BONHAM.S CASE: THE GHOST
IN THE CONSTITUTIONAL MACHINE

*R. A. Edwards

Doctor Bonham, doctor of physic and graduate of Cambridge University,
was discovered early in the seventeenth century practising in London without the
necessary licence from the College of Physicians. The College, empowered by
statute, sought, after a summer of legal manoeuvring, to fine and imprison the
doctor. However, in an action to determine the legality ofthe College's decision
Sir Edward Coke C.J. held the statute void as it made the college judge in its
own cause. During the course of his seminal judgement, Sir Edward noted in a
now famous passage that:

"it appears from our books 1 that, in many cases, the common law
will control Acts of Parliament and sometimes adjudge them to be
utterly void: for when an Act of Parliament is against common right
and reason, or repugnant, or impossible to be performed, the
common law will control it, and adjudge such Acts to be void.,,2

'B.A.(Hons), LL.B.(Hons), B.C.L.(Oxon). Formerly Lecturer in Law, University of
Southampton 1994-5. I would like to thank Professor Gabriele Ganz and Professor Laurence
Lustgarten (both at the University of Southampton), Mr.Nick Barber (Exeter College, Oxford)
and Ms.Sinead McMullan (Trinity College, Dublin) for their helpful comments. However, the
views contained in this paper remain the sole responsibility of the author. E-Mail:
edwards@lawlinks.org

1 See T.F.T.Plunkett, "Bonham's Case and Judicial Review" 40 Harv.L.R. 30 where the
author casts doubts on the strength of the precedents on which Coke based his reasoning. Cf the
conflicting opinion in McIlwain, High Court of Parliament and Its Supremacy (O.u.P., 1910).

2 Dr Bonham's Case [1609] S Co. Rep.113b at liSa, per Coke C.J. Justices Warburton
and Daniel concurred. Hereafter cited simply as Bonham's Case.

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I.THE RISE AND FALL OF BONHAM'S CASE

Bonham's Case was one of the landmarks of early-modem English law, and
has provided an intellectual banquet for lawyers ever since. Bonham's Case for
certain scholars was merely a restatement of the principles of statutory
interpretation, albeit in a strong form. Although statute law was still in its
infancy, Coke's argument concluded Thome, "is derived from the ordinary
common law rules of statutory interpretation." 3 However, the real significance of
the case others have advocated, was the belief in the supremacy of a higher rule
oflaw, binding on both Parliament and the courts. Although in Bonham's Case
Coke did not define what he meant by "common right and reason" or
"repugnant," a year later in Calvin's Case he went on to expand his canvass.4
This higher law, was it seems a superior and immutable law of nature derived
from God.s On this view, it was not beyond the provenance of the courts to
control acts of Parliament. Similarly, acts that were "repugnant," argues
Plunkett, were those which were either distasteful to the court, self-contradictory
or contrary to the common law. 6 In any case, Coke was not merely asserting the
rules of statutory interpretation. 7 In fact the subsequent case law lends a certain
amount of support to this view.

During Rowles v. Mason, Coke once again asserted that the common law
"corrects, allows and disallows both statute and custom, for if there be
repugnancy in statute or unreasonableness in custom, the common law disallows
or rejects it as in Bonham's Case." 8 That Coke believed statutes could be
declared unlawful was further re-enforced by his account of the Judges reply to

3 See further, Thome, "Dr Bonham's Case" [1938] 54 L.Q.R. 543 .

47 Co.l. 4b [1610] at 12a-12b.

S Indeed during his judgement inBonham's Case (supra.n.2 at 12b), Coke states that "this
law of nature is part of the laws of England."

6 T.F.T.Plunkett, supra.n.1 at 34.

7 Corwin, "The Higher Law Background of American Constitutional Law" [1928]
Harv.L.Rev. 149;365 at 370-372.

8 [1612] 2 Brown L.192 at 198.

BONHAM'S CASE

the King on the question of Royal Proclamations. 9 Among a list of unlawful
proclamations Coke noted that:

"an Act of Parliament was made that all Irish people should depart
the Realm ... upon pain of death; which was absolutely in terrorem
and was utterly against the law."lo

Even Lord Ellesmere, who was not enamoured of the common law courts and
had described the decision as "possessthing [sic] a better room in the press than
is deserved," nonetheless did not deny the existence of the doctrine. II In both
Day v. Savadgel2 and Sheffieldv. Ratcliffe 13 Sir Edward's successor, Sir Henry
Hobart, gave effect to the doctrine that Bonham's Case contained, although
without referring to the views of Coke who by this time had fallen from Royal
favour. 14

Although cases after the Glorious Revolution are rare, it is wrong to describe
the doctrine at this stage, as Lord Reid did, as "obsolete." 15

"In earlier times," Lord Reid concluded, "many learned lawyers
seem to have believed that an Act of Parliament could be
disregarded in so far as it was contrary to the law of God or the law
of nature or natural justice, but since the supremacy of Parliament
was finally demonstrated by the Revolution of 1688 16 any such

9 R.A.Mackay, "Coke - Parliamentary Sovereignty or the Supremacy of Law" [1923-24]
22 Mich.L.Rev. 215 at 225.

1012 Co. Rep. 76.

11 Earl of Oxford's Case [1615] 1 Chan. Rep. 1 at 12.

12 [1615] Hobart 86.

13 [1615] Hobart 334 at 336.

14G.Walker, "Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with
Freedom of Religion. " [1985] 59 A.L.J 276 at 279-280.

IS British Railways Boardv. Pic/cin [1974] AC. 765. This case, like Edinburgh Railway
infra.n.24 concerned the fraudulent use of Parliamentary power.

16The Bill of Rights 1688 does not assert the supremacy of Parliament. The supremacy

and scope oflegislative power are the products of the decisions of the courts.

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ideas have become obsolete." 17

Soon after the Glorious Revolution, Bonham's Case was cited by Chief Justice
Holt in City of London v. Wood, 18 a case which "is sometimes quoted out of
context to support the omnipotence theory." 19 Lord Holt is reported as ruling
that:

"what my Lord Coke says in Doctor Bonham's Case is far from any
extravagency, for it is a very reasonable and true saying, that if an
Act of Parliament should ordain the same person to be party and
judge, it would be a void Act of Parliament." 20

During Campbell v. Hall, Lord Mansfield stated that the King in Parliament
"cannot make any new law contrary to fundamental principles." 21 Later in Green
v. Mortimer22 Lord Campbell, who had described Bonham's Case as "a foolish
doctrine which ought to have been laughed at," 23 indirectly approved it by
invalidating a private Act of Parliament. This is all the more striking as, in the
earlier Edinburgh and Dalkeith Railway Co. v. Wauchope. Lord Campbell had
held that in the courts legislative enactment was condusive.24

Today, based on a narrow reading of his Institutes, Coke is more often seen as
an early advocate of the supremacy of Parliament: 25

\7 Supra.n.15 at 782.

18 [1755] 12 Mod. 669.

19 G.Walker, supra.n.14 at 280.

20 Supra.n.18 at 687-688.

21 [1774] 1 Cowp.204 at 209.

22 [1861]3 L.T. 642.

23 H.W.R.Wade, Constitutional Fundamentals (Stevens & Sons, 1980) at 31.

24 [1842] 8 Cl. & F. 710 at 724.

