The Sovereignty Of The Imperial Parliament
| Published date | 01 November 1960 |
| Author | Hamish R. Gray |
| Date | 01 November 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00631.x |
THE SOVEREIGNTY
OF
THE IMPERIAL
PARLIAMENT
EVER
since
1931
it
has been
a
matter of doubt whether section
4
of the Statute of Westminster has had the effect of binding the
Imperial Parliament to legislate in a particular manner
if
such
legislation is to take effect as part of the law of a dominion,
or
whether the section does not bind Parliament but merely repre-
sents a solemn way of declaring a constitutional convention.
If
the former view is accepted, the traditional theory of parliamentary
sovereignty has to be substantially modified;
it
is clearly incom-
patible with parliamentary sovereignty regarded as an absolute and
unchanging
Grundnorrn
of the British legal system and constitution
(and of most of the Commonwealth legal systems and const.itutions
also). On this account, therefore, the general tendency of con-
stitutional lawyers is to reject the interpretation
of
section
4
which
requires Parliament as a matter of law to act in a particular way
for any particular purpose.
Typical of the traditional approach is the famous passage from
Viscount Sankey’s advice in
British Coal Corporation
v.
R.2
where
he says,
“It
is doubtless true that the power of the Imperial
Parliament to pass on its own initiative any legislation that it
thought
fit
extending to Canada remains in theory unimpaired
;
indeed the Imperial Parliament could, as
a
matter of abstract law,
repeal
or
disregard section
4
of the Statute.”
Leaving aside questions of constitutional convention
or
political
expediency, this has been treated as infallible judicial support for
the traditional theory of parliamentary sovereignty referred
to
above. Thus
it
is said that by virtue of its sovereignty the
Imperial Parliament may, by ordinary process of legislation and
without regard to the provisions of section
4
of the Statute of
Westminster,
1931,
legally repeal the Statute of Westminster;
or
that legislation clearly purporting to extend to a dominion would,
in the eyes of English law, be treated as
so
extending, whether
or
not the recital prescribed by section
4
appeared therein;
or
that the
enactment of legislation in disregard of section
4
would by implica-
tion repeal section
4.%
1
“No
Act
of
Parliament of the United Kingdom passed after the commence-
ment
of thi6 Act shall extend,
or
be
deemed to extend, to
E
Dominion
a8
part
of the law of that Dominion, unless it is expressly declared in that Act that
that Dominion has requested, and consented to, the enactment thereof.”
2
[1935] A.C. 500,
520.
3
Cf.
I(.
C.
Wheare,
The
Statute
of
Westminster and Dominio: Status,
Chap.
(1955)
C.L.J.
647
VI,
3;
H.
W.
R.
Wade,
“
The Basis of Legal Sovereignty
179.
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