Manuel v Attorney Genera l  Ch 77
SIR ROBERT MEGARRY VC: Two motions are before me. ....The plaintiffs...are 124 Canadian Indian chiefs, suing on behalf of themselves and all other members of named Indian bands. In the other action the plaintiffs are 68 Canadian Indian chiefs, suing in a similar representative capacity.... Mr. Macdonald appeared for the plaintiffs ....and Mr. Mummery appeared for the Attorney-General....
....[T]he relief sought...is a series of declarations.....[T]he first five declarations plainly lead up to the last two. These are, first, that the Parliament of the United Kingdom has no power to amend the constitution of Canada so as to prejudice the Indian nations of Canada without their consent; and second, that the Canada Act 1982 is ultra vires. The first of these declarations was in the prayer for relief in the statement of claim when it was served on January 2, 1982, and the second was added on Day 3 of the hearing before me, after the Canada Act 1982 had received the Royal Assent and had been brought into force by Royal Proclamation under the Great Seal of Canada. The action accordingly challenges the legislative omnipotence of Parliament....
I do not think that I need enlarge upon the background of this litigation. The Canada Act 1982 received the Royal Assent on March 29, 1982, and was brought into force by a Royal Proclamation in Canada on April 17, 1982. The preamble to the Act recites:
"... Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth ..."
and that the Canadian Senate and House of Commons have submitted an address to the Queen requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the United Kingdom Parliament for that purpose. It is then enacted by section 1 that the Constitution Act 1982 set out in Schedule B to the Canada Act 1982 "is hereby enacted for and shall have the force of law in Canada." By section 2, no Act of the United Kingdom Parliament passed after the Constitution Act 1982 comes into force "shall extend to Canada as part of its law." The two remaining sections of the Canada Act then provide for the French version of the Act and for the short title. That is all: the English and French texts are each barely a half page long, and the remaining 34 pages are occupied by the English and French texts in Schedule B, setting out the Constitution Act 1982. As is well known, the effect of section 7 (1) of the Statute of Westminster 1931 was to exclude the repeal, amendment or alteration of the British North America Acts 1867 to 1930 from the legislative powers conferred upon Canada by the Statute. By section 4 of the Statute:
"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof."
The preamble of the Canada Act 1982 is plainly framed with section 4 of the Statute of Westminster 1931 in mind.
The hearing....occupied most of the five days. At the end, the question was whether the claim to relief in each of the actions is so plainly bad that it should be struck out and not allowed to go to trial: see, for example, the notes to R.S.C., Ord. 18, r. 19 (1) (a) in The Supreme Court Practice (1982), pp. 346-552, and Dyson v. Attorney-General 1 K.B. 410, 418, 419. A motion to strike out a pleading should not be treated as being the trial of a demurrer or a preliminary point of law, to be determined one way or the other even if the judge is beset by hesitations and doubts. He who moves such a motion must make out a case that is clear beyond doubt. At the same time, one must beware of any assumption that because a case takes a long time to argue, the points at issue must be doubtful. Arguments must be assessed on their quality rather than on their duration, and sometimes the weaker the case the greater the profusion of ingenuity in supporting it.
T]here is, as I have mentioned, a claim for what in effect are seven declarations, since the sixth has two limbs. They are as follows:
"1. A declaration that the Parliament of the United Kingdom has transferred sovereignty over Canada to the Dominion of Canada save and in so far as power is reserved to the United Kingdom Parliament by law and by the Statute of Westminster 1931 and the British North America Acts 1867 to 1964.
"2. A declaration that on the proper construction of the Statute of Westminster and the British North America Acts no law hereafter made by the United Kingdom Parliament can extend to Canada other than a law made at the request and with the consent of the Dominion of Canada.
"3. A declaration that the words 'Dominion' in the preamble and section 4 of the Statute of Westminster 1931 means in respect of Canada the people of Canada and 'the consent of the Dominion ' means the consent of the people of Canada expressed by (a) theFederal Parliament of Canada; (b) all the legislatures of the provinces of Canada and (c) the Indian nations of Canada who have a separate and special status within the constitution of Canada.
"4. A declaration that on its proper construction the British North America Act 1930 (a) confers on the Indians of the provinces of Manitoba and British Columbia the rights set out in the agreements scheduled to the Act and (b) imposes restraints on the legislative power of the Parliament of Canada to derogate from such rights.
