What Is Parliamentary Sovereignty Essay

This essay examines the influence of the incorporation of the Lisbon Treaty to the UK law on one of the fundamental principles of the UK constitutional system – the doctrine of parliamentary sovereignty (also called supremacy). The essay is divided in three main sections. The first explores the doctrine of parliamentary sovereignty and defines its meaning. Then it focuses on the accession of the UK to the European Communities in 1973 and its impact on the principle. Finally, the British regulations incorporating the Lisbon Treaty to the UK law are analysed.

The doctrine of parliamentary sovereignty (or supremacy) is one of the fundamental principles of the constitution of the United Kingdom. For some academics it is even the most important one. It is the doctrine of parliamentary sovereignty which explains why there is no codified constitution in the UK. If British Parliament is sovereign, then the constitution and law is what the Parliament enacts. The doctrine was first described by academics in the 19th century. However, in the post-war UK history, especially the latest history, the principle of parliamentary sovereignty has been put under strain as a result of some of the constitutional reforms enacted by Labour governments in 1970s and at the turn of the 20th century. Going back to 1970s the major constitutional implications had the British entry into the European Communities.

The purpose of this essay is to analyse the impact of incorporating the Lisbon Treaty to the UK legal system on the doctrine of parliamentary sovereignty. Therefore, the first section defines and explores the constitutional principle of parliamentary sovereignty; the second describes in short the challenges for the doctrine caused by the accession of the UK to the European Communities; finally, before summarising and concluding with some future reflections, the essay focuses on the incorporation of the Lisbon Treaty to the British legal system and its impact on the doctrine. All the other reforms which placed the doctrine under strain, especially those enacted by Tony Blair’s government in late 1990s and early 2000s, are intentionally omitted, because they go beyond the aim of the essay and have little influence on the final deductions.

The parliamentary sovereignty

The British doctrine of parliamentary sovereignty is a very complex one. Therefore, it is essential to explain in the first place the meaning of basic terms such as ‘sovereign’ and ‘sovereignty’, and then the concept of ‘parliamentary sovereignty’. According to Merriam-Webster Dictionary a term ‘sovereign’ refers to a person “that exercises supreme authority within a limited sphere”. Originally this term denoted a monarch or a ruler. However, the meaning of ‘sovereign’ evolved in the Age of Enlightenment, when philosophers like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau elaborated the ‘social contract’ theory. According to this theory the people were considered to be the legitimate sovereign, but they contracted their sovereignty to a ruler in return for his maintaining their safety. Hence, if the ruler failed to do this, the people were released from their obligation to obey him. According to the Penguin Dictionary of Politics (Robertson, 1986: 305) ‘sovereignty’:

“means the right to own and control some area of the world. It has nowadays nothing to do with monarchy […]. Its basic meaning is legitimate rule, as opposed to actual power.”

In democracies the understanding of the sovereignty is often connected with the rule of the people, thus one can talk about the sovereignty of the people. Although these two terms defined in that way are quite easy to understand, problems arise when an institution is designated as a sovereign instead of an individual or the people. This is because an institution such as parliament needs to be precisely defined. It is necessary to specify rules of working, nominating members and determining what is to count as a correct procedure or valid enactment. This view has been supported in the work of Bogdanor (2009: 280). He also states that “Parliament is sovereign only when it acts in a certain manner prescribed by the rules” (Bogdanor 2009: 280–281). But what does it mean that Parliament is sovereign?

Probably the first person who described the sovereignty of Parliament as one of the fundamental features of the constitution of the UK was a British constitutional lawyer Albert Venn Dicey. In his book, An Introduction to the Study of the Law of the Constitution, Dicey (1959: 40) explains that the principle of parliamentary sovereignty means that Parliament has:

“the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament”

The first implication of Dicey’s definition is that the courts cannot overrule the legislation of Parliament. The second implication is that no Parliament of the day can pass laws that future Parliaments cannot change. For Dicey (1959: 39) the doctrine of parliamentary sovereignty was “from a legal point of view the dominant characteristic of our political institutions”. Dicey’s under­standing of this principle was, therefore, similar to that what is called the ‘rule of recognition’ and consequently made it the most important part of the British constitution; the rule which simply identifies other rules.

