Oxford Journal of Legal Studies, Vol. 32, No. 1 (2012), pp.

179195
doi:10.1093/ojls/gqr027
Published Advance Access October 20, 2011

Imprisoned by a Doctrine: The Modern

Defence of Parliamentary Sovereignty
Vernon Bogdanor*

AbstractJeffrey Goldsworthys book, Parliamentary Sovereignty: Contemporary

Debates, offers a modern defence of the doctrine of parliamentary sovereignty. But
it fails to offer a sufficiently clear interpretation of the statement that Parliament
can do anything except limit its powers, a statement open to many different
interpretations. In 1972, during the passage of the European Communities Bill, law
officers declared that it was logically impossible for Parliament to abridge its
sovereignty. In consequence of the European Communities Act 1972, the doctrine
has undergone a subtle alteration of meaning. The European Union Act 2011 also
poses problems for Goldsworthys position since it imposes a referendum
requirement on any significant future transfer of power to the European Union.
Such legislation cannot be understood in terms of the manner and form interpret-
ation of the doctrine of parliamentary sovereignty; and the question of whether the
courts can disapply legislation infringing human rights remains open. Questions of
the sort, Can Parliament do x?, are better replaced by questions of the sort What
are the rules which regulate Parliament?. Goldsworthys work constitutes a brave
attempt to rescue the essentially metaphysical doctrine of parliamentary sover-
eignty. Nevertheless, the doctrine seems to obscure rather than clarify constitu-
tional issues.

Keywords: Parliamentary sovereignty, the European Union, the Human Rights

Act, the rule of law

1. Introduction: The Defence of Parliamentary Sovereignty

Jeffrey Goldsworthy is the pre-eminent modern defender of the doctrine of
parliamentary sovereignty. His book, The Sovereignty of Parliament: History and
Philosophy,1 was a profound exploration of that doctrine, and was described by

* Research Professor, Institute for Contemporary History, Kings College London.

Email: bogdanorvernon@hotmail.com. I am most grateful to Nick Barber, Dr Andrew Blick, Professor A.W.
Bradley, Professor Anne Davies, Dr Julie Dickson, Professor David Feldman, Professor Philip Joseph, Sir Thomas
Legg QC, Lord Pannick QC and Dr Alison Young for their most valuable comments on an earlier draft. They are
not of course to be implicated in my arguments or my conclusions.

A review of Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (CUP 2010) (hereinafter
Contemporary Debates).
The Author 2011. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oup.com
180 Oxford Journal of Legal Studies VOL. 32

the late Lord Bingham as magisterial.2 A new collection of essays,

Parliamentary Sovereignty: Contemporary Debates, seeks to further and in some
cases modify the argument of the earlier book, and to reply to critics.3 Six of
the ten essays in the book have already been published in various edited
works and journals, and are reprinted in a revised and updated form. They
are well worth bringing together in one book. Taken together the two
books constitute a remarkable achievement. Indeed, no books on constitutional
law have so aroused my interest since I first read Diceys Law of the
Constitution.
Goldsworthy sets out both to refute conceptual errors and to dispel historical
myths. His central aim is to defend the doctrine of parliamentary sovereignty
by rejecting the doctrine of common law constitutionalism, that the authority
of Parliament is conferred by and should therefore be made subordinate to, if it
is not already subordinate to, the common law.
The doctrine of common law constitutionalism has two aspects, the first
historical, the second theoretical. The historical argument asserts that the
unwritten constitution has always been based upon the common law. The
theoretical argument is that the current constitution is best understood as being
based upon the common law.
Goldsworthy seeks to dispose of the historical argument for the common law
constitution by arguing that the idea of a sovereign Parliament derives not from
decisions made by judges, but from political developments in the 17th century,
in particular the Glorious Revolution of 1689 which settled the ideological
disputes between king and Parliament. The judges, in his view, then acquiesced
in the political settlement so reached.
Goldsworthy seeks to dispose of the theoretical argument for the com-
mon law constitution by arguing that those judges and legal academics, in
New Zealand as well as in Britain, who are attempting a peaceful revolution
by incremental steps aimed at dismantling the doctrine of parliamen-
tary sovereignty and replacing it with a new constitutional framework in
which parliament shares ultimate authority with the courts,4 are profoundly in
error.
Contemporary Debates also has a subsidiary aim, to analyse the relationship
between parliamentary sovereignty and statutory interpretation. This article,
however, concerns itself only with the most fundamental theme of the book,
the theoretical defence of the doctrine of parliamentary sovereignty.

