The End of a Nordic Exception?
Some Thoughts on the Sovereignty of the Norwegian Parliament
Iris Nguyên-Duy
Postdoctoral Research Fellow
Faculty of Law, University of Oslo
[email protected]
Paper submitted for
Workshop 15
“The mutations and transformation of division of powers:
the constitutional organization”
Chaired by Professors Bertrand Mathieu & Javier Garcia Roca
Twelve years ago, Norwegian professor Eivind Smith compared the Norwegian Parliament
(Storting) to the British one, Westminster. 1 In 2002, the Storting was de facto sovereign.
Especially since the late 80s, the power of the Storting had increased in such a way – and at
the expense of the Executive – that the situation had been labelled, quite negatively,
“parliamentary governance” (stortingsregjereri). 2 The Norwegian expression states bluntly
the facts: in addition to the legislative power, Parliament had taken the executive by, inter alia,
giving the Executive very detailed instructions. Parliament “governed” in the place of
Government.
Indeed, at a time when the decline of parliaments in Europe had undisturbedly continued, as
observed by Lord Bryce 3 – a trend reinforced by the growing interdependence between
countries, the development of new normative systems, of the European Union (EU) and of
globalisation – the Norwegian Storting, paradoxically, increased its power. Few parliaments
in Europe, except perhaps the other Nordic ones, 4 could actually compare.
The historical, social and political context of each and every parliament is unique. As a
consequence, the characteristics of a “strong” parliament may vary from one country to the
next. The Norwegian parliament is no exception to this rule. However, as the sovereignty of
1
Smith, Eivind (2002). «Fra Eidsvold til Westminster? Om synet på grunnloven som politisk redskap.» in
Eriksen, Trond Bern, Eirik Newth, Stein Ringen, Eivind Smith (ed.), Fakler om vitenskap og samfunn. Til Den
Polytekniske Forenings 150-årsjubileum, Oslo: Gyldendal akademisk.
2
“Stortingsregjereri is the disparaging phrase Norwegians use when the Storting is considered too dominant
over the Government’s (regjering) exertion of executive power.” – Rommetvedt, Hilmar (2003). The Rise of the
Norwegian Parliament. London: Frank Cass, p. 5. For a thorough presentation of the concept of
“stortingsregjereri” and on the (ab)use, by parliament, of the power to give instructions to the Government
(instruksjonsmyndighet), see Sejersted, Fredrik (2003). “Om Stortingets kompetanse til å regjere over
regjeringen”, Nytt norsk tidsskrift, nr. 3, pp. 281-296. See also Nordby, Trond (2010). Grunnlov og styreform.
Norge 1814-2010. Oslo: Universitetsforlaget, p. 114-21.
3
Bryce, James (1921). Modern Democracies. London: Macmillan.
4
In addition to Norway, Sweden and Denmark, the Nordic countries include Iceland and Finland. There is a
tradition of strong Nordic parliaments.
1
the British parliament 5 is quite paradigmatic and has been influential in Scandinavia, 6 it could
be used as a measuring instrument applied to the Norwegian case, in order to check whether
the Storting can pretend to be as supreme as Westminster. In addition, a comparison with the
other Nordic parliaments could be done, as the Nordic countries are quite homogenous and
stable democracies and welfare states, sharing many common features, of a linguistic, cultural,
societal and even legal kind. 7
Interestingly, the British and the Norwegian parliaments (and some other Nordic legislatures)
currently seem to face the same challenges. Since the beginning of the 21th century, and
especially during the 8 years of a majority (coalition) government lead by the Norwegian
Labour party, the Storting has rapidly lost most of its legislative power. Already in 2003, the
Power and Democracy report had warned that there was a tendency of “decline of popular
rule” (folkestyrets forvitring) and that, because of a process of “judicialisation”
(rettsliggjøring), the Judiciary and the Executive were gaining in importance at the expense of
the popularly elected parliamentary body. With the new configuration of powers that emerged
after the general elections of 2013 (minority coalition government with an active minority
opposition in parliament), things will probably change, but the decline of the Norwegian
parliament, in terms of legislative power, seems quite unavoidable. Has the phenomenon
experienced by most of the European parliaments begun to spread in Norway as well? What
kind of future lies ahead for the Norwegian legislator?