2S For example, de Smith & Brazier, Constitutional and Administrative Law, (7th.ed.,
Penguin, 1994) at 76 at n.34.

BONHAM'S CASE

"Of the power and jurisdiction of Parliament for the making of laws
in proceeding by bill, it is so transcendent and absolute as it cannot
be confined either for causes or person within any bounds"26

However, Parliament was at Coke's time, and indeed up until the civil war, more
a court than a legislature. 27The King was the fountain of justice and Parliament
was his court. A close reading of the Institutes reveals that Coke's theories are
bereft of the modem distinction between legislating and adjudication. 28Indeed,
McIlwain believes that the use of the words 'jurisdiction", "causes", and
"person" point conclusively to Parliament's existence as a court. 29Whatever his
scholastic inconsistencies, nothing can be read into them that approaches the
modern doctrine of sovereignty. Parliament may have been emerging as the
supreme body relative to the other organs of government, but it was not the
supremacy of legislative omnicompetence. 30 Indeed, Blackstone in his magnum
opus, The Commentaries reached exactly this conclusion. 31Nonetheless, the
error of Blackstone in accepting what Coke had written in his Institutes at face
value, in contradiction to his own views on the separation of powers and civil
liberties, and thereby claiming that Parliament enjoyed "uncontrollable
authority"32 was to have wider ramifications, for these views were later moulded
by Dicey into the dogma of Parliamentary sovereignty. Thus today's theories
concerning Parliament are based on a misunderstanding of constitutional history.

26 4 Co. Inst. 36.

27 As is widely recognised, the origins of the unlimited power that Parliament enjoys grew
out of this period as the supreme court. See further Gough, Fundamental Law in English History,
(OUP., 1955) ch.3 esp.at 42.

28 Corwin, supra.n.7 at 379.

29 McIlwain, supra.n.l at 139-48.

30 G.Marshall, Parliamentary Sovereignty and the Commonwealth (Clarendon, 1957),

ch.5.

31 Commentaries VoU at 91 & 162.

32 Ibid. at 91.

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II.THE RISE OF THE DICEYAN PARADIGM

After its misapplication in Godden v. Hales, 33 where the real issue was the
dispensing power of the King and not Coke's doctrine, 34 Bonham's Case came to
be regarded at best as a legal relic, and at worst, especially by the Parliamentary
side of politics, as a suspicious and potentially dangerous precedent. 35 After the
Glorious Revolution, as has been seen, despite attempts to keep it alive the
concept of common law judicial review of Parliamentary legislation fell into
general disuse. By the nineteenth century, with the scholarly re-enforcement of
Dicey's pen, statutes had become inviolable. According to Dicey, English law
denied the "existence of any judicial or other authority the right to nullify an Act
of Parliament or to treat it as void or unconstitutional." 36 The courts could no
longer interfere with the monopolistic legislative power that Westminster had
been granted by the courts. 37 Judicial interference could only be justified in the
sphere of policing the limits of legislative intent. 38 These sentiments were
succinctly expressed in the judgement of Mr Justice Willes during Lee v. Bude &
Torrington Railway Co.:

"It was once said - I think in Hobart - that, if an Act of Parliament
were to create a man judge in his own cause the court might

33 (1686) 89 E.R. 1050.

34 For a stimulating account of this, see D.A. Smallbone, "Recent Suggestions of An
Implied Bill of Rights" [1993] 21 Fed.L.Rev.254 at 262-267.

35 Yet, strangely, it has not been over-ruled. (Although it has languished in the legal
doldrums for many years fortune smiled once more on Bonham's Case when it was endorsed by
no less a figure than Lord Denning: "Misuse of Power" [1981] 55ALl 720 at 723.)

36 A.Y.Dicey, An Introduction to the Study of the Law of the Constitution, (10th.ed.,
Macmillan Education, 1964) at 91.

37 AW.Bradley, "The Sovereignty of Parliament - in Perpetuity?" in The Changing
Constitution (eds. Jowell & Oliver) (Oxford University Press,1994) at 85. It is to the decisions
of the courts that "we must look to discover propositions about the legislative powers of
Parliament." See infra.

38 P,P.Craig, Public LawandDemocracy in the UKand the USA (Clarendon, 1990) at 24-
25.

BONHAM'S CASE

disregard it. That dictum, however, stands as a warning, rather than
an authority to be followed. We sit here as servants of the Queen
and the legislature ... if an Act of Parliament has been obtained
improperly, it is for the legislature to correct it by repealing it; but
so long as it exists as law then the courts are bound to obey it." 39

This philosophy has been oft repeated. In British Railways Boardv. Pickin, for
example, not only was Lord Reid of the opinion that "for more than a century
both Parliament and the courts have been careful not to act so as to cause a
conflict between them," 40 he resolutely believed that "the idea that a court is
entitled to disregard a provision in an Act of Parliament on any ground must
seem strange and startling to anyone with any knowledge of the history and law
of our constitution." His Lordship concluded, that there "has been no attempt to
question the supremacy of Parliament." 41 There was no role for the Courts to
limit the actions of Parliament by way of judicial review.

III. PARLIAMENT AND CIVIL LIBERTIES: EXHUMING BONHAM'S
CASE

In areas now governed by European law, Parliament is now subject once more
to a higher form of law in the shape of the Community Treaties. Whilst the
received nostrums of Dicey have, in part, been overtaken by the accession of the
UK to the European Union, 42 in areas not concerned with Community law the
Courts cannot declare an act ultra vires. 43 Where Community law is not

39(1871) L.R.6 c.p 576 at 582 This case was concerned with the fraudulent use of
legislative power, and not its scope. Mr Justice Willes was clearly worried about an unseemly
clash between the courts and Parliament.

40 Supra.n.15 at618.

41Ibidat 614. The Revolution of 1688 did not assert the supremacy of Parliament.
Contrary to popular belief the Bill of Rights 1688 fails to mention it. It is to the decisions of the
courts that we must turn in order to discover the legislative limits of Parliament. See Bradley
supra.n.37.

42Forexample Stoke-on-Trent City Council v. B&Q Pic [1991] Ch. 48per Hoffman 1.

43For example, see the remarks of Lord Diplock and Lord Morris in Hoffman La Roche
& Co.AG v. Secretary of State for Trade and Industry [1975] A.C. 295 at 365 & 349
respectively.

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involved, English courts refuse to apply any extrinsic control to acts of
Parliament, even if those appearing before them claim that their fundamental
rights and freedoms have been infringed by statute. 44While the rule of law
mediates the sovereignty of Parliament by ensuring that legislation is interpreted
in a way that respects the principles and values of the common law, 45the courts
must yield to legislative intent in the face of clear and unambiguous wording.
Judges allegedly avoid public policy issues, simply "administering the law, good
or bad as they find it." 46If Parliament enacts oppressive legislation, for example
denying the franchise on the grounds of race, 47then following the dictates of
positivism the courts must apply it, no matter how contrary to the tone and spirit
of our constitutional traditions. "The policy or impolicy of such an enactment,"
concluded the Privy Council in Cunningham v. Tomey Homma, "as that which
excludes a particular race from the franchise is not a topic which their Lordships
are entitled to consider." 48The legislation in question may be dubbed
"unconstitutional," but this does not attract any legal consequences as it might in
Canada. The rights and freedoms of the individual, as Lord Scarman notes, are
helpless "in the face of the legislative sovereignty of Parliament." 49The absence
of judicial power to strike down oppressive statutes has become the "Achilles
heel of a society which aspires to constitutionally protected freedom.,,50

There are two solutions to this problem. First, we could adopt an entrenched
bill of rights, or second we could exhume the doctrine in Bonham's Case. 51The

44For exampleR.v. Secretary ojStatejor Home Affairs, expo Bhajan Singh [1975] 2 All
E.R. 1081.

