Lars Puvogel I. Introduction

The Legal Source of Sovereignty

Having identified the doctrine of parliamentary sovereignty as determining the locus of power within the legal system, it is now time to explore its legal source.

The doctrine of parliamentary sovereignty has been described as being entirely the work of Oxford men.²⁶ And indeed, the theory has been largely developed and written about in extra-judicial settings, there being relatively few judicial decisions on parliamentary sovereignty and thus little scope for the courts to give substance to the doctrine. Dicey in his writings relied heavily on the political philosophy of Thomas Hobbes and referred to notions expressed earlier by William Blackstone.²⁷ He did, however, not cite a clear judicial decision of binding authority for his absolutist view of parliamentary power, nor did he point to any reference to it in any statute or constitutional instrument. To use AW B Simpson's words:

Dicey announced that it was the law that Parliament was omnicompetent, explained what this meant, and never devoted so much as a line to fulfilling the promise he made to demonstrate that this was so.²⁸

However, the origins of the doctrine of parliamentary sovereignty as expounded by Dicey may be traced to the 17^th century constitutional conflict between the Crown on the one hand and parliament and the courts on the other. Parliament emerged from that conflict occupying a uniquely powerful position in the constitution. In 1689, after the overthrow of James II but before the union of the English and Scottish Parliaments in 1707, the Earl of Shaftesbury wrote: 'The Parliament of England is that supreme and absolute power, which gives life and motion to the English Government'.²⁹ The basis of that position was that its approval, expressed in the form of legislation, was required to change the law and to raise taxes.³⁰ The combined effect of these requirements was that there were few aspects of policy that did not require the legislatively expressed sanction of Parliament.

While this provides the historical background of the doctrine of parliamentary sovereignty it fails to identify the legal source of the relationship between Parliament and the courts. What then is the legal source of that relationship? The sovereignty of Parliament is not itself laid down in statute: nor could it be, for the ultimate law maker cannot confer upon itself the ultimate power. Therefore the supreme law making powers of the United Kingdom Parliament are argued to have an historic common law basis.³¹ The expression 'common law' is used because the rules of parliamentary sovereignty have been promulgated and recognised by the courts. However, if the common law is identified as the legal source of sovereignty the next question must be what gives the common law its authority? The process of finding legal sources could go on ad infinitum.³² As legal theorists have demonstrated, when searching for ultimate legal power, there comes a point of inquiry beyond which you cannot logically move.³³ Thus, in all legal systems a point has to be reached where a rule is accepted as an operative legal rule even though its authority cannot be explained in traditional legal analysis. Kelsen called such a rule a grundnorm.³⁴ Hart wrote in terms of the 'ultimate rule of recognition' .³⁵ Such rules are justified historically rather than legally.³⁶ For both, Kelsen and Hart, the key to ultimate power lies in its acceptance - but not necessarily moral approval - by the judges and other senior officials within the legal system. Thus, the rules of parliamentary sovereignty derive their legal validity from the fact that they have been accepted by United Kingdom commentators and courts. A necessary condition for the continuing existence of such rules is a consensus among all three branches of government. In this way legal theory is highly dependent on political reality and it is therefore probably correct to suggest that the doctrine of parliamentary sovereignty is as much a political fact as a rule of law.³⁷

Traditional Approach of Dicey's Propositions in New Zealand

British attitudes took root in New Zealand and accordingly New Zealand's legal and political system has developed very much in the British tradition.³⁸ The doctrine of parliamentary sovereignty is an integral part of this tradition. Indeed it has been said that 'New Zealand's legal system operates on the basis that Parliament has supreme lawmaking powers that cannot be challenged' and that 'this is the cornerstone of New Zealand's legal system'.³⁹ This leads to the assumption that the New Zealand Parliament enjoys a law making supremacy similar in nature to that enjoyed by the United Kingdom Parliament.

However, whereas the law making supremacy of the latter is - as has been indicated above - a common law doctrine, the law making powers of the New Zealand Parliament are provided by statute.⁴⁰ This is due to the fact that New Zealand Parliament was granted its legislative powers under authority of Imperial statute.⁴¹ In the late 19^th century, the Judicial Committee of the Privy Council held that, when the Imperial Parliament granted power to colonial legislatures to make laws for the 'peace, welfare, and good government' of their colonies, it granted them power of the same nature, as plenary and absolute, as its own power.⁴² As a result of this and subsequent developments, the Parliament of New Zealand is generally thought to be as fully sovereign as that of the United Kingdom.⁴³ An example of the use of Parliament's supremacy in this manner is the Clutha Dam saga.⁴⁴ In this matter, despite the success of private litigants in the High Court⁴⁵ and the Planning Tribunal⁴⁶ preventing the Minister of Energy from attaining a water right required for the Clyde Dam's construction to proceed, the government of the day enacted the Clutha Development (Clyde Dam) Empowering Act 1982 which effectively reversed the Court's and Tribunal's decision, granting the Minister of Energy the necessary water right. The Act was criticised as having been passed in breach of constitutional convention.⁴⁷ However, even the critics acknowledged that under orthodox doctrine Parliament's legal supremacy enables it to legislate contrary to convention.⁴⁸

And although it has been asserted that the statutes conferring the law making powers on the New Zealand legislature have left the New Zealand courts with scope for determining the detailed nature of the law making authority are by no reason obliged to adopt the Westminster doctrine,⁴⁹ the courts have traditionally construed the United Kingdom statutes as giving the New Zealand Parliament supreme law making powers similar in nature and extent to those possessed by the United Kingdom Parliament.⁵⁰ A series of judicial statements have consolidated the doctrine of legislative sovereignty as the core political and legal fact underlying New Zealand's constitutional order. For example, in Rothmans of Pall Mall (NZ) LtdvA-G⁵¹ Robertson J said:

The constitutional position in New Zealand (as in the United Kingdom) is clear and unambiguous. Parliament is supreme and the function of the courts is to interpret the law as laid down by Parliament. The courts do not have a power to consider the validity of properly enacted laws.⁵²

With a doctrine that firmly embedded within the constitutional structure it is evident that a different judicial philosophy and approach resulting in a different perception of the court's role is condemned to have serious impacts on the whole legal system. For this reason it is of vital importance to see which approach the highest court within the boundaries of New Zealand — the New Zealand Court of Appeal — has adopted in order to reflect the proper balance between Parliament and the courts in the contemporary constitutional climate.