Written evidence from Jeffrey Goldsworthy,
Professor of Law, Monash University, Australia
SUBMISSIONS ON
PROPOSED EU BILL
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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