Manuel v Attorney-General (Noltcho v Attorney-General)

At the strike-out stage, a claim should be stopped only if it is plainly ill-founded in English law and bound to fail at trial. Under section 4 of the Statute of Westminster 1931, the relevant condition was an express declaration in the United Kingdom Act that the Dominion had requested and consented to its enactment. The declaration was conclusive; actual consent was not an additional justiciable requirement.

The constitutional convention in the preamble could not supplement the statutory text. The preamble to the Canada Act 1982 satisfied section 4, and the Act used Canada to mean the Dominion. The challenge therefore had to fail under [1974] AC 765.

One hundred and twenty-four Canadian Indian Chiefs sued the Attorney-General for declarations concerning the constitutional position of Canadian Indian bands and the validity of the Canada Act 1982. The action was commenced before the Act received Royal Assent and was later amended. The plaintiffs alleged that the Act derogated from safeguards contained in the Statute of Westminster 1931 and the British North America Acts.

The Vice-Chancellor struck out the statement of claim and dismissed the action on 7 May 1982. The appeal concerned whether the United Kingdom Parliament could bind its successors, whether section 7(1) of the Statute exempted the Act from section 4, and whether the required request and consent had been properly declared.

Lord Justice Slade delivered the judgment of the court. The court was concerned only with whether the claim was plainly ill-founded in English law. An action should be stopped at this stage only where, if allowed to proceed to trial, it would be bound to fail.

1. The court assumed, without deciding, that Parliament could effectively bind its successors by requiring specified consents for future legislation. The competing authorities on that question, including Ellen Street Estates Limited v Minister of Health (1934) 1 K.B. 590, British Coal Corporation v The King (1935) AC 500 and Bribery Commissioner v Ranasinghe (1965) AC 172, therefore did not require resolution of the constitutional issue.
2. On the assumption that section 4 of the Statute of Westminster 1931 applied, its language required only an express declaration in the United Kingdom Act that the Dominion had requested and consented to the enactment. The court declined to imply a further requirement of proof of actual request or consent. Once the statutory declaration was made in the required form, it was conclusive for the purposes of section 4.
3. The convention recited in the preamble to the Statute could not supplement or vary the condition stated in its body. In the Canada Act 1982, Canada meant the Dominion of Canada, not merely the Senate and House of Commons. The preamble therefore contained the required declaration.
4. It was unnecessary to decide whether any provisions of the Constitution Act 1982 went beyond the repeal, amendment or alteration of the British North America Acts and so fell outside section 7(1) of the Statute. If section 7(1) applied, section 4 was unnecessary; if it did not, the declaration satisfied section 4. The Canadian decision in Reference re Amendment of the Constitution of Canada (1981) 125 D.L.R. I had no direct bearing on the English-law issues.
5. The court was bound to follow and apply Pickin v British Railways Board (1974) AC 765 and reject the attack on the validity of the Act. The Vice-Chancellor was plainly right to strike out the statement of claim and dismiss the action. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

• Court of Appeal: [1982] EWCA Civ 4. Appeal dismissed with costs; leave to appeal to the House of Lords refused.
• High Court of Justice, Chancery Division: The Vice-Chancellor struck out the statement of claim and dismissed the action on 7 May 1982.