"5. A declaration that the British North America Act 1930 can only be amended at the request of and with the consent of the people of Canada expressed by (a) the Federal Parliament of Canada; (b) all the legislatures of the provinces of Canada and (c) the Indian nations of Canada.
"6. A declaration that in the premises (1) the United Kingdom Parliament has no power to amend the constitution of Canada so as to prejudice the Indian nations without the consent of the Indian nations of Canada; (2) the Canada Act 1982 is ultra vires."
[W]hat is pleaded in support of these declarations cannot easily be summarised. The main thrust, however, can be expressed as follows. As matters stood before the Canada Act 1982 was enacted, the Canadian Indian bands had certain special rights which were protected under the constitution of Canada. The term "bands," I may say, is used in the sense of a body of Indians for whom lands have been set apart or for whom moneys are held, or who have been declared to be a band by the Governor-General in Council. The Indian bands acquired their rights under a Royal Proclamation made on October 7, 1763, and under a series of treaties made with them in the 19th century. I need not describe these rights: they include rights in relation to Indian reservations and rights of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and any other lands to which the Indians have rights of access; and see the agreements set out in the schedule to the British North America Act 1930 which by that Act are given the force of law. Under the British North America Act 1867 (30 & 31 Vict. c. 3), the power to legislate for Indians and for land reserved for the Indians was reserved to the Canadian Parliament, though the lands were vested in the several provinces, subject to any trusts or other interests (such as those of the Indians) which affected them: see sections 91 (24) and 109. By virtue of section 7 (1) of the Statute of Westminster 1931 these arrangements could not be altered by the Canadian Parliament or the provincial legislatures, and so only the United Kingdom Parliament could do this. In this way the rights of the Indians were entrenched.
Under the Canada Act 1982 this entrenchment goes. In its place section 37 of the Constitution Act 1982 provides for the convening of a constitutional conference within a year, composed of the Prime Minister of Canada and the first ministers of the provinces. By section 37 (2), the agenda for this conference is to include an item:
"respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item."
The "aboriginal peoples of Canada" are defined by section 35 (2) as including "the Indian, Inuit and M tis peoples of Canada." By section 35 (1), the existing aboriginal and treaty rights of the aboriginal peoples of Canada are "recognised and affirmed": and see section 25. The complaint is thus not that any of the subsisting rights have been taken away but that they are no longer entrenched and protected as they once were, and that their future depends on what emerges from the constitutional conference that is to be held, and what effect is given to it. Under Part V of the Constitution Act 1982 there is now power for Canadian amendments to be made to the constitution of Canada. In general, this can be done by proclamation after authorisation by resolutions of each House of the Canadian Parliament and by resolutions of the legislative assemblies of at least two-thirds of the provinces which have between them at least half the total population of all the provinces. What the plaintiffs are seeking to do in their action is to preserve the pre-existing protection for their rights rather than to enforce them.
On the face of it, a contention that an Act of Parliament is ultra vires is bold in the extreme. It is contrary to one of the fundamentals of the British Constitution: see, for example, Halsbury's Laws of England, 3rd ed., vol. 36 (1961), pp. 377, 378. That, and the contention that the matter was not one for the courts of England (see Reg. v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta  Q.B. 892, a case which for brevity may be called the Alberta case), was the backbone of Mr. Mummery's submissions. Not surprisingly, his contentions, like Mr. Macdonald's, were the subject of development and refinement as the argument proceeded. In the end, Mr. Mummery encapsulated his submissions in the proposition that the only question was whether the Canada Act 1982 was an Act of Parliament. If it was, that was the end of the matter; for the courts could not declare that Parliament had no power to pass it, or that it was ultra vires. In particular, Mr. Mummery relied on Pickin v. British Railways Board  A.C. 765. In that case the House of Lords unanimously held that a private Act of Parliament was not open to attack in the courts on the ground that the promoters of the Act had fraudulently inserted a false recital in the preamble. As was said by Lord Morris of Borth-y-Gest, at p. 789, it is not for the courts to proceed "as though the Act or some part of it had never been passed"; there may be argument on the interpretation of the Act, but "there must be none as to whether it should be on the Statute Book at all." Any complaint on such matters is for Parliament to deal with and not the courts: see, for example, pp. 793, 800. Accordingly, in that case the paragraphs of a reply which raised such a point were struck out.
