The Sovereignty of
Parliament: History and Philosophy by Jeffrey Goldsworthy, Oxford: Clarendon Press, 1999
Ever since Lord Bryce published
‘The Decline of Legislatures’ in 1921, the law-making function of parliaments
has been largely ignored by academics, if not belittled. This has resulted in
an inadequate understanding of the importance of the parliamentary system and
the meaning of such fundamental concepts as the sovereignty of parliament.
Jeffrey Goldsworthy, an Associate Professor of Law at Australia’s Monash
University, in this well-researched and readable book, tries to reverse this
trend by providing a very comprehensive analysis of the nature and source of
this doctrine which is still at core of the legal systems in the United
Kingdom, Australia and New Zealand. He traces its evolution in England from the
earliest beginnings of Parliament to the nineteenth century and provides a
thoughtful discussion on how parliamentary authority relates to the common law,
to the judiciary and to the moral duty to disobey, and how parliamentary
sovereignty relates to popular sovereignty and the right of resistance.
While his approach is primarily historical,
it is also philosophical and works of all the great English philosophers from
medieval to early modern to modern are referred to, for example Sir Thomas
More, Fortescue, Coke, Hobbes, Locke, Blackstone, Burke, Adam Smith, Bagehot,
Dicey, Austin, H.L.A. Hart and Dworkin. This survey of thinkers on Parliament
and the law is a helpful introductory or refresher course for students of
parliament although invariably ( and understandably) he has given short shrift
to the contributions made to the discussion by some of the giants, such as
Jeremy Bentham and John Stuart Mill.
For Goldsworthy, the doctrine of
parliamentary sovereignty maintains that Parliament has the ultimate authority
to determine what the law shall be. Judges can declare what the law is but are
bound to accept every Act of Parliament as valid law. He attacks the historical
myths which surround the concept, such as that the omnipotence of Parliament
was ‘inspired by Hobbes and invented by Blackstone’. He convincingly points to
historical evidence that the legal power of Parliament was recognised as
supreme and absolute well before the sixteenth century. He also challenges
recent thinking put forward by such critics of the doctrine as Trevor Allen and
Michael Detmold that judges only obey statutes because they are required to do
so by principles of justice, the rule of law and equal citizenship and
therefore Parliament’s law-making authority is limited by those principles.
Goldsworthy examines the historical record and concludes this is not so. He
believes the doctrine is clear that Parliament has the legal authority to enact
statutes and that judges have the legal duty to enforce them but not that
judges would be morally justified in enforcing them. Legal validity and
authority are not the same as moral validity and authority.
The book explores interesting
questions. Did Parliament’s powers derive from the King’s since Parliament was
part of the King’s High Court or did it have its own legal legitimacy and
authority independent of the King? Is Parliament’s law-making authority still
limited today by the 1707 Scottish Act of Union whose terms were to be
‘unalterable’? What was the significance of the proceedings of Stockdale
v Hansard (1839) with respect to the existence and extent of the privileges
of the House of Commons? Such questions challenge our knowledge of
parliamentary history and his excellent bibliography allows us to follow up on
them in more detail.
Goldsworthy has given us a
convincing portrayal of the rationale and benefits of the doctrine as it
applies to the English context. Unquestionably, the placing of unlimited
law-making power in a single, democratic institution reflecting the collective
wisdom of the community has brought relative stability there since 1689. His
analysis helps us understand why Britain has always shown a preference for
pragmatic, incremental adaptation of customary institutions. However, one
wonders if this doctrine which has grown out of and been defined by the
specific historical circumstances of England and traced so lucidly by
Goldsworthy can be successfully transplanted elsewhere. While this approach to
law-making has been successful in the United Kingdom, it has not always been
accepted as the best constitutional system by others. As we know, after a long
debate, Canada gave the courts a much greater role in reviewing legislation
after 1982 with the adoption of the Canadian Charter of Rights and
Freedoms at the expense of the sovereignty of Parliament.
On wonders as well whether one
day even in the United Kingdom the doctrine may not be considerably altered.
Professor R. Brazier in his book Constitutional Reform (Clarendon Press,
1998) suggests that ‘parliamentary sovereignty has become more complete than
the divine right of kings’. Others such as Institute of Public Policy Research
have questioned whether the classical assumption that Parliament does reflect
the collective wisdom of the community is correct. It notes ‘complaints of an
electoral system which seriously distorts representation, excludes middle
opinion, and threatens to perpetuate rule by the largest minority party; of a
Parliament which is dominated by the executive through its control of
procedure…; of a national administration which practices excessive secrecy and
against whose activities there is inadequate redress… ‘ (IPPR, 1991). The
very significant constitutional and procedural changes being undertaken
by the British Parliament in recent months are clearly efforts to improve the
legitimacy of the doctrine as opposed to dispensing with it but it is still too
early to judge their success.
Jeffrey Goldsworthy is to be
congratulated for this welcome addition to parliamentary literature.
Recent Publications about
Deliberative Democracy in
Australia: The Changing Place of Parliament by John Gregory Uhr, Cambridge University Press, 1988, 265
Unfinished Business: Reforming the House of Lords by Ivor Richard and
Damien Welfare, Vintage Books, London, 1999, 226 p.
Patterns of Democracy: Government forms and Performance in Thirty-six
Countries by Arend Lijphart, New Haven, CT: Yale University Press, 1999,
Parliamentary Committees: Enhancing Democratic Governance, a report of
the Commonwealth Parliamentary Association Study Group on Parliamentary
Committees and Committee Systems, written and compiled by Gordon Barnhart,
London: Cavendish, 1999, 187 p.
Great Britain: Royal Commission on the Reform of the House of Lords. A House
for the future / Royal Commission on the Reform of the House of Lords.
London: The Stationery Office, 2000, 216 p.
Reforming the House of Lords: Lessons from Overseas by Meg Russell,
London: Oxford University Press, 2000, 368 p.
La procédure parlementaire du Québec. Assemblée nationale, 2000, 493 p.