Fundamental Common Law Principles as Limitations Upon Legislative Power
Oxford University Commonwealth Law Journal, Vol. 9, No. 1, pp. 47-71, 2009
24 Pages Posted: 3 Mar 2010
Date Written: February 25, 2010
Abstract
The House of Lords' decision in the Bancoult case raised important issues concerning the effectiveness of fundamental common law principles as a limitation upon legislative power. This article considers the origins, cogency and current status of the notion that fundamental common law principles can act as a limitation on (a) the legislative powers of Parliament; (b) foreign laws that may otherwise continue to operate in conquered or ceded colonies; (c) the prerogative power of the Crown to legislate for colonies; and (d) the legislative powers of colonial legislatures. It then analyses the application of the Colonial Laws Validity Act 1865 upon Orders in Council made with respect to former colonies and current British Overseas Territories where such orders could otherwise be regarded as repugnant to fundamental common law principles. It also considers whether the Colonial Laws Validity Act, by terminating the application of the common law doctrine of repugnancy to Orders in Council made with respect to a colony, has the effect of immunising such orders from judicial review.
Keywords: Crown, colonies, executive power, prerogative power, repugnancy, Colonial Laws Validity Act, fundamental common law principles, judicial review
JEL Classification: K10, K30
Suggested Citation: Suggested Citation