How is judicial independence maintained under the principle of parliamentary sovereignty / supremacy?

Question

Under the principle of parliamentary sovereignty, the legislature is deemed to be more powerful than both the executive and judicial branch.

While I am familiar with how the executive-legislature relationship works under parliamentary systems, I am less clear about the relationship between legislature and judiciary.

1. Clearly, judicial independence is integral to democracy. But how can a judiciary be independent if the Parliament can just overrule its decision any time? Doesn't that make the judiciary essentially toothless?

2. How does the judicial branch conduct constitutional review under parliamentary supremacy? If judges can't strike down laws on the ground that they violate constitution, does that mean Parliament is tasked to police itself to not make unconstitutional law? That doesn't sound right.

3. Why wouldn't the Parliament just make judiciary as weak as possible under this system? Isn't parliamentary supremacy incompatible to judicial independence?

EDIT: Countries that I'm interested in:

• United Kingdom (uncodified constitution)
• Finland (codified constitution)
• Denmark (codified constitution)
• Sweden (codified constitution)
• New Zealand (uncodified constitution)

Answer 1

I will reference the United Kingdom in my answer, which uses the principle of parliamentary sovereignty.

In the United Kingdom, the role of the judiciary is not to determine whether a law is valid. Their role is to resolve disputes between parties, and to attempt to interpret what Parliament's intent was when passing a particular law. If Parliament feels that their interpretation was incorrect, then Parliament may pass legislation that clarifies their intent.

Up until 2009, the House of Lords, the upper house of Parliament, effectively acted as the UK's Supreme Court. It was Parliament that decided to delegate this function to a new Supreme Court at that time.

As the United Kingdom does not have a Constitution, there can consequently be no Constitutional review of anything.

Answer 2

Here is a fourth question with basically the same answer:

4. The executive branch is fundamentally the most powerful one, because it has guns while the others don't. Why does the executive branch simply not use force to enforce its supremacy over the other branches?

Constitutions and laws are ultimately just pieces of paper. They only have power because people choose to believe in them and voluntarily act according to them. The judicial branch is independent and strong if the people in power want it to be independent and strong.

Two other points:

1. Successful parliamentary democracies are usually societies with a high degree of cohesion and trust. They have less need for adversarial systems of checks and balances than most other societies.
2. Many parliamentary democracies are also unitary states. In such states, repealing and rewriting the constitution tends to be relatively easy. For example, you may first need a 2/3 majority, then elections, and then a simple majority. If the constitution is not what the people in power want, they can change it. Such constitutions are best understood as documents stating that "these are the values we happen to believe in at the moment".

Answer 3

The UK uses practical steps rather than a written constitution to maintain judicial separation from the executive

One of the key difficulties many have in judging the UK constitution is that the rules are not explicitly codified in a single document. That doesn't mean the UK doesn't have a constitution; it just means it is based on case law and precedent not in a single set of rules. And the arbiter of that is the Supreme Court.

This might seem worse than having an explicit single document but it doesn't make that much practical difference versus countries who change their written constitutions all the time (The USA has by far the most stable explicit constitution; France, for example, has had 5 during the same period).

The apparent fuzziness of the rules in the UK should not distract from the fact that the Supreme Court can–and does–overrule parliamentary actions. In some cases Parliament can rewrite legislation to bypass a ruling but this is far from simple in a system based on precedent and case law. It isn't as simple as "just overruling the decision".

Especially when the practical steps to protect judicial independence are fairly strong. Judges are not political appointees. The process is fairly complicated but, to simplify a lot, an independent committee appoints new supreme court justices. and the government has not power to sack them if their decisions are unfavourable (compare to the US where the appointment process is explicitly political and the major protection against government coercion is that the justices are appointed for life).

In practice, the Supreme Court can and does review government action and legislation with regard to the existing body of law and previous precedent. This process is fuzzier than comparing laws to an explicit constitution, but it still seems to work.

Why doesn't parliament just make the judiciary weak? This is partially prevented by the rules for appointing the judges. Those prevent direct parliamentary control over appointments and protect against the removal of existing judges. While it is possible that a government could try to weaken the current rules, they would have to fight the incumbents in the existing court to do so and that might not be easy. It might be practically impossible for a single government to achieve a major change in a single parliamentary term. This practical difficulty shields the court from short term tampering by parliament.

And some of the principles are very deeply embedded in british legal traditions. Magna Carta established that the executive (in practice, the King) was subject to the law and did not have arbitrary power. The Glorious Revolution established that parliament and the law could depose the King. Those deep precedents (which, in the modern world, apply to the Government) would be very hard to erase by any government action no matter any vote in parliament.

Precedent matters and protects the Supreme court from overbearing government actions.