1
J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press 1999). (hereinafter
History and Philosophy).
2
Cited in para 25 of House of Commons European Scrutiny Committee, The EU Bill and Parliamentary
Sovereignty, 10th Report, 201011, HC 633-i.
3
J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (CUP 2010) (hereinafter Contemporary
Debates).
4
ibid 2.
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 181

2. The Meaning of Parliamentary Sovereignty

According to Goldsworthy, Austin believed in The Province of Jurisprudence
Determined that the idea of parliamentary sovereignty was a consequence of his
utilitarian theory of law, and that it followed logically from his analysis of the
nature of law.5 But, as Hart pointed out in The Concept of Law, no purely
conceptual analysis could resolve the conundrum of whether Parliament could
or could not bind itself, i.e. whether the sovereignty of Parliament was
self-embracing or continuous.6 Dicey, as Goldsworthy notes:
. . . astutely suggested that, rather than the doctrine of parliamentary sovereignty
being derived from Austins theory, that that theory was a generalisation drawn from
English law, and owed its rapid acceptance to the familiarity of English jurists with
the already well established doctrine of parliamentary sovereignty.7
Goldsworthy agrees with Dicey that the sovereignty of Parliament is not a
deduction from abstract theories of jurisprudence, but a generalisation drawn
in the main from English law. In consequence, the ease with which the theory
of absolute sovereignty has been accepted by English jurists is due to the
peculiar history of English constitutional law.8 For Dicey, the roots of the idea
of parliamentary sovereignty, lie deep in the history of the English people and
in the peculiar development of the English Constitution.9 This means that, to
discover whether the doctrine still holds, it is necessary to inspect the recent
history and actual working of the constitution. In doing so, the lawyer will no
doubt discover, in the words of Charles Gray, quoted by Goldsworthy,
something more than the law, by uncovering the native fund of preferences
and values, national character in effect.10
The doctrine of parliamentary sovereignty was, Goldsworthy believes,
developed through consensus in the late 17th century. Therefore, he suggests,
it can only be altered by consensus, ideally no doubt by a consensus of the
people. In practice, however, a consensus amongst the senior officials in the
three branches of government would probably be sufficient. But, if the doctrine
of parliamentary sovereignty is not a common law doctrine, it cannot be altered
unilaterally by the courts. Were the judges to seek unilaterally to alter it, they
would be seeking to establish judicial supremacy in place of parliamentary
sovereignty. They would, Goldsworthy believes, come to be involved in a
power struggle they are ill-equipped to win. They may, of course, seek to

5
ibid 27475.
6
HLA Hart, The Concept of Law (Clarendon Press 1961) 14954.
7
Goldsworthy (n 3) 27475.
8
AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959) 72, cited in
Goldsworthy (n 3) 44.
9
See Dicey (n 8) fn 69.
10
C Gray, Parliament, Liberty and the Law in JH Hexter (ed), Parliament and Liberty: From the Reign of
Elizabeth to the Civil War (Stanford University Press 1992) 16263 cited in Goldsworthy (n 3) 30.
182 Oxford Journal of Legal Studies VOL. 32

initiate a change in the rule of recognition, but, if they do so, they would be
well advised to make sure that the other branches of government are likely to
acquiesce.11 But further, it would be wrong for the rule of recognition to be
modified without the support of a broader consensus amongst the electorate.
Goldsworthy cites with approval the Green Paper, The Governance of Britain
published in 2007, which declares that progress towards a written constitution
should not, and indeed cannot, be brought about by the judiciary alone.12
For Goldsworthy, as for Hart in 1961, sovereignty is continuing, in the
sense that Parliament cannot unilaterally limit, but [it] can be lawfully limited
through a change in the official consensus from which it derives.13 It would be
perfectly possible for Parliament to limit its sovereignty; but Goldsworthy
believes that it has not yet done so. My own view, by contrast, as put forward
in The New British Constitution,14 is that Parliaments sovereignty was in fact
limited by the European Communities Act 1972, and that, while Parliament
may still be the dominant institution in the British political system, it is no
longer legally omnipotent.
Goldsworthy defines the doctrine of the continuing sovereignty of Parliament
as a rule that Parliament can enact any law that it likes except a law to limit its
powers. There are, however, a number of fundamental problems with this
seemingly simple statement.
The first problem is that of determining whether the clause except a law to
limit its powers delineates a genuine exception, the one possible exception, to
the doctrine of sovereignty; or whether it is, by contrast, an exemplification of
the doctrine. The latter seems implausible precisely because it is not contrary
to logic to argue that sovereignty is self-embracing. But it seems odd to suggest
that one of the qualities of omnipotence, an omnipotence that is often said to
yield flexibility, is something that one cannot do i.e. bind oneself.
The second problem is that of determining the meaning of the word cannot
in the proposition that Parliament cannot pass a law to limit its powers. In
1972, during the parliamentary proceedings on the European Communities
Bill, both Lord Hailsham, the Lord Chancellor, and Sir Geoffrey Howe, the
Solicitor-General, took the view that it was logically impossible for Parliament
to limit its powers. Lord Hailsham declared that it was abundantly obvious
not merely that this bill does nothing to qualify the sovereignty of Parliament
but that it could not do so. Sir Geoffrey Howe declared that the ultimate
supremacy of Parliament will not be affected, and it will not be affected
because it cannot be affected.15 That is not, however, Goldsworthys view; and

