Parliamentary sovereignty

Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty, and is supreme over all other government institutions, including executive 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 written law (in some cases, even a constitution) or by precedent.

Parliamentary sovereignty may be contrasted with the doctrines of separation of powers, which limits the legislature's scope often to general law-making, and judicial review, where laws passed by the legislature may be declared invalid in certain circumstances.

Many states have sovereign legislatures, among which are the United Kingdom,[1] Finland,[2] Israel, the Netherlands,[2] New Zealand,[2] Sweden,[2] Barbados, Jamaica, Papua New Guinea, the Solomon Islands.

United Kingdom

History

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.[3] 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.[4][5] The Bill of Rights was passed the following year which asserted certain rights of Parliament.[6] Furthermore, in 1698 parliament created the Civil List, a financial arrangement that left the monarch reliant of parliament for income.[7][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 1700 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] It is arguable whether the concept of parliamentary supremacy arose from the Acts of Union 1707 or was a doctrine that evolved thereafter.[10] 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 over Ireland 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.[11]

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).

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 actual sovereign state has ever withdrawn from the European Union (except for the withdrawal of the North African Départments of France at Independence to become Algeria, and also of Greenland by Plebiscite), but since the passage of the Treaty of Lisbon in 2009 there is now a defined process for doing so.

Scotland

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.

England and UK generally

Parliamentary supremacy is cited by contemporary legal historians as the reason English law did not develop due process in the American sense.[16] It is also argued to be integral to the way in which England's approach to rights and liberties evolved.[17]

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.[18]

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; for example, the various civil servants who administer laws within government departments may be relied upon to use any loopholes and vague language which exist in a Bill to get around unwanted areas, and the judiciary is likely to purposefully interpret and create precedent for said laws in a similar manner. 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]

Recent developments

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:

  1. The devolution of power to devolved legislatures in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly). All three bodies can pass primary legislation within the areas that have been devolved to them, but their powers nevertheless all stem from the UK Parliament and can be withdrawn unilaterally. The Northern Ireland Assembly, in particular, has been suspended multiple times due to political deadlocks.
  2. The UK's membership of the European Economic Community, later the European Union, from 1973. The EU represents, as the European Court of Justice ruled in 1963 in the case Van Gend en Loos, a "new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields". The UK became part of that legal order, though as UK membership of the EU has been brought about through Acts of Parliament – principally the European Communities Act 1972 – Parliament could, as a matter of UK law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. The European Union Act 2011 reaffirmed that sovereignty lay with the British Parliament, with section 18 stating: "Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act."[22] The Act also requires that a referendum be held when more powers are transferred to the European Union (though this can be repealed with another Act of Parliament). Alternatively, an Act to withdraw from the European Union could be passed in parallel with the withdrawal procedure laid down in Article 50 of the Lisbon Treaty, whereby a Member State would notify the European Council of its intention to secede from the Union and a withdrawal agreement would be negotiated between the Union and the State. The Treaties would cease to be applicable to that State from the date of the agreement or, failing that, within two years of the notification.
  3. Following the case of Thoburn v Sunderland City Council certain statutes are perceived to be protected as Constitutional Statutes. The case involved amendments to the Weights and Measures Act 1985 by the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 pursuant to Directive 80/181/EEC. This stated that Imperial measurements could be displayed so long as the metric measurements were displayed in larger type beside them. Thoburn was convicted for only displaying Imperial measurements. In his defence he argued that allowing even limited use of Imperial measurements was inconsistent with the European directive and therefore in contravention of Section 2(2) of the European Communities Act 1972, and that the relevant section of the 1972 Act had therefore been implicitly repealed. However, the judgement by Lord Justice Laws held that certain statutes of constitutional importance, including Magna Carta and the European Communities Act 1972, could not be repealed by implied repeal. The case also introduces the concept of a 'hierarchy of acts', which is used in other European countries,[23] to English constitutional law. However if Parliament did make its intention to overrule any statute express then any statute can be repealed, and so sovereignty is preserved.
  4. The enactment of the Human Rights Act 1998 which incorporates part of the European Convention on Human Rights into domestic law. The Act gives UK courts the power to issue a declaration of incompatibility where they believe that the terms of an Act of Parliament are in contravention of the rights guaranteed by the Human Rights Act. The effect of the declaration is not to annul the contravening Act but to send a signal to Parliament which may then choose to amend the offending provision. This does not endanger Parliamentary sovereignty because Parliament may choose not to amend the offending provisions. As with the UK's membership of the European Union, the principle of parliamentary supremacy means that Parliament can at any time vote to repeal the Human Rights Act, and indeed the UK's ratification of the Convention itself.

However, Parliament may theoretically withdraw from commitments it has made or repeal any of the constraints it has imposed on its ability to legislate.

Australia

"In Australia, the idea of Parliamentary Sovereignty must be understood in the context of the rigid limits and boundaries imposed by the federal Constitution, and to some extent by the State Constitutions as well."[24]

The Constitution confers the power to make laws on the Commonwealth Parliament. However, the power of the Commonwealth Parliament to make laws is limited to particular subjects. S128 of Federal Constitution prescribed the mode to alter the constitution, which further restricted the power of the Commonwealth Parliament.

