Parliamentary Sovereignty: Contemporary Debates by Jeffrey Goldsworthy

Author:Jeffrey Goldsworthy
Language: eng
Format: mobi, pdf
Tags: Law, Constitutional Law
ISBN: 9780511781490
Publisher: Cambridge University Press
Published: 2010-10-04T18:30:00+00:00

Cambridge Books Online

http://ebooks.cambridge.org/

Parliamentary Sovereignty

Contemporary Debates

Jeffrey Goldsworthy

Book DOI: http://dx.doi.org/10.1017/CBO9780511781490

Online ISBN: 9780511781490

Hardback ISBN: 9780521884723

Paperback ISBN: 9780521140195

Chapter

7 - Requirements as to procedure or form for legislating pp. 174-201

Chapter DOI: http://dx.doi.org/10.1017/CBO9780511781490.008

Cambridge University Press

7

Requirements as to procedure or form

for legislating

I Introduction

One of the most important questions not settled by the doctrine of par-

liamentary sovereignty is whether, and how, Parliament can make the

legal validity of future legislation depend on compliance with statutory

requirements as to procedure or form. 1 A requirement as to proced-

ure is a requirement that Parliament follow a particular procedure in

order to enact legislation of a certain kind. A requirement as to form is

a requirement that such legislation take or include some particular form

(for example, a particular form of words). Such requirements might

be designed to protect important legislation from inadvertent or ill-

considered amendment or repeal, by prompting more careful or extensive

deliberation within Parliament than is required to enact ordinary legis-

lation. Th

ey might also serve other purposes, such as: (a) to ensure that a

bill likely to be controversial is brought to public attention; (b) in the case

of requirements as to form, to ensure that Parliament expresses its inten-

tions with unmistakable clarity in order to avoid subsequent misunder-

standings; or (c) to diff erentiate between the respective functions of the

two Houses in a bicameral system.

In this chapter I will argue that legally binding and judicially enforce-

able requirements as to procedure or form are consistent with parlia-

mentary sovereignty, provided that they do not control or restrict the

substantive content of legislation, or make it so diffi

cult for Parliament

to legislate that its power to do so is diminished. Th

e second qualifi -

cation, admittedly, gives rise to questions of degree. But provided that

these qualifi cations are satisfi ed, such requirements are consistent with

Parliament retaining full, continuing power to change the substance of

the law however and whenever it sees fi t.

1 In this chapter the word ‘Parliament’ will be used to refer not only to the United Kingdom

Parliament, but to any Parliament with respect to which the questions under discussion

might arise.

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Requirements as to procedure for legislating

175

My argument will diff er in several respects from those put by propon-

ents of the so-called ‘new view’ of parliamentary sovereignty, such as

W. Ivor Jennings , Richard Latham and R.F.V. Heuston. First, I will not rely

on Jennings’ idea that (a) the common law is the source of Parliament’s

legislative authority and of the existing ‘manner and form’ requirements

that govern its exercise; and (b) Parliament can change the common law,

including these requirements. 2 Secondly, I will not rely on Latham’s idea

that the ultimate grundnorm of the British constitution is ‘simply the sum

of those principles which command the ultimate allegiance of the courts’. 3

Th

irdly, I will not rely on Commonwealth cases such as Trethowan v.

Attorney-General (NSW), 4 which Jennings, Latham and Heuston pressed

into service as authorities for Parliament having power to change ‘man-

ner and form’ requirements. 5 Th

ey paid insuffi

cient attention to the need

to ensure that changes to such requirements do not diminish Parliament’s

continuing sovereign power.

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