11
Goldsworthy (n 3) 55.
12
ibid 7.
13
ibid 130.
14
V Bogdanor, The New British Constitution (Hart 2009).
15
Hansard HL vol 334 col 911 (7 August 1972); HC vol 840 col 556 (5 July 1972).
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 183
indeed, as we have seen, it cannot be a matter of logic that Parliament cannot
pass a law to limit its powers. It must therefore be contingent. But, if it is not a
logical impossibility, what is the precise meaning of cannot? Does it mean that
the task is humanly impossiblejust as, while it is not logically impossible for a
human being to run a mile in 30 seconds, it is humanly impossible for any
person at present to accomplish it? Or is it that, while not being impossible,
either logically or humanly, it is very difficult and has not yet been donelike
running a mile in 3 minutes, 20 seconds, for example; or is it that, while
perfectly feasible, it has not yet been donesuch as, for example, privatizing
Oxford University. This last interpretation seems the one most in accordance
with Diceys conception when he declared that the historical reason why
Parliament has never succeeded in passing immutable laws . . . lies deep in the
history of the English people and in the peculiar development of the English
constitution.16 On this interpretation, it would be perfectly possible for
Parliament to pass immutable laws but there are very good reasons why, as a
matter of fact, it has never done so. Goldsworthy believes that, were Parliament
to bind itself, this would lead to undesirable social consequences, since it
would be a denial of democracy to prevent future generations from legislating
as they would wish. If this is correct, Goldsworthys conception is a utilitarian
one, but perhaps a utilitarianism without the benefit of facts, and open to
empirical if not doctrinal refutation were it to be shown that the consequences
would not necessarily be undesirable should Parliament decide, for example, to
entrench certain human rights in legislation in order to prevent future
generations from abridging them.

3. Parliamentary Sovereignty and the European Union

Goldsworthy accepts that Parliament can impose upon itself, not substantive
limits, but limitations of manner and form. In History and Philosophy, he had
argued that if the doctrine of parliamentary sovereignty allowed for manner and
form restriction, the courts would be bound to invalidate what purported to be
a subsequent statute passed by a contrary procedure or form, so that
Parliament would no longer be sovereign.17 He believes that manner and
form interpretations, such as those put forward by Jennings, Latham and
Heuston, paid insufficient attention to the need to ensure that changes to such
requirements do not diminish Parliaments continuing sovereign powers.18
The term manner and form first came into wide use following Trethowan in
1932.19 In that case the High Court of Australia interpreted the term so as to

16
Dicey (n 8) fn 69.
17
Goldsworthy (n 1) 15.
18
Goldsworthy (n 3) 175.
19
Attorney-General for New South Wales v Trethowan [1932] AC 526 (PC).
184 Oxford Journal of Legal Studies VOL. 32

include within its scope a referendum requirement. Goldsworthy, however, has

reservations as to whether such a requirement is compatible with parliamentary
sovereigntysee below.
Goldsworthy does accept, however, that it is compatible with the sovereignty
of Parliament for Parliament to alter its procedures so long as this does not
impair its ability to legislate on any subject. He therefore argues that Diceys
definition of parliamentary sovereignty should be modified as follows:
A legislature has sovereign law-making power if its power to change the law is not
limited by any norms, concerning the substance of legislation, that are either
judicially enforceable, or written, relatively clear, and set out in a formally enacted
legal instrument, even if it is governed by judicially enforceable norms that determine
its composition, and the procedure and form by which it must legislate. Furthermore,
its sovereign power is a continuing one even if it includes power to change the norms
that govern its own composition, procedure and form of legislation, provided that it
cannot use that power to unduly impair its ability to change the substance of the law
however and whenever it chooses.20
It will be noted that Goldsworthy, however, prefers to use the term procedure
or formsee below. He consequently uses procedure or form to distinguish
his own interpretation from the manner and form theorists.21
Goldsworthy interprets the Factortame judgment22 in terms of procedure or
form. The European Communities Act, he believes, imposed a requirement
that Parliament makes explicit its intention to pass legislation inconsistent with
the Act. And indeed, the inconsistency in Factortame was inadvertent, the
government being advised when preparing the draft Merchant Shipping bill
that it was consistent with European Community law and giving an assurance
to that effect in Parliament.23
An alternative view to the procedure or form argument was put forward by
Eleanor Sharpston, QC, now an Advocate General at the Court of Justice of
the European Union, in Thoburn v Sunderland City Council.24 This alternative
view was rejected by Laws LJ in his judgment. But it deserves more
consideration than it has so far received. Eleanor Sharpston argued that EU
law had become entrenched and not merely incorporated. The European
Communities Act 1972 had therefore altered the rule of recognition in the UK
since the European Community was not a mere association of sovereign states
but a higher legal order in which the doctrine of primacy had already been
established. The basis for that doctrine was that, if all Member States are
equally to honour their obligations under the treaty, the law deriving from the