45 For a recent restatement of this doctrine see Lord Browne-Wilkinson, "The Infiltration
of a Bill of Rights" [1992] P.L. 397 at 404-8.

46Lord Denning, "The Spirit of the British Constitution" (1951) 29 C.B.R. 1180 at 1193.

47 This possibility is far more probable than the specious example peddled by Dicey,
quoting Leslie Stephen, that all blue eyed babies should be murdered on legislative licence. See
further A.v.Dicey, supra.n.36 at 81.

48[1903] A.C.151 at 156.

49Sir Leslie Scarman, English Law: The New Dimension (Stevens & Sons, 1974) at 15.

50 Sir Gerard Brennan, "Courts, Democracy, and the Law" (1991) 65 A.L.J 32 at 38.

51 Ibid.

BONHAM'S CASE

first possibility need not detain us here. However, what if the courts were faced
with a statute utterly "repugnant" to our constitutional traditions. Would it be
possible for the courts to return to the doctrine of Bonham's Case, albeit
equipped with modem "right and reason" focused on the rights and freedoms of
the individual, and declare it void? Or to put it another way, can the courts place
common law limits on legislative power?

IV. DISSENT WITH DICEY AN FORMALISM

The questioning of parliamentary sovereignty is far from an historical
phenomenon. In many senses the New Zealand constitution is a mirror image of
its British parent. The Auckland Parliament, like Westminster, is sovereign in
the Diceyan sense. 52 However, in no less than five Court of Appeal cases, the
supremacy of the New Zealand Parliament has been questioned by Sir Robin
Cooke, the former President of the Court. 53 Although Lord Cooke's judgements
do not provide any reasoning or analysis in relation to the conclusion, they are
nonetheless of great significance. 54 During his dissent in Lv. M, a case that
concerned the exclusive jurisdiction of the Accident Compensation Commission,
Mr Justice Cooke noted:

"it would be a strong and strange step for Parliament to attempt to
confer on anybody other than the Courts power to determine
conclusively whether or not actions in the Courts are barred .. there
is even room for doubt whether it is self-evident that Parliament
could constitutionally do SO.,,55

Later, in Brader v. Ministry of Transport where the validity of the careless day
regulations made under the Economic Stabilisation Act 1948 was questioned, his
Honour noted obiter:

52See further Constitution Act 1986 (NZ), s.15(1).

53por an excellent commentary see J.L.Caldwell, "Judicial Sovereignty - A New View"
[1984] N.2.L.R. 357. Lord Cooke of Thorndon , as Sir Robin became, was appointed to the
Appellate Committee of the House of Lords in 1996.

54L.Zines, Constitutional Change in the Commonwealth (1988) at.48.

55 [1979] 2 N.Z.L.R. 519 at 527.

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"it may be added that the recognition by the common law of the
supremacy of Parliament can hardly be regarded as given on the
footing that Parliament would abdicate its function ... it is not to be
supposed that by the 1948 Act the New Zealand Parliament meant
to abandon the entire field ofthe economy to the Executive.,,56

Then again in the New Zealand Drivers' Case where the Arbitration Court had
been prohibited from determining the validity of a wage freeze Mr Justice Cooke
noted in a majority judgement that the entire court had "reservations as to the
extent to which in New Zealand even an Act of Parliament can take away the
rights of citizens to resort to the ordinary courts of law for the determination of
their rights.,,57 However, in Fraser v. State Services Commission, his Honour
appeared to go further noting that "it is arguable that some common law rights
may go so deep that Parliament cannot be accepted by the Courts to have
destroyed them." 58Indeed, later in Taylorv. New Zealand Poultry Board where
the ability of the Poultry Board Act 1980 to remove the common law right to
silence was questioned, Sir Robin re-enforced his previous dicta:

"I do not think that literal compulsion, by torture for instance,
would be within the lawful powers of Parliament .. some common
law rights presumably lie so deep that even Parliament could not
override them.,,59

All these judgements point clearly to a revival of the doctrine first espoused by
Lord Cooke's famous namesake - Sir Edward Coke. 60Moreover, they are "are
absolutely opposed to Dicey.'>61

56 [1981] 1 N.Z.L.R. 73 at 78.

57New Zealand Drivers' Association v. New Zealand Road Carriers [1982] 1 N.Z.L.R.
374 at 390.

58 [1984] 1 N.Z.L.R. 116 at 121 (emphasis added).

59 [1984] 1 N.Z.L.R. 394 at 398(emphasis added)

6arhe High Court of Australia has made a similar observation on one occasion cf Union
Steamship Co. of Australia Pty.Ltd. v. King [1988] 166 C.L.R. 1 at 9-10. In addition see,
Builders' Labourers Federation v. Minister of Industrial Relations [1986] 7 N.S.W.L.R. 372.

61 Supra.n.54 at 48.

BONHAM'S CASE

V. FUNDAMENTAL PRINCIPLES: WHAT ARE THEY?

Claiming that an act of Parliament is contrary to deeply embedded fundamental
common law rights and principles is obviously beset by the difficulty of not only
deciding which rights and freedoms are fundamental, but also from whence they
originate. "Fundamental rights," as Joseph notes, "purveyed within the matrix of
law may, in truth, be no more than moral statements about how government and
society ought to function, if so, whose 'morality' are we talking about? The
presiding judge's or society at large?" 62 Clearly there is a danger that the judicial
advocacy of common law rights could lead to subjectivism and uncertainty. With
no bill of rights there is the danger that laws could be struck down on the vague
basis of failing to comply with nebulous moral standards. How are we to define
these conceptual and technical limits on Parliamentary power?

VI. RIGHTS DERIVED FROM DEMOCRACY

In part this problem may be solved by focusing on what rights and freedoms
are essential for a democratic society. This basis of society manifests itself in, for
instance, the Representation of the People Act 1983. 63 Implicit in such legislation
must be the recognition that a bundle of rights exist in order to ensure that the
democratic process is more than just an empty shell. Clearly the franchise is of
little use unless a society enjoys, as a bare minimum, a free press, freedom of
speech, freedom of movement, freedom of thought and freedom of assembly and
association. These rights form, in part, the normative framework of democracy.
Moreover, such rights are implicit in the Representation of the People Act which
clearly assumes that the people are free to criticise, discuss and debate the merits
of political policies and parties.64

Although the constitution is unwritten, there can be no doubt that the United
Kingdom is essentially a parliamentary democracy. The Representation of the
People Acts, for instance, are a clear manifestation of a free society that governs
its affairs in accordance with the principles of representative democracy. Society
tolerates Parliamentary law-making because it is the elected legislative forum of

62P.A.Joseph, "Beyond Parliamentary Sovereignty" [1990] Anglo-Am.L.Rev. 91 at 104-
105.

63 1983, c.2.

