End Parliamentary Sovereignty

The doctrine of parliamentary sovereignty is well established in New Zealand, and derives, more or less, from British constitutional practice in the 18th and 19th centuries. In practical terms, it means that Parliament — in effect, the House of Representatives, which is inevitably dominated by the government of the day — can pass any laws it likes, including constitutional changes that fundamentally change the nature of the relationship between the government and the governed.

There is, of course, a good historical reason why Parliamentary sovereignty came to exist. In earlier (medieval and pre-industrial) times, when education and literacy were much less widespread than they now are, and when the lower classes had hardly any political rights or duties beyond the lord of their manor, limiting political life at the national level to the nobility, the landed gentry, and the wealthy merchants of the towns made sense. They were also the only ones who could really afford to travel to Westminster, or wherever the King was, to make their views known and to hear opposing views. And again in view of low literacy, the modern practice of consulting every elector by means of a referendum was impractical.

In short, a Parliament was the nearest that medieval England could hope to get to a referendum.

But we aren't in medieval England any more. A referendum is quite easy to hold.

And the very meaning of democracy is rule by the people. Rule by a Parliament, however accurately that Parliament may be said to be chosen by the people, is not the same thing. Especially when the Parliament can alter many aspects of electoral law and law governing Parliament. A Parliament can, for example:

  • Alter the electoral disqualifications concerning persons convicted of crimes (is it all convicts? Only those convicted of crimes of a certain severity? Only those who were sent to jail? Only those who are currently in jail? Only those who are currently in jail for a term of, say, three years or longer?)
  • Make laws regulating what political parties are allowed to compete, and how they are allowed to choose candidates for electorates, or place and rank candidates on their lists
  • Within limits, set the term of Parliament (an entrenching clause allows Parliament to extend its term if three-quarters of MPs approve the change, but that entrenching clause could itself be repealed by a simple majority of those MPs present and voting)
  • Decide who sets the remuneration and fringe benefits available to MPs, including, if it thinks fit, removing the delegation to the Remuneration Authority or some other body and setting these things in house
A lot of these matters could be, and many of them probably should be, things that are decided by the people through a referendum.

There is also the philosophical aspect. A Parliament should be the servant of the people, not its master. We elect Parliaments to provide the necessary support to the government of the day, for sure, and to look into boring matters of legislative detail. We do not, and no free people ought to, elevate a Parliament into a god to be worshipped, or even a parent to be given carte blanche to set house rules as it sees fit, and to be obeyed by the people as if we were schoolchildren.

It is, in conclusion, time for Parliament's claim to sovereignty to go. Subject to moral and natural law, sovereignty is, and should be declared to be, in the King at the head of the people, not in the King at the head of Parliament.

Without this philosophical change, entrenchment of the Bill of Rights and limitation of the legislative competence of Parliament will lack a sure foundation.

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