Wilheim, Ernst --- "Jeffrey Goldsworthy, The Sovereignty of Parliament" [2001] FedLawRw 6; (2001) 29(1) Federal Law Review 115
BOOK REVIEW
JEFFREY GOLDSWORTHY, THE SOVEREIGNTY OF PARLIAMENT
(Oxford University Press, 1999)
Ernst Wilheim[*]
Can Parliament (subject only, in Australia, to an available constitutional head of power), enact laws discriminating against blue eyed babies? Can Parliament enact laws authorising genocide? Can the High Court invalidate laws that it finds violate fundamental moral or legal principles? Where lies ultimate authority in our constitutional system? Is Parliament truly sovereign? Or does ultimate authority lie with the judiciary? Is parliamentary sovereignty a rule established by the judiciary, which the judiciary may modify or reject? Or is parliamentary sovereignty a more fundamental rule, a rule that is more broadly based and one that cannot be unilaterally modified by the courts?
These are some of the questions Goldsworthy seeks to address in his fascinating analytical and historical study. He seeks to answer, by a combination of legal reasoning and historical survey, recent judicial and academic writings that question the sovereignty of Parliament, in particular, the notion that the doctrine of the sovereignty of Parliament is an invention of recent origin that may be rejected in favour of deeper and more venerable constitutional principles.
In Australia, judicial activism has largely been confined to review and invalidation of decisions of the executive. Attempts by Parliament to impose practical limits on judicial review, for example, by limiting the jurisdiction of courts other than the High Court to review certain immigration decisions, have been upheld as valid, albeit giving rise to much political debate. Judicial development of the common law, for example, in relation to native title, and the discovery in the Constitution of implied rights, has however, lead to questioning of the proper role of the judicial system in a parliamentary democracy. Criticism of perceived judicial activism in these areas has at times been robust.
Where does ultimate decision-making authority lie? And where should that authority lie? How are controversies involving fundamental moral and political values to be resolved, especially where the people have not, through adoption of a bill of rights, identified particular values and standards and embodied them in a legal instrument for the judiciary to apply? What is the theoretical basis for the doctrine of parliamentary sovereignty? And what is its historical basis?
Goldsworthy addresses, in his second and final chapters, the nature of the doctrine of parliamentary sovereignty and its philosophical underpinnings. Non-specialist legal readers are likely to derive most interest from these chapters. The remaining chapters are devoted to detailed historical analysis of the development of the doctrine of parliamentary sovereignty. Fundamental to this historical analysis is Goldsworthy's thesis that the doctrine of parliamentary sovereignty depends as much on political acceptance as it does on judicial decision. Thus it may be established by consensus among all three branches of government, without ever being laid down in the ratio decidendi of any particular judicial decision. Goldsworthy's historical inquiry therefore draws on historians and the history of political thought as well as traditional legal authority. In this respect he breaks much new ground.
Opinions on the value of the historical analysis will, I think, vary according to the reader's own discipline. For the traditional lawyer, there is much reliance on non-traditional sources. Nevertheless, much analysis is also orthodox, for example, the weight given in the fifteenth century to statutory confirmation of title to the throne (including repeal of previous inconsistent statutes) supports the argument that Parliament possessed authority to dispose of the Crown, a significant step in the development of parliamentary sovereignty.
Nor is the survey confined to sources that support Goldsworthy's ultimate thesis. His survey of the sixteenth century begins with the proposition that at the beginning of the sixteenth century Parliament had not acquired full legislative authority. The reason was to be found, not in the competing authority of the Crown or the judiciary, but in the existence of a rival institution, the papacy. The Reformation Parliament, the Act of Supremacy (1534) and the Act against the Pope's Authority (1536) established the authority of the King in Parliament. The trial of Sir Thomas More for treason was said to establish that the morality of a statute and Parliament's motives in enacting it were not matters justiciable in the court. Numerous contemporary writers are cited as recognising the supreme authority of the King in Parliament. Still unresolved, and much disputed in the seventeenth century until 1689, were the source of that authority and the respective roles of the Crown and the Lords and Commons. The Ship-Money case (1637) suggested limitations on the powers of the Parliament in relation to prerogative powers of the Crown but not long afterwards the duty of judges to obey Parliament was strongly asserted, and accepted by the judges: 'an inferior court cannot control what the Parliament does'.[1] Judges were not seen as guardians of individual liberty. Indeed to the contrary, since judges were appointed and subject to dismissal by the King, judicial review of the validity of statutes could have become a tool of royal absolutism.