64 For a similar observation in the Canadian context see Switzman v. Elbling [1957] 7
D.L.R (2d) 337 per Abbot 1.

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the nation. It is in this wider context that Parliament must be seen. Moreover, the
theory of parliamentary sovereignty developed by Dicey is justified by
democratic theory. 65 If the political sovereign, the people, are to control the legal
sovereign, the Queen in Parliament, then the operation of the political process
must support a democratic choice. 66 Indeed, there seems to be no reason in the
age of mass democracy for the courts not to raise explicitly the people to a
position of constitutional supremacy over Parliament, thereby recognising the
sovereignty of the people as the ultimate constitutional foundation. 67 Whatever
the form of the British Constitution, in the late twentieth century sovereign
power belongs to and resides in the people. It is exercised on their half by the
government of the day who derive their moral and political authority from the
ballot box. This, surely, is the self-evident basis of representative government.
Clearly then a mere parliamentary majority is not therefore free to abandon
democratic institutions or the rights and freedoms that support them. In order to
prevent this there must be some form of external control that can prevent a
government from resiling from these institutions and the normative values of
democracy.

Judicial review of legislation is of course frequently criticised on the grounds
that it is undemocratic. 68 Although this is not the place to repeat these arguments
they are, however, in one sense of crucial importance. The crude logic of
majoritarians dictates that any interference with any statute is illegitimate,
irrespective of the content of that statute. Parliament, as the democratic element
of the Constitution, must be supreme. Yet without question this theory is flawed.
Unchecked democracy, as Lord Hailsham famously observed, can be as unjust
and tyrannical as any dictator. More fundamentally in the context of the British
constitution this criticism is more than a little ironic. Ministers can serve the
Crown without ever being elected. And of course two-thirds of the legislative
process has no democratic pedigree whatsoever: viz. the Queen and the House of

65 A.Y.Dicey, supra.n.36 at 70 (where Dicey notes that the electors "are the true

sovereign of the country") & at 429-30.

66 L.Zines, "A Judicially Created Bill of Rights" [1994] 16 Sydney L.Rev. 166 at 177.
Zines persuasively argues that in order to avoid opening Pandora's Box the judges should "cleave
close" to the rights and freedoms associated with the concept of a representative democracy.

67 Supra.n.34 at 258.

68 For example, the classic, lA.G Griffith, The Politics of the Judiciary (4th.ed.,Fontana,
1991) . See also Ewing & Gearty, Freedom Under Thatcher (Clarendon, 1990) at 270-].

BONHAM'S CASE

Lords. Equally, governments formed under our electoral arrangements are
usually endorsed by less than half the electorate, and are therefore not true
expressions of majoritarian will.

Thus instrumentalist democratic rights, for example equal access and
participation in the democratic process, must be protected otherwise political
equality, the bedrock of major itarianism, will be undermined. Likewise, free
speech must be protected for it provides the very breath of life for our
Parliamentary democracy. 69 Any enactment that threatened to undermine the
essentials of democratic government clearly lies beyond the lawful limits of
Parliament. 70 Therefore, the courts through judicial review would be ensuring
that the political will of the nation would continue to be accurately expressed in
a democratic manner. In this sense a limited doctrine of judicial review can be
conducive to democracy, and thus confined, is no more anti-democratic than
judicial review of administration.?'

VII. COMMON LAW RIGHTS

Beyond the values that might be considered essential for democracy, there are
a number of fundamental common law principles deeply rooted in the common
law tradition. Although these principles are increasingly identified with the
catalogue of rights in the European Convention on Human Rights, 72 they are
nonetheless "the basis of our fundamental freedoms" 73 and have "sunk deep into
the mind of the nation and have been more powerful than anything else in
creating the spirit of the British Constitution." 74 These principles represent a

69 As the decisions in Re Alberta Legislation [1938] 2 D.L.R 81 at 107 and Australian
Capital Televsion Pty. Ltd v. The Commonwealth [1992] 177 C.L.R 10 recognise.

70T.R. S Allen, "The Limits of Parliamentary Sovereignty" [1985] P.L. 614 at 620-22.

71 D.Feldman, "Democracy, The Rule of Law, and Judicial Review" [1990] 19
Fed.L.Rev. I at 23.

72For example, A-G v. Guardian Newspapers (No2) [1990] I A.C.I09 at 283 per Lord
Goff; Derbyshire County Council v. Times Newspapers [1992] 3 All E.R. 65 at 77-78 per
Balcombe L.J.; and R v. Cambridge Health Authority, ex p. B (The Times, 15th. March, 1995).
For an extra-judicial view see: The Hon. Sir John Laws, "Is the High Court the Guardian of
Fundamental Constitutional Rights ?" [1993] P.L.59. .

73Lord Denning, supra. n.46 at 1183.

74 Ibid. at 1181.

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number of enduring values. They include, for example, "the dignity and integrity
of every person, substantive equality before the law, the absence of unjustified
discrimination, the peaceful possession of private property, the benefit of natural
justice and immunity from retrospective and unreasonable operation oflaw.,,75
Furthermore, despite the semi-entrenched provision in the Canadian Charter
guaranteeing freedom of expression 76the Canadian Supreme Court has observed
that freedom of expression is not:

"a creature of the Charter ... it is one of the fundamental concepts
that has formed the basis of the historical development of the
political, social and educational institutions of west em society [and]
representative democracy." 77

Even before the advent of the Charter, free speech had been recognised as an
essential feature of Canadian democracy, and as such had been granted a
constitutional status by the courts. 78Equally, in the context of the right to be
secure from arbitrary search and seizure, the Alberta Court of Appeal noted
during Southam v. Hunter that "the roots of the right .... are embedded in the
common law ... [and] the expression in a constitutional document simply
reminds us of those roots and the tradition associated with the right." 79Such
principles cannot be dismissed as ephemeral or nebulous.

Would it be possible, however, to go further and claim that such principles
form a fundamental law and as such they are not ordinary positive law? This
would not be at all revolutionary. What is revolutionary is talk of the
omnicompetence of Parliament, free to destroy and erode rights and freedoms
such as the right to silence. Such views, as Allott notes:

75 Supra.n.SO at 40.

76S.2 (b) Canadian Charter ofRights & Freedoms (1982) s.2 is subject to the legislative
override provisions contained in s.33 and is therefore not fully entrenched.

77 Retail, Wholesale & Department Store Union v. Dolphin Delivery Ltd. [1986] 33
D.L.R (4th.) 174 at 183 per McIntyre 1.

78 Ibidat 184per McIntyre 1. For cases giving free speech a constitutional status, see e.g.
Re Alberta Legislation supra.n.69 at 107-109 and at 119-120. See also infra.

79[1983] 147 D.L.R (3d) 420 at 426 per Prowse 1.A. Section 8 of the Charter provides
"Everyone has the right to be secure against unreasonable search or seizure."

