avenue of escape from parliamentary

sovereignty as that doctrine's continuing Iegitimacy must depend upon its ongoing

acceptance throughout the community. Such change must not occur in a relatively

sudden or formaI manner, but may be a slow process over time as attitudes and practices

among officiaIs and the public coalesce and reinforce each other.253 The constitution

might evolve, resulting in a weakening of the doctrine, due to a graduaI shift in the mIe of

recognition. The new mIe may in tum reflect, though not necessarily sa, emerging

normative assumptions about govemment. This form of "organic" endorsement by the

recognition as "a normative social practice among officiaIs. Hs authority among them derives from patternsof convergent behavior [emphasis added]."; Ibid. at 297; Matthew H. Kramer, ln Defense ofLegalPositivism: Law without Trimmings (Oxford: Oxford University Press, 1999) at 115.

251 Hart, supra note 244 at 69, 70-71, 103.

252 But see Goldsworthy, supra note 67 at 256-59, who emphasizes the separability of the formaI mIe ofrecognition itself from the possibly multiple and conflicting normative justifications for it throughout thecommunity. While such separability, as a basic tenet of positivism, is possible under Hart's theory, it is notnecessary. The mIe of recognition may promote a certain "internaI perspective" based upon motivatingvalues. Craig, "Public Law," supra note 28 at 225-28.

253 Goldsworthy, ibid. at 245.

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popular sovereign, as well as by officiaIs, permits an evolutionary change in the

constitution at a fundamentallevel beneath the theory of parliamentary sovereignty.

Developing social and political practices, and the norms that drive them, can therefore

suggest a new mIe of recognition that limits government power and accepts its control

through sorne form ofjudicial review. Change in the mIe of recognition might become

evident through increasing criticisms ofparliamentary sovereignty or the

acknowledgement by officiaIs oflimitations upon government authority. Other signs

mightbe popular or judicial support for the mleoflaw, human rights, and acceptance of

competing sources of law such as that of the European Cornmunity or regional

assemblies.254 Although formaI theory might resist these pressures for sorne time,

constitutional practice must in fact respond to a shift in the mIe ofrecognition to retain its

legitimacy and prevent disintegration of the legal system.255 Failure to do so might result

in overt revolution ofthe constitutional order, even though it be peaceful, and the

possible establishment ofmore pronounced and radical changes than would have

occurred through the legal system's graduaI accommodation ofnew mIes ofvalidity or

widely-held norms.

Orthodox British theory already recognizes that the legitimacy, but not legality, of

parliamentary action depends upon its democratic accountability. Rather than balancing

a potentially conflicting division ofpolitical and legal sovereignty, however, theory can

adjust to recognize the normative daim that popular sovereignty restrains government

power. Modem notions ofdemocracy arguably demand a much greater responsiveness

254Ibid. at 244-46; See Hart, supra note 244 at 116-20.

255 Hart, ibid. at 114-15.

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of govemment to the electorate than Dicey thought, suggesting that the will of the

political sovereign is to be regarded in a fundamental sense as superior to Parliament.256

This normative, democratic principle suggests and supports a new mIe of recognition

allowing limits on legislative authority enforceable by judicial review.257

2. Written Constitutions as Expressions ofPopular Sovereignty

A division of sovereign legal powers can result in the establishment ofjudicial

review, limiting the legislature and ensuring that it stays within its constitutional

boundaries.258 In fulfilling this role, the judiciary promotes democratic values, despite

being unelected, by enforcing constitutional principles on behalf of the popular

sovereign.259 This democratic foundation is straightforward, as the mIe of recognition

from which it receives its authority originates in the general political community.

ludicial review also emphasizes the democratic basis ofthe constitution that Dicey

recognized by entrenching principles, such as the mIe oflaw, in order to ensure that

Parliament does not act contrary to the wishes of the political sovereign.260 Dicey, as

discussed above, described the difference between internaI and external checks as that

between fundamental values held by the mler and the limits to which subjects are willing

256 Craig, "Public Law," supra note 28 at 221-22,228.

257 See ibid. at 228.

258 Sir Stephen Sedley, "Govemments, Constitutions, and Judges" [hereinafter "Govemments"] in GenevraRichardson and Hazel Genn, eds., Administrative Law and Government Action: The Courts and AlternativeMechanisms ofReview (Oxford: Clarendon Press, 1994) at 36.

259 Roger Cotterrell, "Judicial Review and Legal Theory" in Genevra Richardson and Hazel Genn, eds.,Administrative Law and Government Action: The Courts and Alternative Mechanisms ofReview (Oxford:Clarendon Press, 1994) 13 at 17-18.

260 See Allan, Legal Foundations, supra note 108 at 284.

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to tolerate governmental action.261 His acceptance ofparliamentary supremacy resulted

in ms description of these externallimits as being solely political in nature, and

manifested only in the attitudes and actions of the general public.262 Dicey acknowledged

that "political" as opposed to "legal" sovereignty rests in the people. His belief that

''judges know nothing about any will of the people except in so far as that will is

expressed by an Act ofParliament" rejected the idea that the courts channel popular will

and give it legal force. 263 Dicey, however, was short-sighted in characterizing "extemal"

to mean completely outside of institutional government and emanating directly from the

subjects themselves. This understanding of "external" excludes the notion that

government might include an institutional check like the judiciary, other than the

legislative body itself, that speaks for the people. In this sense, the judiciary can itself

democratically represent or express the citizenry's nonnative assumptions as to the

appropriate limitations oflegislative or executive powers.264 The recognition ofthe

judiciary as a "proxy" for the citizenry gives the popular sovereign a stronger position in

opposing excessive government actions, and mitigates or replaces the need for popular

disobedience. "Extemal" limits upon the legislative exercise oflaw-making powers can

therefore exist within the fonnal organizational framework of government. The

electorate acts positively through legislative representatives exercising individual

judgment when enacting law, while it acts negatively through the judicial check of


262 See ibid. at 77-79.

263 Ibid. at 74.

264 Eisgruber, supra note 217 at 62, 211.

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government actors overstepping their discretionary boundaries.265 This results in a

duality ofrepresentation that departs from the orthodox doctrine ofunitary, parliamentary

sovereignty: sovereignty is divided between the legislature and judiciary. Sir Stephen

Sedley has suggested that such a concept might have already developed in the British

constitution through the judicial exercise of ultra vires review.266 T. R. S. Allan follows

Sedley in his comments on the judicial implementation of the European Convention on

Ruman Rights. Re writes that "the British constitution embraces a dual sovereignty: in

the interpretation and application of law the courts have, and rightly have, the last

word.,,267 This judicial role, based in democratic theory, legitimizes its function in

restraining the legislature and assessing popular attitudes.

Judicial review as a means of enforcing popularly sovereign might resuIt, as in the

case of the United States, from direct popular ratification of a written constitutional

document.268 Such a document might explicitely recognize the power ofjudicial review

oflegislative or executive acts.269 Otherwise, it can imply it as an enforcement

mechanism. The United States Constitution, for example, has no explicit mention of

judicial review, despite Ïts long history with it. Chief Justice Marshall first implied the

265 There are, therefore, "distinct but interlocking spheres of constitutional competence." SedIey, "Sound ofSilence," supra note 112 at 271.

266 SedIey rejects the notion that the executive has any share of sovereignty, but remains answerable to bothParliament and the courts. He suggests that "public law now has both the doctrinal strength and the publicsupport to say that this is a matter on which there is no longer a constitutional silence and that the mIe oflaw recognises two sovereignties, not one and not three." Ibid. at 291.

267 Allan, "Response," supra note 50 at 381.

268 Anupam Chander, "Sovereignty, Referenda, and the Entrenchment of a United Kingdom Bill of Rights"(1991) 101 Yale L.l. 457 at474-75.