The Bill of Rights (1689) is seen as laying the foundations for affirming the ultimate authority of the Parliament. Now the Crown was clearly made subject to statute. The sovereignty of Parliament became one of the 'touchstones' of Whiggism.
Some doubt was raised as to the effect of the Union of Scotland and England. Was the Scottish Parliament truly sovereign. If not, could a non-sovereign Scottish Parliament confer on the new British Parliament an authority with respect to Scotland greater than it itself possessed? Goldsworthy's answer is that the Scottish Act of Union was itself an extraordinary demonstration of the authority of the Parliament that enacted it. It is difficult to conceive of laws more fundamental than those it altered. Australian readers may discern analogy with contemporary debate whether s 122 of the Australian Constitution enables the Australian Parliament to confer on the Parliament of a Territory powers not subject to the constraints or limitations the Constitution imposes on the Australian Parliament (a debate in which Goldsworthy does not engage).
Were there limits to Parliament's authority? After 1689, Parliament's resolution of debate was said to be legally binding. Goldsworthy seeks to show that those who asserted that Parliament's authority was limited were not proposing judicially enforceable limits enforcement of alleged limits, as a last resort, was by rebellion. That is, the people were morally entitled to resist. In the nineteenth century, May wrote that the legislative authority of Parliament was subject to no limits other than those which are incident to all sovereign authority—the willingness of the people to obey, or their power to resist. Yet Goldsworthy goes on to contend that from the seventeenth century until today, mainstream British constitutional thought has held that Parliament is both legally sovereign and subject to customary restraints. A statute violating those restraints could, and still can be, called unconstitutional even though within Parliament's sovereign authority and therefore legally valid. From an Australian perspective, this distinction between legality and constitutionality is at first difficult to understand. In a country with a written constitution, a statute that violates the constitution is unconstitutional and therefore invalid. The difficulty appears to be largely semantic. Goldsworthy uses 'unconstitutional' in the sense in which Australian lawyers use 'constitutional convention'. An 'unconstitutional' statute is one that is contrary to constitutional convention. A sovereign Parliament can, as an attribute of its sovereignty, legislate contrary to constitutional convention.
Goldsworthy's conclusion to his historical survey is that for many centuries there has been a sufficient consensus among all three branches of government in Britain to make the sovereignty of Parliament a rule of recognition in H.L.A. Hart's sense, which the judges by themselves did not create and cannot unilaterally change. Judicial repudiation of that doctrine would amount to an attempt unilaterally to alter that political fact. This would be a dangerous step for the judges to take. The judges cannot justify taking that step on the ground that it would revive a venerable tradition of English law, a golden age of constitutionalism, in which the judiciary enforced limits to the authority of Parliament imposed by common law or natural law. There never was such an age.
Although Goldsworthy purports to deal with parliamentary sovereignty in the United Kingdom, New Zealand and Australia, the book is not written from an Australian perspective. Readers seeking treatment of issues of parliamentary sovereignty in Australia are likely to be disappointed—for example, the only treatment of the question whether State Parliaments can bind themselves as to the procedure (manner) and form of future legislation is a footnote reference to an article by the author.[2] Union Steamship Co of Australia v King [3] is given only cursory treatment (also at p.2), as are the 'implied rights' or 'free speech' cases (pp 3, 278) and the Australia Acts (p.244). His treatment of the nineteenth century dispute in the United Kingdom as to whether the House of Commons or the Court of Queen's Bench had superior jurisdiction to judge the existence and extent of the privileges of the House ignores more recent Australian judicial decisions and writings on the privileges of the Parliament. Possible distinctions based on a written constitution are barely touched on. The possible implications, for an arguably greater constitutional role for the Australian federal judiciary, of the establishment of the High Court as a creature of the Constitution, and the constitutional independence of the federal judiciary, are not considered.
