Lars Puvogel I. Introduction
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- V. Conclusion
CommentWhatever controversy it aroused at the time, the practical impact of Factortame on the conception of parliamentary sovereignty cannot be overlooked. It moved some real distance away from the Diceyan view of the doctrine. The practical point is that in matters governed by the law of the Community parliamentary supremacy has been, whether permanently or for an indefinite period, to some extent abrogated or suspended.178 The legislative powers of the British Parliament are subject to the limitations within the Treaty as interpreted by the European Court of Justice. While this is not the end of parliamentary sovereignty, it is nonetheless a not inconsiderable limitation of it. The constitutional impacts of the Human Rights Act 1998 are similar to those discussed in the context of the New Zealand Bill of Rights Act 1990. As a result of the enactment elements within the Diceyan framework have been significantly qualified.179 However, while in New Zealand this result was achieved by judicial activism, which sometimes clearly went beyond the legislative imperatives of the Bill of Rights Act 1990, in the United Kingdom the provisions of the Human Rights Act 1998 itself are an expression of changed legal arrangements between Parliament and the courts. In particular, the procedure laid down in s 10 of the Act for amending legislation judicially held or considered by a minister to be incompatible with the Convention is likely to weaken, if not actually infringe, parliamentary sovereignty. The practical effects of the Human Rights Act 1998 need, however, to be awaited. Nevertheless, it is quite likely that the enactment of the Human Rights Act 1998 will have a significant impact on traditional constitutional principles and the courts' protection of fundamental freedoms. As Lord Lester has stated: '[O]ur courts will surely regard the Human Rights Act as no ordinary law'.180 A comparison between the position in the United Kingdom and the situation in New Zealand shows both similarities and differences. In both states the doctrine of parliamentary sovereignty could not ignore the reality of the countries' respective international relations and obligations and had to catch up with political realities. The way in which international obligations provide a catalyst for national constitutional changes is especially elucidated in the case of the United Kingdom. Apparently, the constitutional changes there are the result of a process of an increasing European integration. Strict Diceyan theories of the sovereignty of Parliament had to give way in return for the benefits of the accession to the European Community. The extent to which this step was influenced by rather practical and economical considerations has been pointed out by Hoffman J (as he then was): Our entry into the European Economic Community meant that (subject to our undoubted but probably theoretical right to withdraw from the Community altogether) Parliament surrendered its sovereign right to legislate contrary to the provisions of the Treaty on the matters of social and economic policy which it regulated. The entry into the Community was in itself a high act of social and economic policy, by which the partial surrender of sovereignty was seen as more than compensated by the advantages of membership.181 Interestingly, Parliament and the courts in the United Kingdom have shown a greater preparedness to change Diceyan conceptions in relation to economic convergence than they have in relation to human rights. Under the European Communities Act 1972 inconsistency with Community law is resolved by an actual disapplication of the relevant statutory provisions by the courts. In contrast, under the Human Rights Act 1998 laws which violate the Convention are 'only' subject to a declaration of incompatibility. The growing influence of international law, especially the international law of human rights on national legal systems, is also clearly visible in New Zealand. In both countries the respective obligations under international treaties protecting fundamental rights, have prompted the enactment of human rights legislation. And although the British Human Rights Act 1998 is modelled on the New Zealand Bill of Rights 1990 the former might be of particular importance for New Zealand in terms of providing model procedures and mechanisms required to give effect to judicial indications of inconsistency. Thus the Act might help to further the future development of this new form of remedy and help to establish it within the legal system. Moreover, the judicial responses to the Human Rights Act 1998 in the United Kingdom may be of persuasive value for the New Zealand courts and their future approach towards protecting fundamental rights; be it in a way of preserving Dicey's paradigms or not. In the end, both countries, despite their different political, cultural and to some extent legal developments face the similar problem, namely to adapt traditional legal theories to the realities of the modern world. V. ConclusionIt is clear that this paper can only provide a