Parliamentary Sovereignty Debate

Goldsworthy's Response to Bogdanor's Review

• Vernon Bogdanor reviewed Jeffrey Goldsworthy's book and concluded Goldsworthy had become a "prisoner of a doctrine" regarding parliamentary sovereignty.
• Bogdanor argues that Parliament "cannot" limit its substantive powers and questions whether this impossibility is logical or contingent.
• Goldsworthy believes Parliament can't lawfully limit its powers due to a fundamental legal rule accepted by legal officials.
• This rule can only be changed by a shift in official consensus, not by unilateral parliamentary action.

The European Communities Act 1972 ("EC Act")

• Bogdanor asserts that the EC Act limited Parliament's sovereignty, as it requires explicit language to legislate inconsistently with EC law.
• The Factortame judgment is interpreted as imposing "manner and form" requirements on Parliament when legislating against EC law.
• Goldsworthy offers alternative interpretations consistent with parliamentary sovereignty.
• The EC Act altered Britain's rule of recognition, preventing Parliament from unilaterally derogating from EC law.
• National courts prioritize EC law over inconsistent national law, limiting Parliament's substantive power.
• Goldsworthy acknowledges the interpretation of the Factortame judgment, crediting Paul Craig.
• If Parliament can only legislate against EC laws by first withdrawing from the EC, the EC Act limits Parliament's lawmaking power, not just its form of legislation.
• Goldsworthy argues that the interpretation was implausible because it is the government and Parliament's role, not the courts, to decide whether Britain should abide by its treaty commitments.
• If Parliament passes a law contradicting EC law without withdrawing from the EC, violating treaty commitments, action would be its responsibility, not the court's.

Referendum Requirements and Parliamentary Sovereignty

• Bogdanor suggests Parliament limited its powers via "binding" referendum requirements in the Northern Ireland Act 1998 and the European Union Act.
• Goldsworthy views these requirements as non-binding because they are not self-entrenched and can be repealed or amended by ordinary legislation.
• A referendum requirement aligns with parliamentary sovereignty if it's not self-entrenched and can be repealed/amended through ordinary legislation.
• If Parliament legislates inconsistently with referendum requirements, the requirement would likely be regarded as repealed pro tanto by implication.
• If courts hold Parliament must expressly amend/repeal requirements, it would amount to a requirement that Parliament must expressly amend or repeal such requirements, rather than doing so by implication.

Manner and Form vs. Reconstitution Arguments

• Bogdanor confuses the manner and form argument and the reconstitution argument.
• The reconstitution argument views referendum requirements as changing Parliament's composition by including the electorate.
• This is different from Parliament subjecting itself to procedural requirements for legislation.
• Bogdanor argues against the reconstitution argument but assumes he has refuted the manner/form argument.
• Parliament has partially renounced its sovereign power to legislate through the EU Act and could gradually bind itself to a new constitution.
• The Northern Ireland Act and the EU Act have not bound Parliament's substantive powers significantly.

Judicial Review

• Bogdanor argues the judges limited Parliament's powers through judicial review, preventing the protection of ministers/public authorities.
• He cites Padfield and Anisminic, but admits there is "no case which allows one to confirm this interpretation.”
• Goldsworthy references Anisminic, stating the House of Lords justified its decision on presumed legislative intention.
• If Parliament enacts a statute subverting the rule of law, judges may refuse to obey it.
• This would shatter consensus on parliamentary sovereignty and cause a constitutional crisis.
• The question of what Parliament "can" do depends on court reactions, making it impossible to predict if Parliament “can” enact certain statutes.

Parliament's Power

• Bogdanor confuses what Parliament "can" or "cannot" do practically versus legally.
• Judges should invalidate statutes subverting the rule of law.
• The constitution gives Parliament sovereign lawmaking power.
• Attempting constitutional change requires persuading political branches of government.
• Tearing up the consensus supporting fundamental rules leads to a power struggle.
• Hinting at refusal to obey a statute before enactment is a good idea.
• One of the practical restraints on Parliament's lawmaking is the possibility that it might not be obeyed.
• It would be better to retain parliamentary sovereignty, than to replace it with a rule of judicial supremacy capable of imposing fundamental constitutional changes on the nation.

Analyzing Parliament's Actions

• Bogdanor argues that parliamentary sovereignty is of little value in analyzing what Parliament can or cannot do.
• He recommends examining rules governing Parliament's composition, powers, procedures, and limits on legislation.
• The concept of sovereignty plays no constructive role in answering these questions.
• Goldsworthy rejects "common law constitutionalism," and Bogdanor seems to agree.

Skepticism and Uselessness of Doctrine

• Goldsworthy is skeptical of Bogdanor's claim that parliamentary sovereignty is now useless for practical purposes.
• Parliament has had sovereign lawmaking authority historically, with no substantive limits except by abdicating authority over territories.
• There was uncertainty about Parliament's ability to subject itself to binding rules on procedure or form of legislation.

Minimalistic Approach

• A minimalist approach construes cryptic developments, like the EC Act in Factortame, as minimally altering previous understandings.
• Factortame can be seen as a strong rule for interpreting later statutes or as imposing a binding rule as to the form of later statutes.
• A minimalist approach maintains as much of the previous understanding as possible.
• An established rule of recognition is based on consensus among legal officials.
• Radically changing a rule should be carefully considered, with clear evidence of change.
• Maintaining an established rule of recognition ensures greater certainty about constitutional authority.
• Uncertainty is more likely to cause conflicts between government branches.
• Alternatives to orthodox parliamentary sovereignty could lead to undemocratic constitutional change.

Maximalist Approach

• A maximalist approach sees parliamentary sovereignty as dead, but the replacement is unclear.
• If Parliament is no longer sovereign, almost everything is up for grabs.
• Bogdanor's suggestion to simply ask what Parliament can/cannot do is naive.
• There is no strong evidence that orthodox parliamentary sovereignty has been supplanted.

Can Parliament Limit Powers

• Parliament cannot legally limit its substantive powers through self-entrenched referendum requirements unless the rule of recognition changes.
• A binding referendum requirement enacted after referendum approval could justify/fortify a change in the rule of recognition.
• Obtaining voter support for a requirement that support is needed in the future overcomes objections to ordinary legislation imposing referendum requirements.
• A referendum requirement enacted with a majority voter support overcomes the objection.
• A future Parliament becomes bound by the expressed will of the people.
• Declaring parliamentary sovereignty dead is destabilizing until a new constitutional settlement is endorsed by the people.