Osgoode Hall Law Journal Article 5 Volume 14, Number 2 (October 1976) Challenging the Validity of an Act of Parliament: The ffecE t of Enrolment and Parliamentary Privilege Katherine Swinton Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Swinton, Katherine. "Challenging the Validity of an Act of Parliament: The Effect of Enrolment and Parliamentary Privilege." Osgoode Hall Law Journal 14.2 (1976) : 345-405. http://digitalcommons.osgoode.yorku.ca/ohlj/vol14/iss2/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. CHALLENGING THE VALIDITY OF AN ACT OF PARLIAMENT: THE EFFECT OF ENROLMENT AND PARLIAMENTARY PRIVILEGE By KATHERINE SWINTON* A. INTRODUCTION Parliamentary sovereignty has proved a topic of fascination to scholars of constitutional law for many years, as the volume of literature on the subject well demonstrates. Admittedly, the interest has been greater in Commonwealth countries other than Canada. In this country, students of constitutional law have focussed their attention on the division of powers between federal and provincial governments, since federalism has presented problems requiring immediate solution. Yet even here, the question of parliamentary sovereignty has been given consideration, and it is increasingly attracting discussion as interest increases in the patriation of the constitution and statutory protection for individual and minority rights. Within a study of parliamentary sovereignty, reference is normally made to the enrolled bill principle or rule. This precept, regarded by some as an aspect of sovereignty and by others simply as a rule of evidence, states that the parliamentary roll is conclusive - an Act passed by Parliament and en- rolled must be accepted as valid on its face and cannot be challenged in the courts on grounds of procedural irregularity. Because of the complexity of the issues involved in the definition of "parliamentary sovereignty", most com- mentators have focussed their attention on an elaboration of the nature of sovereignty and the ability of Parliament to bind its successors, with the result that only passing reference has been made to the enrolment issue. Yet the enrolled bill rule is a significant factor in the analysis of sover- eignty, and one meriting study. Even if it were proven that Parliaments can bind their successors by mandatory procedural requirements, the enrolled bill rule, along with a second neglected aspect of constitutional law, that of parlia- mentary privilege, may render such binding effect nugatory in practice. De- pending on the answers to questions such as what constitutes the parliamentary roll, whether the enrolled bill principle is a rule of law, and whether royal assent is curative of irregularities in the passage of a bill, the binding effect of manner and form legislation could be non-existent. Similarly, parliamentary privilege could prevent any enforcement of * © Copyright, 1976, Katherine E. Swinton. Ms. Swinton is Legal Secretary to The Honourable Mr. Justice R. G. B. Dickson of the Supreme Court of Canada, 1975-76. The author is deeply indebted to Professor Peter Hogg of Osgoode Hall Law School for his helpful suggestions and encouragements during the writing of this paper. OSGOODE HALL LAW JOURNAL [VOL. 14, No. 2 procedural provisions. Parliament has long held the right to control its internal proceedings, free from outside interference. Yet a defect in procedure may only be provable through resort to the records of proceedings of the Houses of Parliament or of a provincial legislature. Would such practice be a violation of privilege? More importantly, should the courts be able to question and over- rule Parliament's interpretation of a given procedure? These are very real questions which must be dealt with if one is to decide that manner and form legislation is effective. Privilege and enrolment, while inter-related, are separate questions. Many commentators and judges confuse the two, perhaps understandably, since the enrolment question is inextricably linked to privilege, while both may be related to parliamentary sovereignty. Within this study of the origins and scope of privilege and enrolment, reference must necessarily be made to the various types of procedural rules governing the passage of a bill and their differing effects in constitutional law, for it is clear that the courts have en- forced and will continue to enforce some types of rules even though they leave others to Parliament alone to uphold. B. ENROLMENT - THE RULE AND ITS SCOPE Edinburgh and Dalkeith Ry. Co. v. Wauchope is the case most frequently cited to support the proposition that the parliamentary roll is conclusive. Lord Campbell made a statement in his judgment which has often been repeated: All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction or what passed in Parliament during its progress in its various stages through both Houses.1 The words appear clear and categorical: a bill must be passed by both Houses of Parliament, receive Royal assent, and be inscribed on the parliamentary roll. Once these events have occurred, the resulting Act's validity is incon- testable. Yet the words are deceptively simple, for Lord Campbell makes no effort to elaborate what constitutes the "roll" to which one looks, nor does he deal with what constitutes "passage" through the Houses, nor does he examine the issue of error on the face of the record. All of these questions merit further study; however, for purposes of clarity, it will be helpful to outline first the procedure for passing an Act and enrolling it in Britain and, more importantly, in Canada. 1. ParliamentaryRecords The term "parliamentary roll" is anachronistic, as an historical discussion will show, for the roll per se was eliminated in England in 1849. Up to that date, all bills passed by Parliament were engrossed on parchment rolls. These rolls constituted the official copy of the Acts of Parliament, although the original Acts, those which bore the monarch's signature, were also retained after 1487.2 Since 1849, the British practice with regard to official copies of 1 (1842), 8 Cl. & F. 710; 8 E.R. 279 (H.L.) at 285. 2 Craies Statute Law, ed. S. Edgar (7th ed. London: Sweet & Maxwell, 1971) at 39; Claydon v. Green (1868), 3 C.P. 511 at 522; May's ParliamentaryPractice, ed. B. Cocks (18th ed. London: Butterworths, 1971) at 558. 1976] Legislative Validity statutes has changed. Two vellum copies are made of each Act passed and are endorsed with the words of royal assent and signed by the Clerk of the Parliaments. They are kept in the Public Records Office and the House of Lords. These Acts, printed as they are from the same type face as the copies available for public purchase, differ from those documents only in the quality of their paper and the fact of the signature. Therefore, they are unlike the original "enrolled bills", which had been transcribed onto the roll, while public copies were printed just as they are today. In Canada, the term "enrolment" is even more anomalous than in modem Britain, for it appears that no "rolls" ever existed. A bill introduced into the House of Commons may go through several printings in its passage through the House. After it receives approval on third reading in the House of Com- mons (or in the Senate if the bill originates there), all amendments are in- corporated into the text by the Parliamentary Counsel, an official of the House. Under his supervision, the bill is then engrossed; that is, several copies are printed on vellum. 4 One copy, known as the "parchment", is certified as the bill passed by the House and is signed by the Clerk of the House of Commons. This is the official copy of the bill, and all previous ones (or work- ing copies) are regarded as internal House documents. The parchment is sent to the Senate, where, after third reading, the Senate's approval is recorded and certified by the Clerk of the Senate. If the Senate amends the bill, the amendments are typed on a separate sheet of paper, attached to the bill, and both are returned to the Commons. This Chamber's assent will be recorded on the parchment again (or on a separate sheet attached). In Canada the parchment copy, with any amendments attached, is presented to the Governor- General or his delegate for royal assent. The Governor-General's assent is recorded on the bill by signature without date, that item being added by the Clerk of the Parliaments (the Senate Clerk).5 The parchment is retained by the Clerk of the Parliaments for record purposes and resort is made to his office for certified copies of Acts.( It is clear that the Canadian practice never resulted in an "enrolled" copy similar to the British, although it is indeed arguable that the Act as reprinted by the Queen's Printer with all amendments incorporated should be regarded as the enrolled copy. If this is so, a party attacking the validity of an Act on the ground that amendments passed by one House have not been incorporated in the final Act would not succeed. Such amendments would likely be provable with the original copy, but not with the Queen's Printer reprint. The Canada Evidence Act provides that every such copy is evidence of the Act and its contents, 7 and the InterpretationAct provides that any copy 3 The author is indebted to Mr.