Although it is still strongly believed that the sovereignty of Parliament is the central principle of the British constitution, many theorists argue that British and every other legal system is based on more than one fundamental principle and it is hard to grade them. For instance Barber (2000: 137) claims that “the English legal system possesses multiple unranked sources of legal power” and “that neither Kelsen's Grundnorm nor Hart's rule of recognition can be accepted as universal truths of legal systems”. One of the other crucial principles of the British constitution is the rule of law (Garnett & Lynch, 2009: 118). This principle consists of ‘two sovereignties’ (Bradley, 2004: 27). The first one is the sovereignty of Parliament and the second is the sovereignty of the courts. However, the former refers to ‘law making’, and the latter to ‘interpreting and applying the law’. Therefore, both courts and Parliament must coexist and it makes the principle of parliamentary sovereignty much more complicated. The quotation below illustrates it perfectly:

“the sovereignty of Parliament can be said to be based upon decisions of the courts in applying Acts of Parliament” (Bradley, 2004: 29)

The relation between the courts and Parliament will be brought up again in the part considering the accession of the UK to the European Communities and its impact on the doctrine of parliamentary sovereignty. Another vital issue which also has to be considered is the present-day perception of the parliamentary sovereignty. Both Bradley (2004: 58) and Bogdanor (2009: 283) distinguished the form and the substance of parliamentary sovereignty. In other words they divided the understanding of the parliamentary sovereignty into theoretical (form) and practical (substance). Nonetheless, it is essential to mention here about another famous British constitutional lawyer – Sir Ivor Jennings and his thoughts. He agreed with Dicey that the Parliament can enact legislation dealing with any subject (Jennings, 1959: 170) and that the legislation of the Parliament is superior to the jurisdiction of the courts (Jennings, 1959: 254). However, Jennings (1959: 170) claimed also that the supremacy of the Parliament exists only in theory, because it “is a legal fiction and legal fiction can assume anything”. To prove this he gave a famous example that:

“if Parliament enacted that all men should be women, they would be women so far as the law is concerned” (Jennings, 1959: 170).

This case shows that there is a disagreement between academics about the existence of the doctrine of parliamentary sovereignty in practice. For that reason, during the following sections only the theoretical aspect of the doctrine will be analysed.

The accession of the UK to the European Communities

The British government by virtue of the Royal Prerogative has power to enter into international treaties that bind the state. However, the doctrine of parliamentary sovereignty implies that no alteration of the rights of British citizens and all the other individuals within the UK can be done without the Parliament’s con­sent. These rights can be altered only by Acts of Parliament. For that reason, if the UK does not want to be in breach of its international obligations, the Parliament has to incorporate international law into UK law by enacting Acts. (Bradley, 2004: 41–42)

In 1972 the Parliament enacted the European Communities Act which incorporated the Community law into the British legal system. By doing this the Parliament incorporated also two revolutionary principles – the principle of direct effect and the principle of supremacy. The first one means that Community law1 is capable of conferring rights and duties directly on the individuals and national courts are obliged to interpret all legislation in compliance with the Community law. This doctrine was established by the decision of the European Court of Justice in Van Gend en Loos case in 1963. The supremacy of Community law was, on the other hand, established in 1964 by the decision of the ECJ in Costa v. ENEL case. It refers to the fact that Community law is superior to national laws. In other words, Community law takes precedence in the case of conflict with provisions of national law. Moreover, this is regardless the time when these provisions were made, so Community acts are superior even to those national acts which were enacted later. (Page, 2004: 37–38)

These two principles have had a great impact on the doctrine of parliamentary sovereignty. As it was mentioned before, one of the implications of parliament sovereignty is that the courts cannot overrule the legislation of Parliament. The accession of the UK to the European Communities has changed this. Although the Parliament voluntarily enacted the ECA 1972, the principle of parliamentary sovereignty has been put under strain. Since then the British courts have the power to review Acts of Parliament on grounds of incompatibility with Community/EU law (Page, 2004: 48–54). It was also said that the doctrine of parliamentary sovereignty implies that no Parliament of the day can pass laws that future Parliaments cannot change. Since the UK entered into the EC, every newly-elected Parliament is bound by the provisions of Community/EU law and has to obey all of those provisions.

Nevertheless, the defenders of the doctrine of parliamentary sovereignty claim that those limitations are voluntary and temporary, because theoretically the Parliament can at any time decide to withdraw from the EU. Furthermore, they emphasise the fact that all the new sources of primary EU legislation, especially the Treaties, have to be incorporated by Acts of Parliament. In other words, the UK will not be bound by a new Treaty until the Parliament wishes to approve it by enacting a particular Act.

