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Lord Cooke of Thorndon --- "The Myth of Sovereignty" [2007] OtaLawRw 3; (2007) 11 Otago Law Review 377

The Myth of Sovereignty

Lord Cooke of Thorndon

Editors’ note. In early 2006, in response to a request for a contribution to this journal, Lord Cooke kindly authorised publication of the following restatement of his well-known views concerning the relationship between Parliament and the Courts.^[*] This is now published to celebrate the life of Lord Cooke and to mark his outstanding contribution as a jurist to New Zealand public law.

‘The sovereignty of Parliament’ is a catchphrase beloved of some sections of the media and some politicians; incongruously it got into the Supreme Court Act in New Zealand.^[1] But it does not survive in-depth analysis. In international law there are said to be sovereign states, yet even that concept is gradually being undermined by developments such as the European Union and devolution within the United Kingdom. Within a national polity the sovereignty concept may be largely replaced by one of interaction, of checks and balances, of some degree of competition. In New Zealand the leading academic exponent of this latter approach is Professor Philip Joseph of the University of Canterbury, with his ‘Parliament, the Courts and the Collaborative Enterprise’.^[2] Collaboration there certainly should be, as in the field of human rights, and it is a distortion to see the legislative and judicial arms of the state as constantly in conflict.

Some struggle and occasional tension do remain. This is not unhealthy. Reciprocal influence is an ongoing process. Neither the Government, nor Parliament, nor the Courts have a monopoly of wisdom. Facile appeals to the will of the people can invite uninformed and unthinking responses. Democracy does not mean simple majority rule; an objective and unbiased assessment of minority interests must also be attempted. Of course it is difficult and challenging, but, unlike politicians whose concern is naturally with policy, judges have as their primary role impartiality. The two vocations are essentially different, despite from time to time an inevitable overlap in some grey areas.

In the pattern of functional distribution of state power is there any room for real sovereignty? I am inclined to think not. Let us consider the candidates in turn.

First, consider the government for the time being. In his story of the Oxford English Dictionary, The Meaning of Everything,^[3] Simon Winchester writes of the reception accorded to the editor Sir James Murray when in the garden of a dwelling he had acquired in the Banbury Road he caused to be constructed something like an air raid shelter wherein he and his assistants would labour. Across the fence he was confronted by a furious neighbour, protesting with gibbering raving. It was AV Dicey, who suffered from lack of control of the muscles. But Dicey, albeit misguidedly stubborn in his campaign against Irish Home Rule, was not mad. The mere mention of his work is enough to make the point that the executive does not control the state by virtue of some special status. The rule of law means executive subjection to law. We need not spend time on the notion that the executive is sovereign, as even Sir Robert Muldoon found out.^[4]

Next, consider the legislature. Parliament has vast powers, yet it is reasonably clear that they cannot confidently be asserted to be unlimited. Plainly there are very wide fields, such as the economy and taxation, which the courts recognise to be in general fairly within the exclusive province of Parliament. But if an Act of Parliament purported to dis-establish the judiciary, replacing the judges with security of tenure by a hierarchy of administrative tribunals holding office at ministerial pleasure, it is at best doubtful whether the courts would enforce. Some approach to such a situation in fact arose in England recently from a Bill purporting to abolish judicial review in refugee asylum cases; it had to be significantly modified as a result of objections led by two former Lord Chancellors from opposite sides of the political spectrum, Lord Mackay of Clashfern and Lord Irvine of Lairg. They killed the clause. The House of Lords played its constitutional role effectively. So too in the unlikely event of measures effectively excluding the democratic process itself, abnegating Parliament’s democratic function. Other examples, not all hypothetical, can be given. In the end it may become a question of degree, but the possibility cannot be excluded of an abuse of parliamentary power so extreme as to be constitutionally impracticable and unenforceable.