BONHAM'S CASE

"fly in the face of one thousand years of talk about 'fundamental
law' by Kings, judges, political men, and commentators ... if there
is one thread which runs through the whole turbulent story of
British constitutional development it is the belief that we are the
servants of fundamental constitutional rules which were there
before us and will be there after we have gone."80

VIII. THE PROTECTION OF UNENUMERA TED RIGHTS AND
FREEDOMS

There are, of course, those who believe that in the absence of a bill of rights
the courts are unable to protect adequately rights and freedoms. 81 However, it is
disingenuous to claim that as rights are unenumerated that they cannot be
protected. In Ireland, for example, the Supreme Court has ruled that unspecified
rights lurk in the Constitution, 82 and at a deeper level in the laws of nature.
Furthermore, these rights could be identified by the courts and protected.83

Similarly, in the United States the courts have from the very beginning
proclaimed and enforced unwritten constitutional principles. 84 Thus clearly, as
Grey notes, many of the court's decisions on constitutional law are non-
interpretive. 85 Perhaps this is not surprising, for at the time the Constitution was
framed it was recognised that it did not completely codify all the higher law.86
Equally, the Australian High Court has "distilled from the provisions and

80 P.Allot, "The Courts and Parliament: Who, Whom ?" [1979] 38 CL.l. 79 at 114.

81 Eric Barendt, for example, notes "the Courts in the absence of a Constitutional text are
unable to give adequate weight to the freedom when it conflicts with other public values and
interests," in Freedom of Speech (Clarendon,1985) at 299. See also Builders' Labourers
federation v. Minister of Industrial Relations supra.n.60 at 406b-c per Kirby P.

82 For example Bunreacht na hEireann (1937) Art.43.1.I (private property).

83 See Ryan v. A-G(Ireland) [1965] I.R. 264, & G v. An Bord Uchtala [1980] I.R. 32.

84 T.Grey, "Do We Have an Unwritten Constitution ?" [1975] 27 Stan.L.Rev.703 at 717.

8S For example, Roe v. Wade 410 U. S.113 at 152-3 (1973).

86 Supra.n.84 at 716.

THE DENNING LAW JOURNAL

structure of the Constitution" 87 an implied freedom 88of communication "at least
in relation to public affairs and political discussion," 89Whilst attractive, the
difficulties of such an approach should not be underestimated. The result could
be the simple exchange of one Leviathan in Parliament for another in the courts.
Under a constitution that provides no limits to the legislative supremacy of
Parliament it is both dangerous and unwarranted for the courts to expand the
scope of judicial review beyond constitution principles that have a widely
recognised legal and political heritage in society. With this in mind is it therefore
too bold to suggest that certain of the common law rights and freedoms, such as
free speech, are so essential to a representative democracy that a mere
Parliamentary majority lacks the legitimacy to uproot them? If it is desired to
protect these rights then should the doctrine in Bonham's Case not be exhumed,
employing the constitutional principles outlined above as the modem "right and
reason"? Whilst this "would not be an easy move in a democracy, it might be
done, and the scope of rights might be usefully delimited, if the judges
concentrated on enforcing only those rights which are essential to democratic
society."90 For clearly if the courts were to expand their canvass beyond these
important rights and freedoms then the benefits to society become more
questionable and judicial review more difficult to justify.

87 Theopanous v. Herald & WeeklyTimes [1994] 68A.L.JR. 713 at 716bper Mason c.J.
The leading authority on this implied freedom is Australian Capital Television Pty. Ltd. v. The
Commonwealth supra.n.69. Here the High Court ruled that Part IIID of the Political Broadcasts
and Political Disclosures Act 1991, an act of the Federal Parliament, was invalid on the ground
that it infringed the implied right of communication which was inherent in the Australian
Constitution. See also Stephens v. WestAustralia Newspapers [1994] 68 A.L.JR. 765 & The
Nationwide Case [1992] 177 C.L.R.l.

8~lthough the drawing of implications from the Constitution is not new, the application
of such thinking to fundamental rights and freedoms is: see Zines, The High Court & The
Constitution (3rd.ed.,Butterworths, 1993)). See alsoMiller v. TCNChannelNine Ply. Ltd. [1986]
161 C.L.R. 556 where Murphy lIs implied freedom of communication failed to find favour with
the rest of the High Court. For a general discussion of this area see further, H.P.Lee, "The
Australian High Court & Implied Fundamental Guarantees" [1993] P.L. 606.

89Australian Capital TelevsionPly. Ltd v TheCommonwealth supra.n.69 at 140-42per
Mason C.J.

90 D.Feldman, Civil Liberties and Human Rights in England and Wales (Oxford
University Press, 1993) at 55.

BONHAM'S CASE

IX. THE RULE OF LAW AND THE POLITE REBELLION

In cases that concern ouster clauses the courts have already shown scant regard
for the sanctity of statute law when it conflicts with the rule of law. In fact, their
Lordships "politely rebelled." 9]In Anisminic Ltd. v. Foreign Compensation
Commission the House of Lords disregarded the clear and unambiguous words
of the statute that stated that the findings of the Commission "shall not be called
into question in any court of law." 92Drawing on precedents of some antiquity,
their Lordships claimed that the statute would not prevent them reviewing any
decision of the Commission if it had exceeded its jurisdiction. "The net result,"
as Wade notes, "was that they [the judges] had disobeyed the Act although
nominally they were merely construing it in a peculiar but traditional way." 93In
doing so, their Lordships were doubtless more alive to the potential of the abuse
of power, than were the legislators who passed the act. The Anisminic decision,
in a sense gave "us a constitution, establishing a kind of entrenched position to
the effect that even Parliament cmillot deprive [judges] of their proper
function."94 In the same way that Sir Edward Coke in Bonham's Case held that
Parliament could not make a man judge in his own cause, the House of Lords in
Anisminic were asserting a common law doctrine of the separation of powers
which statute could not override. Thus as the courts clearly feel that statute law
is no longer sacrosanct if it conflicts with the rule of law, what then is tlle
difference in applying the same logic to statutes that undermine the efficacy of
our representative democracy? 95

X. THE FAILURE OF DICEY - A NEW ROLE FOR THE COURTS?

The possibility, however, of further activism aimed at tlle protection of rights
and freedoms is unlikely, due largely to the current narrowness of the judicial
mandate, and the fossilised mind set of English public lawyers. This, of course,

91 Supra.n.14 at 281-2.

92 [1969] 2 AC.147.

93 Supra.n.23 at 65.

94 Ibid. at 68.

9S See Lord Woolfs observations on the likely resistance of the judiciary to any proposal
to remove judicial review contained in "Droit Public - English Style" [1995] P.L.57.

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flows from the constitutional consequences of Dicey, particularly his notion of
the supremacy of Parliament and beyond this, the Austinian legacy of the rigid
separation of law and morality. Austin, W)lO had little time for civil liberties, is
largely responsible for the mechanistic "law is law" positivism which so bedevils
the mindset of English lawyers. 96 Moreover lawyers, as Wade has famously
noted, are brainwashed from their professional infancy by the dogma of
legislative sovereignty. 97 Consequently, constitutional law has become, and is in
danger of continuing to be, merely a series of footnotes to Dicey. Yet in
propounding his theories Dicey casually "announced that it was the law that
Parliament was omnicompetent, explained what this meant, and never devoted so
much as a line to fulfilling the promise he made to demonstrate that this was
SO.,,98 The theories that Dicey developed are, without doubt, both deeply flawed,
and are hopelessly outdated being based to a large extent on the idea of a self-
correcting democracy. 99 Absent from Dicey's work, not surprisingly, is any
mention of Bonham's Case.