The incorporation of the Lisbon Treaty to the UK legal system

As it was stated before the rights of individuals within the UK can be altered only by Acts of Parliament. Therefore, the Parliament had to enact an Act which incorporated the provisions of Lisbon Treaty to the UK law, so that these provisions are in force with regard to British territory. That is why in June 2008 the Parliament enacted the European Union (Amendment) Act 2008.

Taking the doctrine of parliamentary sovereignty into consideration, especially two clauses of that Act should be analyzed. These are clause 5 and clause 6. Clause 5 imposed new requirements for prior parliamentary authorization before the Government ratifies a treaty amending the founding Treaties of the EU. However, it applies only to the amendments made under the “ordinary revision procedure”. On the other hand, clause 6 imposed parliamentary control over the Government’s ca­pacity to agree to amendments made under the “simplified revision procedure” or the passerelles (House of Lords, 2008: 10–15).

The term passerelle in general is a term used in the jargon of the EU and describes a category of provisions which permit alterations to the Treaties’ arrangements without invoking an ordinary procedure of their amendments. However, according to Nowak-Far (2010: 1–2) the Lisbon Treaty “has significantly expanded the scope of application of this specific formula and made it clear”. In the case of the revision of founding Treaties, the decision-making process in Council of the EU normally requires unanimity. Nevertheless, simplified revision procedure and passerelles allow in some cases a shift from unanimity to qualified majority voting. This shift makes it much easier to amend the founding Treaties. Hence, the British legislator tried to include in clause 6 all new provisions which allow a move from unanimity to qualified majority voting in the Council of the EU, so that the Parliament could control the Government in these cases (House of Lords, 2008: 14).

Both clauses are crucial for maintaining the principle of parliamentary sovereignty. At least from the legal point of view. The fact that the Government has to seek parliamentary authorization before ratifying any future changes to the founding Treaties makes it clear that the sovereign power theoretically belongs to the whole Parliament, whose legislation is the highest law in the UK. One can call into question this claim arguing that according to the principle of supremacy of EU law, it takes priority over any inconsistent national law. Nevertheless, the Lisbon Treaty introduced an important provision that explicitly confirms the right of Member States to withdraw from the EU (Article 50 TEU). This provision emphasizes the argument that UK remains bound by the EU law as long as the Parliament wishes to remain in the EU. Therefore, it can be stated that the incorporation of the Lisbon Treaty to the UK law have not put the doctrine of parliamentary sovereignty under additional strain and in theory this doctrine still prevails in the national law of the UK.

Another important issue is the Charter of Fundamental Rights of the European Union and the Protocol 7 (which provides for the application of the Charter to the UK and Poland). Article 6 TEU, as amended by the Lisbon Treaty, made the Charter legally binding. Hence, not only the European Court of Justice, but also national courts have to refer to the rights and principles included in the Charter while interpreting legislation. Many British and Polish politicians were afraid of the fact that the Charter was going to bound Member States with some ‘new rights’. In the UK, they also thought that it can additionally endanger the doctrine of parliamentary sovereignty. That is why the Protocol 7 arose as a kind of opt-out from the Charter. However, many academics and lawyers proved that in fact, the Charter is not innovative, does not create ‘new rights’ and just codifies existing ones, and the Protocol 7 merely clarifies the application of the Charter or even repeats the reservations included in Article 6 TEU (House of Lords, 2008: 20–23).

Conclusions

The place of the principle of parliamentary sovereignty in the UK has, in practice, definitely changed after accession to the European Communities. Although further amendments of the founding Treaties and integration processes undoubtedly have, from a practical point of view, bound the principle to a greater degree. Nevertheless, this fundamental principle, at least in theory, is still far from erosion. It is really hard to question the argument about withdrawal from the EU and the Parliament’s free will in deciding whether the UK should stay in the EU or not. It is true that Parliament, in practice, is not omnipotent and cannot do whatever it wants. But has it ever been omnipotent from that point of view? After all, according to Sir Jennings (1959: 170) “the supremacy of parliament is a legal fiction” and Parliament “cannot in fact change the course of nature” or “do all sorts of things”. The changes related to European integration and globalisation processes which influenced the UK political and constitutional system merely prove Jennings’ claim.

