Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive (government) or judicial bodies. The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by precedent. Parliamentary sovereignty is to be contrasted with the concept of popular sovereignty, where the people are sovereign. Localities in which the legislature is sovereign are Finland, Israel, the United Kingdom,[1] New Zealand, Jamaica, Barbados, Papua New Guinea, and the Solomon Islands, among other nations.
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According to the constitution of Finland sovereign power lies with the people, represented by the parliament.[2] As the highest organ of government the parliament holds supreme legislative power and can override a presidential veto and alter the constitution. There is no constitutional court and the supreme court does not have an explicit right to declare a law unconstitutional.
By principle, the constitutionality of laws in Finland is verified by a simple vote in the parliament. However, the Constitutional Law Committee of the parliament reviews any doubtful bills and recommends changes, if needed. In practice, the Constitutional Law Committee fulfils the duties of a constitutional court. In addition to preview by the Constitutional Law Committee, all Finnish courts of law have the obligation to give precedence to the constitution when there is an obvious conflict between the Constitution and a regular law.
The power to alter and amend the constitution is vested with the parliament, requiring approval either by a two thirds majority in a single parliament if the proposed alteration is first declared to be urgent by a five sixths majority of the same parliament, or by a slower procedure of first passing the amendment by a simple majority in the then current parliament and then passing the amendment by a two thirds majority in the following parliament that convenes after a general election. A Finnish peculiarity is that the parliament can make exceptions to the constitution in ordinary laws that are enacted in the same procedure as constitutional amendments. An example of such a law is the State of Preparedness Act which gives the Council of State certain exceptional powers in cases of national emergency. As these powers, which correspond to U.S. executive orders, affect constitutional basic rights, the law was enacted in the same manner as a constitutional amendment. However, it can be repealed in the same manner as an ordinary law.
Executive power is shared by the President of the Republic and the cabinet. The latter must rely on the confidence of parliament. From the independence of Finland in 1917 up to the constitutional reform of 1999, the president held considerable executive powers, and in particular was able to call a re-election of the parliament at will. In order to strengthen the role of the parliament as the highest organ of government, the constitutional reform constrained most of the presidential powers to be exercised only on the advice of the cabinet.[3]
The concept of parliamentary sovereignty in New Zealand is derived from that in the United Kingdom but differs in that New Zealand has no devolved institutions and supra-national obligations. New Zealand's unitary and insular status avoids any comparable limitations on legislative power:
The constitutional position in New Zealand... is clear and unambiguous. Parliament is supreme and the function of the courts is to interpret the law as laid down by Parliament. The courts do not have a power to consider the validity of properly enacted laws.[4]
However, the sovereignty of Parliament has been questioned in recent times.[5]
Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.—A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)
During the 17th century the idea grew in England that parliament (House of Lords and House of Commons) shared in the sovereignty, based on an entirely erroneous notion of the history of parliament.[6] It was not until the changing of the Coronation Oath in the Coronation Oath Act 1688 as part of the Glorious Revolution that Parliament was recognised as part of the constitutional structure, with laws being considered to emanate from parliament and not just the King.[7] It is arguable whether the concept of parliamentary supremacy arose from the Acts of Union 1707 or was a doctrine that evolved thereafter.[8] After 1689 English parliamentary supremacy began to be seen in the relation of the English parliament to those of Scotland and Ireland. The Act of Settlement 1701 made a presumption upon Scotland: the Scots retaliated with the Act of Security 1704, which was countered by the Alien Act 1705: the issue was settled by the Union of English and Scottish parliaments in 1707 which created a new British parliament, though "in essence it was just an extension of the English parliament".[9] The autonomy of the Irish parliament also came under attack and the Declaratory Act 1720 made the Irish parliament a dependency. The so-called Constitution of 1782 removed British parliamentary supremacy for a short period but then the Irish parliament was merged with Britain's in the Acts of Union 1801.
The doctrine of parliamentary supremacy may be summarised in three points:
Some scholars and judges have questioned the traditional view that Parliament cannot bind itself, arguing that it can impose procedural (or "manner and form") restrictions on itself, since the legislature must be constituted and regulated by legal rules.[10]
The notion of parliamentary sovereignty began to be challenged with the Parliament Act 1911 which changed the nature of what was meant by parliament, as Dicey regretfully noted in the Introduction to the 8th edition of his Introduction to the Study of the Law of the Constitution (1915) , but that while the reality was now Cabinet and political party were supreme (pp lxxii-lxxiv), in law parliament was still sovereign albeit that "the share of sovereignty" of the Commons had increased (p xlii).