Curiously, Canadian authorities are completely ignored. The United States debate is dealt with from an early historical perspective only. Extensive reference is made to opposition to judicial review. Marbury v Madison[4] does not rate even a footnote reference.
Many readers will be disappointed with the presentation. Unusually for a scholarly legal work, there is no table of cases, the List of References (29 pages) is more than 7 times longer than the Index of Subjects (4 pages) but is not cross referenced to pages in the text. Even the Index of Names (5 pages) is longer. Australian readers searching for treatment of, say, Union Steamship Co of Australia v King,[5] or the 'implied rights' or 'free speech' cases and the Australia Acts are given no assistance by the publisher.
Goldsworthy's writing style is neither elegant nor easy to follow. The text is crammed with copious references to other writers. Often these disrupt rather than enhance the flow of thought. Thus it is not always easy to discern, in between these copious references, Goldsworthy's theme or argument. Although chapters are divided into sections, there is little in the way of introduction or conclusion, for example, to lengthy historical analysis. Moreover, Goldsworthy tends to assume the reader's familiarity with the writings of the many authorities to which he refers. Readers lacking this specialist familiarity will profit less from Goldsworthy's analysis.
Goldsworthy's treatment of Detmold, his one time teacher and mentor, towards the very end of the book, stands in refreshing contrast. For once, Goldsworthy succinctly encapsulates the core of Detmold's argument, that the fundamental law is the decisions of the superior courts because they have self-validating jurisdictional power—the decisions of the judges are legally valid even if thought to be in excess of jurisdiction.[6] For practical purposes (how people are obligated to act) they are the fundamental law[7]. Goldsworthy argues this confuses finality with infallibility. Since the jurisdiction of a supreme court can be limited, such a limiting law is more fundamental than the decision of the court. The more fundamental law is therefore, in Australia, the law of the Constitution, and in Britain, the law of the Parliament. A court must abide by the limits to its jurisdiction and cannot ignore them merely because its decisions will be recognised as valid.[8] Those limits are therefore of crucial practical importance. The court is bound to regard the law that limits its jurisdiction as more fundamental than its own decisions. How can a court's decisions be truly fundamental, asks Goldsworthy, if the court itself is bound to think otherwise.
Detmold's other doctrines, the right of individuals to 'equal respect', and the 'logical status of reason which establishes that the judicial power is the ultimate foundation of a Commonwealth', are quickly disposed of. Statutes are also matters of reason. Both statute law and judicial decisions therefore result from the reasoning of their makers. Both are binding on other officials even if they disagree with that reasoning. Detmold's view that judges can refuse to apply a statute on the ground that its application would be unreasonable is rejected. First, because the court's decision would be inconsistent with the legislature's decision that the statute was a reasonable one to enact. Second, judges do not have legal authority to refuse to apply a statute since both statute law and common law are 'instituted reason' and there is no logical or practical necessity that the instituted reason of judges must be legally superior to the institutional reason of legislators.[9]
Not everyone will be persuaded by the historical survey. Not everyone will accept the legal analysis. Nevertheless, with all its failings, this is a work of major scholarship. It is undoubtedly destined to take its place as a primary, perhaps the primary, reference work for future debate on the doctrine of the sovereignty of parliament.
[*] BA, LLB (Hons), University of Sydney, LLM (ANU), Barrister, Visiting Scholar, Faculty of Law, Australian National University.
[1] J. Goldsworthy, The Sovereignty of Parliament (1999) at 102.
[2] Ibid at p 2.
[3] [1988] HCA 55; (1988) 166 CLR 1.
[4] 5 v.s. [1803] USSC 16; (1 Cranch) 137 (1803)
[5] [1988] HCA 55; (1988) 166 CLR 1.
[6] J. Goldsworthy, above n 1 at 272.
[7] Ibid at 273.
[8] Ibid at 273.
[9] Ibid at pp 274-6