Judicial Control of Parliamentary Procedure: Theoretical Framework Analyses

Abstract

Parliamentary procedures are undoubtedly at the heart of (national) parliamentary sovereignty. However, in the last two decades, courts, including supranational ones (e.g. ECtHR), are increasingly getting involved in assessing the application of parliamentary rules and procedures. This increasing judicial activism highlights the importance of finding the equilibrium between the right to an effective judicial remedy, which inevitably should encompass parliamentary decisions, and the principles of separation of powers and parliamentary autonomy. This paper analyses a possible theoretical framework of (judicial) remedies against parliamentary procedural decisions, distinguishing between types of procedural rules, applicants, fora, extents of judicial activism and types of judicial review. It concludes that the different types of remedies are highly dependent on the political landscape and the government structure. It is yet advisable that a permanent, extra-parliamentary forum, a kind of “House-Rules-Court” should be established in countries, where the House Speaker does not enjoy full respect and neutrality.