Parliamentary Sovereignty: A Recent Development
Geoffrey Marshall *
The Privy Council decision in Bribery Commissioner v. Rana-
singhe ** can fairly be added to Trethowan’s 1 case and Harris v.
Minister of the Interior 2 as being one of a handful of decisions which
have helped to make clearer what was left obscure in’Dicey’s exposi-
tion of Parliamentary sovereignty. Three particular questions raised
by the plenary power of a legislature to make law are: first, to what
extent is such power compatible with those who exercise it being
bound to follow a particular manner and form of legislation ? Sec-
ondly, to what extent will courts of law examine the way in which
legislation has been passed and what took place inside the legislative
chambers ? Thirdly, will the Royal assent be held to validate any
earlier procedural irregularities ? All of these questions were posed
in Ranasinghe’s case.
Ranasinghe was prosecuted for a bribery offence before a tri-
bunal set up under the Bribery Amendment Act 1958. The Ceylon
Supreme Court quashed the conviction on the ground that the 1958
Act provided for a method of appointing members to the tribunal
which was ‘inconsistent With the constitutional provision regulating
the appointment of judicial officers laid down in the Constitution
Order in Council of 1946.3 For the Bribery Commissioner it was
argued that, if such inconsistency existed, the Sovereign Parliament
of Ceylon must be held to have amended the constitution by passing
the 1958 Act. It was conceded that the Constitution order provided
that any such constitutional amendment should require a two-thirds
majority of the total membership of the House of Representatives
certified by the Speaker. The 1958 Act had not been passed by a
two-thirds majority and did not have a Speaker’s certificate. It was
contended nevertheless that the official copy of the Act must be
regarded by the courts as conclusive of its validity.
Fellow and University Lecturer in Politics, The Queen’s College, Oxford.
** [1964] 2 W.L.R. 1301, [1964] 2 All E.R. 785.
‘Attorney General for New South Wales v. Trethowan [1932] A.C. 526.
2 [1952] 2 S.A.L.R. 428.
3 S. 55 of the Constitution Order in Council vested the appointment of judicial
officers in the Judicial Service Commission.
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This argument was rejected both by the Supreme Court of Cey-
lon and by the Privy Council. The latter’s judgment was delivered
by Lord Pearce. It was true, he suggested, that the English authori-
ties had taken a narrow view of the courts’ powers to look behind
an authoritative copy of the Act (“All that a court of justice can
do is to look to the Parliamentary roll” 4). But that dictum was laid
down in a situation where no governing instrument prescribed the
law-making powers and the forms essential to them. Where such
forms are laid down “a legislature has no power to ignore the con-
ditions of law-making that are imposed by the instrument which
itself regulates its power to make law”.; The conclusion was that
“the Speaker’s certificate is a necessary part of the legislative pro-
cess and any bill which does not comply with the condition prece-
dent of the proviso, is and remains, even though it receives the
Royal Assent, invalid and ultra vires”.0
Lord Pearce cited Trethowan’s case as supporting the Board’s
conclusion that “where a legislative power is given subject to cer-
tain manner and form that power does not exist unless and until
the manner and form is complied with”.7 A difficulty often expressed
about the Trethowan decision is that it was not clear how far the
propositions laid down were conditioned by the fact that the legis-
lature in question was a subordinate legislature, subject to the pro-
visions of the Colonial Laws Validity Act. In the High Court of
Australia it had been suggested by Dixon, J., that the conclusion was
a more general one which might conceivably apply to the sovereign
Imperial legislature. A manner and form provision enacted in a
United Kingdom Statute might, he thought, in certain circumstances
compel the courts to consider whether the supreme legislative power
had been exercised in the manner required for its authentic expres-
sion.8 Lord Pearce in Ranasinghe seemed to imply equally that both
non-sovereign and sovereign legislatures may be made subject to
procedural rules entrenching parts of the law from simple majority
repeal. “[T]he proposition which is not acceptable,” he said, “is that
a legislature, once established, has some inherent power derived from
the mere fact of its establishment to make a valid law by the resolution
of a bare majority which its own constituent instrument has said shall
not be a valid law unless made by a different type of majority or
4 Edinburgh Railway Co. v. Wauchope (1842) 8 C1. & F. 710, 725.
5 Bribery Commissioner v. Ranasinghe [1964] 2 W.L.R. 1301 at 1310.
6 Ibid. at 1312.
7 Ibid.
8 (1931) 44 C.L.R. 394, 426.
No. 41
PARLIAMENTARY SOVEREIGNTY
by a different legislative process.”
“This restriction exists inde-
pendently of the question whether the legislature is sovereign as is
the legislation of Ceylon or whether the constitution is ‘uncontrolled’
as the Board held 10 the Constitution of Queensland to be”.oa
This and a further passage, of some interest, suggest that the
Privy Council decision may be seen as giving support to a general
proposition that a legislature is not fettered in its sovereignty when
a simple majority is restrained from enacting its will into law:
A Parlfament does not cease to be sovereign whenever its component mem-
hers fail to produce among themselves a requisite majority, e.g., when in the
case of ordinary legislation the voting is evenly divided or when in the case
of legislation to amend the Constitution there is only a bare majority if the
Constitution requires something more. The minority are entitled under the
Constitution of Ceylon to have no amendment of it which is not passed by a
two-thirds majority. The limitation thus imposed on “some lesser majority
of members does not limit the sovereign powers of Parliament itself, which
can always, whenever it chooses, pass the amendment with the requisite
majority.”1
It would seem to follow from this that a Parliament which by
its own act imposes procedural conditions upon the legislative pro-
cess is no more limited, bound, fettered, or non-sovereign than a
legislature which has such conditions bequeathed to it in a consti-
tutional instrument. Those who argue that- Parliament cannot lay
such conditions upon itself on the ground that Parliament cannot
limit or bind itself are thereby deprived of an argument. If such_
conditions are not limitations on sovereignty, it cannot be the im-
possibility of limiting sovereignty which in itself makes entrench-
ment legally impossible to a sovereign legislator.