269 Canada's Charter ofRights, supra note 159, s. 24(1), for example, gives courts jurisdiciton over Charterdaims and authorizes their granting a remedy, while the Constitution Act, 1982, supra note 160, s. 52(1)states that any law inconsistent with the constitution has no effect.

98

power in Marbury v. Madison, although the doctrine was not new in American

constitutional thought. 270 In the Federalist No. 78, Alexander Hamilton noted both the

significance of a written constitution as both an expression ofpopular will and

fundamental goveming principles, and characterized the judiciary as the instrument for its

realization in law:

Ifthere should happen to be an irreconcilable variance between [the constitutionand legislative act], that which has the superior obligation and validity ought, ofcourse, to be preferred; or, in other words, the Constitution ought to be preferredto the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to thelegislative power. It only supposes that the power of the people is superior toboth, and that where the will of the legislature, declared in its statutes, stands inopposition to that of the people, declared in the Constitution, the judges ought tobe govemed by the latter rather than the former. They ought to regulate theirdecisions by the fundamentallaws rather than by those which are notfundamental. 271

Implicit in Hamilton's remarks are three points supporting a positivist foundation for a

written constitution. First, the legislature is the "agent" ofthe people, whose intentions

are superior to it. As an agent, then, the legislature must abide by the will of the popular

sovereign. This obligation, as weIl as the constitution's "validity," is rooted in a

democratic theory that transforms the moral imperative of responding to the electorate

into a corresponding legal obligation. The constitution is the expression of this popular

will, functionally similar to a statute expressing the command of the legislature. Second,

in recognizing the moral and legal superiority ofthe popular sovereign's will, the

judiciary must enforce constitutional provisions against the legislature. The role of the

270 Marbury, supra note 144; See Schwartz, supra note 220 at 39-43.

271 Alexander Hamilton, Federalist No. 78 in Alexander Hamilton, James Madison, andJohn Jay, TheFederalist Papers, ed. Clinton Rossiter, intro. and notes Charles R. Kesler (New York: Mentor, 1999) at435-46.

99

courts in this regard is essentially little different from its role in interpreting and applying

statutes, except that it is deferring to the people over their agents. Hamilton, however,

makes it clear that the judiciary is not superior to the legislature. These branches occupy

different but equal institutional positions intended to give effect to electoral will. In this

sense they exercise dual sovereignty, delegated to them by the ultimate popular

sovereign. Finally, in addition to recognizing a constitution as representing the

democratic will of the people, Hamilton described it as "fundamentallaws." The

characterization of a constitution as fundamental evokes an understanding that its

principles and roles have special status lying at the foundations of the political system.

Distinct from laws that "are not fundamental," those being regular acts of the legislature,

the constitution expresses nonnative assumptions about government. These assumptions

are bound with the democratic will of the popular sovereign, from which they gain their

morallegitimacy.

A written constitution has nonnative value as a means of expressing pre-existing

goveming principles. An alternative common-law model that limits Parliament and

accepts judicial review as a popularly endorsed means of enforcement can exist solely in

unwritten fonn. However, this constitution can subsequently accommodate a written text

as a means ofbetter articulating and expressing its foundational principles. Because

those principles are nonnative assumptions about government that inform the role of

recognition, the written constitution itself acts like a "statute" in that it represents the

command of the popular sovereign, binding on the legislature and enforceable by the

judiciary.

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c. Common-Law Adjudication and the Constitutionalization of Written Texts

Just as Coke regarded statutes as statements ofthe high court ofParliament

declaring, clarifying, or altering the common law, courts can consider certain texts as

having similar operation as expressions of fundamentallaw. The judiciary can develop a

constitutional jurisprudence by reflecting upon written constitutional texts in this way and

treating them in traditional common-Iaw fashion. It can weave written texts into

constitutional jurisprudence alongside other unwritten principles restraining Parliament.

Courts can do so by gradually recognizing certain statutes or treaties, such as the Human

Rights Act and the Treaty ofRome, as declarations ofparamount, common-law

constitutional principles due to their representation ofnorms, which are those of the

popular sovereign.272 These texts "fill in the gaps" of the unwritten common-Iaw

constitution and are the product of an on-going, deliberative interaction between the

legislature and judiciary in shaping a constitution that grows and evolves with the popular

sovereign's shifting normative assumptions.

While positivism has generally struggled to reconcilestatute and common law,

oIder common-Iaw theory as understood by Coke supported a more ambiguous, and

arguably harmonious, relationship between the twO.273 Parliament, as a high court,

articulated principles of law conducive to the public good. While the legislative process

was of course different from that of the judicial, statutes nevertheless declared, refined, or

272 Human Rights Act, supra note 1; Treaty ofRome, supra note 1.

273 See Sebok, supra note 235 at 2062-65. Also see generally A. W. B. Simpson, "The Common Law andLegal Theory" in A. W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2d seI. (Oxford: ClarendonPress, 1973) 77, for a good discussion on the tensions resulting between positivism and traditiona1common-law theory.

101

otherwise developed the common law.274 It was because ofthis interaction between

statute and common law that Coke supported a judicial power to void statutes against

"common right and reason.,,275 UnlessParliament has made its intention c1ear to change

the common law, courts have always deferred to it and interpreted statutes as compatible

with its principles.276 Just as statutes may not only dec1are and modify the common law

in areas such as contract or tort, however, they may also reflect common-Iaw principles

foundational of the constitution. As explained in Part II, Coke's theory, along with that

ofBlackstone and Dicey, is adjustable to support a constitutional arrangement where

fundamental common-Iaw principles promoting democratic conceptions of the public

good take precedence over contradictory statute. Under this framework, the judiciary

possesses much leeway in how it interprets and applies (or even disapplies) statute law.

Courts can thus follow a flexible adjudicativeapproach in developing a constitutional

jurisprudence that maintains a balance between common law and statute.

The relationship between statute and common-Iaw becomes more complex when

a statute purports to change constitutional principles themselves.277 Courts must then

give special consideration when attempting to reconcile it with the binding common law

or subsequent contradictory statutes. A court may come to find that such a statute

POSSeSSeS enough normative strength to become entrenched in the constitution and limit

Parliament in the same way as do paramount common-Iaw principles.278 Even without


275 See 28-29, above.

276 Go1dsworthy, supra note 67 at 250-52.

277 See Eskridge and Ferejohn, supra note 219 at 1266.

278 The Supreme Court of Canada has once hinted of a simi1ar process for the Canadian constitution. The

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the adoption of a comprehensive written and popularly ratified constitutional document,

texts in this way graft onto the underlying common-law framework and become

normative in their own right as positivist expressions of popular will. Texts in this sense

do not "trump" or stand apart from the common-law constitution, but become intertwined

with it.279 Such fusion of common-law and statute have occurred on a lesser level, for

example, with the Statute ofUses and Statute ofFrauds, which "both changed the

common law and became objects ofevolution andjudicial elaboration, common law-

style.,,28o These "statutes," originally enacted by Parliament during the respective reigns

ofHenry VIII and Charles II, illustrate how closely text can intertwine with the common-

law.281 This instance ofmelding statute and common law reflects how weIl a text can

become embedded in the over-arching unwritten tradition. However, the integration of

statute into the common law at this level goes beyond the power of the legislature alone

but instead depends upon its judicial treatment over time. The result is a permanent

transformation ofthe common-law, which absorbs the statute and henceforward promotes

it as a constituent principle?82 In this way, the incorporation oftexts into the common-

Constitution Act, 1982, supra note 160, s. 52(2) provides that: "The Constitution of Canada includes (a) theCanada Act 1982, including this Act; (b) the Acts and orders referred ta in the schedule; and (c) anyamendment to any Act or order referred to in paragraph (a) or (b)." In New Brunswick Broadcasting Co. v.Nova Scotia, [1993] 1 S.C.R. 319, the Supreme Court found that this section was not exhaustive andincluded within it the unwritten doctrine ofparliamentary privilege. It therefore followed a reverse processof formally incorporating an unwritten principle into a predominantly written constitutional framework.Hogg, supra note 161 at 7-8, muses on the possibility that the Supreme Court cou1d a1so add, and therebyjudicially constitutiona1ize, other written documents, although to do so a Canadian court "would be verybold indeed... ."