In the light of such deep flaws it is difficult to understand why lawyers have
taken Dicey and his Study so seriously. Ironically, Dicey himself refused to do so
when they conflicted with his own political beliefs. 100 In Fool's Paradise, for
example, he sanctioned the recourse to violence if the Home Rule Bill was
enacted even if "the British electorate sanction the monstrous iniquity."loI
Implicit in his work was the message that he too was all too aware of the failings
of the theories he had nurtured. Today, as Lord Hailsham has said, we would
readily label these deficiencies "the Elective Dictatorship." In short the Diceyan
paradigm placed unbridled power into the hands of those who far from acting as
the servants of the people have behaved as their masters. When, however, Dicey

96J.Austin, The Province of Jurisprudence Determined, (ed. HL.A.Hart),(Weidenfeld &

Nicolson, 1954).

97 Supra.n.23 at 68.

98A.W.B.Simpson, Oxford Essays in Jurisprudence (2nd.ed.,Clarendon, 1973) at 96.

99It is not the purpose of this paper to undertake an analysis of Dicey. This has been
eloquently achieved by P.P.Craig. See further, "Dicey:Unitary, Self-correcting Democracy and
Public Law" [1990] 106 L.Q.R. 105, and supra.n.38 at ch.2.

100 F .Mount, The Constitution Now: recovery or decline (Mandarin, 1993) at 56.

101 A.V.Dicey cited in ibid at 55.

BONHAM'S CASE

wrote he was not concerned "to see strength curbed in response to the plaintive
mewing of the weak." 102 Dicey believed that the House of Commons would
protect liberty.

Today, however, the legislature is largely an instrument of executive
government. And as such is increasingly used to diminish the rights and
freedoms of the citizen, as the removal of the right to silence all too clearly
shows.103 Dicey re-enforced his belief in self-correcting democracy by claiming
that civil liberties in England were adequately protected by the common law.104

However, like the notion of a self-correcting democracy the protection this
affords is minimal, for statutes that curtail liberty are, on Dicey's analysis,
beyond the control of the courts. 105 However if lawyers recognise and reject the
dangerous and inherent flaws in Dicey's theories and look to develop a doctrine
of judicial review based on the precedent in Bonham's Case, and the principles
of the common law, freedom will undoubtedly be better protected. This,
naturally, is further dependent on the willingness of the courts to change the
ultimate principle.

In every legal system there exists a basic rule by which the validity of
legislation can be judged. In the United Kingdom, the ultimate principle is, that
which the Queen in Parliament enacts is law. This principle is what enables the
courts, officials, and private individuals to determine the legality of legislation.
In the United Kingdom the ultimate legal principle is unique in that it is the only
part of the common law that Parliament cannot change. This common law rule
is the ultimate constitutional foundation for "the rule of judicial acceptance is in
one sense a rule of the common law, but in another sense - which applies to no
other rule of common law - it is the ultimate political fact upon which the whole
system oflegislation hangs." 106 The rule is unique, for the rule may not be
altered by statute, contrary to what Sir Owen Dixon thought, 107 for "legislation

102 Ibid. at 57.

103 See further the Criminal Justice & Public Order Act 1994, c.33..

104 Supra.n.38 at 36.

105 See generally, E.Barendt, "Dicey and Civil Liberties" [1987] P.L. 596.

106 H.W.R.Wade, "The Basis of Legal Sovereignty" [1955] C.L.J 172 at 188.

107 Sir Owen Dixon, "The Common Law as an Ultimate Constitutional Foundation"
[1957] 31 A.L.J. 240 at 242-3.

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owes its authority to the rule ... the rule does not owe its authority to legislation
... to say that Parliament can change the rule because it can change any other rule
is to put the cart before the horse.,,108

Moreover, the ultimate principle lies within the keeping of the judiciary: "the
decision of this question is not determined by any rule of law which can be laid
down or altered by any authority outside the courts." 109 In this area it is the
judges and not Parliament who are sovereign. It is for the judges to declare what
valid legislation is. The judiciary may be under a duty to obey the orders of the
legislature, but it is the judiciary who determine what those orders are. Thus it is
quite natural that over the course of time, in the face of a changing society, "it is
possible that the content of this rule could alter if the practice of those who
operate the system changes.,,11O

This, in part, is a political decision. For example, during the course of the
Factortarne litigation, the judges who heard that case recognised the political
fact that the United Kingdom's membership of the European Union meant that
the doctrine of implied repeal was in part redundant. III The courts were simply
recognising the fact that, for political reasons, in certain areas the U.K.
Parliament was no longer sovereign. Previously it was believed that no
Parliament could bind its successor, yet Parliament seems to have done just that.
While, the Factortarne litigation has not only exploded that myth, it has also
shown that it is perfectly possible to review the validity of legislation against a
set of higher principles. If an act of Parliament conflicts with Community law, it
will be disapplied. 112How much longer before the belief in the Diceyan fairy tale
that, aside from European matters, Parliament is free to enact any law it pleases,

108 Supra.n.106 at 188.

109 Ibid at 189.

110 P.P. Craig, "Sovereignty of the United Kingdom after Factortame" [1992] Y.B.E.L. 221
at 250.

III R. v. Secretary of State for Transport ex p. Factortame (No}) [1990] 2 A.c. 85, and
R. v. Secretary of State for Transport, ex p. Factortame (N02) [1991] 1 All E.R. 70. See also
H. W.RW ade, "What has happened to Sovereignty of Parliament" [1991] 107 L.Q.R.l.

112 For example, R v. Secretary of State for Employment, ex p. Equal Opportunities
Commission [1994] 3 W.L.R 409 and generally N. Gravells, "Diasapp1ying an Act of Parliament
Pending a Preliminary Ruling: Constitutional Enormity or Community Right 7" [1989] P.L.568
& "Effective Protection of Community Rights: Temporary Disapp1ication of an Act of
Par1iament"[1991] P.L.180.

BONHAM'S CASE

ceases? Indeed:

"the realisation that the foundations [of orthodox theory] were
flawed even at the time that Dicey wrote, and that they have been
further undermined since then, might cause some other institution,
such as the courts to consider whether they should be exercising
control over Parliamentary power." 113

The decision to change the ultimate principle will doubtless be based on
considerations of political morality. Judicial obedience to an Act of Parliament is
dependent, in part, on what the judiciary perceive as the basis of political
morality. Currently political morality, based on the recognition that the United
Kingdom is a representative democracy, informs the judicial decision to interpret
restrictively repressive statutes. Such ideas, however, might equally justify
rejections of statutes whose injustice was especially grave. 114 Thus any immoral
act that undermines the efficacy of representative democracy by restricting the
franchise on racial grounds or licences the press, clearly does not deserve either
to be recognised as valid law or receive judicial obedience.

In practice the decision to alter the ultimate principle in order to protect
fundamental rights and freedoms is not as unlikely as it may, at first sight,
appear. A close study of Canadian law before the Charter, for example, reveals a
judicial willingness to change the ultimate principle in an effort to uphold the
rights and freedoms of the individual. Before the passage on the Canada Act
1982, the Canadian Federal Parliament, within its jurisdiction, was like
Westminster supreme, 115 although a law ifit was to be valid had to come within
the grant of legislative power contained in section 91 of the Constitution Act
1867.116 Freedom of expression, however, was not placed within the distribution
oflegislative power. Likewise, there was no express provision in the
Constitution Act guaranteeing free speech. Instead, the Canadian judiciary came
to rely on the Preamble to the Constitution Act, which granted "a constitution

113 Supra.n.110 at 250.

114 T.R.S Allen, Law, Liberty and Justice (Clarendon, 1993) at 284.

115 For example Pearson's Case [1928] 4 D.L.R 98 at 112-3 per Duff C.J.C.

IIIjO & 31 Vict. c.3 (UK). Until 1982 intituled the British North America Act but since
retitled as the Constitution Act (cf Canada Act 1982). If the legislature in question was
provincial then s.92 of the Constitution Act would be applicable.