The purpose of this article is to highlight, mainly from a legal perspective, fundamental
factors that explain how the Norwegian parliament became so powerful, by comparing,
whenever possible, its experience with the British model of parliamentary sovereignty (I.).
The second half of the article will focus on the main reasons for the seemingly inexorable
undermining of the legislative power of the Storting (II.).
I. From a Strong to a “Sovereign” Storting – Building up Parliamentary
Sovereignty
Democracy in any country requires not a strong Executive, but a strong parliament. 8 Johan
Sverdrup’s famous statement of 1872, “All power in this Chamber” (“All makt [skal samles] i
denne sal”), sums up quite well the common view that the highest and most important matters
should be decided in the Storting, Norway’s only institution directly elected by the Norwegian
people. 9
5
On the sovereignty of the British Parliament, see Nguyên-Duy, Iris (2011). La souveraineté du Parlement
britannique. Paris: L’Harmattan, 814 p..
6
Bratberg, Øyvind & Kristin M. Haugevik (ed.) (2012). Det glemte partnerskapet. Norge og Storbritannia i det
nye århundre. Oslo: Akademika forlag, chapter 1.
7
The Helsinki Treaty of 1962 sealed the Nordic countries agreement to cooperate at a supranational level, via,
inter alia, the Nordic Council and in the Nordic Council of Ministers. They have also been cooperating
legislatively since the first Nordic lawyer conference in Copenhagen in 1872. See
http://www.norden.org/en/nordic-council-of-ministers/council-of-ministers/nordic-council-of-ministers-forlegislative-affairs-mr-lag.
8
Fish, Steven (2006). “Stronger Legislatures, Stronger Democracies”. Journal of Democracy, vol. 17 (1), p. 5-20;
Fish, Steven & Matthew Kroenig (ed.) (2009). The Handbook of National Legislatures. A Global Survey.
Cambridge: Cambridge University Press, 800 p.
9
But see Nordby, Trond (2010), op. cit., p. 38.
2
Interestingly enough, the case of the Norwegian parliament shows that the Storting managed
to become a supreme parliament even though the Norwegian Constitution is written – and
builds on the separation of powers (i.e. limits them and their scope of action) – and although
the courts can review the laws passed by the legislature and set aside those that are deemed
contrary to the Constitution, these two elements apparently constituting robust hinders to the
establishment of parliamentary sovereignty.
Some political scientists have explained the strengthening of Parliament since the 1970s by its
coincidence with a process of pluralization of Norwegian politics, as well as with the
weakening of the Norwegian corporatist society (characterised by interest associations
influencing the government directly, by bypassing the parliament). 10 These certainly are
important factors that should not be overlooked, but I will maintain that focusing on a more
legal perspective will show that the supreme status the Norwegian enjoyed, especially in the
period 1985-2005, is the result of a combination of various other elements (of a legal,
historical, political and psychological nature) – and their building up – since even before the
adoption of the Constitution in May 1814.
The Constitution certainly devolves an important amount of powers to the Parliament (1.). But,
as for the British parliament, the sovereignty of parliament has developed over time with the
emergence of constitutional practices combined with some strategic political moves and legal
reform. The Storting would not have been able to achieve a supreme position without
struggling for it and particularly not without the (more or less explicit) consent of the two
other constitutional powers, the Executive (2.) and the Judiciary (3.).
1. A constitutionally powerful parliament
Norway is a parliamentary representative democracy and a constitutional monarchy. Its 200years old Constitution rests on the principles of separation of powers, popular sovereignty and
human rights. The Storting was instituted by the Constitution of 17 May 1814 and represents
the legislative power. It is thus a constituted power whose freedom of action is limited by the
constitutional frame.
Contrary to the British case, where there is no codified Constitution per se, the supreme
power of the Norwegian parliament relies mainly on a textual, written basis. But it has also
been reinforced by the development of constitutional practices.
Undoubtedly, the idea of representative democracy has ideologically largely dominated in
Norway since the beginning of the 19th century11 and explains why the Constitution does not
provide for referendums (contrary to Sweden and Denmark). 12 Only the Storting is the
expression of popular sovereignty. Article 49 of the Constitution states: “The people exercise
the Legislative Power through the Storting.”