279 See Allan, Legal Foundations, supra note 108 at 11-12.

280 At least in the context of American jurisprudence, these two "statutes" are taught in 1aw schoo1s anddeveloped in practice no differently from any other principle at common 1aw. Eskridge and Ferejohn, supranote 219 at 1219.

281 Statute ofUses, 1535 (D.K.), 27 Hen. VIII, c. 10; Statute ofFrauds, 1677 (D.K.), 29 Car. n, c. 3.

282 Allan, Legal Foundations, supra note 108 at 93-94; Beatson, supra note 71 at 250, asks: "Why, ifthey

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law framework is an on-going, evolutionary process that is "organic" in the sense that it

is responsive to deeper normative legal understandings within the community and occurs

through common-law adjudication.

Incorporation can conceivably occur on a more fundamentallevel, where a

regularly enacted statute affects the constitutional system in a deep-rooted, lasting way so

that courts treat it the same way as paramount common-law principles. As a regular

statute, it might at first not legally limit Parliament and may itself actually be constrained

by higher constitutionallaws. Its status can eventually change depending upon its

reception by the judiciary, other government actors, and the community, thereby

ascending to constitutional status. William Eskridge and John Ferejohn term written laws

ofthis sort "super-statutes" because they "successfully penetrate public normative and

institutional culture in a deep way. ,,283 As examples of such laws, they identify the

American Sherman Antitrust Act, the Civil Rights Act, and the Food, Drug, and Cosmetic

Act, as well as potentially the British Human Rights Act?84 Eskridge and Ferejohn

identify three main characteristics that characterize these and other super-statutes:

A super-statute is a law or series oflaws that (1) seeks toestablish a newnormative or institutional framework for state policy and (2) over times does"stick" in the public culture such that (3) the super-statute and its institutional ornormative principles have a broad effect on the law - including an effect beyondthe four corners of the statute....

are relevant, should a common law system not also snap up weIl considered trifles of statute law enacted byits own legislature?"

283 Eskridge and Frerejohn, supra note 219 at 1215.

284 Antitrust Act, 15 D.S.C. §§ 1-2 (1994); Civil Rights Act of1964, Pub. L. No. 88-352,78 Stat. (codifiedas amended in scattered sections of 5,28, and 42 U.S.C.) (1994); Food, Drug, and Cosmetic Act of1938,75 Pub. L. No. 717, 52 Stat. 1040 (1938)(codified as amended at 21 D.S.C. § 301 (1994)); Human RightsAct, supra note 1.

104

Super-statutes are applied in accord with a pragmatic methodology that is a hybridof standard precepts of statutory, common law, and constitutional interpretation.Although the courts so not have to consider the super-statute beyond the fourcorners of its plain meaning, they will often do so because the super-statute is oneof the baselines against which other sources of law - sometimes including theConstitution itself- are read. Ordinary mIes of construction are often suspendedor modified when such statutes are interpreted. Super-statutes tendto trumpordinary legislation when there are clashes or inconsistencies....285

The concept ofthe super-statute provides a model by which certain statutes or even

treaties can become constitutional documents through an evolutionary and judicial

process. The first part of the above characterization is normatively dependent upon a

statute's intent to alter constitutional boundaries, its durability, and its broad systemic

effects. The second part is methodological as courts recognize the super-statute's

normative value, adjudicate it according to a common-Iaw constitutionaljurisprudence,

and give it priority over "lesser" laws. Hs normativity rests in a notion of popular

sovereignty, while institutionally it operates as a hybrid of legislative enactment and

judicial development,286 Eskridge and Ferejohn describe these exceptional statutes as

"quasi-constitutional" in status.287 However, as they write within the context of

American law, such statutes of course remain subordinate to the Constitution. In the

alternative British model, super-statutes instead become the paramount laws themselves,

in conjunction with fundamental common-Iaw principles limiting Parliament and

enforceable throughjudicial review.288 Through this process, Parliament and the courts

285 Eskridge and Ferejohn, ibid. at 1216.

286 Ibid. at 1216-17,1229-30,1266-67,1273-74.

287 Ibid. at 1216-17,1266-67.

288 Eskridge and Ferejohn, ibid. at 1265, characterize both the Canadian Bill ofRights, supra note 207, andthe British Human Rights Act, supra note 1, as super-statutes, but note that theydo not have the "trmnpingpower that a constitution does." However, Drybones, supra note 210, shows to the contrary that such a

105

play a tandem role in developing the constitution. The courts interpret and apply regular

legislation in a rnanner consistent with both written and unwritten constitutional

principles, while Parliarnent participates in the "arnending process" by passing a super-

statute in the first place. Cornrnon-Iaw adjudication thereafter constitutionalizes the

statute through an evolutionary process reacting to shifting norms.289 In what ways

super-statutes and unwritten constitutional principles are enforceable and hierarchical, as

weIl as unilaterally changeable by Parliall1ent, can vary depending upon political

developrnents, as weIl as their treatrnent by a judiciary with considerable leeway in how

it interprets and applies thern. As a result, the cornrnon-Iaw constitutionrnay contain

written and unwritten principles sharing the basic effect of restraining Parliarnent, but in

different rnaImers and degrees. Such variance depends upon the normative values,

purposes, and functions ofhigher laws as they becorne apparent through the on-going

judicial process.290

As texts co-rningle with the cornrnon law to forrning a changing constitutional

landscape, the interpretive approach taken by courts will vary. Unwritten and written

statute can having binding effect upon the legislature. A super-stature can operate in this manner in Britishpublic law ordered under the alternative common-Iaw mode!.

289 See Eskridge and Ferejohn, ibid. at 1268-71; It is important to emphasize that the judiciary cannotconstitutionalize texts on the basis of its own substantiating authority. The judicial role in this process is toshow deference to the e1ected Parliament in contested areas, and carefully reflect upon actions andperceived attitudes of government actors and the electorate. While courts of course exercise their ownjudgment in this regard and its own attitudes affectits determinations, the constitutionalization oftextresults from shiftingpolitical normativity within the political community at-large; common-lawadjudication is instrumental to this process, and not the originating authority. See Goldsworthy, supra note67 at 240-46; As Eskridge and Ferejohn, ibid. at 1273, write: "Typically supeNtatutes are extertsivelyrelied upon by the people, and are repeatedly visited and endorsed by legislative, administrative, andjudicial institutions in response to the actions taken by private as weIl as public actors."46.

290 The possibility also arises that, just asthey constitutionalize certain significant texts, courts can deconstitutionalize them in a like manner should they lose their normative value in society.