20
Goldsworthy (n 1) 16, reprinted in Goldsworthy (n 3) 18112.
21
Goldsworthy (n 3) 175.
22
R v Transport Secretary, Ex p Factortame Ltd (No 2) [1991] AC 603.
23
ibid 288.
24
[2003] QB 151.
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 185
treaties must be applied uniformly throughout the Community so that Member
States would not be able unilaterally to derogate from EC law. This meant that
national courts would have to apply EC law in preference to inconsistent
national law. The implication, therefore, was that the courts would only enforce
the will of Parliament when Parliament complied with that higher order. It
would be inconsistent with Britains continued membership of the European
Community to suppose that Parliament intended a statute to be enforced if it
could not be construed as being in accordance with Community law, even if
Parliament seemed to have indicated to the contrary. If that view is correct,
entry into the European Community produced a structural change in the
constitution in relation to Community law. That seems to have been the view
taken by Lord Bridge in one part of his judgment in Factortame. He spoke of
the duty of a United Kingdom court, when delivering final judgment, to
override any rule of national law found to be in conflict with any directly
enforceable rule of Community law. The reason for this was that If the
supremacy . . . of Community law over the national law of member states was
not always inherent in the EEC Treaty, it was certainly well established in the
jurisprudence of the Court of Justice long before the UK joined the
Community.25 Directly applicable European Community law therefore pre-
vailed over national law, and Parliament had, in the European Communities
Act, parted with its sovereignty. In the words of Hoffmann J, admittedly obiter
and without reference to Factortame,
The Treaty of Rome is the supreme law in this country, taking precedence over Acts
of Parliament. Our entry to the Community meant that (subject to our undoubted
but probably theoretical right to withdraw from the Community altogether)
Parliament surrendered its sovereign right to legislate contrary to the provisions of
the Treaty on the matters of social and economic policy which it regulated.26
One commentator summed up the consequence of Factortame by suggesting
that For the first time since 1688 a court suspended the operation of an Act of
Parliament. Contrary to Diceys oft-quoted assertion, it appeared that there
was now a body with power to set aside the legislation of Parliament and that
body was the House of Lords.27 If that is so, the Treaty of Rome had in effect
created a constitutional court in the UK to which Parliament was subordinate.
Far from being a mere manner and form or procedure or form entrenchment,

25
[1991] 1 AC 659, 643. But, in other parts of his judgment, Lord Bridge declared that the supremacy of
European Community law flowed from the European Communities Act 1972, not from the inherent nature of
the Community as a superior legal order. My own view is that the supremacy of Community law was always
inherent in the nature of the Treaty of Rome; but of course the issue remains open.
26
Stoke on Trent City Council v B&Q [1991] 4 All ER, 221, 223-4.
27
E Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History (Hart 2006)
156. This interpretation of the constitutional consequences of our entry into the European Communities was also
put forward by JDB Mitchell in What Happened to the Constitution on 1st January 1973 (1980) 11 Cambrian
L Rev 6983, and by HWR Wade in Sovereignty Revolution or Evolution? (1996) 112 LQR 56875.
186 Oxford Journal of Legal Studies VOL. 32

therefore, the 1972 Act on this view imposed a substantive limitation on the
powers of Parliament.
It may be said that this limitation exists only because Parliament willed it in
1972 and that Parliament could at any time repeal the European Communities
Act. But this interpretation of what the sovereignty of Parliament means is of
course quite different from the pristine version put forward by Dicey to the
effect that Parliament had the right to make or unmake any law whatever, and
that no person or body could set aside the legislation of Parliament.28 It is also
quite different from the meaning of the sovereignty of Parliament put forward
by Goldsworthy. At the very least, therefore, the sovereignty of Parliament
means something different today from what it meant before 1991. But in any
case the argument hardly serves to rescue the doctrine of parliamentary
sovereignty. If, in a federal constitution, the right of secession is constitutionally
recognized, that does not make the provincial units sovereign. If I volunteer to
surrender my freedom with the proviso that I can at any time break free of my
chains, it would odd to say that my freedom has not really been curtailed
during the period in which it is surrendered.
This interpretation of the European Communities Act raises an awkward
question. If Parliament could voluntarily limit its sovereignty in the European
Communities Act, why might it not also do so with respect to other statutes
the Human Rights Act, for example, or the devolution legislation? HWR Wade
indeed, who had argued in a seminal article in the Cambridge Law Journal in
1955 that Parliament could not abridge its sovereignty, concluded after
Factortame that the new doctrine adumbrated in that case, makes sovereignty
a freely adjustable commodity whenever Parliament chooses to accept some
limitation.29 For, if one exception to the unlimited power of Parliament is
permissible, others are permissible also. Sovereignty, after all, is not a matter of
degree like baldness, but like virginity, absolute. One either has it or one does
not. Just as one cannot be a qualified virgin, so also one cannot be a qualified
sovereign.

