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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
    1. Edinburgh and Dalkeith Railway Co v Wauchope (1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279.
    2. British Railways Board and Another v Pickin [1974] 1 All ER 608; [1974] AC 765
    3. Ellen Street Estates v Minister of Health [1934] 1 KB 590; [1934] All ER Rep 385; 150 LT 468
    4. Mortensen v Peters (1906) 14 SLT 227
    5. Attorney-General of New South Wales v Trethowan (1931) 44 CLR; (in the Australian High Court on appeal from the Supreme Court of New South Wales).
    6. Harris v Donges (Minister of the Interior) [1952] 1 TLR; (1952) 2 SA 428; in the Appellate Division of the South African Supreme Court.
    7. Bribery Commissioner v Ranasinghe [1965] AC 172; [1964] 2 All ER 785, [1964] 2 WLR 1301
    8. Treaty (Act) of Union 1707
    9. MacCormick v. Lord Advocate (1953) SC 396 - Inner House (first instance)
    10. MacCormick v. Lord Advocate (1953) SC 396 - Court of Session (on appeal)
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Attorney-General of New South Wales v Trethowan (1931) 44 CLR; (in the Australian High Court on appeal from the Supreme Court of New South Wales).

RICH J:....The suit was instituted by two members of the Legislative Council....The plaintiffs maintained that s.7A was a valid and effectual restraint upon the power of the two Houses of Parliament and the Crown to abolish the Legislative Council or to repeal or amend the provisions of s.7A imposing that restraint. The defendants, as well as denying this contention, objected to the form of the suit which, they said, disclosed no ground for equitable relief....

The person to whose lot it would fall to present Bills originated in the Legislative Council is the President of that Chamber, and the [New South Wales] Supreme Court inferred that unless restrained the President would present the Bills which had been passed to the Governor for the royal assent although neither of them was first submitted for the approval of the electors.....The majority of the Court...held that s.7A was valid and effectual and precluded its own repeal without a referendum. Upon the application to this Court for special leave to appeal from their decision, this Court considered should impose conditions upon the appellants which would confine the appeal to the substantial questions " Whether the Parliament of the State of New South Wales has power to abolish the Legislative Council of the said State or to alter its constitution or powers or to repeal section 7A of the Constitution Act 1902 except in the manner provided by the said section 7A."

The first ground which the appellants took for attacking the correctness of the conclusion of the majority of the Supreme Court was that s.4 of the Imperial Act 18 & 19 Vict. c.54 (the Constitution Statute...) conferred upon the Parliament of New South Wales a power, which it could not abridge or condition and of which it could not divest itself, enabling, it at any time to make and to repeal a law relating to any of the matters governed by the Constitution Act....The argument leaves out of account an occurrence of great constitutional importance to the Dominions. It ignores the passing of the Colonial Laws Validity Act 1865. S.5 of that Act confers upon representative legislatures in the Dominions full power to make laws respecting the constitution, powers and procedure of such legislatures, provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order in council, or colonial law for the time being in force therein. This is a parallel power, but it is not alternative. It is the final and authoritative expression of every colonial representative legislature's power to make laws respecting its own constitution, powers and procedure.

In the judgment of Isaacs J. (as he then was) and myself in McCawley's Case...we said the Colonial Laws Validity Act was intended obviously to end for ever all doubts as to matters with which it dealt...."Whatever colonial restrictions existed immediately prior to the passing of the Colonial Laws Validity Act must yield to the later will of the Imperial Parliament as expressed in s.5"....

How far, then, does s.5 permit of constitutional alterations which have the effect of controlling the future action of the Legislature? Two methods of controlling the operations of the Legislature appear to be allowed by the express terms of the section. The constitution of the legislative body may be altered, that is to say, the power of legislation may be reposed in an authority differently constituted....Again, laws may be passed imposing legal requirements as to manner and form in which constitutional amendments must be passed. In my opinion the efficacy of s.7A depends upon the answer to the questions - does it fall within the proviso as to a requirement of manner and form? and does it introduce into the legislative body a new element? If the true answer to either of these questions is Yes, then the Legislative Council cannot be abolished without a referendum unless and until s.7A is repealed, and s. 7A cannot be repealed except by a Bill approved at a referendum before it is presented for the royal assent. I think the whole matter is determined by the answer to these questions. They arise upon the text of the constituent instrument, the Colonial Laws Validity Act. The Legislature of New South Wales is not sovereign, and no analogy can be drawn from the position of the British Parliament. The question is one of construction, and not of general reasoning, as to the inherent right of a sovereign legislature to undo all that it has done. The first question is whether sub-sec.6, which is a colonial law for the time being in force, requires a manner and form in which a law repealing s.7A must be passed. In my opinion it does.... In my opinion the proviso to s.5 relates to the entire process of turning a proposed law into a legislative enactment, and was intended to enjoin fulfilment of every condition and compliance with every requirement which existing legislation imposed upon the process of law-making.

