The Courts and the Sovereignty of the Canadian Parliament

Extract

One of the great elements of stability in the British constitution has been the sovereignty of parliament. The fact of parliamentary sovereignty has given the British constitution a flexibility which has enabled it to serve the changing needs of different periods by modifying the inflexibility of the common law by direct changes in positive law. Even before the period of deliberately created law the fiction of the king's conscience enabled the courts of equity to introduce an element of peaceful change into the legal structure of England.

The supremacy of the will of parliament involved in the notion of parliamentary sovereignty presupposes two things. Firstly, it assumes a single supreme legislature, and secondly it assumes the superiority of legislation over the will of the courts. If, as Walter Bagehot contended, the efficient secret of the British constitution lay in the almost complete fusion of the executive and legislative functions, it equally depended upon the supremacy of the legislative branch over the judiciary. It was no abrogation of that theory that it was the business of the courts to determine whether the subject was bound by the words of a particular expression of the will of the legislature. That was merely a protective device against an administrative abuse of power. What that theory cannot logically contain is the notion that the courts could say that the legislature was or was not exceeding its powers in legislating. For by definition those powers are unlimited.