4. Entrenchment and the European Union Act

How is the distinction to be drawn between a manner and form limitation or
procedure or form limitation and a substantive one? Goldsworthy, like most
writers on this topic, implies that it is easy for the courts to draw this
distinction and that it is somehow apparent, as it were, on the face of
legislation, to which category it belongs. But that is hardly plausible.
In Britain, until the Parliament Act 1911, the procedures of Parliament were
laid down by standing orders and the historic practice of each house rather
28
See Dicey (n 8) 3940.
29
HRW Wade, The Basis of Legal Sovereignty (1955) 13 CLJ 17297; and Wade (n 27) 573.
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 187
than statute. The Parliament Act for the first time put a procedure of
Parliament into statute. In Jackson,30 it was claimed that the Hunting Act 2004
was invalid because it had been passed with the benefit of the Parliament Act
1949. But that Act was, so it was argued, was itself invalid since it had been
passed under the terms of the Parliament Act 1911, i.e. without the consent of
the House of Lords. However, the law lords held unanimously that the 1911
Act had intended to restrict the powers of the Lords, and had succeeded in
redefining the powers of Parliament for particular purposes.
The Acts of 1911 and 1949, however, gave a handle for the judges to
consider, for the first time in an English court, whether a purported Act of
Parliament was in reality an Act of Parliament and therefore valid. For,
presumably a purported Act of Parliament providing for an extension of the
five-year period between general elections which had not received the assent of
the House of Lords would be regarded as invalid by the courts. The so-called
enrolled Act rule, that, in ECS Wades words, the courts know nothing of the
legislative process, no longer appears correct therefore.31
Alison Young has argued that the judgment in Jackson shows that section
2(1) of the Parliament Act 1911 bound future parliaments through manner and
form entrenchment.32 But this seems misleading for two reasons. The first is
that the Parliament Acts make it easier, not more difficult, for Parliament to
legislate when there is disagreement between the two houses. The second is
that they provide an alternative procedure, not a mandatory one. So it is
misleading to speak of the Parliament Acts as binding future parliaments. The
Parliament Acts, therefore, do not raise problems for the distinction between
manner and form and substantive limitation.
But it is not clear why it should not be possible to alter parliamentary
procedure so as to make it more difficult for Parliament to legislate by
imposing a requirement, for example of a quorum, an absolute or a qualified
majority or a referendum. As Lady Hale declared, obiter, in Jackson:
If the Sovereign Parliament can redefine itself downwards, to remove or modify the
requirements for the consent of the Upper House, it may very well be that it can also
redefine itself upwards, to require a certain parliamentary majority or a popular
referendum for particular types of measure.33
Since 1972, it has been accepted by successive governments and embodied in
legislation that Northern Ireland shall not cease to be a part of the UK without

30
Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262.
31
The conclusion of ECS Wade in his opinion furnished in 1952 to the Union Government of South Africa,
cited in Marshall, Parliamentary Sovereignty and the Commonwealth (Clarendon Press 1957) 23. Wades opinion is
cited in full on 25159.
32
A Young, Parliamentary Sovereignty and the Human Rights Act (Hart 2009) 194, cited in Goldsworthy (n 3)
178.
33
Jackson v Attorney-General (n 30) 163.
188 Oxford Journal of Legal Studies VOL. 32

the consent of the majority of its electors voting in a referendum, as in section

1 of the Northern Ireland Act 1998. It may well be, therefore, that a purported
Act of Parliament proposing to cede Northern Ireland without a referendum
would be declared invalid by the courts. The European Union Act 2011
provides a further illustration. It introduces provisions making it more difficult
for Parliament to legislate by requiring that an Act providing for the approval
of a treaty transferring significant powers to the European Union is not to
come into force until it has been approved by a majority in a referendum.34
The coming into force of such legislation would be conditional on approval in a
referendum, which therefore becomes part of the legislative process.
The European Union Act therefore introduces the requirement of a binding
referendum for certain European Union matters. Until 1977, however, a
binding referendum was held to be unconstitutional as conflicting with the
doctrine of parliamentary sovereignty. Previous attempts to propose binding
referendums in Parliament had been ruled out of order since they were
proposing, in the words of Erskine May, changes in legislative procedure
which will be contrary to constitutional practice.35 But in 1977, during the
committee stage of the abortive Scotland and Wales Bill, providing for
devolution to Scotland and Wales, the committee chairman ruled that new
clause 40 providing for binding referendums before devolution came into effect
was in order since the 1975 referendum on the European Communities had
created a precedent, even though that referendum was in fact explicitly
advisory.36 The new clause was, however, withdrawn shortly after being tabled
and every referendum held in Britain was advisory until the referendums in
2011 on extending the powers of the National Assembly of Wales and on the
alternative vote method of election, both of which were intended to be binding.
Goldsworthy argues that:
a referendum requirement, despite being perfectly democratic, cannot logically be
classified as a mere requirement as to manner and form. Such a requirement goes
much further than just requiring Parliament to follow a particular procedure or to
adopt a particular form in exercising its substantive authority to enact law: by
forbidding Parliament to enact law without the approval of an external body
namely, the electorate it plainly limits its substantive authority.37
The European Union Bill was of course published after Contemporary Debates
appeared; but, in evidence to the Select Committee, Goldsworthy continued to
insist that To seek to bind future parliaments by prohibiting the enactment of