Chapter C of the Constitution, on “The Rights of Citizens and the Legislative Power”,
contains the main provisions on the legislative power of Parliament. But its powers are spread
in different places in the constitutional text.
10
See, inter alia, Rommetvedt, Hilmar (2003), op. cit., p. 7, 11.
Smith, Eivind (1993). Høyesterett og folkestyret. Oslo: Universitetsforlaget, p. 292.
12
Nordby, Trond (2004). I politikkens sentrum. Variasjoner i Stortingets makt 1814-2004. Oslo:
Universitetsforlaget, p. 115-25.
11
3
a. A supreme normative power
According to the principle of parliamentary sovereignty, the legislative body can create,
change and repeal any law.
As the highest organ of government the Finnish parliament holds supreme legislative power
and can override a presidential veto and alter the constitution. As it is not hindered by any
absolute veto and can both pass laws and amend the Constitution, the Norwegian Storting is
also a supreme law-maker.
As the Executive seems to have renounced to use its initiative right since 1976, the Storting
has a de facto monopole of the constituent power to amend the Constitution, since it is the
only institution in charge, from the initiative stage to the vote of the reform proposal. 13 The
people do not intervene directly in the reform process except when choosing their
representatives during a general election: 14 a proposal to amend the text of the Constitution
must be submitted to the Storting during one of the first three years of a four-year
parliamentary term. Such proposals cannot be considered by the Storting until one of the first
three years of the next parliamentary term, a system that provides an opportunity for the
electorate to have their say through the election of the new Parliament. The proposal is
considered by the new Storting in a sitting in which at least two-thirds of the members of the
Storting must be present to constitute a quorum. Of these, at least two-thirds must vote in
favour of the proposal in order for it to be adopted. 15 The substantive limits in § 112 of the
Constitution (respect for the Constitution’s “spirit” and “principles”) have never been real
hinders, as the rate of constitutional amendments shows. The Constitution has been amended
more than 287 times since its adoption in 1814, i.e. in 200 years.
Moreover, let’s not forget that, with the constituent power to amend the Constitution, the
Storting may develop new rules of the game if it wishes so. The Storting is bound by the
Constitution, but it can modify it. The Constitution has been amended by the Storting in
several occasions, leading to a strengthening of its power, for ex. with the adoption of § 26,
2nd paragraph (parliamentary consent to treaties required for matters of special importance), §
15 (negative parliamentarism, vote of no confidence) and § 82 (duty of the government to
inform the Storting), with the repeal of § 70, with the “relaxation” of §73 (rules of procedure),
and with § 74 (opening of the Storting). Contra signature of the King’s decisions by the Prime
Minister (with the exception of decisions relating to military command) is compulsory since
November 1814 (§ 31 of the Constitution).
Its legislative power, as defined at § 75 of the Constitution, is general (i.e. not explicitly
materially limited). It has a general right to legislate (“It devolves upon the Storting: a) to
enact and repeal laws (…)”), only limited by the fact that an act of parliament must not
contradict the Constitution and must follow the required legislative procedure. 16 And it
always has the last word in legislative matters.
b. A strong hold on the budgetary power
13
An amendment of the Constitution adopted in the appropriate manner (according to § 112 of the Constitution)
will be sent to the King for “public announcement in print as an applicable provision of the Constitution of the
Kingdom of Norway”, but it is a simple formality. The King does not have a formal say in constitutional matters.
14
There are no provisions on referendums (binding or not) in the Constitution.
15
https://stortinget.no/en/In-English/About-the-Storting/The-Constitution/
16
The Norwegian Parliament can also take other kinds of acts, such as the joint resolutions (plenarvedtak).
4
According to article 75 d) of the Constitution, it devolves upon the Storting to “appropriate
the moneys necessary to meet government expenditure.” It has the final authority in matters
concerning the finances of the State - expenditures as well as revenues. It has the exclusive
authority to grant money to the Government and to order expenditures. The Parliament’s
budgetary authority can thus either take the form of general allocations or of (very) detailed
budgets, assorted with conditions and reservations – as has traditionally been the case since
the middle of the 19th century. The Storting votes on the State Budget in plenum by adopting a
joint resolution (not a law, lovvedtak), thereby depriving the Executive of using its veto power.