Sources

  • Barber, Nicholas. 2000. “Sovereignty re-examined: the courts, Parliament and statutes”. Oxford Journal of Legal Studies 20, no. 1, pp. 131–154.
  • Bogdanor, Vernon. 2009. The New British Constitution. Oxford and Portland, Oregon: Hart Publishing.
  • Bradley, Anthony. 2004. “The sovereignty of parliament: form or substance?”. In: The Changing Constitution. 5th ed. Eds. Jeffrey Jowell and Dawn Oliver. Oxford: Oxford University Press.
  • Dicey, Albert Venn. 1959. Introduction to the Study of the Law of the Constitution. 10th ed. London: Macmillan.
  • Garnett, Mark and Lynch, Phil. 2009. Exploring British Politics. 2nd ed. Harlow: Pearson Longman.
  • House of Lords, 2008. European Union (Amendment) Bill and the Lisbon Treaty: Implications for the UK Constitution. London: TSOL.
  • Jennings, Ivor. 1959. The law and the constitution. 5th ed. London: University of London Press.
  • Nowak-Far, Artur. 2010. “The passerelle formula in the Treaty of Lisbon” In: The Treaty of Lisbon – Treaty of European Parliaments. Warsaw 22–23 February 2010. Conferen­ce paper.
  • Page, Alan. 2004. “Balancing supremacy: EU Membership and the Constitution”. In: Britain in the European Union: law, policy and Parliament. Eds. Philip Giddings and Gavin Drewry. Basingstoke: Palgrave Macmillan.
  • Robertson, David. 1986. The Penguin Dictionary of Politics. Penguin Books: Harmondsworth.

Legal documents

  • European Union (Amendment) Act 2008
  • Flaminio Costa v. ENEL [1964]
  • NV Algemene Transporten Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration [1963]

Marek Garlicki is a MA European Studies student at the Faculty of Journalism and Political Science, University of Warsaw, Krakowskie Przedmieście 26/28, 00–927 Warszawa, Poland. Email: m.garlicki@student.uw.edu.pl

References

Poznámky pod čarou

  1. After the ratification of the Lisbon treaty, the Community law should be called European Union law.

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. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law (in some cases, even a constitution) or by precedent.

In some countries, parliamentary sovereignty may be contrasted with 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, including the United Kingdom,[1]Finland,[2] the Netherlands,[2]New Zealand,[2]Sweden,[2]Norway, Denmark, Iceland, Barbados, Jamaica, Papua New Guinea and the Solomon Islands.

United Kingdom[edit]

Main article: Parliamentary sovereignty in the United Kingdom

History[edit]

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 means 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. DiceyIntroduction to the Study of the Law of the Constitution (1885)

During the 17th century in England, a notion developed that Parliament (made up of the House of Lords and House of Commons) shared in sovereignty with the King, 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 1689 and Claim of Right Act 1689 were passed the following year which asserted certain rights of the Parliaments of England (which at the time included Wales) and Scotland and limited the powers of the monarch.[6][7] Furthermore, in 1698 parliament created the Civil List, a financial arrangement that left the monarch reliant on parliament for income.[8][9]

After 1689 English parliamentary supremacy became evident 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 the parliaments of England and Scotland in 1707 which created a new British parliament, though "in essence it was just an extension of the English parliament".[10] It is arguable whether the concept of parliamentary supremacy arose from the Acts of Union 1707 or was a doctrine that evolved thereafter.[11] The autonomy of the Parliament of Ireland 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 1800.

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

  • Parliament can make laws 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.

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.[12]

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 recognize the British concept of parliamentary supremacy.[13] The UK courts currently recognize the supremacy of EU law on those subjects where the EU can legislate.[14][15] However, this supremacy conceptually derives from the European Communities Act 1972 and its successors. No sovereign state has ever withdrawn from the European Union (except for the withdrawal of the North AfricanDépartments 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. On 23 June 2016, a majority of the British people voted to leave the EU.

Scotland and the Acts of Union[edit]

See also: House of Lords Act 1999 § Bill

Some jurists have suggested that the Acts of Union 1707 place limits on parliamentary sovereignty and its application to 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.[16][17][18] 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.[19]

The establishment of the Scottish Parliament in 1998 has implications for parliamentary supremacy. For example, although nuclear power is not within its competence, 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.[20] 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 the UK generally[edit]

Parliamentary supremacy is cited by contemporary American legal historians as the reason English law did not develop due process in the American sense.[21] It is also argued to be integral to the way in which England's approach to rights and liberties evolved.[22]

The doctrine of parliamentary supremacy, in English Law,[23] was 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.[24]