brief introduction to the issues that are raised by Diceyan theories in the context of contemporary discussions of the constitutional developments in New Zealand. The degree to which they are interweaved with the legal realities is of course far more complex than one might think after having read through the foregoing chapters. A glimpse at the articles of academic writers commenting on topics like the debate over a written constitution for New Zealand, a change of the form of government from the current constitutional monarchy to a republic or even the debate over the introduction of a new electoral system, reveals that Diceyan theories are on the political agenda of almost every single constitutional discussion. With these remarks in mind it is, however, now time to sum up the observations, which have emerged out of the foregoing analysis and to turn back to the questions asked at the beginning of this paper. The first one concerned the extent to which Dicey's theories can be regarded to have been altered, if at all. The analysis of the above mentioned decisions of the Court of Appeal has made it quite clear that the content of some of Dicey's theories or at least the way that they are given effect by the Court of Appeal have been or are on the way to being significantly changed. Traditional canons of statutory interpretation, which had been judicially developed against the background of the Diceyan conception of parliamentary sovereignty are being diluted little by little and replaced by the lingering concept of purposive interpretation, sourced in s 6 of the BORA. The principle which is to be mentioned first in line, is the doctrine of implied repeal. The way the doctrine has been given effect in the context of fundamental rights, is often hardly more than the recognition of its label. This is especially so in the reasoning of the minority judges in R v Pora, which effectively deprives this principle, which originally was thought to be an automatic corollary of the acceptance of the Diceyan conception of parliamentary omnipotence, of any practical effect. Moreover, the way in which the Court has used and applied the interpretative provisions of the BORA to achieve interpretations of enactments in some cases has completely blurred the dividing line between the respective functions of Parliament and the courts. While the Act was originally designed to protect parliamentary sovereignty, it may ultimately have the opposite effect. Especially in the context of s 6 of the BORA the term 'interpretation' has sometimes been so strained that the description of the relationship between Parliament and the courts offered by Dicey can no longer be seen as representing the law. And indeed, in R v Pora Thomas J noted that 'the difference [between the majority and the minority judges] reflects a different judicial philosophy and approach resulting in a different perception of the Court's role'.182 If one accepts this statement as reflecting the reality one can move on to the second question and ask whether this new judicial approach heralds the demise of Dicey's theories? The answer seems to be twofold. From a theoretical point of view the answer seems to be no. Notwithstanding the substantial academic and judicial criticisms, Dicey's perceptions of the sovereignty of Parliament are still used to describe the operation of the New Zealand constitution and still used to explain the democratic legitimacy of the legal system. Even the remarkable comments of Sir Robin Cooke did not manage to overcome Dicey's influence and legacy in 20th century New Zealand. Despite the disdain for the doctrine which is evident in some of the judgments of the Court of Appeal, none of the judges ever went so far as to actually challenge the theoretical position of parliamentary sovereignty. Quite to the contrary, Dicey's description of parliamentary omnipotence is regularly affirmed.183 In practical terms, however, it seems that any other statement than that reality has moved some distance away from Dicey's theories, comes close to political embellishment. The cases discussed above quite clearly indicate the extent to which their position within the constitution has already been transformed. Whichever role Dicey's doctrine of parliamentary sovereignty will play in New Zealand's legal system, as regards the relationship between Parliament and the courts one conclusion, which might be of assistance in future debates, is evident: even impossibility has never stopped things actually happening. Endnotes * The author is currently employed by the German Federal Ministry of Consumer Protection, Food and Agriculture. This paper was written as part of the requirements for the LLM.
16 Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590; McCawley v The King [1920] AC 691; South Eastern Drainage Board (SA) v Savings Bank of South Australia Ltd (1939) 62 CLR 603; Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 56. 17 [1934] 1 KB 590. 18 Ibid 597.
25 X v Morgan-Grampian (Publishers) Ltd [1991] AC 1, 48.
28 A W B Simpson, ‘The Common Law and Legal Theory' in A W B Simpson (ed), Oxford Essays in Jurisprudence (2nd series, 1973) 77, 96.