However, in practice, nowadays, the Storting accepts the Government's proposals, usually
with only minor changes. The Government’s proposal and the Storting’s resolution normally
differ financially by less than one per cent. Moreover, the parliament makes many of its
appropriations in the form of block grants or “umbrella appropriations”, so that it is up to the
Government to make the final decisions about how the funds are to be applied. 17
c. The power to control Government: A well-developed supervisory authority
The third main function of the Storting is to supervise the Government and the public
administration. 18 This function must be construed from various constitutional provisions
scattered all over the Constitution, as there is no single article defining this activity.
Among its main supervisory tasks, the parliament has to examine the decisions taken by the
Council of State; it has to review the treaties concluded with foreign countries or powers; it
has to audit the State accounts. The Storting is responsible for ensuring that the Government
implements the decisions made by the Storting and for checking that the various central
government agencies adhere to the guidelines drawn up by the Storting.
Most of all, the government is, by tradition (customary constitutional law) – and
constitutionally since 2007, politically accountable to the Storting. The principle of negative
parliamentarism was enshrined in § 15 of the Constitution in 2007, after a century of practice:
no investiture vote is required (which, combined with a voting system based on proportional
representation, favours the occurrence of weak minority governments). Yet, if the Storting
passes a vote of no confidence, the Cabinet must submit a formal application to resign. The
parliament is all the more powerful that a simple majority of the MPs present for the vote
suffices 19 and that there is no dissolution right.
Another constitutional way for the Storting to hold the Government accountable is to initiate
impeachment proceedings (article 86 of the Constitution). The last impeachment trial was
held in 1927, with the ministers being acquitted.
An impressive array of control tools, mechanisms (debates, questions, interpellations) and
institutions and standing committees (such as the powerful Standing Committee on Scrutiny
17
https://stortinget.no/en/In-English/About-the-Storting/Budget/
Sejersted, Fredrik (2002). Kontroll og konstitusjon. Oslo: Cappelen akademisk forlag, 1163 p.; Sejersted,
Fredrik (2000). “Parliamentary Scrutiny of the Government and the Administration”, European Public Law, pp.
484-95.
19
There have been many proposals (mistillitsforslag), yet only two governments had to resign after a vote of no
confidence: the Government Hornsrud in 1928 and the Government Gerhardsen in 1963.
18
5
and Constitution Affairs, entitled to raise whatever matters it wishes to investigate), the
Parliamentary Ombudsman, the Office of the Auditor General, are at the Storting’s disposal.
The Storting is undoubtedly a strong parliament, but it had to fight to gain more power.
2. A supreme power seized over the years
Any thorough analysis of an institution such as a parliament requires taking into account both
the written legal texts and the customary practices that may have developed over time. This is
particularly necessary in the case of the Norwegian parliament.
In addition to the constitutional framework designed by the constituent assembly in Eidsvoll,
various ideological, historical and political reasons made it possible for the Parliament to
seize more power at the expense of the Executive.
a. The Norwegian conceptions of the separation of powers and popular sovereignty
The ideological background from 1814 onwards was favourable to change and to a powerful
Storting.
While retaining a Monarchy, the Norwegian Constitution of 1814 was inspired by the political
ideals of the Enlightenment, and the American and French experiences (the United States
Declaration of Independence in 1776, the French revolution of 1789 and their subsequent
Constitutions, respectively 1787 for the USA, and the French Constitutions of 1791, 1793 and
1795), as well as the British system. This liberal Constitution was supposed to reflect a free,
sovereign, independent Norway, and the parliament incarnated what the Constitution mainly
stood for, more precisely, the sovereignty of the Norwegian people. The King 20’s absolute
veto over laws was also deliberately removed.
Following its invasion by the Swedish army of King Carl Johan in July 1814, Norway
surrendered in August, but Sweden let the Norwegians keep their Constitution, as they meant
for the Union to be, de jure if not de facto, between equals. It was however revised in
November, in order to adapt the text to the new Union, the same day the Union between
Sweden and Norway under Carl Johan had been approved by the Parliament, on November 4,
1814 (Carl 13 of Sweden became the Norwegian king). 21
The fathers of the Constitution, who were familiar with, inter alia, Locke, Montesquieu,
Rousseau and De Lolme, 22 did not want to compromise between separation of powers and
popular sovereignty – and they did not have to, even in November 1814. Actually, rather than
applying Montesquieu’s theory in The Spirit of the Laws, that did not fit with their ideal of
popular sovereignty, they adhered to the political philosophy and doctrine of the separation of
powers of his predecessor and source of inspiration, the English philosopher John Locke. 23 In
20
Even though Denmark, at the end of the Napoleonic wars, had already lost Norway to Sweden (the Treaty of
Kiel had been signed in January 1814, ceding Norway to Sweden), the heir of the Danish crown, Christian
Frederick, had been chosen King, by the will of the people (not by God), and the power was originally split
between him and the Storting.
