Lars Puvogel I. Introduction

A V DICEY AND THE NEW ZEALAND COURT OF APPEAL - MUST THEORY FINALLY GIVE IN TO LEGAL REALITIES?

Lars Puvogel*

I. Introduction

The function of the courts in relation to Acts of Parliament has been described as the 'fundamental', 'the ultimate question' in a legal system like that of New Zealand.¹ Its answer predicates the location of ultimate decision-making authority - the right to the 'final word' and hence the fundamental source of law. According to New Zealand constitutional orthodoxy the answer was prescribed by the somewhat elusive notion of the doctrine of parliamentary sovereignty. A V Dicey² is probably the most renowned exponent of the doctrine and his attempt to give the relevant principles a concrete content is still highly influential in both the United Kingdom and New Zealand. His doctrine has been described as the 'the one legal doctrine that... New Zealand lawyers are never taught to question (or perhaps are taught never to question)'.³

His theory establishes Parliament as the supreme law making body within the polity, which enjoys almost unfettered legislative power. Within this constitutional framework the courts occupied a subordinate position to parliament. Consistent with this position their task in relation to Acts of Parliament was limited to interpreting and applying them. According to Dicey the courts could not therefore refuse to obey or give effect to an Act of Parliament; nor, because it was the supreme law, could they hold an Act of Parliament to be invalid. Over the century or so since the Law of the Constitution first appeared in 1885 Dicey's work and his concepts have been the subject of extensive judicial and academic scrutiny.⁴ Indeed very few judges and academics today embrace the strictly Diceyan conception of parliamentary sovereignty.⁵ But until recently, there has been little doubt about the core of the doctrine, that the courts have no legal authority to invalidate statutes on the ground that they are contrary to fundamental moral or legal principles. As a leading critic of the doctrine concedes, among English lawyers 'it is hard to question his [Dicey's] doctrine without appearing to lose touch with practical reality. Until very recently, it was almost unthinkable that the courts would ever refuse to apply an Act of Parliament'.⁶

However, in the advent of an undoubtedly growing contemporary recognition, international in scope, of fundamental human rights the doctrine has been challenged, by judges and academic lawyers in the United Kingdom, New Zealand, and Australia. Growing doubt about parliamentary sovereignty has coincided with increasing judicial activism in all three countries.⁷ The focus of this paper is to assess the legal validity of Dicey's articulation of the relationship between Parliament and the courts in the light of recent judgments of the New Zealand Court of Appeal. It argues that some judgments have called into question parts of Dicey's theories of parliamentary sovereignty and significantly modified the operation of his theories. It examines the manner in which Dicey's theories have been altered and considers the extent to which his principles survived these modifications. Its thesis is that Dicey's theories no longer adequately explain the relationship between Parliament and the judiciary in contemporary New Zealand because the recognition of these principles by the courts and the way they are given effect has been altered. The paper briefly outlines Dicey's conception of parliamentary sovereignty, explores its historical development and its academic and common law foundations. It goes on to examine how the New Zealand Court of Appeal has interpreted its role within the Diceyan conception of parliamentary sovereignty. In this context the concept of fundamental common law rights and the impact of the Bill of Rights Act 1990 on the traditional rules of interpretation will be highlighted. It then examines briefly the operation of Dicey's theories in the United Kingdom suggesting that in the advent of Britain's membership in the European Union and the enactment of the Human Rights Act 1998 their scope has been significantly limited. In the conclusion consideration is given to the following issues: the extent to which Dicey's theories have been altered by the New Zealand Court of Appeal; and whether the new judicial approach heralds the demise of Dicey's theories.

II. Academic and Common Law Foundations of the Sovereignty Doctrine

This part first defines and clarifies Dicey's concept of legislative supremacy. It then goes on to take a closer look at the implications of his propositions as regards the relationship between Parliament and the courts. The final part of this section provides a brief outline of the origins and foundations of the Westminster sovereignty doctrine.