34
European Union Act 2011 ss 24.
35
Parliamentary Practice (18th edn, Butterworths 1971) 523. Cited by Maurice Macmillan, MP, Hansard HC
vol 925 col 1674 (10 February 1977).
36
V Bogdanor, Devolution (Oxford University Press 1979) 15556.
37
Goldsworthy (n 3) 138.
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 189
legislation without a referendum first being held is not consistent with the
doctrine of parliamentary sovereignty.38
Parliament can of course repeal the European Union Act at any time, though
arguably, a future Parliament, until it repeals or amends the Act, cannot ratify a
European Union treaty or agree to a significant transfer of competences and
powers to the European Union without a referendum. Even so, it appears,
from Goldsworthys own argument, that the European Union Act substantively
limits the power of Parliament.
An alternative way of interpreting the European Union Act would be to
suggest that, as with the Parliament Acts, it provides a manner and form
limitation in that it redefines or redescribes the powers of Parliament. For the
purpose of the specified matters connected with the European Union, so it
might be argued, Parliament comprises not only the Queen, the House of Lords
and the House of Commons, but also the electorate. Goldsworthy, however,
rejects such an approach as merely a patent rationalisation of a desired
conclusion39 since the electorate cannot be deemed to be part of a parliament
which has been elected to represent that very electorate. Referendum
requirements, Goldsworthy concludes, are therefore, difficult to reconcile
with the continuing plenary or sovereign power of a parliament, and,
Such a radical change would require a change in the fundamental rule of recognition in
the customary consensus among senior legal officials that underpins the British
constitution. The necessity for such a change could not be evaded by formalistic word
magic by labelling the change a reconstitution of Parliament itself, rather than a
limitation of its powers. The reality of such a radical change in legal authority cannot
be concealed, and debate about its profound philosophical and political implications
evaded, by semantic game-playing.40
Even if it were accepted that Parliament were being redefined for this specific
purpose, the question would then arise of whether this tricameral Parliament,
which includes the electorate, is the same Parliament as the bicameral
Parliament that is competent to legislate on all other matters. And then the
more general question is raised of how we are to distinguish between a rule
which is constitutive of Parliament and one which is not. If the House of Lords
is reformed, as the government proposes, so that it becomes wholly or almost
wholly elected, is Parliament after the reform the same Parliament as the
Parliament which now exists? If the Commons were to be elected by
proportional representation, would the Parliament following reform be the
same Parliament as the Parliament which now exists? Not only is it not obvious
what Parliament is, it is also not obvious what makes a reformed Parliament
38
House of Commons European Scrutiny Committee, The EU and Parliamentary Sovereignty, HC 633-ii,
2010-11, Ev 31, para 9.
39
Goldsworthy (n 3) 139.
40
ibid 198.
190 Oxford Journal of Legal Studies VOL. 32

the same Parliament as its predecessor, rather than a different one. For there
must, surely, be limits to the extent to which Parliament can redefine itself
without becoming an entirely new body. Suppose that Parliament, to take an
extreme and implausible example, were to pass a statute requiring the consent
of the Institute of Directors before legislation relating to certain industrial
matters could be passed. Would Parliament then have been redefined so as to
include the Institute of Directors? Would such a redefinition be accepted as
valid by the courts? Could Parliament create as many extra chambers as it liked
and at what point would such a multi-cameral legislature no longer be the
same Parliament as the one we have today? What indeed is the criterion for a
parliament being the same Parliament?
It is therefore difficult to escape the conclusion that the European Union Act
imposes a substantive limitation upon the powers of Parliament by arguing that
the Act yields merely manner and form entrenchment. The Act imposes a
precondition over the area in which Parliament can legislate. It therefore
reduces the area in which Parliament can legislate without securing the
approval of voters in a referendum. If that is so, it has altered the rule of
recognition. Parliament can now, on this interpretation, do anything it likes
except amend a European Union treaty or transfer significant powers or
competences to the Union without a referendum. It therefore seems reasonable
to conclude that the referendum requirement in the European Union Act
deprives the legislature of its sovereign power to legislate on certain European
Union matters by requiring, for these matters, the assent of a body external to
the legislature. It amounts therefore to a partial renunciation of the legislative
power, and so is a substantive restriction, rather than one involving merely the
manner or form in which legislative power is exercised. But, if Parliament can
successfully bind itself in this way, why not also in others? It is ironic that an
Act purportedly designed to protect the sovereignty of Parliament raises such
serious problems for the doctrine, which comes to resemble nothing more than
the smile on the face of the Cheshire cat. In seeking to restore national
sovereignty, the European Union Act has, paradoxically, restricted parliamen-
tary sovereignty.
If Parliament can bind itself, then it is indeed, as Tocqueville thought, a
constituent as well as a legislative authority. If Parliament can bind itself, it
becomes subordinate to the law, to, in effect, a constitution. If Parliament has
in fact already bound itself in various ways, then there is now a power over and
above that of Parliament, and it is no longer true that the British Constitution
can be defined in just eight wordswhatever the Queen in Parliament enacts is
law. Perhaps, then, we have already embarked on the path towards the new
British constitution. But we have done so in a characteristically British way,
piecemeal rather than in one fell swoop, since there is no consensus on what
the final resting-place should be.
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 191