21
Compared to the May version of the Constitution of 1814, the King had more limited powers, notably when it
came to dispose of military troops or to declare war. On the contrary, the State Council (the Cabinet /
government) beneficiated from a more independent position.
22
Nordby, Trond (2004), op. cit., p. 52-7.
23
See Holmøyvik, Eirik (2012). Maktfordeling og 1814. Bergen: Fagbokforlaget, 586 p..
6
his Second Treatise of Government, Locke claimed that any legitimate government had to be
based on the idea of separation of powers and that “there can be but one supreme power,
which is the legislative, to which all the rest are and must be subordinate.” 24 According to
professors Bjørn Erik Rasch 25 and Eirik Holmøyvik, the founding fathers always intended to
give more power to the Storting than to the Executive, even though it is not totally apparent in
the structure and text of the Constitution, 26 because the separation of powers was designed to
realise popular rule / the idea of popular sovereignty, and not an institutional balance between
the King and the people. 27 Control was also a central function exercised by the Storting
during the period called “Senior Officials State” or “Civil Servants State”
(embetsmannsstaten) 28 from 1814 to 1884. 29
The events of 1814 resulted in a union of two sovereign states that had the same King, foreign
policies, and diplomatic representations. During the Union, the Storting’s main political
advantage was thus that it represented the Norwegian people and the country as a whole – and
it was a living symbol for Norwegian nationalism.
b. The struggle between the Norwegian Parliament and the Swedish King - The shift
in the balance of powers in favour of the Storting.
The parliament conquered power to the detriment of the Executive partly thanks to a certain
“remoteness” of the Swedish King trying to establish a personal rule while residing abroad
and partly because of, on the one hand, the development of “constitutional” practices (and of a
constitutional tradition, “interpreted as a defensive line for independent Norway” 30) in the
silence or vagueness of the Constitution that contributed to undermine the King’s power 31 – a
crucial element here being that the Parliament did not amend the Constitution, even though it
had the legal power to do so – and because of well-thought and executed political and legal
moves, on the other hand.
Parliamentarism emerged progressively in Norway as the Storting acquired an almost
unbound legislative power and won the “veto struggle” (vetostriden) against the King.
24
http://www.constitution.org/jl/2ndtr13.htm
Rasch, Bjørn Erik (2004). Kampen om regjeringsmakten. Norsk parlamentarisme i europeisk perspektiv.
Bergen: Fagbokforlaget, p. 28.
26
Chapter B. of the Constitution contained many provisions on the Executive / the King’s powers. The future
(Danish) King of Norway (in 1814), Christian Frederik, had initiated and followed closely the elaboration of the
Constitution.
27
Holmøyvik, Eirik (2012), Makfordeling og 1814, op. cit., p. 29, 556.
28
As the nobility had been abolished in 1821 in Norway, there were a few bourgeois, but no aristocracy in the
19th century Norway, with 2000 officials dominating the whole State life (but from the 1832 election, there was
also a majority of farmers in Parliament). See Seip, Jens Arup (1963). Fra embedsmannsstat til ettpartistat og
andre essays. Oslo:Universitetsforlaget.
29
Sejersted, F. (2002), op. cit., p. 199f. The fall of the ruling class of civil servants from 1870 to 1884 can
partially be explained by the fact that, from 1869, the parliament had begun to assemble every year, and not
every third year: it gave more influence to the opposition, composed of farmers, teachers, lawyers and civil
servants.
30
Michalsen, Dag (2010). “Constitutional Tradition: Between Law and History. The Case of Nineteenth-Century
Norway”, Revue d’histoire nordique, nr. 10, pp. 147-162, p. 157.
