Parliamentary sovereignty: Wikis

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Parliamentary sovereignty, sovereignty of Parliament, 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[1], Finland[citation needed] and New Zealand.

Contents

Finland

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 five sixths majority, or by a simple majority in two consecutive parliaments. 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 However, it can be repealed in the same manner as an ordinary law.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, of which the latter must rely on the confidence of the 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].

New Zealand

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]

United Kingdom

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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. 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. Parliament is not bound by its predecessor.

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 a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
  • A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.

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).[5]

Scotland

After the Act of Union 1707 there remains ambiguity about whether the principle applies in Scotland. It has been suggested that prior to the Union parliamentary sovereignty was a principle only of English, not 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. This therefore remains the subject of debate – with some holding the view that the pre-Union Parliament of Scotland was sovereign, and others taking the position that sovereignty has always rested with the Scottish people.

The Establishment of the Scottish Parliament has meant that premise of sovereignty is further challenged. For example, nuclear power is not within its competence, but it successfully blocked the wishes of the UK government to establish new nuclear power stations in Scotland. It seems likely that the Scottish Parliament will seek to extend its competence (attempts have already been made by the SNP, which has proposed an independence referendum), and thus alter the notion of Parliamentary sovereignty in the UK as a whole.

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

The doctrine of parliamentary supremacy, in English Law, 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.[6] 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".

Recent developments

Parliamentary sovereignty prevents judicial review of primary legislation passed by Parliament. However, in the late 20th and early 21st centuries, the notion of parliamentary supremacy was modified under the influence of five principal sources:

  1. The devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly). All three assemblies can pass primary legislation within the areas that have been devolved to them. As the system remains devolved and not federal, the powers of these assemblies stems from the UK Parliament and can be suspended.
  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 – there is in principle the possibility that 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.
  3. Following the case of Thoburn v Sunderland City Council certain statutes are 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 in contravention of the relevant directive and therefore in contravention of Section 2(2) of the European Communities Act 1972. This would have invoked the doctrine of implied repeal which is essential to the doctrine of Parliamentary Sovereignty. In his judgment, 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. As such, this has slightly limited Parliament's sovereignty.
  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. 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.
  5. The increasing use of referendums. Although the result of a referendum is in no way binding on Parliament unless it has previously agreed that this will be case, in practice there will be considerable pressure on Parliament from the electorate to take the result into account.

However, Parliament may withdraw from the most of the commitments it has made or repeal any of the constraints it has imposed on its ability to legislate. Thus, Parliament theoretically remains almost entirely sovereign. The qualifier "almost" is provided because in 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 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."[7]

See also

References

  1. ^ UK principle: no Parliament is bound by the acts of its predecessors
  2. ^ http://web.eduskunta.fi/Resource.phx/parliament/relatedinformation/constitution.htx Constitution of Finland. Retrieved on 2009-01-27.
  3. ^ Parliamentarism-thisisFINLAND, Ministry for Foreign Affairs.
  4. ^ Rothmans of Pall Mall (NZ) Ltd v A-G [1991] 2 NZLR 323 at 330 (HC).
  5. ^ John V. Orth, Due Process of Law: A Brief History (Lawrence, KS: University Press of Kansas, 2003), 28-31.
  6. ^ http://politics.guardian.co.uk/constitution/story/0,,1162591,00.html
  7. ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.

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