Mr. Macdonald was, of course, concerned to restrict the ambit of the decision in Pickin v. British Railways Board. He accepted that it was a binding decision for domestic legislation, but he said that it did not apply in relation to the Statute of Westminster 1931 or to the other countries of the Commonwealth. He also contended that it decided no more than that the courts would not inquire into what occurred in the course of the passage of a bill through Parliament, relying on what Lord Reid said at p. 787. This latter point is, I think, plainly wrong, since it ignores the words "what was done previously to its being introduced" which Lord Reid cited with approval on that page. The wider point, however, is founded upon the theory that Parliament may surrender its sovereign power over some territory or area of land to another person or body: see "The Government of Ireland Bill and the Sovereignty of Parliament" by W. R. Anson (1886) 2 L.Q.R. 427, 440; Dicey, Law of the Constitution,8th ed. (1927), pp. 66, 67; 10th ed. (1960), pp. 68, 69; Jennings, The Law and the Constitution, 5th ed. (1959), pp. 160-172; Wade and Phillips. Constitutional and Administrative Law, 9th ed. (1977), pp. 65-68; Harris v. Minister of the Interior, 1952 (2) S.A. 428, 459, 460. After such a surrender, any legislation which Parliament purports to enact for that territory is not merely ineffective there, but is totally void, in this country as elsewhere, since Parliament has surrendered the power to legislate; and the English courts have jurisdiction to declare such legislation ultra vires and void.
Before I discuss this proposition, and its application to Canada, I should mention one curious result of this theory which emerged only at a late stage. In response to a question, Mr. Macdonald accepted that as the theory applied only to territories over which Parliament had surrendered its sovereignty, it did not affect territories over which Parliament had never exercised sovereignty. Thus if one adapts an example given by Jennings at pp. 170, 171, an English statute making it an offence to smoke in the streets of Paris or Vienna would be valid, though enforceable only against those who come within the jurisdiction, whereas an English statute making it an offence to smoke in the streets of Bombay or Sydney would be ultra vires and void, and an English court could make a declaration to this effect. At this stage I need say no more than that I find such a distinction surprising. I may perhaps interpose that Wade and Phillips takes the example of Heligoland, ceded to Germany in 1890 (see Anglo-German Agreement Act 1890 (53 & 54 Vict. c. 32)), and observes, at p. 67, that "Parliament could, if it so wished, subsequently repeal the statute by which cession was approved; ..." adding that this would not recover the territory for the United Kingdom. What the book said in 1977 could be done had in fact already been done some 14 years earlier (see Statute Law Revision Act 1953, section 1, Schedule 1), so that no further repeal is now possible; one cannot slay the slain.
The application of Mr. Macdonald's theory to Canada is on the following lines. In 1931, there was a long tradition that the United Kingdom Parliament would not legislate for Canada or the other Dominions save at the request and with the consent of the Dominion concerned. That tradition had ripened into law by 1931, and the Statute of Westminster 1931, section 4, was merely declaratory of the existing law. I have already set out that section. The law that had arisen from the long tradition required that there should be an actual request and consent of the Dominion, so that a mere declaration in the Act that there had been such a request and consent was not enough. The Act had, by section 2, transferred sovereignty to Canada, subject to section 7 (1), which provided that nothing in the Act was to be "deemed to apply to the repeal, amendment or alteration of the British North America Acts 1867 to 1930 ..." With that transfer, the United Kingdom Parliament deprived itself of all power to legislate for Canada save only as reserved by section 7 (1). On its true construction, nothing save the actual consent and request of the Dominion would empower the United Kingdom Parliament to legislate for Canada under this; and "Dominion" meant not merely the Parliament of the Dominion, but all the constituent constitutional fractions of the Dominion, namely, that Parliament, the provincial legislatures, and the Indians, with their protected constitutional status. The consent of the Dominion in this sense manifestly had not been given. Furthermore, the power reserved for the United Kingdom Parliament was merely in relation to "the repeal, amendment or alteration of the British North America Acts 1867 to 1930," and the Canada Act 1982, though repealing and amending parts of those Acts, did much more than that, and so went beyond the reserved competence of the United Kingdom Parliament The Statute of Westminster 1931 was an instrument which regulated Parliament's power to make law, and so was a "constituent instrument" within the language of the Judicial Committee in Bribery Commissioner v. Ranasinghe  A.C. 172, 197, 198, so that no Act was valid if it did not comply with that instrument.