THE DENNING LAW JOURNAL

similar in principle to that of the United Kingdom" to Canada, in order to
vindicate free speech. The Preamble, which had no enacting force, was
employed by the Canadian judiciary to alter the ultimate principle in this area by
finding implied limitations on the legislative sovereignty of Parliament. As these
judges believed that they were protecting free speech under an unwritten
constitution similar in principle to our own, then their reasoning is surely highly
persuasive. Thus during the seminal case, Re Alberta Legislation, the Canadian
Supreme Court derived from the Constitution Act, its Preamble and the grant of
representative government in the form of parliamentary democracy, an implied
freedom of communication that provincial legislatures had no power to curtail.l17

Sir Lyman Duff, Canadian Chief Justice, considered that any act similar to the
questioned Bill, which purported to suppress public debate or the freedom of the
press, would deny "the very breath of life for Parliamentary institutions." 118 It
would thus not only be repugnant to the Constitution Act but would also be
beyond the competence of a provincial legislature. 119 The provinces lacked the
legislative power "to reduce the ability of the people to participate in the
democratic process through the expression of opinions." 120 Later, during
Switzman v. Elbling Mr Justice Abbot went further in a now famous dictum
expressing the opinion that free expression could not be abrogated by either
provincial or federal legislatures. 121
Bonham's Case and its progeny show that an ultimate principle which allowed

the control of legislation by the courts has been previously recognised long
before our accession to the European Union. In areas other than E.C.law it could
easily be recognised again. 122 Following the partial normative reformulation of
Dicey's ideas in the aftermath of the Factortame decision, it is not such an
enormous mental leap to do it in another area by limiting Parliamentary power to
mould the constitutional landscape. This, quite naturally, would be based on the
recognition that Parliament in the vital area of the liberty of the individual within

117 Re Alberta Legislation supra.n.69 at 106-9 & 119-20.

118 Ibid. at 107per Duff C.J.C.

119 Ibid. at 106-9per DuffC.J.C.

120 S.I.Bushnell, "Freedom of Expression - The First Step" [1977] 15Alberta L.Rev. 93
at 114.

121 Supra.n.64 at 371.

122 Supra.n.49 at 16.

BONHAM'S CASE

a representative democracy must not have the final word on the limits of its own
power. As with the attempt to remove the separation of powers in the Anisminic
Case, Parliament in abrogating common law rights and freedoms is illegitimately
attempting to assume the power of detrimentally moulding the constitutional
landscape. 123 By legislating in this marmer, Parliament upsets the balance of the
constitution while simultaneously illegitimately enhancing its and the
Executive's position within our constitutional settlement. In short, "a stream
carmot rise above its source." 124 After all "the doctrine of the sovereignty of
Parliament must itself be found in the common law which first distributed
among the branches of government their respective functions." 125

The common law is the basis of our constitution, containing as Sir Owen
Dixon put it, the anterior corpus which provides the juristic authority for the
institution of Parliament. 126 Without question, the common law is the source of
the principle of legislative supremacy. Thus, it is to the decisions of the courts
which determine what the nature of the power is , but also, more importantly
from the perspective of this paper, what limitations there are on its power. 127 For
example, "it is a proposition of the common law that no court may question the
validity of a statute." 128 Equally, the common law is the source of the proposition
that no Parliament may bind its successors. 129 The last example has, of course,
been recently adjusted by the courts to take account of the political reality of our
continuing membership of the European Union. Why stop at these if faced with
oppressive legislation?

In both pre-Charter Canada and more recently Australia the courts have
limited legislative supremacy with little in the way of explicit justification from
their respective constitutions. Both the Canadian Preamble doctrine, as noted

123 Supra.n.92 & text.

124 Heiner v. Scott [1914] 19 C.L.R.381 at 393 per GriffithC.J.; & The Australian
Communist Party Case [1950] 83 C.L.R.l.

125 Supra.n.50 at 38.

126 Supra.n.l 07 at 240.

127 Supra.n.3? at 85.

128 Supra.n.l 07 at 242.

129 Ellen Street &tates v.Minister of Health [1934] K.B.590 at 597 per MaughamL.J.

THE DENNING LAW JOURNAL

above, and the Australian implied freedom of communication 130 are predicated
on notions of responsible and accountable democratic government. Indeed, what
textual justification is employed is a smoke-screen laid by the judiciary in order
to hide the alteration of the ultimate principle. 131 Thus in Australia the ultimate
principle before Australian Capital Television case was "the Federal Parliament,
within the terms of the Constitution, 132 is supreme." Today following the High
Court's innovative judgement, the principle has become "subject to the implied
freedom of communication, the Federal Parliament, within the terms of the
Constitution, is supreme." As free speech is just as vital to the constitution of the
United Kingdom, this begs the question of whether or not the U.K. courts should
seek to limit the principle of legislative supremacy by the development of a
common law constitutional principle, similar to those created in Canada and
Australia. Here it is important to remember that just as the development of the
common law principle of legislative supremacy was influenced by both abstract
conceptions of sovereignty and changes in political thought, now other political
conceptions and theories, perhaps on the lines outlined above, might playa part
in limiting the absolute power of Parliament.

Where will the courts gain the authority to review legislation? In such
circumstances the courts will acquire their power after the question has arisen,
and a decision has been given. 133 The power to review legislation is acquired ex
postfacto, and appears to have been inherent all along. This, of course, is exactly
what happened in the seminal American case Marbury v. Madison. 134 Although
the American Constitution did not expressly provide for judicial review of
legislation, the Supreme Court appropriated the power, which it has retained
ever since. While it is, of course, easy to treat the U.S. Constitution as the
paramount consideration and ignore the role of the general law, under Marbury
v. Madison, as in Bonham's Case, the common law is, in fact, controlling acts of
the legislature. In the U.S.A. it is the courts that have administered the elixir of

13°Australian Capital Televsion Pty.Ltd. v. The Commonwealth supra.n.69. See also The
Nationwide Case supra.n.87.

131 Australian Capital Televsion Pty.Ltd v. The Commonwealth ibid. at 108per Madam
Justice Gaudron.

132 Constitution of the Commonwealth 1901 (Section 9 Commonwealth of Australia
Constitution Act 1900 (63 & 64 Vict.c.12».

133 H.R.A.Hart, The Concept of Law (2nd.ed.,Oxford University Press, 1994) at 153.

134 (1803) 1 Cranch 103.