However, there is a distinction to be made between legal sovereignty and political sovereignty. Parliament is not politically sovereign, which means that if Parliament passes 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 exists in a Bill to get around unwanted areas, and the judiciary[25] 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.'[26]

Recent developments[edit]

In recent years some judges and scholars in Britain and New Zealand have questioned the traditional view that parliament is sovereign.[27] Others, however, have rejected these arguments.[28] 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 recognized 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."[29] 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, as prescribed by the 2016 Brexit referendum, 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,[30] 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[edit]

Under federal system, neither the states nor the federal parliament in Australia have true parliamentary sovereignty. The Commonwealth Parliament is created by the Constitution, and only has enumerated powers. Each state's legislative power is inherent, but restrained by the Federal Constitution, State Constitution, and commonwealth powers.

In this context, parliamentary supremacy has two meanings: one is that parliament (the legislature) can make and unmake any law; another meaning is that as long as parliament (legislature) has the power to make laws regarding a subject matter, the exercise of that power cannot be challenged or reviewed by judiciary. The second meaning is more consistent with the federal system and the practice of judicial review, as judiciary cannot review on the merits of the parliament (legislature)'s exercise of power.

Blackshield and Williams explain that "[i]n 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."[31] The constitution confers the power to make laws in the Commonwealth Parliament, however, this limited to particular subjects. Section 128 of the federal constitution prescribes the mode to alter the constitution, which further restricts the power of the Commonwealth Parliament.

The supremacy clause (section 109 of the constitution) gives Commonwealth laws precedent over state laws. The state law-making power is therefore constrained where the Commonwealth has concurrent law-making power. Furthermore, regarding the subject matters which Commonwealth has concurrent legislative power, Commonwealth parliament can 'cover the field', which means the Commonwealth can by express words or implication exclude the operations of state laws.[32] The Commonwealth parliament has exclusive legislative power over the subject matters listed in sections 52 and 92 of the constitution, which means that the states cannot make laws in these areas. Also under section 96 of the Constitution, the Commonwealth can use financial assistance to entice states to refrain from exercising their legislative powers, such as refraining from collecting income tax.[33]

Each state parliament power is subject to procedural limitation, which is the entrenchment of restrictive legislative procedure. Section 6 of the Australia Act states that laws concerning the "constitution, power or procedure of the parliament" are invalid unless passed in the manner and form prescribed by the legislation made by the parliament.[34] However, restriction of this kind is not inconsistent with parliamentary sovereignty.[citation needed]

Belgium[edit]

Over the last forty years or so, a change has been observed in Belgium in the relationships between the Judiciary and Parliament. "The dogma of absolute inviolability of the parliamentary assemblies has been breached. The parliamentary assemblies are now accountable not just to the electors but also to the courts. A first breach in the dogma of the inviolability of the assemblies was opened up by the Le Ski judgement of 27 May 1971, in which the Court of Cassation upheld the supremacy of the norm of self-executing international law. In 1980, Article 142 of the Constitution (former Article 107ter) established a Court of Arbitration in Belgium, nowadays the Constitutional Court, charged with hearing actions for annulment of laws. It would hand down its first judgement on 5 April 1985. (...) A second breach was opened in the dogma of inviolability of the assemblies in Belgium by the Constitutional Court, in its judgement no. 31/96 of 15 May 1996. The Council of State, the highest administrative Court in Belgium, had till then always declared that it had no jurisdiction to hear annulment applications against the administrative acts by the Houses of Parliament. The Constitutional Court, declaring that the absence of any possibility to apply for the annulment of such acts was contrary to the constitutional principles of equality and non-discrimination, opened up a new avenue for judicial review of Parliament’s acts: the laws of 25 May 1999 and of 15 May 2007, adopted in the wake of the Court’s judgement, extended the jurisdiction of the Supreme Administrative Court to the acts and Rules of Procedure of the legislative assemblies or their organs with regard to public procurement and personnel (...) Finally, concerning the decisions taken by the assemblies with regard to MPs or political groups, the civil courts have not hesitated to sanction them when subjective rights were at stake. MPs "enjoy the protection of their subjective rights by the law courts. This principle applies both for rights deriving from the law in the broad sense and for rights which have a regulatory basis" (Civ. Brussels, 21 April 1997). ".[35]

Canada[edit]

Legislatures of Canadian provinces are sovereign within matters enumerated to them.[36] 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.