31
For example, as the Constitution did not provide any specific rules on the treatment of the budget, the
parliament decided to it should be dealt with in plenary, but not as a legislative matter (lovsak). The King had a
right of veto in legislative matters, but not in matters involving the adoption of joint resolutions (plenarvedtak).
This gave a great influence to the Storting on the King, as it had a hold on the State budget.
25
7
As the King, the one real common institution in the Union, was suspected (not always with
reason) of favouring Swedish interests and became a distant figure because he ruled from
Stockholm most of the time, the Storting did not want to recognise him more powers than
already stipulated in the November Constitution. This defensive attitude, aiming at countering
the King’s attempts to strengthen his role and to amalgamate the two countries furthermore,
contributed to a shift towards democratisation and impersonal royal rule. Then, the idea of
parliamentary control of the King made its way.
Most of the time, the King would not interfere with the laws proposed by the Storting.
However, when the Storting tried to propose laws aiming at reducing the King’s power or at
ascertaining Norway’s independence, the King would veto them, but his veto was only a
suspensive one: The King has to sign all laws in order for them to become valid. He could
veto any law. However, if three separate Storting approved the law, it became valid even
without the King’s consent. 32
The controversy on the veto power on constitutional matters is a key to understanding the
shift of power between the Executive and parliament.
In 1872, the Norwegian parliament adopted a constitutional amendment according to which
the Government had the duty to meet in front of the Storting. The Government advised the
King not to sanction this decision. He vetoed each of the three identical decisions taken by
three different Storting, thereby refusing their enactment. The issue was whether the King had
an absolute veto power in constitutional matters. For the leader of the opposition Johan
Sverdrup, the parliamentary decision was a valid constitutional amendment. The King and the
government disagreed because it would mean the instauration of parliamentarism in Norway.
Sverdrup and his followers strategically waited to gain a sufficient political majority during
the general elections of 1882 to set in motion of procedure of impeachment against the Selmer
Government in 1883. The Government Selmer was impeached in 1884 and had to resign, as
the majority of the Court of Impeachment (Riksretten) assumed that the Storting was supreme
in relation to the Constitution and that the King (government) had no veto right on
constitutional amendments. The King then tried to appoint a new Government (lead by
Christian Schweigaard) but it could not sit without the confidence of the parliament. On 1st
July 1884, King Oscar appointed Sverdrup as Prime minister of Norway and gave his sanction
to the law on the ministers’ duty to meet in parliament. For many, the year 1884 symbolises
the instauration of parliamentarism in Norway. It is more correct to assert that this date marks
an important step in the evolution of parliamentarism in Norway, a breakthrough. 33 One could
also argue that, at that time, the principle of popular sovereignty had won over the principle of
separation of powers. As Sverdrup had claimed in 1872: “It is no longer possible to govern
without the Storting, one must govern with the Storting.” 34
As the King was losing his personal power, the government took progressively over the
executive power and became accountable to the elected representatives of the people. But the
dispute between parliament and the King culminated with the matter of separate Norwegian
consuls to foreign countries. The Storting proposed a law establishing a separate Norwegian
consulate corps. King Oscar II refused to ratify the law, i.e. used his veto right, leading to the
resignation of the Norwegian cabinet. As he had been unable to form any other government
that had the support of parliament, it was deemed on 7 June that the King had failed to
32
See articles 78, 79 and 80 of the Constitution.
See, for example, Nordby, Trond (2004), op. cit..
34
“der kan ikke lenger regjeres uten Stortinget, der må regjeres med Stortinget”
33
8
function as King of Norway. The Storting thus declared the dissolution of the Union between
Norway and Sweden in 1905. The King has not vetoed any law since the dissolution of the
union with Sweden (with one exception in the 1970s).
The parliamentary interpretation of article 12 of the Constitution, according to which the King
selects himself a Council from among Norwegian citizens entitled to vote, is another
milestone in the establishment of parliamentarism in Norway. Formally speaking, new
ministers were appointed by the King (1814-1884). But in reality, the government became
increasingly a self-elected body. Since 1884, the government has been derived from
Parliament and remains in office as long as it enjoys its confidence.
