W11, L3

COMMON LAW CONSTITUTIONALISM AND THE PROTECTION OF RIGHTS

  • Central Inquiry: The primary question addressed is whether fundamental rights can be guaranteed or effectively protected if Parliament possesses absolute power to legislate on any topic. This implies that fundamental rights could potentially be overridden by what the speaker calls a "flourish of the legislative pen."
  • The Judicial Response: Courts have responded to this challenge through three specific legal developments known collectively as Common Law Constitutionalism.
  • Historical Timeline: These developments began gaining significant traction around the turn of the century (approximately the year 2000) starting with cases like ex parte Sims.

THE THREE LIMBS OF COMMON LAW CONSTITUTIONALISM

  • Common law constitutionalism rests on three distinct legal limbs designed to limit the legislative reach of Parliament regarding fundamental rights:
    • The Principle of Legality: Focuses on the interpretation of general or ambiguous statutory language.
    • The Doctrine of Implied Repeal: Reined in to protect "constitutional statutes."
    • Privative Clauses: Courts have developed methods to effectively bypass or limit the effectiveness of clauses that seek to oust judicial jurisdiction.

THE PRINCIPLE OF LEGALITY

  • Fundamental Statement: As established in ex parte Sims (2000), fundamental rights cannot be overridden by general or ambiguous words.
  • Purpose: To protect basic rights from "casual erosion" through legislative enactments where Parliament uses broad language that, if applied literally, would abrogate protected rights.
  • The Presumption of Interpretation: Courts erect a strong, unyielding presumption that, in the absence of express words or "necessary intendment," Parliament did not intend to abrogate basic rights.
  • Displacing the Presumption: The presumption can only be displaced in two ways:
    • Express Statutory Words: Parliament expressly states that a provision overrides a specific right. Note: Parliament rarely does this because it attracts significant political and public attention.
    • Necessary Implication: A high threshold of interpretation where the abrogation of a right must follow as an "inevitable logic."
  • Threshold for Necessary Implication:
    • Standard: It must be a "logical necessity" rather than merely a "reasonable implication."
    • Morgan Grenfell (Court of Appeal): Lord Justice Buxton stated that a necessary implication must be an implication in the true sense of logical necessity.
    • Pointer (New Zealand Supreme Court, 2010): The NZ Supreme Court adopted the language from Morgan Grenfell, emphasizing that the implication must flow as a matter of "inevitable logic" from the express words used by Parliament.

THE DOCTRINE OF IMPLIED REPEAL AND CONSTITUTIONAL STATUTES

  • Traditional View: Ordinary statutes are subject to implied repeal; if a later statute is inconsistent with an earlier one, the later in time prevails (lex posterior derogat priori).
  • Thoburn v City of Sunderland (2003): Lord Justice Laws established that "constitutional statutes" are immune from implied repeal. If Parliament wishes to repeal or amend a constitutional statute "pro tanto", it must use express, dedicated language.
  • Taylor v Attorney-General (2018): Chief Justice Elias applied the Thoburn methodology in New Zealand, ruling that the New Zealand Bill of Rights Act (NZBORA) cannot be impliedly repealed by later legislation. She gave "short shrift" to the Solicitor General's argument that a later statute trenching on rights should prevail.
  • Fitzgerald v The Queen (2021): This case expressly approved and integrated the Thoburn methodology into New Zealand law.

PRIVATIVE CLAUSES AND JUDICIAL REVIEW

  • Definition: Privative clauses (or ouster clauses) are statutory provisions that seek to prevent the courts from reviewing the decisions of executive or public bodies.
  • Anisminic Ltd v Foreign Compensation Commission (1969): The House of Lords used formalist language to bypass a privative clause. They argued that the clause only protected "determinations." If a decision maker acted outside their statutory power (ultra vires), the resulting act was not a "determination" at all, and thus not protected from review. This "sleight of hand" effectively rendered the privative clause meaningless.
  • Bulk Gas Users Group v Attorney-General (1983): The Court of Appeal moved from formalist logic to a constitutional rationale. They established a presumption that when Parliament grants discretionary power to a decision maker, it does not intend to empower them to "conclusively determine the limits of those powers." The question of legal limits is always reserved for the courts.
  • Zaoui v Attorney-General: The President of the Court of Appeal stated that privative clauses must be strictly construed to give expression to the policy of the law.
  • H v New Zealand Post: The Supreme Court reiterated that judges should be slow to conclude that privative clauses are effective (Paragraphs 63 and 78).
  • Privacy International (2019): The UK Supreme Court stated that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law regarding the power to exclude judicial review. This is a self-referential assertion of judicial power.