Similarly, the federal Parliament is sovereign in all matters delegated to it, but most amendments to the federal Constitution may only be made with the consent of both Parliament and two-thirds of provinces containing 50% of the population (the 7/50 rule), or in some cases, unanimous consent of the provinces.

In addition, although a law can be challenged and struck down by a court when found to be in violation of certain sections of the Canadian Charter of Rights and Freedoms, Parliament or provincial legislatures may invoke the notwithstanding clause to allow the law to operate for up to five years, at which time it may either lapse or be renewed.

Finland[edit]

According to the constitution of Finland sovereign power lies with the people, represented by the parliament.[37] 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 fulfills 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.[38]

India[edit]

In India, parliamentary sovereignty is subject to the Constitution of India, which includes judicial review.[39] In effect, this means that while the parliament has rights to amend the constitution, the modifications are subject to be valid under the framework of the constitution itself. For example, any amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures also and the parliament alone cannot enact the change on its own. Further, all amendments to the constitution are also open to a Judicial Review. Thus, in spite of parliamentary privilege to amend the constitution, the constitution itself remains supreme.

Israel[edit]

Main article: Israeli system of government

The Knesset, the legislative branch of the Israeli government, has the power to enact and repeal all laws. It enjoys de jure parliamentary supremacy, and can pass any law by a simple majority, even one that might arguably conflict with a Basic Law of Israel, unless it has specific conditions for its modification. The Knesset can adopt and amend Basic Laws acting through its capacity as a Constituent Assembly. The Knesset also supervises government activities through its committees, elects the Prime Minister of Israel and approves the Cabinet of Israel, elects the President of Israel, and recommends the Comptroller of Israel. It also has the power to remove the President and State Comptroller from office, revoke the immunity of its members, and to dissolve itself and call new elections.

Italy[edit]

The sovereignty of Parliament in Italy is born from parliamentary privilege,[40] but, in one of the most comprehensive and compelling "systemic" judgments, the Constitutional Court (rapporteur Carlo Mezzanotte) had opened the justiciability of ‘’interna corporis’’.[41] By the way, remnants of the old theories are expressed in autodichia, which involves subtracting the ordinary courts of all acts performed within the Chambers.[42] 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,[43] even when pertaining to individual rights:[44] this has given rise to some conflicts between the judiciary and Parliament,[45] brought to the Constitutional Court,[46] who gave useful elements to restrict the legal definition,[47] compelling the legal doctrine through the modern evolution of the sovereignty of Parliament.[48]

New Zealand[edit]

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.[49]

In recent years, some legal experts such as Robin Cooke in Taylor v New Zealand Poultry Board, have questioned how far parliamentary sovereignty goes.[50] There are several laws and conventions 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[edit]

References[edit]