5. The Sovereignty of Parliament and Human Rights

Is there anything else that the UK Parliament cannot do in addition to not
being able to legislate on certain European Union matters without the consent
of the electorate? Since Padfield, has it not been clear that Parliament cannot
give ministers an unfettered discretion so as to insulate them from judicial
scrutiny? Since Anisminic, has it not been clear that Parliament cannot provide
for an ouster clause insulating a public authority from judicial review for an
error of law?41 These examples, of course, by contrast with the European
Union Act, are not voluntary limitations on the power of Parliament accepted
by Parliament itself, but limitations on the power of Parliament imposed by the
judges.
By analogy with Anisminic, can Parliament pass a valid statute denying
individual litigants access to the courts? The issue was raised in December
2003 when the government introduced an Asylum and Immigration
(Treatment of Claimants, etc.) Bill, clause 11 of which under the euphemistic
heading Unification of appeal system, excluded the courts from jurisdiction
over the decisions of the proposed Asylum and Immigration Tribunal. This
would have meant that a failed asylum seeker would have had no redress
against the Tribunal even if she believed that its decision was capricious or
unreasonable or that it had made an error of law or breached natural justice.
Nor would a court have been able to review the decision to deport a failed
asylum seeker. In response to a chorus of criticism, the provision was removed
from the Bill before it became law. But in the Jackson case, in 2005, Lord Steyn
declared, obiter, that
In exceptional circumstances involving an attempt to abolish judicial review of the
ordinary role of the courts, the Appellate Committee of the House of Lords or a new
Supreme Court may have to consider whether this is a constitutional fundamental
which even a sovereign Parliament acting at the behest of a complaisant House of
Commons cannot abolish.42
Lady Hale declared, obiter, The courts will treat with particular suspicion
(and might even reject) any attempt to subvert the rule of law by removing
governmental action affecting the rights of the individual from all judicial
powers.43 It must remain an open question whether had clause 11 survived the
parliamentary process, the judges would have disapplied it. Perhaps Lord Steyn
and Lady Hale were hinting in Jackson that they would in fact disapply it.
Certainly their obiter remarks were not required by the Jackson case, since they
raised much wider considerations than were needed for the judgment. They

41
Padfield v Minister of Agriculture [1968] AC 997; Anisminic v Foreign Corporation Commission [1969] 2 AC
147.
42
Jackson v Attorney-General [2005] UKHL 56 [102].
43
ibid [159].
192 Oxford Journal of Legal Studies VOL. 32

might therefore appear unnecessary. Indeed, the position taken by Lord Steyn
and Lady Hale, and endorsed, from a slightly different perspective by Lord
Hope, a Scottish law lord, was explicitly rejected extra-judicially by the senior
law lord, Lord Bingham.44 It might be suggested, however, that the most
obvious reading of the obiter dicta in Jackson is that:
certain judges are staking out their position for future battles. They do fear that
Parliament and government cannot be trusted in all circumstances to refrain from
passing legislation inconsistent with fundamental rights, the rule of law or democracy.
When a case involving such unconstitutional legislation arises, they want to be in a
position to strike it down without appearing to invent new doctrines on the spot.
They want to be able to say that they are applying settled constitutional doctrine.
Jackson may then be a useful precedent . . . Jackson may also be viewed as a shot across
the governments bows.45
Perhaps, then, Parliament cannot pass legislation which subverts the foun-
dations of the rule of law. Of course, there is no case which allows one to
confirm this interpretation, no case where the judges have disapplied primary
legislation because it subverted the rule of law. But, as has frequently been
pointed out, Dicey was unable to cite a single case to confirm the doctrine that
parliament cannot bind itself; and there is no modern case in which a statute
widely agreed to subvert the rule of law has been accepted by the judges.
The obiter dicta in the Jackson case raise the possibility of a conflict between
the doctrine of parliamentary sovereignty and the doctrine of the rule of law.
Such a conflict is also inherent in the Human Rights Act. In another obiter
remark in Jackson, Lord Hope declared, The rule of law enforced by the
courts is the ultimate controlling factor on which our constitution is based.46
The Human Rights Act attempted a compromise between two seemingly
competing doctrines, the sovereignty of Parliament and the rule of law.
What happens? I once asked a senior judge, if the two principles conflict?
The judge smiled and replied that this was a question that ought not to be
asked.
The effectiveness of the compromise in the Human Rights Act must depend,
as Goldsworthy accepts, upon a consensus between government and the