I hope that this summary fairly indicates the main thrust of Mr. Macdonald's contentions, spread as they were over some two days of court time, and developing, as they did in their progress, with a number of sallies into side issues. The subject, of course, is constitutionally fundamental; and it is also susceptible to much theoretical speculation and contention which would be out of place in a judgment, however appropriate to textbooks or articles. My duty is merely to reach a decision in this case and not to explore side issues, however interesting they are. If I leave on one side the European Communities Act 1972 and all that flows from it, and also the Parliament Acts 1911 and 1949, which do not affect this case, I am bound to say that from first to last I have heard nothing in this case to make me doubt the simple rule that the duty of the court is to obey and apply every Act of Parliament, and that the court cannot hold any such Act to be ultra vires. Of course there may be questions about what the Act means, and of course there is power to hold statutory instruments and other subordinate legislation ultra vires. But once an instrument is recognised as being an Act of Parliament, no English court can refuse to obey it or question its validity.
In the present case I have before me a copy of the Canada Act 1982 purporting to be published by Her Majesty's Stationery Office. After reciting the request and consent of Canada and the submission of an address to Her Majesty by the Senate and House of Commons of Canada, there are the words of enactment:
"Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal,and Commons, in this present Parliament assembled, and by the authority of the same, as follows: ..."
There has been no suggestion that the copy before me is not a true copy of the Act itself, or that it was not passed by the House of Commons and the House of Lords, or did not receive the Royal Assent. The Act is therefore an Act of Parliament and the court cannot hold it to be invalid. The case is not one which raises any question under the Parliament Acts 1911 and 1949. It is also far removed from any case where, apart from those Acts, only one of the two Houses of Parliament had in fact passed the Bill, so that the cryptic wording of the recital was merely that it was "assented in this present Parliament," and so on: see The Case of Heresy(1601) 12 Co.Rep. 56, 57, 58, in relation to 5 Ric. 2, st. 2, c. 5 of 1382; The Prince's Case (1606) 8 Co.Rep. 1a, 20b. In the words of Lord Campbell in Edinburgh and Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & F. 710, 725:
"All that a court of justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses."
In Pickin v. British Railways Board  A.C. 765, 787, Lord Reid quoted this passage as it appears in Bell's Reports, and said, 1 Bell 252, 279:
"No doubt this was obiter but, so far as I am aware, no one since 1842 has doubted that it is a correct statement of the constitutional position";
and see at pp. 790, 793, 799, 801. The Canada Act 1982 is an Act of Parliament, and sitting as a judge in an English court I owe full and dutiful obedience to that Act. I do not think that, as a matter of law, it makes any difference if the Act in question purports to apply outside the United Kingdom. I speak not merely of statutes such as the Continental Shelf Act 1964 but also of statutes purporting to apply to other countries. If that other country is a colony, the English courts will apply the Act even if the colony is in a state of revolt against the Crown and direct enforcement of the decision may be impossible: see Madzimbamuto v. Lardner-Burke  1 A.C. 645. It matters not if a convention had grown up that the United Kingdom Parliament would not legislate for that colony without the consent of the colony. Such a convention would not limit the powers of Parliament, and if Parliament legislated in breach of the convention, "the courts could not hold the Act of Parliament invalid": see p. 723. Similarly if the other country is a foreign state which has never been British, I do not think that any English court would or could declare the Act ultra vires and void. No doubt the Act would normally be ignored by the foreign state and would not be enforced by it, but that would not invalidate the Act in this country. Those who infringed it could not claim that it was void if proceedings within the jurisdiction were taken against them. Legal validity is one thing, enforceability is another. Thus a marriage in Nevada may constitute statutory bigamy punishable in England (Trial of Earl Russell  A.C. 446), just as acts in Germany may be punishable here as statutory treason: Joyce v. Director of Public Prosecutions  A.C. 347. Parliament in fact legislates only for British subjects in this way; but if it also legislated for others, I do not see how the English courts could hold the statute void, however impossible it was to enforce it, and no matter how strong the diplomatic protests.
