PARLIAMENTARY SOVEREIGNTY Th is book has four main themes: (1) a criticism of ‘common law consti- tutionalism’, the theory that Parliament’s authority is conferred by, and therefore is or can be made subordinate to, judge-made common law; (2) an analysis of Parliament’s ability to abdicate, limit or regulate the exercise of its own authority, including a revision of Dicey’s conception of sovereignty, a repudiation of the doctrine of implied repeal and the proposal of a novel theory of ‘manner and form’ requirements for law- making; (3) an examination of the relationship between parliamentary sovereignty and statutory interpretation, defending the reality of legis- lative intentions and their indispensability to sensible interpretation and respect for parliamentary sovereignty; and (4) an assessment of the compatibility of parliamentary sovereignty with recent constitutional developments, including the expansion of judicial review of adminis- trative action, the Human Rights and European Communities Acts and the growing recognition of ‘constitutional principles’ and ‘constitutional statutes’. jeffrey goldsworthy holds a Personal Chair in the Faculty of Law at Monash University in Melbourne, Australia, where his major interests are legal philosophy and constitutional law, theory and history. cambridge studies in constitutional law Th e aim of this series is to produce leading monographs in constitutional law. All areas of constitutional law and public law fall within the ambit of the series, including human rights and civil liberties law, administrative law, as well as constitutional theory and the history of constitutional law. A wide variety of scholarly approaches is encouraged, with the governing criterion being simply that the work is of interest to an international audi- ence. Th us, works concerned with only one jurisdiction will be included in the series as appropriate, while, at the same time, the series will include works which are explicitly comparative or theoretical – or both. Th e series editors likewise welcome proposals that work at the intersection of constitutional and international law, or that seek to bridge the gaps between civil law systems, the US, and the common law jurisdictions of the Commonwealth. Series Editors David Dyzenhaus, Professor of Law and Philosophy, University of Toronto, Canada Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, UK Editorial Advisory Board T.R.S. Allan , Cambridge, UK Damian Chalmers , LSE, UK Sujit Choudhry , Toronto, Canada Monica Claes , Tilburg, Netherlands David Cole , Georgetown, USA K.D. Ewing , King’s College London, UK David Feldman , Cambridge, UK Cora Hoexter , Witwatersrand, South Africa Christoph Moellers , Goettingen, Germany Adrienne Stone , Melbourne, Australia Adrian Vermeule , Harvard, USA PARLIAMENTARY SOVEREIGNTY Contemporary Debates JEFFREY GOLDSWORTHY Monash University cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press Th e Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521884723 © Jeff rey Goldsworthy 2010 Th is publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2010 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Goldsworthy, Jeff rey Denys. Parliamentary sovereignty : contemporary debates / Jeff rey Goldsworthy. p. cm. – (Cambridge Studies in constitutional law) Includes bibliographical references and index. ISBN 978-0-521-88472-3 (hardback) 1. Great Britain. Parliament. 2. Legislative power–Great Britain. 3. Legislation–Great Britain. 4. Law–Great Britain–Interpretation and construction. I. Title. II. Series. KD4210.G65 2010 342.41′052–dc22 2010022336 ISBN 978-0-521-88472-3 Hardback ISBN 978-0-521-14019-5 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS Detailed table of contents vii Acknowledgments xi 1 Introduction 1 2 Th e myth of the common law constitution 14 3 Legislative sovereignty and the rule of law 57 4 Homogenising constitutions 79 5 Abdicating and limiting Parliament’s sovereignty 106 6 Trethowan’s case 141 7 Requirements as to procedure or form for legislating 174 8 Judicial review, legislative override, and democracy 202 9 Parliamentary sovereignty and statutory interpretation 225 10 Challenging parliamentary sovereignty: Past, present and future 267 Index 319 v DETAILED TABLE OF CONTENTS 1 Introduction 1 2 Th e myth of the common law constitution 14 I Introduction 14 II Th e historical record 18 III Philosophical analysis 47 3 Legislative sovereignty and the rule of law 57 I Introduction 57 II Legal principle or political ideal? 58 III Th e content of the rule of law 61 IV ‘Th in’ conceptions of the rule of law 63 V ‘Th icker’ conceptions of the rule of law 66 VI Conclusion 78 4 Homogenising constitutions 79 I Introduction 79 II Th e rule of law in liberal democracies 82 III Institutional authority 84 IV Th e concept of law 87 V Th e rule of law as law 95 VI Th e interpretation of written constitutions 101 VIII Conclusions 104 vii viii Contents 5 Abdicating and limiting Parliament’s sovereignty 106 I Introduction 106 II Some clarifi cations 109 III Competing theories 113 A Limitations imposed by the judiciary: common law constitutionalism 113 B Limitations imposed by Parliament 114 (1) Th e procedurally self-embracing theory 114 (2) Th e full self-embracing theory 115 (3) Th e constituent power theory 116 (4) Th e abdication theory 118 C Limitations imposed by a change in offi cial consensus 122 (1) Th e hard cases theory 122 (2) Th e legal revolution theory 123 (3) Th e consensual change theory 125 IV Oliver’s theory scrutinised 126 V Conclusion 137 6 Trethowan’s case 141 I Introduction 141 II Background 141 III Parliamentary privilege 150 IV Th e validity and bindingness of s. 7A 151 A Reconstitution 156 B Manner and form 160 C Political principle and legal logic 166 V Aft ermath and consequences 169 7 Requirements as to procedure or form for legislating 174 I Introduction 174 II Alternative and restrictive requirements: Jackson’s case 176 III Policy considerations 179 IV Distinguishing requirements as to procedure or form Contents ix from interpretive presumptions 182 V Beyond the stereotypes: the variety of requirements as to procedure or form 186 VI Validity, enforceability and bindingness 187 VII Sources and limits of the validity and enforceability of requirements as to procedure and form 189 VIII Is the ‘manner and form’ provision in s. 6 of the Australia Act redundant? 197 IX Reconstitution 198 X Conclusion 199 8 Judicial review, legislative override, and democracy 202 I Th e ‘notwithstanding clause’ 202 II Th e rights-based objection to constitutional rights 205 III Goal-based objections to constitutional rights 211 IV Th e desuetude of s. 33 217 V Conclusion 222 9 Parliamentary sovereignty and statutory interpretation 225 I Introduction 225 II Th e indispensability of legislative intentions 232 A Clarifying interpretation 236 (1) Ambiguity and ellipsis 236 (2) Presuppositions 238 B Creative interpretation 243 III Evidence of legislative intention 247 IV Alternatives to intentionalism 251 A Judicial override 251 B Constructivism 254 C Criticism of constructivism 259 V Conclusion 263