From Wikipedia, the free encyclopedia
Parliamentary sovereignty
Parliamentary sovereignty, Sovereignty
of Parliament, parliamentary supremacy,
or legislative supremacy is a concept in
constitutional law that applies to some parlia-
mentary democracies. Under parliamentary
sovereignty, an legislative body has absolute
sovereignty, meaning it is supreme to all oth-
er government institutions (including any ex-
ecutive or judicial bodies as they may exist).
Furthermore, it implies that the legislative
body may change or repeal any prior legislat-
ive acts. Parliamentary sovereignty contrasts
with notions of judicial review, where a court
may overturn legislation deemed unconstitu-
tional. Specific instances of parliamentary
sovereignty exist in the United Kingdom, Is-
rael and New Zealand.
Finland
According to the constitution of Finland sov-
ereign power lies with the people, represen-
ted by the parliament[1]. As the highest organ
of government the parliament holds supreme
legislative power and can override a presid-
ential veto and alter the constitution. There is
no constitutional court and the supreme
court does not have an explicit right to de-
clare 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 constitution-
al court. In addition to preview by the Consti-
tutional 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 regu-
lar law.
The power to alter and amend the consti-
tution is vested with the parliament, requir-
ing 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 con-
stitution in ordinary laws that are enacted in
the same procedure as constitutional
1
Parliamentary sovereignty
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be repealed in the same manner as an ordin-
ary law.
Executive power is shared by the Presid-
ent of the Republic and the cabinet, of which
the latter must rely on the confidence of the
parliament. From the independence of Fin-
land in 1917 up to the constitutional reform
of 1999, the president held considerable ex-
ecutive 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 con-
stitutional reform constrained most of the
presidential powers to be exercised only on
the advice of the cabinet.[2]
New Zealand
The concept of parliamentary sovereignty in
New Zealand is derived from that in the Un-
ited Kingdom but differs in that New Zealand
has no devolved institutions and supra-na-
tional obligations. New Zealand’s unitary and
insular status avoids any comparable limita-
tions 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.[3]
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
From Wikipedia, the free encyclopedia
argue that originated in the 17th and 18th
centuries when Parliament asserted the right
to name and depose a monarch. Another clas-
sic 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 ac-
cording to its conscience and if necessary re-
turn 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 ac-
cording 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 con-
temporary 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 gov-
ernment).[4]
Parliamentary sovereignty and
Scotland
After the Act of Union 1707, there remains
ambiguity about whether the principle ap-
plied 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 guaran-
teed the continuity of the Scottish legal sys-
tem, some members of the Scottish judiciary
2
Parliamentary sovereignty
maintained the right in theory to rule an Act
of Parliament inadmissible. One clear state-
ment 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 at-
tempted to make such a ruling. This there-
fore remains the subject of debate - with
some of the 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 Parlia-
ment 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 it
competence, and thus bring alter the notion
of Parliamentary sovereignty in the UK as a
whole.
Whilst it remains theoretically possible to
dissolve the Scottish Parliament, or legislate
without its consent in relation to Scotland, in
practice, such a move would likely be politic-
ally 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
From Wikipedia, the free encyclopedia
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.[5] With a constitutional crisis looming, the
government backed down, and the clause be-
came 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 parlia-
mentary supremacy was modified under the
influence of five principal sources:
1/ The devolution of power to regional as-
semblies in Scotland (Scottish Parliament),
Wales (Welsh Assembly) and Northern Ire-
land (Northern Ireland Assembly). All three
assemblies can pass primary legislation with-
in the areas that have been devolved to them.
As the system remains devolved and not fed-
eral, 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 or-
der 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 the fact that UK membership of the
EU has been brought about through Acts of
Parliament - principally the European Com-
munities Act 1972 - raises 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 Sun-
derland City Council certain statutes are pro-
tected as Constitutional Statutes. The case
involved amendments to the Weights and
Measures Act 1985 by the Weights and Meas-
ures Act 1985 (Metrication) (Amendment)
Order 1994 pursuant to Directive 80/181/
EEC. This stated that Imperial measurements
3
Parliamentary sovereignty
could be displayed so long as the metric
measurements were displayed in larger type
beside them. Thoburn was convicted for only
using 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 con-
travention of Section 2(2) of the European
Communities Act 1972. This would have in-
voked 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 constitu-
tional 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 incompatibil-
ity where they believe that the terms of an
Act of Parliament are in contravention of the
rights guaranteed by the Act. The effect of
the declaration is not to annul the Act but
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 su-
premacy means that Parliament can at any
time vote to repeal the Act and indeed the
UK’s ratification of the Convention itself.
5/ The increasing use of referendums. Al-
though the result of a referendum is in no
way binding on Parliament unless it has pre-
viously agreed that this will be case, in prac-
tice 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 sover-
eign. The qualifier "almost" is provided be-
cause 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 Scot-
land, 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
From Wikipedia, the free encyclopedia Parliamentary sovereignty

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 Parlia-
ment. Nevertheless, it remains the case that
the UK Parliament could do so without seek-
ing the mutual consent of the EU or the de-
volved legislatures, as it did with the aboli-
tion 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 in-
dependence from the UK to former domin-
ions and colonies in the British Empire. Fol-
lowing the Balfour Declaration, the Statute of
Westminster 1931 established a status of le-
gislative equality between the self-governing
dominions of the British Empire and the Un-
ited Kingdom, and provided that Acts passed
by the UK Parliament would not apply in the
dominions without a dominion’s express con-
sent. It is difficult to see how the UK could
later resile from that position. By way of fur-
ther 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 parlia-
ment 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
References
[1] http://web.eduskunta.fi/Resource.phx/
parliament/relatedinformation/
constitution.htx Constitution of Finland.
Retrieved on 2009-01-27.
[2] http://virtual.finland.fi/netcomm/news/
showarticle.asp?intNWSAID=25782
Reform of the Constitution. Virtual
Finland, Ministry for Foreign Affairs.
Retrieved on 2009-01-27.
[3] Rothmans of Pall Mall (NZ) Ltd v A-G
[1991] 2 NZLR 323 at 330 (HC).
[4] John V. Orth, Due Process of Law: A
Brief History (Lawrence, KS: University
Press of Kansas, 2003), 28-31.
[5] http://politics.guardian.co.uk/
constitution/story/0,,1162591,00.html
External links
• Legal challenges to Parliamentary
sovereignty
• Parliamentary sovereignty explained on
UK parliament website

Retrieved from "http://en.wikipedia.org/wiki/Parliamentary_sovereignty"

Categories: Political science terms, Politics of the United Kingdom, United Kingdom
constitution

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