The State Parliament Power is approximate to Dicey's conception of Parliamentary sovereignty [25]

There are procedural limitation, which is the entrenchment of restrictive legislative procedure. s6 of Australia Act states laws concerning the "constitution, power or procedure of the parliament" is invalid unless it passed in the manner and form prescribed by the legislation made by the Parliament.[26] However, restriction of this kind is not inconsistent with parliamentary sovereignty.

The constitutional allocation of powers between federal(commonwealth) and state is similar to that in the United States. The supremacy clause (s109 of the Constitution) gives commonwealth laws precedent over state laws. So the state law-making power is constrained where Commonwealth has concurrent law-making power. Furthermore, regarding to the subject matters which Commonwealth has concurrent legislative power, Commonwealth parliament can 'cover the field', which means Commonwealth can by express words or implication excludes the operations of state laws.[27]

Commonwealth has exclusive legislative power over the subject matters listed in ss 52, 92 of the constitution, which means state cannot make laws in these areas.

Also under s96 of the Constitution, Commonwealth can use financial assistance to entice states to refrain from exercising their legislative powers, such as refrain from collecting income tax [28]

In summary, neither states nor commonwealth in Australia has true parliamentary sovereignty. Commonwealth parliament is created by the constitution, and only has enumerated powers. States legislative power is inherent, but restrained by federal constitution, state constitution, and commonwealth powers.

Canadian provinces

Legislatures of Canadian provinces are sovereign within matters that are not delegated to the federal government. Provincial legislatures can make and modify their own codified constitutions by simple majority, as British Columbia did. Other provinces have uncodified constitutions like New Zealand and the United Kingdom.

Finland

According to the constitution of Finland sovereign power lies with the people, represented by the parliament.[29] 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.[30]

India

In India, the world's largest democracy, parliamentary sovereignty is subject to the Constitution of India, which includes judicial review.[31]

Italy

The sovereignty of Parliament in Italy is expressed in 'autodichia', which involves subtracting the ordinary courts of all acts performed within the Chambers.[32] The choice to set off some acts to the Presidents of the Parliament has been criticized as an attempt to exclude them from judicial review,[33] even when pertaining to individual rights:[34] this has given rise to some conflicts between the judiciary and Parliament, brought to the Constitutional Court,[35] who gave useful elements to restrict the legal definition.[36]

New Zealand

The concept of parliamentary sovereignty in New Zealand is derived from that in the United Kingdom:

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.[37]

In recent years, some legal experts have questioned parliamentary sovereignty.[38] Moreover, a few laws and conventions exist that limit the exercise of parliamentary sovereignty. For example, the maximum term of Parliament and some other matters relating to the electoral system may only be altered by a parliamentary supermajority or by a majority in a popular referendum.