106

principles require broader, purposive construction sensitive to their relative moral force,

as well as their legal effects in restraining Parliament.291 The common law, of course, has

long provided not only formaI mIes but abstract principles of good govemance,

especially in regard to individual rights and due process concems.292 The example of the

ultra vires doctrine, with its requirement of rationality in the administrative decision-

making process, shows how abstract principles can be judicially developed and applied to

limit govemment action depending upon circumstantial considerations. Just as the

entrenchment of super-statutes results from the common-Iaw process, so too does their

subsequent interpretation and application as higher law binding upon Parliament. Courts

should therefore constme them "liberally and in a common law way, but in light of the

statutory purpose and principles as well as compromises suggested by statutory texts.,,293

Through their judicial entrenchment as expressions of overriding norms emanating from

the popular sovereign, constitutional texts are loosed from parliamentary intent. For

these reasons, the courts' interpretive approach to constitutional texts is likely to be more

purposive than formalistic. 294 This means thatjudicial interpretation and application

should be more forward-looking and considerate ofresults consistent with both the text's

underlying principles and broader systemic integrity. This contrasts witha commitment

of strict obedience to Parliament's intent when enacting the super-statute. Furthermore,

since courts can look beyond the "four corners" of the text in question, this means that

291 Allan, Legal Foundations, supra note 108 at 87-88.

292 Ibid. at 136-37; Bradley and Ewing, supra note 138 at 17-18.

293 Eskridge and Ferejohn, supra note 219 at 1247.

294 See Allan, Legal Foundations, supra note 108 at 93-94, 143-45, 156; Beatty, supra note 148 at 142-43;Beatson, supra note 71 at 249,251,260.

107

they can also consider the impact of other relevant but regular, constitutionally

unentrenched statutory schemes. Because courts display a broader principled and

systemic consciousness, Parliament thereby has further, even if indirect or attenuated,

influence in the development of constitutionaljurisprudence.

In the way described, the alternative constitution can come to include both written

and unwritten elements, constitutionalized and enforced by the judiciary in a common

law manner that reflects shifting normative assumptions of the popular sovereign. This

process, premised upon a continuing and complex interaction between the judicial and

legislative branches, is a graduaI, evolutionary means ofconstitutional development that

maintains continuity with Britain's common-law and political traditions. In recent

decades, the emergence of constitutionally significant statutes and vigorous employment

of ultra vires review seems to signal a weakening in the doctrine of parliamentary

sovereigntyand increased authority in the judiciary. Such a situation heralds the

resurgence of a common-Iaw constitutional model that limits Parliament through judicial

review. The next and final section ofPart HI briefly examines this transformation

process by identifying significant British constitutional documents. It argues that the

judiciary already relies upon sorne of these texts effectively to limit Parliament and has

begun gradually constitutionalizing them.

D. Overview: The United Kingdom's Quasi-Written Constitution

While the British constitution ha::; traditionally been regarded as unwritten in that

there has been no document the contentofwhich binds Parliament, it is wrong to

conclude that it contains no written elements. At different moments throughout its

108

history, certain documents have fundamentally influenced Britain's constitutional

development and reflected critical shifts in political norms. Early documents include the

Magna Carta,· the 1689 Bill ofRights, the Act ofSettlement, the Acts ofUnion between

England and Scotland, and the Reform Act of 1832.295 While none ofthese instruments

1egally restrains Parliament, courts have traditionally used them as interpretive too1s,

presuming that it intends to 1egis1ate consistently with their provisions.296 In this century,

Par1iament began the abdication of its imperia1 authority with the Statute ofWestminster

in 1931.297 It also consolidated its democratic accountability by greatly limiting the

power of the Rouse of Lords through the Parliament Acts of 1911 and 1949, and

abolishing the ancient right ofhereditary peers to sit in the upper chamber by the House

ofLords Act 1999.298 The most significant and far-reaching acts are the European

Communities Act 1972, the Human Rights Act 1998, and the statutes devolving law-

making authority to Scotland, Northem lre1and, and Wales.299 These latter documents

are particular1y important in that they place direct pressures on Parliament's exercise of

sovereignty, requiring that it defer to other sources oflaw and respect human rights.300

These ambitious statutory regimes further exist within the context of aggressive ultra

295 Magna Carta, 1215 (Eng.); Bill ofRights, 1689 (Eng.), 1 Will. & Mar. Sess. 2, c. 2; Act ofSettlement,1700 (Eng.), 12 & 13 Will. III, c. 2; Union with Scotland Act, 1706 (Eng.), 6 Anne c. Il and Act ofUnionwith England Act, 1707 (Scot.); Representation ofthe People Act, 1832 (D.K.), 2 & 3 Will. IV, c. 45.

296 Bradley and Ewing, supra 138 at 14-17.

297 The Statute of Westminster, 1931 (D.K.), 22 & 23 Geo. V, c. 4, dec1ared that Parliament wouldthereafter no longer legislate for the Dominions without their request and consent.

298 Parliament Act, 1911 (U.K.), 1 & 2 Geo. V, c. 35; Parliament Act, 1949 (U.K.), 12, 13 & 14 Geo. VI, c.103; House ofLords Act 1999 (U.K.), 1999, c. 34.


300 Hazell, supra note 196 at 86-87.

109

vires review by the judiciary and seriously undermine the doctrine ofparliamentary

sovereignty. Increasingjudicial authority, competing with Parliament's weakened but

still extant daim to supremacy, results in complex judicial and legislative interaction that

makes the constitution very fluid in regard to its definitive/paradigmatic and rigid/flexible

natures. Judicial reliance upon and political deference to European Community law

pursuant to the European Communities Act, the European Convention on Human Rights

as incorporated by the Human Rights Act, and the devolution statutes have increasingly

constitutionalized these written sources oflaw, along with unwritten principles such as

the rule oflaw, to fonu a "quasi-written" constitution. This constitution, an alternative

common-Iaw framework comprised ofboth written and unwritten elements, is

supplanting the doctrine of parliamentary sovereignty in fact, if not yet in theory.

While the devolution acts have not yet produced significant case law, the Human

Rights Act and European Communities Act provide good examples ofhow the judiciary is

constitutionalizing these, and potentially other, texts. This section briefly examines sorne

illustrative British cases dealing with the Human Rights Act and the European

Communities Act. These cases show how courts can elevate regular statutes to a higher

constitutional status, and then interpret and apply them in various ways effectively to

control both Parliament and the Crown. 301 They further illustrate the dynamic

relationship between the judicial and legislative branches in shaping the constitution and

suggest that in the future courts may more boldly daim authority directly to set aside

primary legislation.

301 As Beatson, supra note 71 at 251, writes, for example, "the Ruman Rights Act 1998 envisages thedevelopment of a new form of common law by reference ta the text of the European Convention of RumanRights - a legislative instrument."

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1. The Human Rights Act 1998

The Human Rights Act 1998 came into force in October, 2000, incorporating most

sections ofthe European Convention into domestic English law, subject to any

reservations or derogations made by the United Kingdom.302 Sections 3 and 4 of the

Human Rights Act establish the courts' powers in giving effect to the rights guaranteed in

the European Court of Human Rights.3°3 Section 3(1) states that "[s]o far as it is possible

to do so, primary legislation and subordinate legislation must be read and given effect in

a way which is compatible with the Convention rights." The courts, as a matter of

practice, have generally applied this rule of interpretation sorne tirne before the passage

of the Human Rights Act, just as they have with common-Iaw mles.304 The significance

of this section is that Parliament now requires this interpretive approach and encourages

the courts to push their interpretation of legislation to a farther degree in seeking

compliance with the European Convention than they otherwise might under a judicial

canon of construction. Section 3(1) is thus an interpretive clause incorporating European

302 Section 1 of the Human Rights Act incorporates articles 2 to 12 and 14 of the European Convention,articles 1 to 3 of the First Protocol, and articles 1 and 2 of the Sixth Protocol, as read with articles 16 to 18of the European Convention. The United Kingdom has so far made one derogation to the EuropeanConvention, declaring a public emergency under article 15(1) in responseto the situation in NorthemIreland. It also made a reservation to sentence 2, article 2 of the First Protocol respecting the right ofparents to ensure education and teaching in conformity with their own religions and philosophicalconventions. In incorporating the European Convention, the Human Rights Act omits article 13, whichstates that anyone whose rights and freedoms under the Convention are violated shan have an effectiveremedy before a national authority notwithstanding that the violation was commirted bypersons acting inan official capacity. This article might likely violate the doctrine ofparliamentary sovereignty by allowingprivate persons to seek damages in the courts against public authorities fortheir acts clearly permirted byParliament, or perhaps even against Parliament itse1f.