BONHAM'S CASE

life to the Constitution. Furthermore, the ultimate principle is not open to doubt
on every point, only on some points. 135Thus the rule that the Queen in
Parliament can enact whatever law it pleases could be held open to doubt on the
point of whether it is constitutionally proper for Parliament to abrogate rights
and freedoms that it is entrusted with protecting. To deny this point would, of
course, be to endorse the principle of constitutional suicide by a liberal
democracy. The courts would only be questioning this vital area of the ultimate
principle, not the principle in its entirety. Thus, in the sphere offundamental
rights and freedoms, the supremacy of the legislature would be ousted in favour
of a very limited but necessary form of judicial supremacy. This might, for
example, be based on the recognition that a theory of limited judicial supremacy
could be instrumental in the protection of the normative rights and freedoms of
democracy. Needless to say, any such rights and freedoms will be subject to
reasonable and necessary limitation by the courts. Free speech for instance is not
an absolute. Like other rights and freedoms it must often be limited by other
important, and at times, competing rights and values. This, of course, is a task
that institutionally the courts are well suited to doing.

English law "by dint of sheer repetition, academic preaching of the absolutist
theory of sovereignty has"as Walker observes, "diverted the attention of bench
and bar away from the more limited and balanced principle developed by
common lawyers during the seventeenth century ...[namely] one of
Parliamentary supremacy, not sovereignty." 136Sir Edward Coke, for example,
noted during the debate on the Petition of Right 1628 that '''sovereign power' is
no parliamentary word ... Magna Carta is such a fellow that he will have no
sovereign.")3? That debate was, of course, concerned with the sovereign power
of the king in person. Yet the tenor of the contributions to the debate make it
clear that sovereign power was unknown both to Parliament and the law. What
Parliament had in mind was a government of laws and not men.138

At the heart of Dicey's flawed theory is an irreducible contradiction between
the rule of law and the sovereignty of Parliament. Indeed Dicey himself never
managed to reconcile the two. This is not surprising. It is, of course, essential for
the maintenance of the rule of law that legislative power be subject to certain

I3S Supra.n.l33 at 147-54.

136 Supra.n.14 at 279.

137 3 St. Tr. 59 at 193 cited in Walker, ibid.

138 Supra.n.14 at 279.

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limits, for while Parliament can enact any law at any time on any subject then
"the rule oflaw is little more than ajoke." 139Such limits to legislative power, as
the International Commission of Jurists noted, can either be legal or
customary.140 It is an often overlooked feature of the constitutional landscape
that the power of our unbridled Parliament is tempered by convention. Until
recently, it was a vague but clearly accepted convention, resting on the principle
of constitutionalism and the rule of law, that Parliament did not use its unlimited
power to legislate in an oppressive or tyrannical way. 141The power of Parliament
would, according to convention, be exercised in a manner that conformed to the
principles of constitutionalism, the rule of law and toleration of minorities.142

This convention, in keeping with all constitutional conventions is bereft of any
legal sanction to enforce compliance. Not surprisingly it is increasingly flouted,
as the Criminal Justice and Public Order Act 1994 graphically illustrates. 143

In tolerant times judges are all too ready to say how they would respond to
situations where Parliament did the unthinkable and enacted a form of apartheid.
In Oppenheimer v. Cattermo/e Lord Cross observed obiter that any form of anti-
Semitic legislation "which takes away without compensation from a section of
the citizen body singled out on racial grounds all their property ... and in addition
deprives them of their citizenship ... constitutes so grave an infringement of
human rights that the courts ought to refuse to recognise it as law at all." 144
Amazingly his timid colleagues Lord Pearson in the Lords, and Lord Justices
Buckley and Orr in the Court of Appeal, felt compelled to bow to the supremacy
of the German lawmaker. 14SSome judges, whatever the content of statutes, are
only too happy to continue to subscribe to Dicey's dogmas. Perhaps this state of
affairs is a consequence of the marination of English lawyers in positivism. The

139 Ibid at 281.

140 The Rule ofLaw in aFree Society (International Commission of Jurists, 1960) at 198
& 210-15 cited also in Walker, ibid..

141 G.Marshall, Constitutional Conventions, (Clarendon, 1984) at 9 & 201.

142 Ibid at 201.

143 C.33. See further M.J.AlIen and S.Cooper, "Howard's Way - A Farewell to Freedom?"
[1995] 58 ML.R.364.

144 [1976] A.c. 249 at 278.

145 Ibid at 265, and [1973] Ch. 264 at 64-5.

BONHAM'S CASE

result, an obsession with rules of law and their mechanical application, eschews
any contemplation of the moral content oflaw. The dangers are obvious, as the
experience of inter-war Germany eloquently illustrates. At this time the only
acceptable legal philosophy was positivism; a feature of the legal landscape that
was most congenial to the evils of Nazism. In short, the adherence to the "law is
law" mentality of positivism by German lawyers left them unable to deal with
oppressive laws.

More recently in South Africa, parliamentary sovereignty under a Westminster
style constitution has been "taken to its logical and brutal conclusion at the
expense of human rights." 146 Under the apartheid policies systematically pursued
by the National Party in South Africa, the judiciary, who were a paragon of
positivistic virtue writ large, undoubtedly helped to advance the sacrifice of
human rights and the rule of law upon the altar of parliamentary sovereignty. 147
Somewhat ironically in dealing with such "hard cases" the courts will excuse
their judgements by pointing to the democratic nature of the institution they are
obeying. 148 They will go on to suggest that remedial action be sought via the
ballot box. 149 Yet when laws grant or retract human rights from people according
to arbitrary caprice even lawyers, as the eminent German jurist, Gustav
Radbrusch, argued, "must find the courage to deny them the nature of law.,,'5o

146J.Dugard, Human Rights and the South African Legal Order (Princeton University
Press, 1978) at 36.

14'Seegenerally, Dugard, ibid. Also Wouter de Vos, "The Challenge Facing the South
African Judiciary: Further Comments" in S.Shetreet (ed.), The Role of Courts in Society
(Martinus Nijhoff, 1988).

148Builders' Labourers Federation v. Minister of industrial Relations supra.n.60 at 405d-
g per Kirby P.

149QuebecAssociation of Protestant Boards v. A-Gfor Quebec (N02) [1982]140 D.L.R

(3d.) 33 at 52.

150Barend Van Niekerk, "The Warning Voice From Heidelberg - the Life and Thought
of Gustav Radbruch" [1973] S.A.L.J. 234 at 248.

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XI. CONCLUSION

Thus, in the end, there can be little doubt that there are "advantages in making
it clear that ultimately there are limits on the supremacy of Parliament which it is
the courts' inalienable responsibility to identify and uphold." 151 Yet quite what
these limits are and on what grounds they likely to be justified, is a question that
can only be resolved by the courts drawing on their conceptions of political and
constitutional morality in the context of particular cases. If the political morality
of the British constitutionalism fails to restrict legislators, then in the last resort
the courts will have to formulate a legal morality that recognises the worth of the
rights and freedoms of the individual. Whilst it is preferable that the legislature
itself imposes limits on its own power through a bill of rights, the time may well
arrive when in the absence of such an instrument and in the face of oppressive
legislation the courts may need to revive the doctrine in Bonham's Case. In
acting as the platonic guardians of liberal democracy the courts should not feel
constrained by precedents expressing total deference to the absolute sovereignty
of Parliament. Such precedents were written in different constitutional context,
not only before the advent of th~ concept of legally enforceable human rights
but also before the Westminster paradigm of responsible government had
become dysfunctional.

151 Lord Woolf of Bames, supra.n.95 at 69.