I do not think that countries which were once colonies but have since been granted independence are in any different position. Plainly once statute has granted independence to a country, the repeal of the statute will not make the country dependent once more; what is done is done, and is not undone by revoking the authority to do it. Heligoland did not in 1953 again become British. But if Parliament then passes an Act applying to such a country, I cannot see why that Act should not be in the some position as an Act applying to what has always been a foreign country, namely, an Act which the English courts will recognise and apply but one which the other country will in all probability ignore.
That brings me to a further point. Buck v. Attorney-General  Ch. 745 makes it clear that in proceedings for declarations brought against the Attorney-General of England the court has no jurisdiction to make declarations as to the validity of the constitution of an independent sovereign state, in that case Sierra Leone. First, the court cannot give a declaratory judgment against a party who has no interest in the subject matter of the declaration; and I cannot see what interest in the present action is vested in the Attorney-General of England, as distinct from the Attorney-General of Canada or the Attorneys-General of the provinces. Second, apart from any case where the question arises merely incidentally, the courts of England cannot pronounce upon whether a law of an independent sovereign is valid within that state, for to do this would be to assert jurisdiction over that state.
For the reasons that I have given, I have come to the conclusion that the statement of claim...discloses no reasonable cause of action, and that, despite the persuasions of Mr. Macdonald, this is plain and obvious enough to justify striking out the statement of claim. Mr. Macdonald urged that this is an important case (as indeed it is), and that it ought to be allowed to go to trial, where there could be a full argument, informed by all that had emerged during the hearing of this motion. He also said that the case involved a serious investigation of ancient law; yet he failed to indicate how that ancient law, when investigated, could alter the conclusion that the court could not declare an Act of Parliament void. The question is one of law, there has been a prolonged hearing before me, and I am left in no doubt that the plaintiffs have disclosed no reasonable cause of action. In those circumstances the motion in the Manuel action succeeds and the statement of claim will be struck out That being so, I need not explore a number of the points that have been debated in argument. Nor need I discuss the various dicta and the interesting comments on them that have been put before me on matters such as Parliament's inability to bind itself: see Ellen Street Estates Ltd. v. Minister of Health  1 K.B. 590, 597. In particular I shall not refer to the extensive literature on the subject beyond mentioning the valuable article on sovereignty by Mr. H. W. R. Wade "The Basis of Legal Sovereignty"  C.L.J. 172.
I must, however, say something about the well-known statement by Viscount Sankey L.C. in British Coal Corporation v. The King  A.C. 500, 520. Speaking for the Privy Council, he referred to the Statute of Westminster 1931 in relation to Canada and said that "Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities." What was said by Lord Denning M.R. in Blackburn v. Attorney-General  1 W.L.R. 1037, 1040, must, I think, be read in the light of this passage, which he quoted. He referred to the Statute of Westminster 1931 as taking away the power of Parliament to legislate for the Dominions, and said:
"Can anyone imagine that Parliament could or would reverse that Statute? Take the Acts which have granted independence to the Dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away."
I think that it is clear from the context that Lord Denning was using the word "could" in the sense of "could effectively"; I cannot read it as meaning "could as a matter of abstract law." Although it was not discussed in argument, I should observe that Parliament has now in fact repealed section 4 of the Statute of Westminster 1931, and section 7 (1) as well, so far as they apply to Canada: see Canada Act 1982, section 1, and Constitution Act 1982, Schedule, item 17.
Perhaps I may add this. I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of Parliament. In my view, it is a fundamental of the English constitution that Parliament is supreme. As a matter of law the courts of England recognise Parliament as being omnipotent in all save the power to destroy its own omnipotence. Under the authority of Parliament the courts of a territory may be released from their legal duty to obey Parliament, but that does not trench on the acceptance by the English courts of all that Parliament does. Nor must validity in law be confused with practical enforceability.
In the Court of Appeal
SLADE L.J: This is an appeal from an order of Sir Robert Megarry VC....
In our judgment, therefore, the Vice-Chancellor was plainly right to strike out the statement of claim in this action and to dismiss the action. We dismiss this appeal.