303 The Human Rights Act, ibid., s. 2, directs courts to "take into account" the decisions and opinions of theEuropean Court of Ruman Rights, the Commission, and the Commirtee of Ministers.

304 Anan, Legal Foundations, supra note 108 at 13-15,250-53; The judiciary's artempts to interpretstatutescompatibly with the common law trace back to Coke's tille. See McUwain, supra note 72 at 259-61.

III

rights jurisprudence into domestic English law. Section 3(2), however, makes it clear

that whenever courts have no choice but to find an act ofParliament incompatible with

European Convention rights, the will ofParliament prevails and the contested statute

remains valid. This section prevents courts from claiming under the act a power to strike

down primary legislation. Although section 4 re-emphasizes that courts may not

invalidate an act of Parliament, it does authorize them to issue a declaration of

incompatibility with the European Convention.305 To remedy such a declaration, section

10 allows for a Minister or the Queen in Council to order amendments to the legislation

removing the defect,306 Although incompatible legislation remains in effect, this fast

track amending procedure allows the government to take expeditious remedial measures

and willlikely put it under considerable political pressure to take action. Section 19 also

gives a pre-enactment role to Crown ministers to ensure a statute's compliance with the

European Convention. This section requires the responsible minister, before the second

reading of a bill, to make a statement that it either is or is not compatible with the

European Convention. If the minister cannot declarethe bill compatible, he or she may

nevertheless urge Parliament to pass the legislation, as it retains full authority to do so.

The Human Rights Act recognizes a dual role of the courts when adjudicating

issues of fundamental human rights. Pirst, the courts must endeavor to reconcile primary

legislation with the European Convention through the interpretive process, but ifunable

to do, so they can openly declare it incompatible. As for the interpretive approach, courts

305 The Human Rights Act, supra note 1, s. 4(6)(b), stipulates that a statement ofincompatibility also has noeffeçt on the parties to the proceedings.

306 The Human Rights Act, ibid., s. lOis also available to address a similar declaration by the EuropeanCourt of Human Rights.

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already have been doing this for sorne time in regard to parliamentary acts.30? This

interpretive function continues under the Human Rights Act, but courts now have

statutory authority to go beyond the formalistic search for parliamentary intent and

instead read primary legislation more consistently with the self-standing principles in the

European Convention.3°8 Lord Hope, in his opinion in R. v. Lambert, explained how the

European Communities Act had affected British law:309

As to the techniques that may be used, it is clear that the courts are not bound byprevious authority as to what the statute means. Ithas been suggested that astrained or non-literaI construction may be adopted, that words may be read in byway of addition to those used by the legislator and that the words may be "readdown" to give them a narrower construction that their ordinary meaning would bebear. [citation omitted] It may be enough to say what the effect of the provision iswithout altering the ordinary meaning of the words used. [citation omitted] Inother cases... the words will require to be expressed in different language inorder to explain how they are to be read in a way that is compatible. The exercisein these cases is one of translation into compatible language from language that isincompatible. In other cases... it may be necessary for words to be read in toexplain the meaning that must be given to the provision if it is to be compatible.But the Interpretation of a statute by reading words in to give effect the presumedintention must always be distinguished carefully from amendment. Amendmentis .a legislative act. It is an exercise which must be reserved to Parliament. 31

0

This passage makes three points about the Human Rights Act that could apply just as well

to any other constitutionally significant statute. Fust, courts must interpret primary

307 Recognition of the doctrine ofparliamentary sovereignty, however, meant that executive actionslawfully taken pursuant to clearly offending statutes remained infra vires. See for example the opinion ofGibson L.J. in R. v. Secretary ofStatefor the Home Department, ex parte Brind, [1991] 1 A.C. 696 (H.L.)at 726-27.

308 See the opinion of Dame Elizabeth Butler-Sloss, Re K, [2001] 2 AlI E.R. 719 (C.A.) at para. 41.

309 [2001] 3 AlI E.R. 577 (H.L.) [hereinafter Lambert].

310 Ibid. at para. 81. Indeed, in the same case, aU but one of the judges applied such broad interpretivepowers. At issue was the Misuse ofDrugs Act 1971 (U.K.), 1971, .c. 38, ss. 28(2) and (3). This act madepossession of a controlled substance a crimina10ffense regardless unless the accused proved that he did notknow the substance in his possession was controlIed. Appellant claimed thatthis burden of proof on him attrial violated the presumption ofinnocence mandated by the European Convention, supra note 2, art. 6(2).Lord Hope therefore read the word "prove" as used in the act to mean "give sufficient evidence." Lambert,ibid. at para. 94.

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legislation according to broad principles. This method of adjudication departs from

traditional formalism, as courts are expounding a constitutional jurisprudence rather than

only looking to apply the will ofParliament. This means that courts will continue to

substantively evaluate the meaning of statutory language in a way that is compatible with

those principles.311 Second, in interpreting statutes in tms manner, courts can be creative

and boldo As Lord Hope put it, courts can "read in" necessary language or "read down"

that wmch is already there in order to tailor the statute's meaning to the European

Convention. Both interpretive measures can easily apply by extension to any other

constitutional principles, written or otherwise.

The third suggestion of Lord Hope is that, although courts may be go far in their

interpretive endeavors, they cannot do so to a degree that "amends" the statute. Instead

courts can only make a declaration of incompatibility and must apply the will of

Parliament. It is unclear how far courts will be willing to go before finding the line

between mandated interpretation and impermissible amendrnent.312 It is also uncertain

just how clearly Parliament must state its intent to violate the European Convention, as

courts may come to require something akin to the "notwithstanding" declaration in

Canadian law. Lord Hoffman made it clear in ex parte Simms that the override of

fundamental rights requires "express language or necessary implication.,,313 Actual

3ll Allan, Legal Foundations, supra note 108 at 267.

312 Sir Andrew Morritt postulates in Wilson v. First County Trust Ltd. (No. 2), [2001] 3 AlI E.R. 229 (CA)at para. 42, that the court can seek "sorne interpretation of the words used which is legally possible. Thecourt is required to go as far as, but not beyond, what is legally possible." Still, the attempt to find acompatible reading of a statute can likely lead to "instances where this has rnvolved straining the meaningof statutory language." R. v. London North and East Region Mental Health Review Tribunal, [2001] 3W.L.R. 512 (CA) at para. 27, Lord Phillips.