44
Lord Bingham, The Rule of Law and the Sovereignty of Parliament (2008) 19 Kings Law Journal
22334.
45
T Mullen, Reflections on Jackson v Attorney General: Questioning Sovereignty, (2007) 27 Legal Studies
125, 1516, cited in Goldsworthy (n 3) 56.
46
[107] and [120]. Lord Hope is a Scottish law lord and the Scots have always been somewhat more sceptical
than the English of the doctrine of the absolute sovereignty of Parliament which they find difficult to reconcile
with the Acts of Union of 1707. In these Acts, uniting the Scottish and English parliaments, the Scottish
negotiators sought and believed that they had succeeded in preserving the Scottish legal system and the system of
Presbyterian church government in Scotland from alteration by the English. It was difficult to reconcile such a
viewpoint with the doctrine of the sovereignty of Parliament. See AV Dicey and RS Rait, Thoughts on the Union
Between England and Scotland (Macmillan 1920) which somewhat modifies the doctrine of Law of the Constitution.
Compare J Jowell and D Oliver, The Changing Constitution (6th edn, OUP 2007) vi. It may now be that the rule
of law has supplanted parliamentary sovereignty as our prime constitutional principle.
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 193
judges. But perhaps such a consensus no longer exists. It may be that while
MPs still adhere to the doctrine of parliamentary sovereignty, many senior
judges hold the view expressed by Lord Hope. In that case, there is a difference
of view as to how human rights matters should be resolved. The judges believe
that Parliament through the Human Rights Act has given them a special role in
protecting rights, particularly perhaps the rights of unpopular minorities. MPs,
by contrast, believe that, as elected representatives accountable to the people, it
is they and not the judges who should retain the last word on such matters.
The absence of consensus on the rule of recognition could lead to a
constitutional crisis. A constitutional crisis does not occur simply because of
a difference of view between government and the judges. That is inevitable in a
healthy democracy. Lord Bingham once said that there were countries where
the judges always agreed with the government, but that these were not
countries in which any of us would choose to live. A constitutional crisis occurs
when there is a difference of view as to where ultimate authority lies. Some
MPs believe that judges are seeking to transform judicial review into judicial
supremacy, while judges reply that they are doing no more than applying the
Human Rights Act as Parliament intended. A constitutional crisis occurs when
there is a difference of view as to how such matters should be settled, the
method by which they should be settled, a difference of view as to what the
rule of recognition is or ought to be. Such a crisis occurred in South Africa in
the 1950s when, to quote Hart,
the legislature acted on a different view of its legal competence and powers from
that taken by the courts, and enacted measures which the courts declared
invalid . . . had this process not been stopped . . . we should have had an endless
oscillation between two views of the competence of the legislature and so of the
criteria of valid law.47
Perhaps on human rights matters, the British Constitution is gradually coming
to mean something different to the judges from what it means to Parliament.
The argument from parliamentary sovereignty points in one direction, the
argument from the rule of law in another. It remains an open question,
therefore, whether Parliament can validly legislate so as to subvert the rule of
law.

6. Sovereignty as a Metaphysical Concept

The depth and power of Goldsworthys analysis do not convince me that the
concept of the sovereignty of Parliament is of value. Many years ago, HLA
Hart and Geoffrey Marshall suggested that questions of the form What is
sovereignty?, Can a sovereign bind itself? Can a sovereign do X?, etc. were
47
See Hart (n 6) 11819.
194 Oxford Journal of Legal Studies VOL. 32

better replaced by questions of the form, What are the rules which regulate
Parliament? How are the rules determined? How are the rules changed?.48
Once a translation of this sort is made, then many of the puzzles relating to
sovereignty simply dissolve. It is not clear what is added to the analysis by
using the concept of sovereignty. Is it not better simply to say that Parliament is
regulated by certain rules and to specify the conditions under which the rules
can be changed?
The modern theory of sovereignty began with Hobbes, and, in its crudest
version, the sovereign is a single individual who commands others and whom
no one else can command. This doctrine is an easy one to understand, but it is
questionable as to whether it has any relevance to systems of parliamentary
government. As soon as an institution rather than an individual is designated as
the sovereign, problems arise since an institution such as a legislature is a
complex rule-governed body. It must first be determined what is to count as
Parliament. There must be rules defining it, so that a clear meaning can be
given to the phrase the same Parliament. Second, there must be rules
determining how the various parts of the legislature are to be composed, and
the relationships between them. Third, there must be rules determining what is
to count as a valid enactment. If the members of the House of Commons,
House of Lords, together with the Queen, were all to gather together in Hyde
Park and to assent by acclamation to a particular proposal, that would not
count as a valid enactment. There must be rules determining what is to count
as correct procedure and legislation will be valid only when it has been passed
in the manner prescribed by the rules. But the rules are of course subject to
change. This means that fourth, and finally, there must be rules determining
how the existing rules can be changed. These various rules may or may not be
written down. But, whether they are or not, the concept of a rule must be
logically prior to that of the sovereign.
It is less helpful, then, to ask what Parliament can or cannot do, than to
ask what are the rules that regulate Parliament, and whether these rules
prescribe any limits in form or in substance on legislation. There is, moreover,
no reason in principle why these various rules should not be subject to judicial
review. Indeed, as Factortame so graphically showed, the right of Parliament to
enact a valid law is dependent upon whether the courts recognize a duty to
enforce what purports to be an Act of Parliament. So the question of what
Parliament can do is in part a question about the reaction of the courts. It is
impossible to predict what the reaction of the courts would be were Parliament
to seek to challenge the legislation of the European Union or to challenge what

48
HLA Hart, Theory and Definition in Jurisprudence (1955) 29 Proceedings of the Aristotelian Society,
Supplementary vol 23964, and see Marshall (n 31) 3941. In June 2011, the Institute of Advanced Legal
Studies held a conference devoted to the theme Sovereignty in Question. One participant suggested that a better
title would have been, What are the proper powers of Parliament in the British constitution?.
SPRING 2012 The Modern Defence of Parliamentary Sovereignty 195
senior judges regard as basic human rights. Lord Bridge declared in Factortame
that the judgment did no more than draw out the logic of Britains entry into
the European Community. Nevertheless few predicted it in 1972.
Contemporary Debates is a brave but, in my view, forlorn, attempt to rescue
the doctrine of parliamentary sovereignty, a doctrine which obscures more than
it illuminates. Goldsworthy, so it seems to me, has suffered one of the worst
fates that can befall a philosopher. He has become the prisoner of a doctrine.