In a recent opinion piece published by Stuff, Damien Grant has raised questions about parliamentary sovereignty and the common law. This topic can invite consideration of extreme hypotheticals to test the extent to which Parliament could get away with passing evil laws. How much like Germany’s Third Reich, which existed from 1933 to 1945, could our Parliament become before action is taken to stop it? And, action by whom? Could the common law be a restraint on Parliament?
Mr Grant asks, “Does Parliament have the right to order a citizen be tortured?’
Here, “right” probably means the power to enact legislation that will be accepted as law. [1]
Acceptance is everything. Parliament only has the power to make laws because our community accepts that it should. [2] This power has its origins in a recognition in common law that this is the best way we can devise of ordering our society - and that this is a political reality.
The real consequence, if Parliament ordered that a citizen could be tortured, would be civil disorder and potentially civil war. Parliament lacks the power to make such an order because it needs to survive.
When we speak of the “lawful” powers of Parliament, we really mean the politically acceptable powers. There are many everyday limits on Parliament’s powers, because the government, having the (currently, in coalition) majority in Parliament, wants to be re-elected. It occasionally happens that the executive, exercising its party majority or coalition majority, causes Parliament to pass legislation which gives back to the executive, through ministerial orders, the power to amend what Parliament has passed. In England such provisions are called Henry VIII clauses. And another concern is the mooted use of ouster provisions, preventing an aggrieved party from seeking judicial review of an administrative action, so effectively removing the obligation of an official to obey the law. This would be contrary to the rule of law. Not all such executive limitations of Parliament’s sovereignty, or all such grants of administrative immunity, would be approved by a majority of voters.
To think that “law” is anything that Parliament could ever be imagined to enact, is to adhere to what would now be regarded as an absurd notion of sovereignty. True enough, the idea of sovereignty may originally have been thought of as a power to do anything, but society - conscious of its power at the ballot box to sweep aside its representatives - would no longer accept such omnipotence.
Are judges activists, if what they are doing is recognising the changing ideas that society accepts about how disputes should be resolved? There is nothing activist about recognising that the common law changes in response to what is currently perceived as the best way of doing things. [3]
Judges would be activist if, instead of accepting current ideas, they were to impose their own ideas in advance of social change. The real debate is about whether the judges are imposing their own ideas or whether they are responding to ideas the community recognises as the best way forward.
It is correct to say that if the judges overreach, Parliament can step in and pass appropriate legislation. In doing so, Parliament must - as a matter of political reality - not undermine “the respect and moral authority” that is the real source of its power to make laws. Parliamentary overreach is not, in reality, much different from judicial overreach. [4]
I am not persuaded by Mr Grant’s article that the judges have been reckless, or that they have undermined the respect in which they are held or the moral authority of their judgments, or that “we need better judges”.
The close interrelationship between politics and law [5] suggests the following answer to whether Parliament could authorise torture: if such a “law” passed the formal requirements for recognition as law, its status as law could only be completed by its acceptance by the courts and by the community. And whether the courts will recognise that they have the power to rule on the legal status of such a “law” depends on the extent to which they modify the common law’s requirements for the validity of laws to meet the needs of the community.
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[1] Salmond, in “Jurisprudence”, observed that source of the status of acts of Parliament as “law” is historical, not legal: “… It is the law because it is the law, and for no other reason that it is possible for the law to take notice of.” Law is only law because it is made in a way that society accepts: see John Gardner, “Law as a Leap of Faith” (for my review of this book dated 6 July 2013, click here). See also Tom Bingham, “The Rule of Law”, p166: “… it has been convincingly shown [referring to HLA Hart, “The Concept of Law”, Ch 10] that the principle of parliamentary sovereignty has been recognized as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.” Lord Bingham concluded that the constitutional system has become unbalanced as a result of reduction of the legislative power of the Crown and of the House of Lords, and that this is a serious problem.
[2] The first limitation of royal powers, the Magna Carta of 1215, was acceded to by King John as a politically expedient step. Further politically expedient steps occurred in the seventeenth century when Parliamentary supremacy was established by the enactment and royal acceptance of the Bill of Rights of 1688 (Julian date). The growth of democracy since then has constrained parliament’s powers, as has also, as a matter of political reality, ratification of international human rights conventions.
[3] “The common law” originally referred to what circuit judges appointed by Henry II found to be the best way of ordering affairs, drawn from the various approaches in the counties and which was subsequently consolidated in the Year Books from 1268, beginning under the reign of Edward I. The common law was thus responsive to social needs. Blackstone, writing in the eighteenth century, treated the common law as a static statement of the law from “time immemorial” and repeated the then popular opinion that the Westminster Parliament was supreme and the only source of new law. Opinions like those held by Blackstone about the common law are patently incorrect, as is clearly illustrated if one considers the judicial development of the law of contract. And as far as the supremacy of parliament over the executive and the judicial branches of government is concerned, the so-called Glorious Revolution in the seventeenth century established the supremacy of parliament over the executive, but said nothing of the relationship between parliament and the courts. Even the supremacy of parliament over the executive has, with the invention of party politics, become something of a myth. In “The Common Law” (1881), Oliver Wendell Holmes Jr observed, “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.”
[4] Throughout much of New Zealand’s history, the common law did not reflect the interests of the Māori peoples. See Paul Rishworth, “Writing things unwritten: Common Law in New Zealand’s Constitution” https://doi.org/10.1093/icon/mow005 . In Ellis v R [2022] NZSC 114 the Court recognised that it could not change Māori customary practices (tikanga) but that tikanga will continue to be “recognised in the development of the common law … in cases where it is relevant.” Since the thirteenth century there is nothing novel about the surveying of cultural ideas in search of the best way forward for the law.
[5] Ronald Dworkin came to accept, in “Justice for Hedgehogs” (for my April 25, 2011 review, click here), that law is a branch of politics, and politics in turn develops from ethical standards, so there may be “valid laws” that are too immoral to enforce.