313 R. v. Secretary ofStatefor the Home Department, ex parte Simms and another, [2000] 2 A.C. 115(H.L.) at 131.

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deference to parliamentary sovereignty might, therefore, become very constrained and

result in a more even balance between legislative power and judicial enforcement of

rights or other constitutional principles. As Lord Hoffman recognized, political pressures

on Parliament along with its need to use express language means that "the courts of the

United Kingdom, though acknowledging the sovereignty ofParliament, apply principles

of constitutionality little different from those which exist in countries where the power of

the legislature is expressly limited by a constitutional document.,,314 It is true that the

provisions ofthe Human Rights Act very clearly allow a court in such instances of clear

incompatibility to issue only a legally non-binding declaration of SUCh.315 Lord Steyn has

written in ex parte Kebeline that "[i]t is crystal clear that the carefully and subtly drafted

1998 [Human Rights] Act preserves the principle ofparliamentary sovereignty.,,316

However, two reservations make such express retention of orthodox theory rather

attenuated. First, Parliament's authority to legislate against human rights can be confined

to the Human Rights Act itself. Parliament could conceivably still come to be limited by

a full power ofjudicial review in other areas, such as European Community law. Canada

again provides a pertinent example, in regard to Parliament's ability to legislate

notwithstanding the Charter ofRights but not in contravention of entrenched principles of

federalism. AIso, that Parliament found it necessary to "carefully and subtly" draft the

Human Rights Act to clarify that courts could not strike down primary legislation

arguably is evidence of the growing weakness, not continuing strength, ofthe sovereignty

314 Ibid,

315 Human Rights Act, supra note 1, SS. 3(2), 4.

316 R. v. Director ofPublic Prosecutions, ex parte Kebeline and others; R. v. Director ofPublicProsecutions, exparte Rechachi, [1999] 4 AIl E.R. 801 (H.L.) at 831 [hereinafter Kebeline].

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doctrine. 31? Under this view, the Human Rights Act's "preservation" ofparliamentary

sovereignty constitutes an attempted legislative bulwark or protestation against further

erosion of its powers at the expense of the judicial branch. The Human Rights Act's

provisions allowing a declaration of incompatibility therefore can be interpreted as

Parliament's limited recognition of shifting norms in the United Kingdom away from the

doctrine ofparliamentary sovereignty in favor ofjudicial review of primary legislatio:n.

In any event, however, the Human Rights Act encourages a cooperative role between

judiciary and legislature, even if expressly reserving the final say to Parliament.318

2. The European Communities Act 1972 and European Community Law

The other significant illustration ofhow courts have come to limit Parliament is

the well-known case ofR. v. Secretary ofState for Transport, ex parte Factortame Ltd.

(No. 2), effectively abrogating primary legislation in violation of European Community

law.319 After acceding to the Treaty ofRome, Parliament enacted the European

317 Parliament's apprehension that, without an explicit reservation ofsovereignty, the judiciary would usesection 3(1} of the Human Rights Act to override an incompatible statute would be reasonable cOllsideringthe earlier case ofFactortame (No. 2), infra note 319. In that case, discussed below, the House of Lordsrelied UpOIl similar clauses ofthe European Communities Act, supra note l, ss. 2(1} and 2(4), to disapplyan act ofParliament violating Conununity law; See H. W. R. Wade, "What has Happened to theSovereignty ofParliament?" (1991) 107 L.Q. Rev. 1 at 4 [hereinafter "Sovereignty ofParliament"]; SeeMichael 1. Beloff, "Towards a Supreme Court? The British Experience" (1998) 33 Irish Jurist 1 at 22-24.

318 Lord Hope, for instance, writes in Kebeline, supra note 316 at 844: "In sorne circumstances it will beappropriate for the courts to recognise that there is an area ofjudglllent within which the judiciary willdefer, on democratic grounds, to the considered opinion of the elected body or person whose act or decisionis said to be incompatible with the convention. . . . It will be .easier for such an area of judgment to herecognisedwherethe convention itself requires a balance to be struck, much less so where the right isstated in terms which are unqualified. It will be easier for it to be recognized where the issues involvequestions of social or economic policy, much lessso where the rights are ofhigh constitutional importanceor are of a kiIld where the courts are especially well placed to assess the need for protection."; See Griffith,supra note 26at 50,60. Beatty, supra note 148 at 134-35.

319 [1991] 1 A.c. 603 (H.L.) [hereinafter Factortame (No. 2)]; P. P. Craig, "Sovereigntyofthe UnitedKingdom Parliament after Factortame" (1991) 11 YB Eur. L. 221 at 221 [hereinafter "After Factortame"],

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Communities Act 1972.320 Section 2(1) ofthis act gave all Community law effect within

the United Kingdom and declared it legally enforceable?21 In addition, section 2(4)

mandated that courts construe all secondary legislation as compatible with it.322 Within

this interpretive context, the Rouse of Lords in R. v. Secretary ofState for Transport, ex

parte Factortame Ltd. (No. 1) heard a challenge to a British law instituting new standards

for the registration of ships, including restrictions on ownership by non-British

nationals.323 Some companies, having vessels previously registered as British, were

unable to satisfy the new requirements às their majority owners and shareholders were

Spanish. The complainants argued that the British law in question violated European

Community law, which the British government was obligated to obey as a signatory of

the Treaty ofRome.324 They further sought an injunction against the enforcement of the

has described this case as the "culmination" of case-law development concerning the issues ofparliamentary sovereignty and British membership in the European Economie Community.

320 Treaty ofRome, supra note 1; European Communities Act, supra note 1.

321 The European Communities Act, ibid., s. 2(1), provides: "AlI such rights, powers, liabilities, obligationsand restrictions from time to time created or arising under the Treaties, and all such remedies andprocedures from time to time provided for by or under the Treaties, as in accordance with the Treaties arewithout further enactment to be given legal effect or used in the United Kingdom shaH be recognised andavailable in law, and be enforced, aHowed and followed accordingly; and the expression 'enforceableCommunity right' and similar expressions shall be read as referring to one to which this subsectionapplies."

322 The European Communities Act, ibid., s. 2(4), states: "The provision tOOt may be made under subsection(2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might bemade by Act of Parliament, and any enactment passed or to be passed,· other than one contained in this partofthis Act, shaH be construed and have effect subject to the foregoing provisions ofthis section." Ibid., s.2(2) grants authority to the executive to make secondary legislation for the purpose of implementingCommunity Law; SeeJoseph JaconeI1i, "Constitutional Review and Section 2(4) of the EuropeanCommunities Act 1972" (1979) 28 Int'!. and Comp. L. Q. 65 at 67.

323 [1990] 2 A.C. 85 (HL.) [hereinafter Factortame (No. 1)]; Merchant Shipping Act 1988 (U.K.), 1988, c.12.

324 Complainants specified the Treaty ofRome, supra note 1, arts. 7 (establishment of an internaI market),52 (ftee movement ofpersons), 58 (treatment of companies as persons), and 221 (equal participation in thecapital of companies). For a brief synopsis of the facts underlying the Factortame case, see Craig, "AfterFactortame," supra note 319 at 244-45.

117

challenged statute pending a reference to the European Court of Justice, claiming that

they would suffer irreparable hann from the interruption oftheir business should they

succeed on the merits.325 The Rouse of Lords decided that interim relief could not be

granted against the Crown, but requested a ruling from the European Court of Justice on

the question ofwhether the lack of such recourse was itself a violation of Community

law. The Court of Justice found that it was. 326 In Factortame (No. 2), the Rouse of

Lords accepted the ruling by the Court of Justice and "disapplied" the law in question by

enjoining the Crown from enforcing it,327

The decision in Factortame (No. 2) raised concems about the nature of

sovereignty in the United Kingdom and the constitutional role ofthe judiciary.328 The

Rouse of Lords, by rendering an act of Parliament inoperative, seemed to suggest that

Parliament had indeed restricted its own sovereignty by the European Communities Act

contrary to orthodox theory preventing such substantive limitation.329 In his opinion in

the case, Lord Bridge clarified the constitutional status of European Community law and

the judicial approach to its enforcement. While he asserted that the European

Communities Act impliedly repealed the statutory prohibition of interim injunctive relief

325 Vnder the Treaty ofRome, ibid., art. 177, domestic courts of member states can request the Court ofJustice to give a preliminary ruling on Community law.

326 Case 213/89, R. v. Secretary ofStatefor Transport, exp. Factortame Ltd, [1990] 3 C.M.L.R. 867;Craig, "After Factortame," supra note 319 at 244-46.

