affiliated to the International Association of Constitutional Law
I Parliamentary sovereignty in other countries
In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.
A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.
Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.
The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.
The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:
(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;
(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;
(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;
(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;
(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.
Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.
Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.
There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court: Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011; Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.
The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.
Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.
Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.
Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa, above.)
Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.
Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).
The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives. Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.
It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.
Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.
This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.
To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.
II Countries in which the courts may disapply or strike down legislation: the case of the USA
As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.
The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.
Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.
The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state: it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics, Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.
The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:
a) Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn (1778) Moor 14545 (Scotland)).
b) Racial segregation (upheld by the Supreme Court in Plessy v Ferguson 163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County 391 US 430 (1968)).
c) Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).
d) The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).
e) Denial of many labour rights (Lochner v New York 198 US45 (1905)).
f) Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).
g) The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).
h) The widespread use of the death penalty,
i) The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).
j) Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).
k) Detention of suspects without trial off-shore for lengthy periods.
Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.
III Concluding remarks
Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ( 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.
Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.
Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)