What can be inferred from Ranasinghe is that a legislature whose
constitutional instrument places procedural restraints upon the forms
of lawmaking may not ignore them simply because it is sovereign
in the sense of having plenary power to make laws for the peace,
order and good government of the territory. If
its constitutional
instrument contains no such procedural provisions on the form of
law-making, it, or a simple majority of its members, may legislate
so as to repeal by implication limitations on substantive matters laid
down in its constitution (according to the doctrine laid down in
MoCawley’s case). This is in truth a re-interpretation of the Mcaw-
ley decision. On that occasion in 1920, Lord Birkenhead thought it
an “elementary commonplace” that a colonial legislature with plenary
9 [1964] 2 W.L.R. 1301, 1311.
10 In McCawley v. The King [1920] A.C. 691.
ioa [1964] 2 W.L.R. 1301, 1310.
11 Ibid., at 1312-3.
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powers- could treat the constitutional document which defined its
powers as if it were “A Dog Act or any other Act whatever its sub-
ject matter”. 1 2 This proposition must now be restricted to substan-
tive matters in constitutional instruments. Where definitions of pro-
cedure or special majority provisions are laid down they cannot be
treated as provisions in a Dog Act might be.
It may be said that Ranasinghe’s case leaves untouched the ques-
tion whether a legislature whose original constituent instrument
contains no provisions about the mode of law-making (or which like
the Queen in Parliament in the United Kingdom has no constituent
instrument) may impose such conditions on itself. Whilst Rana-
singhe does not positively suggest that it may, it does however sug-
gest that some reasons hitherto given for supposing that it may not
are without force. It gives judicial backing to the distinction be-
tween procedural and substantive limitations on the legislative pro-
cess which has been at the centre of recent academic discussion of
the doctrine of legislative sovereignty. It helps to confirm what some
commentators have suggested –
namely that the existing English
authority about the inability of Parliament to fetter its future ac-
tion is inconclusive as to the possibility of the Queen in Parliament
legislating so as to provide a special manner and form for specified
types of future action. The British ‘grundnorm” considered as a rule
that the courts must give effect to Acts of Parliament is indetermi-
nate as between the rule that the meaning of “Act of Parliament”
can be altered by legislation and the rule that it can not. In the
terminology of Professor Hart’s Concept of Law 13 –
if the “rule of
recognition” in the British legal system is the former rule, Parlia-
ment is sovereign in a “self-embracing” sense; if it is the latter
rule, a simple majority of legislators is sovereign in a “continuing”
sense. Professor H. W. R. Wade 4 has argued that English au-
thority provides no evidence for the view that the courts recognise
Parliament to be sovereign in the former sense. The trouble is that
such authority as exists is instfficient to establish either view; but
there is some indication that the Privy Council at least is edging a
little in the direction of “self-embracing” sovereignty.
Note
Ceylon’s constitution provides an interesting model since it con-
tains both a procedural entrenchment and substantive limitations on
legislative power. Section 29(2) of the Constitution Order in Coun-
12 [19201 A.C. 691, 703, 704.
13 The Concept of Law, pp. 145-7.
14 In “The Basis of Legal Sovereignty”,
(1955) Cambridge Law Journal 172.
No. 4]
PARLIAMENTARY SOVEREIGNTY
cil declares that no law shall prohibit or restrict the free exercise
of religion or provide for privileges or disabilities which are dis-
criminatory as between different communities or religions. Section
3 enacts that any law made in contravention of these provisions shall
be void.
Though the point was not in issue in Rcnasinghe, the Privy
Council appeared to regard these substantive restrictions as un-
amendable. They were described by Lord Pearce as “matters which
shall not be the subject of legis’ation” and “unalterable under the
constitution” as representing “the solemn balance of rights between
the citizens of Ceylon, the fundamental conditions on which inter
se they accepted the constitution”. If these words state -the case
accurately it is not clear why the legislature of Ceylon is also said
by Lord Pearce to be sovereign. The adjective Would be justifiable
if, contrary to the impression given by the phrases “fundamental
conditions” and “unalterability under the constitution”, the guaran-
tees in question were in fact open to infringement or repeal by the
two-thirds majority procedure laid down for constitutional amend-
ments. There is some difficulty in knowing whether this is so or
not. S. 29(4) –
provides that by two
thirds majority certified by the Speaker, Parliament may “in the
exercise of its powers under this section” amend or repeal any sec-
tion of the constitution. If it had been intended to exclude the re-
ligious guarantees from this power of amendment, the obvious way
to do it would have been to add to the amendment provision the
words “except for the matters included in S. 29(2)”. But no such
words appear.
the amendment clause –
It has been argued 15 that the words “in the exercise of its p.owers
under this section” operate so as to restrict the amendment power
by implying that it is only open to Parliament to legislate in the
capacity set out in section 29 as it stands and not to enlarge that
capacity. This seems implausible, since the powers of Parliament
“under this section” include, if the whole section is referred to, the
powers, whatever they are, which are given in the amending clause
and until some meaning is given to that clause it cannot be clear
that action “in the exercise of its powers” does not comprehend
Parliamentary amendment by the appropriate majority of all pro-
visions in the constitution including the religious guarantees. It would
be necessary to take this view in order accurately to describe Cey-
lon’s Parliament as enjoying sovereignty.
16 See C.F. Amerasinghe, “The Legal Sovereignty of the Ceylon Parliament”,
[1966] Public Law 65, 74.