327 H. W. R. Wade, "Sovereignty ~ Revolution or Evolution?" (1996) 112 L.Q. Rev. 568 at 568 [hereinafter"Revolution or Evolution"]; Lord Nolan, "General Introduction" in Lord Nolan and Sir Stephen Sedley,The Making and Remaking ofthe British Constitution (London, Blackstone Press, 1997) 1 at 4.

328 Wade, "Sovereignty ofParliament," supra note 317 at 3.

329 Wade, "Revolution or Evolution," supra note 327 at 568.

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against the Crown in regard to Community law, he ventured further: 33o

If the supremacy within the European Community of Community law over thenationallaw of member states was not always inherent in the E.B.C. Treaty[citation omitted] it was certainly well established in the jurisprudence of theCourt of Justice long before the United Kingdom joined the Community. Thus,whatever limitation of its sovereignty Parliament accepted when it enacted theEuropean Communities Act 1972 was entirely voluntary. Under the terms of the1972 Act it has always been clear that it was the dutYof a United Kingdom court,when delivering final judgment, to override any mIe of nationallaw found to bein conflict with any directly enforceable mIe ofCommunity Iaw. Similarly, whendecisions ofthe Court of Justice have exposed areas ofUnited Kingdom statutelaw which failed to implement Council directives, parliament has always loyallyaccepted the obligation to make appropriate and prompt amendments. Thus thereis nothing in any way novel in according supremacy to mIes of Community law inareas to which they apply and to insist that, in the protection ofrights underCommunity law, national courts must not be prohibited by mIes ofnationallawfrom granting interim relief in aRpropriate cases is no more than a Iogicalrecognition of that supremacy.3 l

Three assumptions about the constitutionai status of Community law lie within Lord

Bridge's statement. First, he makes it clear that Parliament joined the European

Community voluntarily and was fully aware of the implications arising from

incorporating European law through theEuropean Communities Act. Second, there was

"nothing in any way novel" in regarding Community law as supreme and the authority of

courts to override incompatible domestic law was "always ... clear" under the act.332

Third, Lord Bridge refers to the fact that, from British accession to the time ofthe case,

Parliament had consistently obeyed decisions of the European Court of Justice that found

domestic law to violate that of the Community. The supremacy ofCommunity law was

330 The doctrine ofimplied repeal, based upon the doctrine ofparliamentary sovereignty, holds that acts ofParliament inconsistent with earlier ~cts prevail. Of course, courts maintain considerable mom ininterpreting conflicting statutes and requiring that Parliament either expressly or impliedly intended a lateract to repeal the former. See Craig, "After Factortame," supra note 319 at 248.

331 Factortame (No. 2), supra note 319 at 658-59.

332 Jaconel1i, supra note 322 at 65, had sorne time earlier characterized such judicial authority under theEuropean Communities Act as "constitutional review" [emphasis original].

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therefore not only a judiciai doctrine, but a poiiticai one as weIl. Lord Bridge stopped

just short of attempting to define to what degree Parliament had limited its claim to

sovereignty, but makes it clear that de facto restrictions had arisen. The above passage,

however, shows that the judiciary's recognition ofCommunity Iaw supremacy and its

power ofoverride partiaIly resulted from Parliament's passage of the European

Communities Act and its habituaI obedience to its own voluntary obligations. An

additionai fact that Lord Bridge failed to mention was that Parliament had previously

held a referendum in 1975 on continuing the United Kingdom's Community membership,

the results ofwhich were in favor. 333 Such popular approvaiiends added support to the

binding supremacy of Community Iaw upon Parliament. This Iarger context indicates

that the higher constitutionai position of Community Iaw results not from any one

Iegisiative or judiciai act, but from a pattern ofbehavior and understanding about the

normative force of Community Iaw in the United Kingdom.

While Factortame (No. 2) does not necessariIy mean that Parliament has

permanentIy surrendered its sovereignty, it does indicate a constitutional practice

anaiogous to the Canadian Bill ofRights as interpreted by the Supreme Court of Canada

in the Drybones decision.334 Under this approach, Parliament remains free to repeai the

European Communities Act and withdraw from the Community, but has in the meantime

constrncted a Iegal regime to which it must abide.335 Factortame (No. 2) thus stands for

333 King, supra note 185 at 55-56.

334 See Drybones, supra note 210 and accompanying text; Jaconelli, supra note 322 at 68-69.

335 As Craig, "After Factortame," supra note 319 at 252-53, describes it: "A Par1iament is perceived ashaving made a choice, tojoin the Conununity in 1972. The implications ofthis choice have repercussionsfor later Parliaments, in the sense that the consequence of membership is, for the reasons given by LordBridge, to afford supremacy to Conununity 1aw. This 'consequence' can of course be changed by laterParliaments, either by withdrawing from the [European Conununity], or perhaps by expressly stating in a

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an underlying proposition that Community law is paramount within the United Kingdom,

limits Parliament's exercise of sovereignty, and is legally enforceable against

Parliament.336 This situationexists as political fact as seen over time through the actions

ofthe judiciary, Parliamentand other govemment actors, and the electorate?37 It is

therefore arguable that the role of recognition in the United Kingdom is shifting away

from parliamentary sovereignty in favor of a limited legislature subject to judicial review.

The resulting constitution is comprised ofunwritten common-Iaw principles and the

written provisions of the European Communities Act and through it the Treaty ofRome.

In time, it may similarly incorporate other written texts.

E. Summary

Common-Iaw theory contains embedded within it elements that support a

constitutional model of a limited Parliament subject to judicial review. Already the

British judiciary exercises considerable review over executive action through the ultra

vires doctrine, which is a basis for a claim ofindependent common-Iaw derived powers

of review that may extend to coyer both primary and secondary legislation. The role of

law and democratic values can also justify arguments for the restraint of Parliament.

certain context that nationallaw is departing from Community nonns. In the absence of either of thesedevelopments the implications of the legislative choice made in 1972 stand, in much the same way that theprovisions of an earlier statute requiring particular majorities can only be altered bya later statute passed inconfonnity with those procedural requisites."; Wade, "Revolution or Evolution," supra note 327 at 571;Wade, "Sovereignty ofParliament," supra note 328 at 3.

336 "Acts ofParliament are Mw subject to a higher law, and to that extent the now rank: as second·tierlegislation." Wade, "Sovereignty ofParliament," supra note 317 at 3.

337 The status of Community law now in the United Kingdom contrasts sharply with more skepticalattitudes upon accession in 1972. See F. A. Trindade, "Parliamentary Sovereignty and the Primacy ofEuropean Community Law" (1972) 35 Mod. L. Rev. 375 at 381; Jonathan E. Levitsky, "TheEuropeanization of the British Legal Style" (1994) 42 Am. J. Comp. L. 347 at 352-55.

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Constitutional change in the United Kingdom adopting these ideas would nevertheless

maintain continuity with the common-Iaw tradition, albeit by following a path thus far

considered unorthodox. This alternative arrangement ofthe British constitution fits

within its characteristic unwritten framework. Nevertheless, although a judicial power of

review that controls Parliament can exist independently of a textual source, these

institutional structures can easily lead to the adoption of constitutional writings.