31 O Dixon, 'The Common Law as an Ultimate Constitutional Foundation' (1957) 31 Australian Law Journal 240. 32 Ibid 242. 33 H L A Hart, The Concept of Law (1961); H Kelsen, General Theory of Law and State (translated by A Wedberg, 1949). 34 Kelsen, above n 33, 116. 35 Hart, above n 33, 145 ff. 36 G Winterton, 'The British Grundnorm: Parliamentary Supremacy Re-examined' (1976) 92 Law Quarterly Review 591. 37 H W R Wade, 'The Basis of Legal Sovereignty' (1955) Cambridge Law Journal 172, 188. 38 PA Joseph, 'Foundations of the Constitution' (1989) 4 Canterbury Law Review 58; 'The New Zealand Bill of Rights' (1996) 7 Public Law Review 162, 163. 39 M McDowell and D Webb, The New Zealand Legal System (2nd ed, 1998) 4. 40 The Constitution Act 1986 s 15 declares: 'The Parliament of New Zealand continues to have full power to make laws'.
50 Ibid. Whether or not the doctrine of parliamentary sovereignty prevents the New Zealand Parliament from prescribing binding requirements as to the procedure and form by which they must enact future legislation: at 574-90. 51 [1991] 2 NZLR 323. 52 Ibid 330, quoted in Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 157. See also Cooper v A-G [1996] NZLR 480, 484; Westco Lagan v A-G [2001] 1 NZLR 40, 62-3. 53 Woolf, above n 4, 69. 54 Sedley, above n 4, 391. 55 See B McLachlin, 'Bills of Rights in Common Law Countries' (2002) 51 International and Comparative Law Quarterly 197. 56 Ibid. 57 For a detailed examination of Cooke's dicta, see Caldwell, above n 22. See also Cooke J's comments in Brader v Ministry of Transport [1981] 1 NZLR 73, 78. 58 [1979] 2 NZLR 519. 59 Ouster clauses are clauses by which the Legislature seeks to prevent the courts from reviewing a decision of an administrative body.
65 [1984] 1 NZLR 394. 66 Ibid 398. 67 Caldwell, above n 22, 357. 68 A Lloyd, 'Lord Cooke's Fundamental Rights and the Institution of Substantive Judicial Review' (1999) 8 Auckland University Law Review 1173, 1175.
80 [1969] 2 AC 147. 81 Dicey, above n 2, 60. 82 Black Clawson International Ltd v Papierwerke AG [1975] AC 591, 638; Baker v Campbell (1983) 153 CLR 52, 96-7, 104, 116, 123; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 348. 83 There were two earlier, but unsuccessful attempts to adopt a Bill of Rights in New Zealand in 1963 and 1985; see Joseph, above n 38, 162. 84 Ratified by New Zealand in 1978. 85 J A Smillie, 'The Allure of "Rights Talk": Baigent’s Case in the Court of Appeal' (1994) 8 Otago Law Review 188, 194.
88 For example, see the decisions of the German Constitutional Court, BVerfGE 18, 97 at 111; 54, 277 at 299; 86, 71 at 77; 90, 145 at 170.
91 Ibid 94. Compare the comments as regards the British Human Rights Act 1998 in I Leigh and L Lustgarten, 'Making Rights Real: The Courts, Remedies and the Human Rights Act' (1999) 58 Cambridge Law Journal 509, 536.
94 [1991] 1 NZLR 439. 95 [1994] 3 NZLR 667.
98 Crown Liability and Judicial Immunity: A Response to Baigent's Case and Harvey v Derick, New Zealand Law Commission Report Series R37, Wellington 1997. 99 See R v Joyce [1968] NZLR 1070. 100 NZPD Vol 510, 1990: 3449-50.
116 NZPD Vol 578, 1999: 17686-7 (Patricia Schnauer MP) 117 [2000] 2 NZLR 695. 118 R v Poumako (1999) 17 CRNZ 294.
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