See also

References

  1. ↑ "Parliamentary sovereignty". UK Parliament. Retrieved 17 August 2014.
  2. ↑ 2.0 2.1 2.2 2.3 Oliver, Dawn (2 April 2013). "Parliamentary Sovereignty in Comparative Perspective". UK Constitutional Law Association Blog. Retrieved 17 August 2014.
  3. ↑ Pocock, J.G.A The Ancient Constitution and the Feudal Law Cambridge University Press (1987) pp234-235
  4. ↑ Harris, Tim Revolution: The Great Crisis of the British Monarchy 1685–1720 Allen Lane (2006) p349
  5. ↑ "The Convention and Bill of Rights". UK Parliament. Retrieved 2 November 2014.
  6. ↑ "Constitutionalism: America & Beyond". Bureau of International Information Programs (IIP), U.S. Department of State. Retrieved 30 October 2014. The earliest, and perhaps greatest, victory for liberalism was achieved in England. The rising commercial class that had supported the Tudor monarchy in the 16th century led the revolutionary battle in the 17th, and succeeded in establishing the supremacy of Parliament and, eventually, of the House of Commons. What emerged as the distinctive feature of modern constitutionalism was not the insistence on the idea that the king is subject to law (although this concept is an essential attribute of all constitutionalism). This notion was already well established in the Middle Ages. What was distinctive was the establishment of effective means of political control whereby the rule of law might be enforced. Modern constitutionalism was born with the political requirement that representative government depended upon the consent of citizen subjects.... However, as can be seen through provisions in the 1689 Bill of Rights, the English Revolution was fought not just to protect the rights of property (in the narrow sense) but to establish those liberties which liberals believed essential to human dignity and moral worth. The "rights of man" enumerated in the English Bill of Rights gradually were proclaimed beyond the boundaries of England, notably in the American Declaration of Independence of 1776 and in the French Declaration of the Rights of Man in 1789.
  7. ↑ "The Financial Revolution". Parliament of the United Kingdom. Retrieved 14 March 2015.
  8. ↑ "Rise of Parliament". The National Archives. Retrieved 2010-08-22.
  9. ↑ Harris, Tim Revolution: The Great Crisis of the British Monarchy 1685–1720 Allen Lane (2006) p498
  10. ↑ Alder, John Constitutional and Administrative Law 7th edition Palgrave Macmillan (2009) p167
  11. ↑ W. Ivor Jennings The Law and the Constitution (London: University of London Press, 1st ed., 1933); R.T.E. Latham The Law and the Commonwealth (Oxford, Oxford University Press, 1949); Geoffrey Marshall, Constitutional Theory (Oxford, Oxford University Press, 1971); Jackson v. Attorney General [2005] UKHL 56 at [81] per Lord Steyn; Harris v. Minister of the Interior 1952 (2) SA 428(A).
  12. ↑ Alder, John Constitutional and Administrative Law 7th edition Palgrave Macmillan (2009) p173
  13. ↑ Berry, Elspeth and Hargreaves, Sylvia European Union law Oxford University Press 2nd edition (2007) p39 "The national courts are therefore obliged to give effect to those Treaty obligations, even if this means disapplying national law."
  14. ↑ Turpin, Colin & Tomkins, Adam British government and the constitution: text and materials Cambridge University Press (2007) p 335
  15. ↑ Johnson, Simon (16 April 2009). "Cross-border row rages over SNP blocking new nuclear power stations". The Daily Telegraph (London). Retrieved 8 September 2010.
  16. ↑ John V. Orth, Due Process of Law: A Brief History (Lawrence, KS: University Press of Kansas, 2003), 28–31.
  17. ↑ Lester, Anthony; Oliver, Dawn (1997). Constitutional Law and Human Rights. London: Butterworths. ISBN 0-406895-11-2.
  18. ↑ [2005] UKHL 56 [9](Lord Bingham).
  19. ↑ [1969] 1 A.C. 645, 723 (Lord Reid).
  20. ↑ Taylor v. New Zealand Poultry Board [1984] 1 NZLR 394 at 398 per Cooke J; Sir Robin Cooke "Fundamentals" [1988] New Zealand Law Journal 158; Lord Woolf "Droit Public – English Style" [1995] Public Law 72; Sir John Laws "Law and Democracy" [1995] Public Law 72; Sir Stephen Sedley "The Constitution in the Twenty-First Century" in Lord Nolan and Sir Stephen Sedley (eds.) The Making and Remaking of the British Constitution (London, Blackstone Press, 1997); TRS Allan Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford, Clarendon Press, 1993); Dame Sian Elias "Sovereignty in the 21st Century: Another Spin on the Merry-go-round" (2003) 14 Public Law Review 148; Sir Edmund Thomas "The Relationship of Parliament and the Courts" (2000) 5 Victoria University of Wellington Law Review 9; Philip Joseph "Parliament, the Courts, and the Collaborative Enterprise" (2004) 15 King's College Law Journal 321; Jackson v. Attorney General [2005] UKHL 56 at [102] per Lord Steyn, at [104] per Lord Hope of Craighead, at [159] per Baroness Hale of Richmond.
  21. ↑ Lord Bingham of Cornhill The Rule of Law (London, Allen Lane, 2010); Jeffrey Goldsworthy The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford University Press, 1999).
  22. ↑ European Union Act 2011
  23. ↑ European Commission website
  24. ↑ Blackshield and Williams Australian Constitutional Law and Theory, 5th ed, 2010
  25. ↑ AV Dicey, Introduction to the Study of the Law of the Constitution. 10th Ed 1959
  26. ↑ Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394
  27. ↑ New South Wales v Commonwealth (WorkChoices Case)(2006) 231 ALR 1
  28. ↑ South Australia v Commonwealth (1942) 65 CLR 373 ("the First Uniform Tax case")
  29. ↑ http://web.eduskunta.fi/Resource.phx/parliament/relatedinformation/constitution.htx Constitution of England. Retrieved on 2009-01-27.
  30. ↑ Parliamentarism-thisisFINLAND, Ministry for Foreign Affairs.
  31. ↑ "All-party meet vows to uphold Parliament supremacy". The New Indian Express. 2 August 2013. Retrieved 18 August 2013.
  32. ↑ But also by other constitutional organs and Regional Councils.
  33. ↑ (Italian).
  34. ↑ (Italian) Gli atti amministrativi delle Camere non possono modificare la legge.
  35. ↑ (Italian) L’autodichia parlamentare di nuovo in Corte costituzionale.
  36. ↑ (Italian) Il diritto pretorio dell’autodichia, tra resistenze e desistenze.
  37. ↑ Rothmans of Pall Mall (NZ) Ltd v A-G [1991] 2 NZLR 323 at 330 (HC).
  38. ↑ Taylor v. New Zealand Poultry Board [1984] 1 NZLR 394 at 398 per Cooke J; Sir Robin Cooke "Fundamentals" [1988] New Zealand Law Journal 158; Dame Sian Elias "Sovereignty in the 21st Century: Another Spin on the Merry-go-round" (2003) 14 Public Law Review 148; Sir Edmund Thomas "The Relationship of Parliament and the Courts" (2000) 5 Victoria University of Wellington Law Review 9; Philip Joseph "Parliament, the Courts, and the Collaborative Enterprise" (2004) 15 King's College Law Journal 321.

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