Not only can the British common-Iaw tradition theoretically accommodate written

constitutional texts, it has already begun to do so. The determination ofwhether written

principles have a constitutional status higher than ordinary law ultimately depends upon

their normative force in ordering the political system, rather than their particular

characteristics or modes of operation. Constitutions ingeneral, whether written or

unwritten, may be evaluated in terms ofwhether they are paradigmatic or definitive in

establishing the principles and rules intended to guide the exercise ofgovemment

powers, particularly in their reliance upon judicial review. Furthermore, they may be

flexible or rigid in their means of amendment depending upon the legislature' s ability

unilaterally to alter them or the necessity of following special procedures. These

descriptive values are not themselves absolute or exclusive in how they reflect actual

constitutional practice. Rather, they represent a sliding scale upon which a constitution

may generally lie towards one or the other end, while still exhibiting mixed

characteristics. The way in which written documents interact with the constitutional

system can vary greatly, while still maintaining normative force as expressions of

governing principles. For this reason, a final reliance upon political restraints by certain

122

fundamental documents within British law, such as the Human Rights Act, does not

exclude their understanding as constitutional texts.

Although a constitution must not necessarily provide for direct or full judicial

invalidation of legislation contrary to its provisions, the recognition of its supremacy is

suited to supporting sorne form ofjudicial control. Effective judicial review of sorne

degree supports the constitution's moral and legal supremacy, itself deriving from the

positivist nature of its authority. Certain documents, whether they originate as treaties or

statutes, may be more than promulgations of the Crown or sovereign Parliament; those

coming to have normative value within the community thereby receive endorsement as

constitutional principles by the popular sovereign. The founding of these constitutional

texts upon the will of the sovereign people can be made compatible with the common law

by building upon the ideas of Coke, Blackstone, and Dicey. The public itselfmay

determine its own good in the form of constitutional principIes, expressed in either

unwritten or written form, binding upon Parliament,338 In tum, the courts can develop

and interpret these principles in common-law fashion. This positivist approach rejects

Austin's notion that alllegai mIes must proceed from one sovereign entity issuing

commands, such as Parliament. Instead, the attribution ofwritten or unwritten

constitutionainorms to expressions ofpopular will stems from Hart' s mIe of recognition.

This positivist foundation for constitutionai texts encourages courts to restrain primary

legisiation in much the same way that it currentIy exercises ultra vires review by acting

338 "If democracy is rightly understood as a scheme of govemance for the comrnon good, rather than ameans for the most efficient atlainment of whatever objectives a present majority desires, there is noopposition between democratic govemment and the mIe of law: each is a necessary and equally vaIuabie'higher-order' principle whose ultimate goal is a justice that all can recognise and, in its. main lilles,endorse." Allan, "Response," supra note 50 at 382-83.

123

as a "proxy" for the popular sovereign. In this sense, it exercises dual sovereignty with

Parliarnent in giving effect to popular will. The review power can still function in many

fonns, such as a full power of statutory invalidation or reliance upon vigorous

interpretive measures. Furthennore, Hart's theory pennits infonnal and organic

constitutional change depending upon graduaI but major shifts in political nonns rather

than formaI amending procedures.

The process by which certain texts can becorne entrenched as constitutional

documents, despite originating as ordinary statutes or treaties, presents a unique approach

to constitutional development that remains true to the common-Iaw tradition. Rather than

relying upon fonnal and conspicuous amending procedures, British public law may

incorporate paramount written texts through "organic" or graduaI constitutionalization,

slowly and cautiously detennined through adjudication. Sorne constitutional principles

therefore originate in "super-statutes" that are the product of an interaction between

legislative and judicial processes in elevating written principles to a status ofhigher law.

In this way, evolving nonnative assumptions dictate when (or if) and to what extent the

judiciary should incorporate certain texts into the common-Iaw constitutional framework.

In 100king at constitutional development in the United Kingdom, it is clear that

written documents, such as Magna Carta and the Act ofUnion, have played a significant

role. Recent statutes, particularly the Human Rights Act, the European Communities Act,

and the devolution statutes have also greatly impacted the British constitution and

weakened Parliament's sovereignty. The fundamental role ofthese texts in guiding both

adjudication and political action suggest that they reflect nonns in the constitutional

system. Recent cases on the Human Rights Act and the decision in Factortame (No. 2)

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illustrate in what ways the judiciary can scrutinize primary legislation based upon these

and other written documents. A review power can effectively limit Parliament through a

variety ofmeans, such as creative interpretation consistent with broad constitutional

principles, declarations of incompatibility placing political pressures upon govemment,

or the outright disapplication of an offending statute. While limitations upon Parliament

may take different forms, they an depend upon a basic recognition that certain laws are

supreme and suited to sorne form of effective judicial review. The judiciary, in applying

these laws, must realize that its role is a cooperative one with Parliament that at times

requires deference to the legislative process. Courts must also be sensitive to long

continuing practices ofgovemment actors and political attitudes among the electorate

that indicate shifting normative assumptions. In this way, courts may effectively control

Parliament according to both paramount unwritten and written principles that comprise

for the United Kingdom a patchwork, "quasi-written" constitution.

125

IV. CONCLUSION

The British constitution is in the process of transformation, departing from the

doctrine ofparliamentary sovereignty in favor of a legislature effectively limited by

unwritten and written constitutional principles enforceable by judicial review. This new

framework, however, is evolutionary in that it represents the resurgence of an oIder,

alternative common-Iaw theory that maintains continuity with the United Kingdom's

constitutional tradition. The theories of Coke, Blackstone, and Dicey, despite their

contributions to the doctrine ofparliamentary sovereignty, have embedded within them

arguments that support a limited constitution based upon democratic legitimacy. These

same considerations underpin the judiciary's Inherent, common-Iaw authority ofultra

vires review of executive actions, and opens the possibility that courts may extend their

scrutiny to primary legislation itselfbased upon unwritten constitutional principles.

Because a constitution may vary greatly in how strictly it restrains the legislature

and allows change in its provisions, its existence instead depends upon its normative

value in ordering govemment. Written constitutional texts have a positivist aspect in that

they express underlying, paramount principles. A change in the rule of recognition may

also rejectparliamentary supremacy in favor of dual sovereignty exercised by both the

judiciary and legislature. In this way, judicial review has democratic legitimacy as a

means of enforcing the will of the popular sovereign, expressed in written constitutional

texts, against Parliament. Furthermore, through common-Iaw adjudication, courts over

126

time may gradually constitutionalize those statutes and treaties that come to reflect

shifting or emerging normative assumptions within the political community.

Constitutional development is in this way a cooperative, interactive process between the

courts, Parliament, and the electorate. The resulting "quasi-written" constitution

accommodates the co-existence of unwritten and written principles, varying degrees of

their entrenchment, and judicial enforcement that might range from creative

interpretation to theoutright invalidation ofprimary legislation.

Such constitutional transformation is already occurring in the United Kingdom, as

shown by the effective limitations upon parliamentary sovereignty resulting from judicial

review under the Human Rights Act and the European Communitîes Act. While profound

in its impact upon British constitutional practice, this alternative constitutional model,

rooted in past theories and sensitive to British political culture, nevertheless maintains

continuity with the common-Iaw tradition. There is, however, one point that must be

emphasized. That is, discussion of constitutional change in the United Kingdom should

not overly focus upon the issue ofparliamentary sovereignty, which has long been the

bogeyman haunting potential reform. This paper has shown that constitutions may be a

mix of characteristics and effective limitations upon the legislature may consequently

rely uponcomplex interaction between the judicial and legislative branches. British

courts may play an aggressive and significant role in employing various legal

mechanisms in controlling Parliament, without necessitating a complete and categorical

rejection of the parliamentary sovereignty doctrine. While it is conceivable that

constitutional theory may one day dispense with the doctrine, it may be Just as

appropriate for it to remain but be exercised sparingly and carefully in deference to the

127

judicial roIe, perhaps even as a donnant reserve power, not unlike the Royal Assent. In

any case, the open recognition and imaginative accommodation ofthis full range of

possibilities can be the unique and defining feature of future British public law and

reinvigorate an alternative, but still vibrant, common-Iaw constitutional theory.

128

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