This view is enough to dispose of the case; but if what is done under sub-sec.6 did not fall under the proviso, the question would still remain whether for the purpose of abolishing, the Legislative Council and the purpose of repealing s.7A a new element is not introduced into the legislative authority. It was conceded that under s.5 it was competent to the legislature to establish a third Chamber whose assent would be required to complete any legislative act. It could not be denied that, if a third Chamber could be introduced, a body of persons of another character might also be created a constituent element of the legislature.....

If the legislative body consists of different elements for the purpose of legislation upon different subjects, the natural method of applying the definition would be to consider what was the subject upon which the particular exercise of power was proposed, and to treat s.5 as conferring upon the body constituted to deal with that subject authority to pass the law although it related to the powers of the legislature. An examination of s.7A shows that a legislative body has been created for the purpose of passing or co-operating in passing a particular law. There is no reason why this authority need extend to all laws....

Such a power naturally extends to the enactments of safeguards aimed at restraining improvident or hasty action. There is no reason why a Parliament representing the people should be powerless to determine whether the constitutional salvation of the State is to be reached by cautious and well considered steps rather than by rash and ill considered measures. McCawley's Case establishes that there is no difference in this respect between a unitary and a federal system. Either may be rigid and controlled or flexible and uncontrolled. The only question is whether, on the construction of the constituting instrument, the Imperial Parliament made a grant of power to the representative Legislature of New South Wales to prescribe to their successors a particular mode by which and by which alone constitutional chances may be effected. In my opinion, for the reasons given the constituting instrument enabled that Legislature to introduce the referendum as such a mode because it constitutes a manner and form of legislation and includes the electorate as an element in the legislative authority in which the power of constitutional alteration resides.

I am therefore of the opinion that neither of the Bills in question may be lawfully presented to the Governor for the royal assent, and be validly assented to, until it is approved by a majority of the electors.

DIXON J:.... This question must be answered upon a consideration of the true meaning and effect of the written instruments from which the Parliament of New South Wales derives its legislative power. It is not to be determined by the direct application of the doctrine of parliamentary sovereignty, which gives to the Imperial Parliament its supremacy over the law. It is the law derived... from the Imperial Parliament which gives to the Legislature of New South Wales its powers, and it is that law which determines the extent of those powers and the conditions which govern their exercise. The incapacity of the British Legislature to limit its own power otherwise than by transferring a portion or abdicating the whole of its sovereignty has...been explained as a necessary consequence of a true conception of sovereignty. But in any case it depends upon considerations which have no application to the Legislature of New South Wales, which is not a sovereign body and has a purely statutory origin. Because of the supremacy of the Imperial Parliament over the law, the Courts merely apply its legislative enactments and do not examine their validity, but because the law over which the Imperial Parliament is supreme determines the powers of a legislature in a Dominion, the Courts must decide upon the validity is well as the application of the statutes of that legislature.

It must not be supposed, however, that all difficulties would vanish if the full doctrine of parliamentary supremacy could be invoked. An Act of the British Parliament which contained a provision that no Bill repealing any part of the Act including the part so restraining its own repeal should be presented for the royal assent unless the Bill were first approved by the electors, would have the force of law until the Sovereign actually did assent to a Bill for its repeal. In strictness it would be an unlawful proceeding to present such a Bill for the royal assent before it had been approved by the electors. If, before the Bill received the assent of the Crown, it was found possible, as appears to have been done in this appeal, to raise for judicial decision the question whether it was lawful to present the Bill for that assent, the Courts would be bound to pronounce it unlawful to do so. Moreover, if it happened that, notwithstanding the statutory inhibition, the Bill did receive the royal assent although it was not submitted to the electors, the Courts might be called upon to consider whether the supreme legislative power in respect of the matter had in truth been exercised in the manner required for its authentic expression and by the elements in which it had come to reside.