parliamentary sovereignty

 

Parliamentary sovereignty, parliamentary supremacy, or legislative supremacy is a concept in constitutional law that applies to some parliamentary democracies. Under parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions (including any executive or judicial bodies as they may exist). Furthermore, it implies that the legislative body may change or repeal any prior legislative acts. Parliamentary sovereignty contrasts with notions of judicial review, where a court may overturn legislation deemed unconstitutional. Specific instances of parliamentary sovereignty exist in the United Kingdom and New Zealand. As a philosophical and jurisprudential idea, it has problems similar to the omnipotence paradox.

Finland

The constitution of Finland and its place in the judicial system are unusual in that there is no constitutional court and the supreme court does not have an explicit right to declare a law unconstitutional. In 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.

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 However, it can be repealed in the same manner as an ordinary law. 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.

New Zealand

The concept of parliamentary soveriegnty in New Zealand is derived from that in the United Kingdom.

United Kingdom

History

The origins of the principle of parliamentary sovereignty are controversial. Some claim that in England it originated in the early 16th Century, when the parliament asserted the supremacy of statute over the Church. Others argue that originated in the 17th and 18th centuries when Parliament asserted the right to name and depose a monarch. In 1648, Philip Herbert, the 4th Earl of Pembroke, famously commented while a member of the House of Lords, that "Parliament can do anything but make a man a woman and a woman a man."

Another classic exposition was that of Albert Dicey, in his book Introduction to the Study of the Law of the Constitution (1885):

"Parliament... has... 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."

This is in contrast with the de facto right an English jury has had since at least the trial of William Penn in 1670 to judge the law according to its conscience and if necessary return a verdict contrary to the law prescribed by parliament in what is known as a perverse verdict (see jury nullification). A similar right was established in Scots law after the trial of Carnegie of Finhaven in 1728 where the jury brought in a Not guilty verdict instead of finding the accused Proven or Not proven according to the law.

The doctrine of parliamentary supremacy may be summarised in three points:

• Parliament can make law concerning anything.
• No Parliament can bind its successor (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
• No body except Parliament can change or reverse a law passed by Parliament.

After the Act of Union of 1707, there was some ambiguity about whether the principle applied in Scotland. It has been suggested that, prior to the Union, parliamentary sovereignty was a principle only of English law, not of Scottish law. Since the Act of Union guaranteed the continuity of the Scottish legal system, some members of the Scottish judiciary maintained the right in theory to rule an Act of Parliament inadmissible. One clear statement of this from the year 1953 was in Lord Cooper's judgment in the case MacCormick v. Lord Advocate. The issue has never been tested, as no Scottish court since 1707 has actually attempted to make such a ruling. It is now clear that the pre-Union Scottish Parliament was sovereign: see Julian Goodare, "The Government of Scotland 1560-1625" (OUP, 2004), esp. ch.3, and "State and Society in Early Modern Scotland" (OUP, 1999), esp. ch.1, confirming Jeffrey Goldsworthy, "The Sovereignty of Parliament, History and Philosophy" (OUP, 1999), 165-69.

The doctrine of parliamentary supremacy was upheld 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."

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 [1]. With a constitutional crisis looming, the government backed down, and the clause became law in a much-diluted form.

Recent developments

Parliamentary sovereignty prevents judicial review of primary legislation passed by Parliament. However, in the late 20th and early 21st centuries, the idea of parliamentary supremacy underwent erosion in practice from four directions:

• First, the devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly). The Scottish Parliament and Northern Ireland Assembly are both able to pass primary legislation within the areas that have been devolved to them. The Welsh Assembly can only pass secondary legislation (although this is to change by May 2007 [2]). As the system remainds devolved and not federal, the powers of these assemblies stems from the UK Parliament and can be suspended, as has happened with the Northern Irish case. However, this seems unlikely to happen in Scotland or Wales, as such a decision would (currently) be highly unpopular with the electorate in both places.

• Secondly, the institutions of the European Union, in particular the European Court of Justice (ECJ) which asserts the power to exercise judicial review over UK law. In this situation, an adverse finding by the ECJ that a UK law is inconsistent with the EC Treaties automatically annuls the law, since the European Communities Act 1972 ("ECA") provides that European Community law is supreme in the United Kingdom. The first example of this in relation to a statute, the Merchant Shipping Act 1988, was the Factortame case. The ECA has been thought of as a 'constitutional statute'. In the case of Thoburn v Sunderland City Council the Weights and Measures Act 1985 was held not to implicitly repeal the ECA. This has been argued to compromise the effect of parliamentary sovereignty, as the ECA must be expressly repealed in order to be negated by subsequent incompatible legislation.

• Thirdly, the European Convention on Human Rights and the incorporation by the Human Rights Act 1998 of the European Convention a finding of a breach of Convention rights by the ECHR does not automatically annul the law: in practice, the Government is bound to implement the ECHR's decisions. The Human Rights Act includes a mechanism under which British courts can declare an Act of Parliament to be in violation of the Convention by making a declaration of incompatibility. This power, like that of the ECHR, does not automatically annul the law. Where a declaration of incompatibility has been made, the Government is able to use an accelerated procedure to enact a bill to repeal the offending law. However, the UK Parliament could still vote to withdraw from the convention, as has been suggested by some British newspapers, and backbench Conservative MPs.

• Finally, the increasing use of referendums. In reality, a referendum means that the decision whether to pass law is made by the electorate, not Parliament. In the final analysis, Parliament could still reverse a decision made by referendum, but this seems unlikely ever to happen.

However, in each case, the laws have been structured so that there is no theoretical erosion of parliamentary supremacy. Parliament has the power to abolish or overrule any of the devolved legislatures at its pleasure, although it would be unlikely to do so. The European and British Courts have the authority to declare incompatibility or to annul a law only because of an Act of Parliament, the European Communities Act 1972 which can be repealed by Parliament. Thus, Parliament theoretically remains (almost) entirely sovereign. The qualifier "almost" is provided because in the 1921, after a century of dispute, Parliament passed the Church of Scotland Act 1921 which finally agreed that it does not have sovereignty over the Church of Scotland, the established church in Scotland.

There is a concept in political science of 'legal' and 'political' sovereignty. It can be argued that legal sovereignty has not been lost, because Parliament still retains all its theoretical powers. There are no legal limits on Parliament's sovereignty. However, as it is highly unlikely that the UK would repeal the European Communities Act and leave the EU, and it is unlikely the devolved legislature would be abolished, there are significant political limits on the sovereignty of Parliament. Nevertheless, it remains the case that the UK Parliament could do so without seeking the mutual consent of the EU or the devolved legislatures, as it did with the abolition of the Parliament of Northern Ireland in 1972, and that if it did, these repeals would be legally and politically binding.

This stands in contrast to the Acts of Parliament which have been used to grant independence from the UK to 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 have resiled from that position later. 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.

See also

• Parliament of the United Kingdom
• Factortame case
• List of democracy and elections-related topics

External link

• Legal challenges to Parliamentary sovereignty

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