The EU Bill and Parliamentary sovereignty - European Scrutiny Committee Contents

Written evidence from Jeffrey Goldsworthy, Professor of Law, Monash University, Australia


1. The reasoning in the Thoburn case is that of two judges of the Court of Appeal. It cannot be taken to be a conclusive statement of the law. The reasoning is correct insofar as it asserts that UK membership of the EU is ultimately based on UK law. But the reasoning is incorrect insofar as it suggests that the doctrine of parliamentary sovereignty is a matter of common law determined by the courts. That erroneous suggestion has also been endorsed in obiter dicta in the recent Jackson case, dealing with the Parliament Acts.

2. For the same reason (which I explain below), I disagree with the statement in the first paragraph of this Committee's "Announcement of Inquiry", dated 12 November 2010, namely:

"The Bill also seeks to place on a statutory footing the common law principle of parliamentary sovereignty with respect to directly applicable or directly effective EU law."

3. It is dangerous for Parliament to state that parliamentary sovereignty is a "common law principle". Because the common law is, today, generally regarded as judge-made law, this statement implies that the doctrine of parliamentary sovereignty has been made by the judges - and if so, that the judges could at any time "unmake" it, if they should come to the view that it is no longer justified. Parliament should not lend any support, even unintended support, to these implications.

4. The statement is not only dangerous, but false - both as a matter of history, and as matter of jurisprudential analysis. Detailed reasons for this view are given in the second chapter of my new book, "Parliamentary Sovereignty, Contemporary Debates" (Cambridge UP, 2010), and the final chapter of my previous book, "The Sovereignty of Parliament, History and Philosophy" (Clarendon Press, 1999). As I explain there, it is absurd to maintain that, as a matter of historical fact, the doctrine was created by the courts. It is also based on the simplistic and false notion that since the doctrine of parliamentary sovereignty could not have been created by statute (for the reason given in the next paragraph), it must have been created by the common law.

5. The statement is also inaccurate in suggesting that the doctrine of parliamentary sovereignty can be placed "on a statutory footing". Any attempt by Parliament to enact that it has sovereign power would be open to the objection that it is begging the question - because the validity of that enactment would presuppose that Parliament already has the sovereign authority needed to enact it.

6. The true foundation of the doctrine of parliamentary sovereignty is general consensus among senior official of all branches of government, supported by public opinion and based on commitments to principles of political morality such as democracy. The principled commitments of Parliament itself, of the Crown, and of senior judges, are all essential parts of this consensus. For this reason, the doctrine of parliamentary sovereignty has a much broader and more democratic foundation than is entailed by the false view that it is a doctrine of judge-made common law.

7. Parliament (which includes the Crown) is perfectly entitled to express its principled commitments in provisions such as s.18 of the proposed EU Bill. This can help to fortify and stabilise the consensus on which the doctrine of parliamentary sovereignty rests, by making the commitments of Parliament (and the Crown) unambiguously clear - especially for the benefit of the judiciary, in case of future uncertainty. But this cannot become the sole basis on which that doctrine rests.

8. If the judges were to abandon their principled commitment to the doctrine of parliamentary sovereignty, a very dangerous situation would arise in which the legal system of the U.K. would no longer rest on a stable consensual footing. Parliament would not be obligated to meekly acquiesce in the judges' change of mind, because it would not have to accept that the doctrine of parliamentary sovereignty is one of "common law" that they have unilateral authority to modify or repudiate. As explained, the constitution of the UK has a much broader and more democratic foundation than that.

9. To seek to bind future parliaments by prohibiting the enactment of legislation without a referendum first being held is not consistent with the doctrine of parliamentary sovereignty.

10. This could not be effective without the prohibition being "self-entrenched". In other words, the prohibition would have to apply to any future legislation seeking to bring about its own amendment or repeal.

11. But even then, it is not clear that the prohibition would be enforced by the courts in resolving a future clash between the will of the earlier Parliament (enacting the prohibition) and the will of a later one (ignoring the prohibition). The enactment of such a prohibition would amount to an attempted renunciation by Parliament of a portion of its own sovereignty. But if a later Parliament were to ignore the prohibition, and repudiate that renunciation by reasserting its sovereign authority to legislate without a referendum, the judges would have to decide whether to accept the earlier renunciation, and enforce the prohibition, or to accept Parliament's later repudiation of that renunciation. If the judges took the latter path, the consensus that constitutes the doctrine of parliamentary sovereignty would have been re-established despite Parliament's own previous attempt to alter it.

11. To make it more likely that, in this scenario, the judges would enforce the earlier statute prohibiting the future enactment of legislation without a referendum first being held, that statute should itself be put to a referendum. The support of a majority of voters for such a referendum requirement would greatly add to the strength of the case in favour of its future enforcement notwithstanding Parliament later change of mind, indicated by its attempt to legislate without complying with that requirement. This is because obtaining the support of the voters for a requirement that their support be required in the future overcomes a principled objection to the imposition of a referendum requirement by ordinary legislation. The objection is this: if an earlier Parliament can use ordinary legislation to implement its preferred policies, why should a future Parliament not have the same liberty? To put it another way, why should the later Parliament be bound by the expression of a will that has no higher authority than its own will? This is the main justification of the orthodox view that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of a majority of voters in a referendum, the objection is overcome. A future Parliament could then be said to be bound, not by an earlier will of no higher authority than its own will, but by an earlier will that does have such a higher authority - the expressed will of the people.

November 2010

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