FROM ABSOLUTISM TO CONTROLLED CONSTITUTIONALISM

  • The "It Takes Two to Tango" Metaphor: Legal meaning is not determined solely by Parliament's text but by the meaning assigned to it by the courts in a collaborative, constitutive exercise.
  • The Paradigm Shift: Jurisdictions like New Zealand, the UK, and Canada have moved from a jurisprudence of "constitutional absolutism" (absolute parliamentary sovereignty) to one of "controlled constitutionalism."
  • Principle of Legality as a Generic Umbrella: The principle of legality now serves as a generic umbrella presumption that encompasses various specific presumptions developed by the courts over time.

THE "IN EXTREMIS" RESERVE POWER OF THE COURTS

  • The Theoretical Question: Might courts go further than interpretation and actually strike down or "disapply" unconscionable legislation that attacks the fundamentals of democracy?
  • Disapplying vs. Striking Down:
    • Striking Down: Attributed to American jurisprudence (Marbury v Madison, 1803). The US Supreme Court can invalidate laws that contravene the Constitution or the Bill of Rights.
    • Disapplying: Preferred language in the Westminster tradition, originating from EU law cases like Factortame. The statute is not technically invalidated but is not applied in the specific context.
  • The Fox Hunting Case (Jackson v Attorney General, 2005): While upholding the Fox Hunting Act, the House of Lords issued powerful "speculative dicta":
    • Lord Hope of Craighead: Stated that parliamentary sovereignty is no longer absolute (if it ever was). He described sovereignty as an "empty principle" if it allowed Parliament to enact legislation so unconscionable that people would not recognize it as law.
    • Lord Steyn: Dismissed Dicey's traditional views as outmoded. He spoke of a "new hypothesis of constitutionalism" or a new standard of legality.
    • The Rule of Law: Lord Hope proclaimed the Rule of Law, enforced by the courts, as the "ultimate controlling factor" of the constitution (Paragraph 107).
    • Lady Hale (Baroness Hale of Richmond): Suggested that courts might even reject an attempt by Parliament to subvert the rule of law.

NATURE OF THE "IN EXTREMIS" POWER

  • Definition: "In extremis" refers to the last extremity or desperate circumstances.
  • A Power of Last Resort: This power remains partially obscured and has never been tested because a sufficiently "unconscionable" legislative act has not yet occurred.
  • Potential Triggers (Legislative Assaults on Democracy):
    • Unscrupulous attacks on the citizenry (e.g., denying freedom of religion to a specific group).
    • Virulent censorship laws violating freedom of speech.
    • Attacks on representative democracy (e.g., extending the life of Parliament from 3 to 10 years).
    • Attacks on the independence of the courts (e.g., ousting all judicial review of public decisions).
  • Lord Woolf of Barnes (1995): Reasoned that limits on Parliament exist to preserve the Rule of Law, though these limits are of "modest dimensions" that any democrat would accept.

QUESTIONS & DISCUSSION

  • Q: Were the three limbs of common law constitutionalism directly connected to the naturalist conception (the fifth proposition)?
  • A: Yes. The reaction of the common law courts in developing these methods (reading down legislation) is intended to preserve basic constitutional rights. The principle of legality and the protection of constitutional statutes give effect to a substantive naturalist conception of the Bill of Rights by treating basic rights as an inherent part of the rule of law.
  • Discussion on Strikeout Power: A student noted that the Supreme Court's strikeout power should be exercised as a last resort where there is no chance of success, but currently the government might be moving to close such things down. The speaker agreed this was a good example of the tension between judicial review and legislative action.