The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Vernon Bogdanor, Research Professor, King's College, London


1. The European Union bill provides that a referendum must be held before there can be any amendments to the Treaty on the European Union or `significant' transfers of power from Parliament to the European Union.

2. There are a number of precedents, amounting almost to a convention, for the proposition that a referendum is required for a significant transfer of the powers of parliament `downwards' to devolved bodies. Logic would then seem to require that a referendum also be needed for a transfer `upwards' to the European Union. The rationale in both cases is the same, and was first stated by Locke in his Second Treatise of Government, para. 141. `The Legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the People, they who have it cannot pass it to others'. Voters, it might be said, entrust MPs as agents with legislative powers, but they give them no authority to transfer those powers, to make radical alterations in the machinery by which laws are to be made. Such authority, it may be suggested, can be obtained only through a specific mandate, that is, a referendum. The referendum, therefore, could be argued to be in accordance with, rather than in opposition to, the basic principles of liberal constitutionalism.

3. Nevertheless, a referendum is only needed for `significant' changes. It is held that a referendum is needed for the introduction of primary legislative powers in Wales, but will not, I believe, be required for implementation of the Calman Commission proposals on devolving revenue-raising powers to the Scottish Parliament.

4. Although there is therefore a basic rationale for the European Union bill, it seems to me that its provisions are inconsistent with the declaratory clause insisting that Parliament is sovereign. Indeed, the purpose of the bill is unclear to me. A government will not provide for a referendum unless it wishes to support a proposal for treaty amendment or transfer of powers. If it is opposed to such a proposal, it can use its veto, since all matters to be made subject to the referendum require unanimity. The present government has indicated that it will not support any amendment or transfer of powers in this parliament. Therefore, the purpose of the bill must be to prevent a future government from supporting such an amendment or transfer without a referendum. The bill seeks, in other words, to bind a future government. That seems to me inconsistent with the declaratory proposition that Parliament is sovereign. If Lord Justice Laws is right in his judgment in Thoburn v Sunderland City Council [2002}, that Parliament `cannot stipulate against implied repeal', cited in the Explanatory Notes to the bill in para. 108, then, presumably, a future government could, if it wished, simply ignore a European Union Act, and accept an amendment or transfer without a referendum. So the bill would have no purpose. In fact, I do not think that Lord Justice Laws was right. Therefore, the bill does have a purpose. But, if Lord Justice Laws was, as I believe, wrong, then the bill purports to do what clause 18 declares to be impossible, namely to bind a successor Parliament.

5. Past referendums in Britain - the national referendum in 1975 and the various devolution referendums - have, with one exception, caused few problems. The exception was the Scottish devolution referendum of 1979 when, although the `Yes' vote gained a small majority, this failed to surmount the 40% hurdle required by Parliament.

6. Turnout in some referendums has, however, been low. In the Welsh devolution referendum in 1997, just 50% voted. In the referendum on a mayor and assembly for London in 1998, just 34% voted, even though it had been suggested as part of the justification for the reform that there was great popular pressure for a London-wide assembly.

7. Because the referendum has worked well in the past, there may be some danger of overlooking possible future problems. The first such problem would be a narrow majority against a proposal recommended by the government on a low turnout. Suppose, for example, that a government recommended acceptance of a particular treaty amendment or transfer of power, but, in a referendum, with a turnout of 26%, 13.5% voted against it, with 12.5% voting for. Ought the government to feel itself bound by such a result?

8. A second problem might be that of different outcomes in different parts of what has become a multi-national kingdom. Suppose, for example, that a particular proposal was endorsed in the United Kingdom as a whole, and endorsed in England by a small majority, but rejected by a large majority in Scotland. Then a government might well consider again whether it ought to be bound by the referendum.

9. The solution to these difficulties is to provide that the referendums be explicitly advisory. Before the 1975 referendum on the European Communities, Edward Short, Leader of the House of Commons, told the House that `This referendum is wholly consistent with parliamentary sovereignty. The Government will be bound by its result, but Parliament, of course, cannot be bound'. He then added, `Although one would not expect honourable members to go against the wishes of the people, they will remain free to do so'. [26]

10. That was an accurate statement of the constitutional position as it was then. Opinions differ as to whether it is possible for Parliament to legislate for a binding referendum. It would, however, be peculiar to do this in a bill which also declared that Parliament is sovereign!

11. The European Union bill declares that Parliament is sovereign. It then proposes to bind future parliaments through a referendum lock. Was it not the Queen, in Lewis Carroll's Through the Looking Glass, who declared that she had been able to believe in six impossible things before breakfast?

December 2010

26   House of Commons Debates, vol. 888, col. 293, 11 March 1975. Back

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