The Legal Doctrine of Legislative Sovereignty - the Diceyan View

The Essence of Parliamentary Sovereignty as a Legal Doctrine

The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. It has been described as 'the dominant characteristic of our political institutions', 'the very keystone of the law of the constitution'.⁸ From the perspective of law, the sovereignty or supremacy of Parliament has a definite meaning, since the doctrine is often seen as providing one of the pillars vital to the structure of the entire legal system. The classical definition of sovereignty is that of A V Dicey. Although the sovereignty of Parliament had been accepted as one of the fundamental doctrines of constitutional law in the United Kingdom long before the publication of Dicey's The Law of the Constitution,⁹ the significance of his analysis is that, despite the extensive political and social changes that have occurred since 1885, and despite criticism which his work received from constitutional lawyers such as Sir Ivor Jennings,¹⁰ his statement of the doctrine has retained a remarkable influence on both legal and political thinking about Parliament. Dicey summarized his views in this way:

The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament [defined as the Queen, the House of Lords, and the House of Commons, acting together] ... has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.¹¹

From this description can be deduced three basic rules:

• 
  Parliament is the supreme law making body and may enact laws on any subject matter;
  
• 
  no Parliament may be bound by a predecessor or bind a successor;
  
• 
  no person or body - including a court of law - may question the validity of Parliament's enactments.
  

The principles, 'looked at from their positive side', ensure that any new Act of Parliament will be obeyed by the courts. The same principles, 'looked at from their negative side' ensure that there is no person or body of persons who can make rules which override or derogate from an Act of Parliament or which, 'to express the same thing in other words',¹² will be enforced by the courts in contravention of an Act of Parliament. Moreover, no Parliament can exercise its legislative powers to bind future Parliaments. As the Parliament possesses the power to unmake any laws, any attempt to restrict permanently the legislative powers of Parliament could be overridden by any subsequent Parliament. Dicey observed that although 'Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors ... the endeavour has always ended in failure'.¹³ The mechanism by which the courts give effect to this facet of sovereignty is provided by the doctrine of implied repeal. It applies only when two Acts of Parliament are incapable of standing together.¹⁴ In its operation, the doctrine provides that where two Acts are inconsistent with each other, the later Act is to be construed as impliedly repealing the earlier Act.¹⁵ There are several cases which support the Diceyan view that the automatic application of the doctrine of implied repeal is a constituent notion of parliamentary sovereignty.¹⁶ For instance, in Ellen Street Estates v Minister of Health¹⁷ Maugham LJ stated that:

The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If, in a subsequent Act, Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.¹⁸

This conception stems straight from A V Dicey, guaranteeing contemporary sovereignty and thus being a corollary of the untrammelled sovereignty of Parliament.¹⁹

Relationship between Parliament and the Courts According to Dicey an Orthodoxy

Dicey's doctrine of parliamentary sovereignty maintains that Parliament has ultimate authority to determine what the law shall be. Parliament was to have the last word and the courts were to have no power to strike down primary legislation. It is the responsibility of judges to declare what the law is, but in doing so, they are bound to accept every Act of Parliament as valid law. According to Dicey the judiciary thus occupies a subordinate position to Parliament.

English courts, however, did not always uncritically defer to such a concept of omnipotent parliamentary power. In early 17^th century Britain there were even delicate beginnings of the idea of the primacy of fundamental rights and principles. This attitude dates back to Coke CJ's dictum in Dr Bonham 's Case²⁰ where he asserted:

And it appears in our books, that in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right or reason, or repugnant, or impossible to be preformed, the common law will control it and adjudge such Act to be void.²¹

Yet, this idea became eclipsed at the end of the 17^th century by the concept of absolute parliamentary sovereignty²². This was made clear by Lord Reid when he declared in British Railways Board v Pickin:²³

In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.²⁴

As regards Diceyan orthodoxy the dividing line between legislature and courts and their respective functions is thus clear cut: on the one hand law-making; on the other, interpreting and applying the law. As Lord Bridge explained:

In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law.²⁵