Parliamentary sovereignty was further undermined by the Irish Free State Constitution Act 1922, which effectively recognised the concept of consent rather than the law as the source of legitimacy, and the United Nations Act 1946 which bound the UK to an external organisation and restricted parliament's absolute sovereignty. In theory Parliament could repeal the Act and withdraw from the United Nations.
Parliament also renounced its sovereignty over the legislatures of former dominions and colonies in the British Empire. Following the Balfour Declaration, the Statute of Westminster 1931 established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, and provided that Acts passed by the UK Parliament would not apply in the dominions without a dominion's express consent. It is difficult to see how the UK could later resile from that position. By way of further example, the UK Parliament passed the Canada Act 1982 which stated that the UK Parliament would no longer be able to amend the Canadian constitution. If the UK parliament were to repeal or amend the Canada Act 1982, it would be unenforceable as Canada is no longer subject to UK sovereignty."[11] However, such renunciatons do not affect the concept of parliamentary sovereignty.
European law does not recognise the British concept of parliamentary supremacy.[12] The UK courts currently recognize the supremacy of EU law on those subjects where the EU can legislate.[13][14] However, this supremacy conceptually derives from the European Communities Act 1972 and its successors, which could in theory be repealed by a future parliament. No sovereign state has ever left the EU, but since the passage of the Treaty of Lisbon in 2009 there is now a defined process for doing so.
Some jurists have suggested that, following the Act of Union 1707, the principle of parliamentary sovereignty may not apply in Scotland. Although no Scottish court has yet openly questioned the validity of an Act of Parliament, certain judges have raised the possibility. Thus, in MacCormick v. Lord Advocate, the Lord President (Lord Cooper) stated that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law", and that legislation contrary to the Act of Union would not necessarily be regarded as constitutionally valid. Also, in Gibson v Lord Advocate, Lord Keith was circumspect about how Scottish courts would deal with an Act which would substantially alter or negate the essential provisions of the 1707 Act, such as the abolition of the Court of Session or the Church of Scotland or the substitution of English law for Scots law.
The establishment of the Scottish Parliament has meant that area of parliamentary supremacy is redefined. For example, nuclear power is not within its competence, but the Scottish government successfully blocked the wishes of the UK government to establish new nuclear power stations in Scotland using control over planning applications which is devolved.[15] While it remains theoretically possible to dissolve the Scottish Parliament or legislate without its consent in relation to Scotland, in practice such a move would be politically difficult.
Parliamentary supremacy is blamed by contemporary legal historians for the failure of English law to develop due process in the American sense (that is, a mechanism for protecting the human rights of individuals from being arbitrarily infringed by the government).[16]
The doctrine of parliamentary supremacy, in English Law, has been upheld in 2005 by Lord Bingham in the case of R (Jackson) v Attorney General:
The bedrock of the British Constitution is … the Supremacy of the Crown in Parliament.[17]
Such a theory might not, however, work in practice. In 2004, the Government sought to pass the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which contained a comprehensive "ouster clause", which would have excluded judicial review of decisions on applications for asylum. There was uproar among judges and lawyers, and the Lord Chief Justice, Lord Woolf, went so far as to suggest that if the clause were to become law, the courts would simply refuse to apply it.[18] With a constitutional crisis looming, the government backed down, and the clause became law in a much-diluted form. It should be noted that following the case of Factortame, which involved an ouster clause in the Merchant Shipping Act 1985, the court can obfuscate such ouster clauses by basing decisions on the "will of Parliament".
However there is a distinction to be made between legal sovereignty and political sovereignty. Parliament is not politically sovereign, which means that if Parliament does pass unpopular or oppressive legislation, then it may not be applied in practice. However this does not necessarily mean that Parliament is not legally sovereign. It is argued that nonetheless Parliament can legally pass any legislation it wishes. This point is made clearly by Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645:
It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts would not hold the Act of Parliament invalid.'[19]
In recent years some judges and scholars in Britain and New Zealand have questioned the traditional view that parliament is sovereign.[20] Others, however, have rejected these arguments.[21] Various constitutional changes in the United Kingdom have influenced the renewed debate about parliamentary sovereignty:
However, Parliament may theoretically withdraw from commitments it has made or repeal any of the constraints it has imposed on its ability to legislate.