  1. ^"Parliamentary sovereignty". UK Parliament. Retrieved 17 August 2014. 
  2. ^ abcdOliver, 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 LawCambridge University Press (1987) pp234-235
  4. ^Harris, Tim Revolution: The Great Crisis of the British Monarchy 1685–1720Allen Lane (2006) p349
  5. ^"The Convention and Bill of Rights". UK Parliament. Retrieved 2 November 2014. 
  6. ^"Britain's unwritten constitution". British Library. Retrieved 27 November 2015.  
  7. ^"Constitutionalism: America & Beyond". Bureau of International Information Programs (IIP), U.S. Department of State. Retrieved 30 October 2014.  
  8. ^"The Financial Revolution". Parliament of the United Kingdom. Retrieved 14 March 2015. 
  9. ^"Rise of Parliament". The National Archives. Retrieved 2010-08-22. 
  10. ^Harris, Tim Revolution: The Great Crisis of the British Monarchy 1685–1720 Allen Lane (2006) p498
  11. ^Alder, John Constitutional and Administrative Law 7th edition Palgrave Macmillan (2009) p167
  12. ^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).
  13. ^Alder, John Constitutional and Administrative Law 7th edition Palgrave Macmillan (2009) p173
  14. ^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."
  15. ^Turpin, Colin & Tomkins, Adam British government and the constitution: text and materials Cambridge University Press (2007) p 335
  16. ^Loveland, Ian. Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 2015: Oxford University Press. p. 43-47. ISBN 9780198709039. 
  17. ^Doherty, Michael (2016). Public Law. Rutledge. pp. 198–201. ISBN 1317206657. 
  18. ^Barnett, Hilaire (2014). Constitutional & Administrative Law. Rutledge. pp. 119–123. ISBN 1317446224. 
  19. ^"The legislative sovereignty of the Westminster Parliament"(PDF). Retrieved 14 January 2017. 
  20. ^Johnson, Simon (16 April 2009). "Cross-border row rages over SNP blocking new nuclear power stations". The Daily Telegraph. London. Retrieved 8 September 2010. 
  21. ^John V. Orth, Due Process of Law: A Brief History (Lawrence, KS: University Press of Kansas, 2003), 28–31.
  22. ^Jowell, Jeffrey; Oliver, Dawn, eds. (2007). The Changing Constitution (6th ed.). Oxford University Press. pp. 60–1. ISBN 9780199205110. 
  23. ^Gordon, Michael. Parliamentary Sovereignty in the UK Constitution : Process, Politics and Democracy. Oxford: Hart Publishing, 2015. Discovery eBooks, EBSCOhost (accessed November 27, 2015).
  24. ^[2005] UKHL 56 [9](Lord Bingham).
  25. ^Allan, T.R.S. "The Rule Of Law, Parliamentary Sovereignty, And A Ministerial Veto Over Judicial Decisions." Cambridge Law Journal 74.3 (2015): 385-388. Index to Legal Periodicals and Books (H.W. Wilson). Web. 27 Nov. 2015.
  26. ^[1969] 1 A.C. 645, 723 (Lord Reid).
  27. ^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.
  28. ^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).
  29. ^European Union Act 2011
  30. ^European Commission websiteArchived 10 May 2010 at the Wayback Machine.
  31. ^Blackshield and Williams Australian Constitutional Law and Theory, 5th ed, 2010
  32. ^New South Wales v Commonwealth (WorkChoices Case)(2006) 231 ALR 1
  33. ^South Australia v Commonwealth (1942) 65 CLR 373 ("the First Uniform Tax case")
  34. ^Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394
  35. ^N. IGOT, A. REZSÖHAZY, M. VAN DER HULST, Parliament & Judiciary, ECPRD Seminar - Brussels, 8-9 Novembre 2007, p. 12-14.
  36. ^[1] British North America Act, 1867, Section 91
  37. ^http://web.eduskunta.fi/Resource.phx/parliament/relatedinformation/constitution.htx Constitution of England. Retrieved on 2009-01-27.
  38. ^Parliamentarism-thisisFINLAND, Ministry for Foreign Affairs.
  39. ^"All-party meet vows to uphold Parliament supremacy". The New Indian Express. 2 August 2013. Retrieved 18 August 2013. 
  40. ^According to https://www.academia.edu/12695276/Autorecensione_dello_Scudo
  41. ^Buonomo, Giampiero (2003). "Italia condannata su ricorso del procuratore Cordova". Diritto&Giustizia edizione online.   – via Questia(subscription required)
  42. ^It is also expressed by other constitutional organs and Regional Councils: professor Giuliano Amato complained "right of all meetings of constitutional status (Chambers and regional councils, therefore ) to self-manage everything related to their organization. And then, among other things, do their budget, allocate between the various items the money available, check how they are spent" (I soldi di tutti e l’autodichia, 30 settembre 2012, quoted by https://www.academia.edu/10805826/Finanziamento_degli_eletti_e_dei_partiti_politici ).
  43. ^(in Italian)Giampiero Buonomo, I controlli giurisdizionali resistono ai tentativi di ampliare l’indipendenza.
  44. ^(in Italian)Giampiero Buonomo, Gli atti amministrativi delle Camere non possono modificare la legge.
  45. ^See Giampiero Buonomo, Lo scudo di cartone, 2015, Rubbettino Editore, p 224 , ISBN 9788849844405.
  46. ^(in Italian)Giampiero Buonomo,L’autodichia parlamentare di nuovo in Corte costituzionale.
  47. ^(in Italian)Giampiero Buonomo, Il diritto pretorio dell’autodichia, tra resistenze e desistenze.
  48. ^Judgment no. 120/2014 "looks at Europe by addressing the legal doctrine to the modern evolution of the sovereignty of Parliament, in the era of rationalized parliamentarianism": Buonomo, Giampiero (2015). "L'antipolitica ha un argomento in meno". Mondoperaio edizione online.   – via Questia(subscription required)
  49. ^Rothmans of Pall Mall (NZ) Ltd v A-G [1991] 2 NZLR 323 at 330 (HC).
  50. ^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.

External links[edit]

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