Answer 4

(UK)

But how can a judiciary be independent if the Parliament can just overrule its decision any time? Doesn't that make the judiciary essentially toothless?

This relies on a "gentleman's agreement" not to do that. And, since 1948, ECHR.

How does the judicial branch conduct constitutional review under parliamentary supremacy? If judges can't strike down laws on the ground that they violate constitution, does that mean Parliament is tasked to police itself to not make unconstitutional law?

What happens is incidents like Reilly (No. 2) and another) v Secretary of State for Work and Pensions, [2014]. See https://en.wikipedia.org/wiki/R_(Reilly)_v_Secretary_of_State_for_Work_and_Pensions for a timeline, but the summary is roughly:

• government instructs the DWP to force benefit recipients to take certain jobs

• litigation proceeds by Reilly on the basis that this violated ECHR and the administrative remit of the DWP

• it is ruled not to be slavery by the ECHR definition, but it was outside the remit of the legislation covering the DWP and was therefore unlawful. So far, a normal lawsuit against the government.

• the government is outraged by the court ruling against it and fast-tracks legislation, with the complicity of the opposition, to overrule the court ruling.

• the second lawsuit rules that this violates the ECHR right to a fair trial, as well as being unconstitutional, and the law is deemed inapplicable. It's not "struck down", but it just sits unenforceable on the statute book.

Answer 5

How does the judicial branch conduct constitutional review under parliamentary supremacy? If judges can't strike down laws on the ground that they violate constitution, does that mean Parliament is tasked to police itself to not make unconstitutional law? That doesn't sound right.

Why wouldn't the Parliament just make judiciary as weak as possible under this system? Isn't parliamentary supremacy incompatible to judicial independence?

United Kingdom (uncodified constitution)

Finland (codified constitution)

Denmark (codified constitution)

Sweden (codified constitution)

Keep in mind, that we don't really care equally about all of the provisions of a constitution, whether or not codified.

If the Finnish courts misinterpret the question of whether summer time or standard time, or the Julian Calendar or the Georgian calendar should be used to determine some key deadline in the constitution, the world will not come to an end.

Finland, Denmark and Sweden are all small unitary states.

Each of these, and the U.K., has a hereditary aristocrat and a healthy political culture to help be the "adult in the room" to maintain legality and dignity to the governmental proceedings.

There are no federalism fights to adjudicate in any of these countries but the U.K., and even then, parliamentary supremacy gives parliament rather than the courts a primary role in dealing with those issues, and the U.K. has a new U.K. Supreme Court is in place to assist it in doing this as well.

Likewise, while some of these countries have bicameral legislatures, in all of them, the lower house is intended to be effectively supreme and the upper house, when there is one, is merely a house of revision. Again, there are no serious intra-governmental separation of powers issues to resolve.

The strategy of all four of these countries to protect human rights isn't vested primarily in their constitution (which in each case is easily amended, at least in principle).

Instead, human rights protections are vested primarily in international treaty obligations as part of the Council of Europe with a European Court of Human Rights having the effective supreme decision making power on human rights issues, even though domestic courts in each of these countries have to adhere to the bare principle that treaty obligations are superior and binding relative to domestic law (and that when there are discrepancies that domestic law needs to be reconciled, somehow, mandatorily with the treaty obligations).

The U.S. does not make treaties supreme over ordinary domestic laws, but it has much less incentive to do than these four countries. These four countries have a strong incentive to respect treaties since they are far more reliant on international commerce governed by treaties as a share of their total economic affairs on a day to day basis than the U.S. does. Abrogating the sacrosanct respect that these countries have for treaty obligation in the face of domestic law making would be a step that would have consequences that none of these European countries could afford to face (even the post-Brexit U.K.).

These treaties are much harder to unilaterally amend than their respective national constitutions. The Council of Europe and its European Court of Human Rights can't unilaterally be undermined by a single member nation, or even a couple of them, gone rogue.

Other treaties protect some international economic rights as well.

Answer 6

An important distinction is time.

The judiciary not just looks at the law now, but also at the applicable law when dealing with events in the past. And most lawsuits cover things that happened in the past, injunctions covering future behavior are relatively rare.

Parliament can change future laws, but making laws with retroactive working is frowned upon and might not even have effect. Especially in criminal law, the notion of non-retroactivity is almost as old as codified law itself.

So when parliament dislikes a judiciary ruling, they can change the future law, but they can't change the past.

As for "constitutional review", there's no real requirement that this should be a task of the judiciary. In fact, the Dutch constitution specifically denies this right to the judiciary. Informally, this task is assigned to the Upper Chamber (Senate) of Dutch parliament, which itself has no lawmaking tasks. A bicameral Parliament is not unusual, such a Parliament by design polices itself.