Then, consider the courts. Despite the quite widespread pejorative misuse of the term ‘activist’, judges cannot initiate action and, as already touched on, disclaim responsibility for decision-making in many spheres of the nation’s life. Certainly the courts make common law, developing it usually by a gradual process of accretion and modification, sometimes, though, by giant strides. Some of the latter were the theme of my 1996 Hamlyn Lectures, Turning Points of the Common Law,^[5] a discussion of four great cases in which the House of Lords, reversing the English Court of Appeal, changed the law applied in most of the English-speaking world (Salomon, Woolmington, Hedley Byrne and Anisminic). As regards parliamentary legislation, however, the conventional judicial approach is confined to interpretation in the ordinary sense. Clearly no suggested sovereignty or supremacy of the courts has any place in this approach.

I have borrowed the description ‘conventional’ from the leading speech of Lord Bingham of Cornhill in the appeals determined in Attorney-General’s Reference No. 4 of 2002: Sheldrake v Director of Public Prosecutions.^[6] These case bring out very well the elusiveness of the concept of sovereignty. They are concerned in part with section 3 of the Human Rights Act 1998 (UK) whereby the courts are enjoined to interpret a statute compatibly with Convention rights ‘so far as it is possible to do so’ (cf New Zealand Bill of Rights Act 1990, section 6). In one case the defendant had been convicted under an Act of 1988 of being in charge of a motor car in a public place with excess breath alcohol. In the other, the defendant had been charged under the Terrorism Act 2000 with belonging to and professing to belong to a proscribed organisation. Both Acts provided for certain defences. On a conventional interpretation both place on the defendant the onus of proving a statutory defence on the balance of probabilities. A main issue in both cases was whether the provision about defences could be read down so as to impose on the defendant merely an evidential burden – that is to say, no more than evidence or material raising an issue, casting the ultimate or persuasive onus of proof beyond reasonable doubt on the prosecution.

The House held unanimously that the breath alcohol provision should not be so read down, but by a majority of three to two that the terrorist provision could and should be. The reasons for the distinction cannot conveniently be summarised here. Suffice it that they included the relative seriousness of the offences and the relative difficulties of proving a defence, even only on the balance of probabilities. The important point for our purposes is that the two statutes were not seen as obscure or ambiguous. Lord Bingham’s specific statements to that effect were in a speech concurred in wholly by Lord Steyn and Lord Phillips of Worth Matravers, and on this point of principle by Lord Rodger of Earlsferry; possibly also to that extent by the former Northern Ireland Lord Chief Justice, Lord Carswell. Succinctly Lord Bingham concluded by saying that to treat the terrorism section as imposing an evidential instead of a legal burden was not the intention of Parliament when enacting the 2000 Act but was the intention of Parliament when enacting section 3 of the 1998 Act.

That decision has an affinity in the field of fundamental common law human rights with other recent decisions of the House of Lords, differently constituted. And it may confront disciples of the concept of sovereignty with a dilemma. Can the United Kingdom Parliament of 2000 be classified as sovereign if, by virtue of an Act of a previous Parliament, it was powerless to achieve its intention, however clearly articulated?

At least in the field of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the concept hardly works. It is difficult to see how anyone who gives the matter serious thought could be confident that it works in any field. The argument for the concept tends to reduce to dogmatic assertion. The only undoubted sovereign is the sovereign; and constitutional development has effectively shared out most of her powers. The myth of sovereignty is a common illusion, tidy but superficial.

^[*] This paper, “The Myth of Sovereignty“, was originally presented by Lord Cooke at the New Zealand Centre for Public Law’s Second Annual Conference on the Primary Functions of Government: Parliament, in late 2004, and originally published in (2005) 3 NZJPIL 39. It is reproduced here in a slightly modified form with the permission of the New Zealand Journal of Public and International Law.

^{[1] Supreme Court Act 2003, s 3(2): ‘Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament’.}

^{[2] Joseph, P A, “Parliament, The Courts, And The Collaborative Enterprise”, King’s College Law Journal, 2004, 16:321–345.}

^{[3] Oxford: Oxford University Press, 2003.}

^{[4] Fitzgerald v Muldoon [1976] 2 NZLR 615.}

^{[5] London: Sweet & Maxwell, 1997.}

^{[6] [2004] UKHL 42.}