Madzimbamuto v Lardner-Burke [1969] 1 AC 645

Key point

  • The acts, orders and legislation made by an illegal regime are considered invalid and cannot override the right of the United Kingdom Parliament, as the lawful sovereign, to make laws.
  • The convention that the United Kingdom Parliament does not legislate on matters within the competence of the Legislative Assembly without the agreement of the Government of Southern Rhodesia is not legally enforceable

Facts

  • Southern Rhodesia became a self-governing British colony in 1923
  • On November 5, 1965 under a state of emergency in Southern Rhodesia, the respondent Minister of Justice made an order to detain the appellant’s husband, M
  • On November 11 of the same year, the Prime Minister and his colleagues issued a Declaration of Independence
  • On November 16, the Westminster Parliament passed the Southern Rhodesia Act 1965 which declared that Southern Rhodesia remained a colony, and provided for the Queen to exercise her legislative powers by Order in Council
  • Subsequently, the Southern Rhodesia (Constitution) Order 1965 was made; s.2(1) declared the new 1965 Constitution void, whilst s.3(1) temporarily suspended the power of the Legislative Assembly
  • The Prime Minister and the Legislative Assembly nonetheless established an illegal regime under the 1965 Constitution, whereby M’s detention was extended under emergency regulations
  • In the Appellate Division of the High Court of Southern Rhodesia, it was held that the section of the emergency regulations used to detain M were ultra vires; Hence, the appeal was allowed
  • Soon after, a new order was made to keep M detained and this was determined as being legally valid
  • M appealed to the Privy Council

Issue

Was the emergency regulation under which M was held detained valid?

Held (Privy Council, Rhosedia)

The appeal was allowed; The order under which M was held detained was invalid and had no legal effect.

Lord Reid

  • The convention that the United Kingdom Parliament does ‘not legislate without the consent of the Government of Southern Rhodesia on matters within the competence of the Legislative Assembly’ is not legally enforceable (p.648)
  • The relevant provisions under the Southern Rhodesia (Constitution) Order 1965 were ‘within the authority conferred by the Act of 1965’ (p.716)
  • Both the Act of Parliament and Order in Council are valid and have full legal effect
  • Since the Crown retained full sovereignty, even under the principle of necessity it is not possible to override its legal right ‘to make laws as it may think proper for territory under the Sovereignty of Her Majesty’ (p.729)
  • This, in turn meant that Parliament ’removed from Rhodesia the power to legislate for itself’ (p.729)

Commentary

  • In obiter dictum, Lord Reid commented on parliamentary sovereignty, recognising the notion that Parliament could do things which are unconstitutional without the court having the power to declare such Acts of Parliament as invalid (p.723)
  • Lord Pearce’s dissenting judgment offers an interesting alternative analysis; In despite of recognising the Crown’s full sovereignty, he nevertheless upheld the emergency order under the principle of necessity. He held that recognition may be given to some of the acts, orders and legislation of an illegal regime, where the purpose of such acts, orders and legislation is the maintenance of law and preservation of peace.