3. A tradition for judicial deference
Another essential aspect of the British concept of parliamentary sovereignty – and the
counterpart to the unlimited legislative power of the parliament – is that the acts of the
sovereign parliament cannot be questioned by the courts, nor overridden or overruled. It is,
legally speaking, the ultimate expression of popular sovereignty; the people’s exercise of
power through their representatives cannot and must not bound. Truly enough, the Judiciary
can (now) exercise judicial review of legislation in all the Nordic countries. But there still is a
dominating tradition of strong parliaments in these countries, whose acts are not often
overridden or set aside, even though the courts have the power to do so. The Nordic courts
have indeed traditionally shown a certain reluctance to exercise an active judicial review of
legislation, thus comforting parliaments in the use of their legislative power. 35 A weak form
model of judicial review is usually applied. Why?
The Nordic countries are all unitary States with parliamentary systems 36 , where the
unicameral parliaments 37 represent the sovereign people and are invested with the legislative
power. They share a common respect for the law and an equal reverence for the one that
makes it, the legislator. Not surprisingly, none of the Nordic countries have established a
separate Constitutional Court (dealing primarily with constitutional law). And until the
constitutional reform of 2000, judicial review of legislation by courts was forbidden in
Finland. In Sweden, judicial review was not incorporated in the constitutional text until 1979.
Both in Finland and in Sweden, according to the “clear mistake rule” / “manifest error”
principle, only when the statute is unconstitutional beyond any reasonable doubt may a court
set it aside for purposes of deciding a case. 38 In Denmark, the Constitution does not mention
whether the courts have the right to overturn a legislative act contrary to the Constitution 39 nor does the Norwegian Constitution. Judicial review is not mentioned in the Constitution –
but it can be deduced from a combined reading of articles 88 and 90 of the Constitution: the
35
See, for example, Nordisk tidsskrift for menneskerettigheter (2002), nr. 2. Note that things have changed since
the publication of these articles, especially in Norway since 2010.
36
Finland has a strong President and may be presented as a semi-presidential system (primarily parliamentary).
37
While parliaments of many EU countries are still bicameral, all the Nordic countries have now directly elected
unicameral parliaments. Sweden adopted the unicameral approach in 1971, Denmark in 1953, Finland in 1906
and the unicameral parliament in Iceland has taken the same form for more than 150 years. Norway had a kind of
semi-bicameral legislature until 2009 (reform adopted in 2007). – Nguyen-Duy, Iris (2008). “L’abolition du
bicamérisme norvégien”, Revue de droit public, 3-2008 (mai-juin).
38
See section 106 of the Finnish Constitution of 1999 and article 14, chapter 11 of the Swedish IoG.
39
Like in Norway, the courts have assumed this right and they actually declared a law unconstitutional three
times (only!). It was not until 1999 that the Supreme Court of Denmark rejected a politically important statute as
being contrary to the Constitution.
9
Supreme Court has the final word in legal matters, as it pronounces its judgments in final
instance and as its judgments may not be appealed.
Norway distinguishes itself from the other Nordic countries as it is the first European country
to have developed a system of judicial review of legislation, no later than 1822 (only a few
years after the US Supreme court’s Marbury v. Madison of 1803), 40 on the assumption that
the Constitution is positive law that should be obeyed and applied by the courts, and is of a
higher rank than legislation, because it is more difficult to amend. Yet, the parliament has
managed to gain most of its powers, culminating with its supremacy in the 1990s, mainly
because the system is limited (it is ex post facto, diffuse and concrete, with effects inter partes)
and because the Norwegian courts have traditionally showed deference and restraint when
exercising judicial review.
A ruling principle is that one should not interfere with the popular will expressed by a
democratically elected majority (identification of democracy with majority rule). Judicial
review was considered by the Liberal tradition to be “a stick in the wheels of democracy”
(Jens Arup Seip). 41 As a consequence, only a very deferential conception of constitutional
review has long been thought legitimate. It is for the parliament itself to decide whether a
piece of legislation is within the boundaries set by the Constitution. The courts have
traditionally strived to observe the Storting’s considerations on the constitutionality of an Act.
In Norway, weight is given to the travaux préparatoires in the review of legislation, and
interpretation is used as a medium, which might reduce eventual conflicts between the
Judiciary and the Storting. Only when there is enough ground for suspicion of
unconstitutionality (rimelig tvil), is the law not applied, but left valid.
Only once during the 20th century before 1976 and the seminal “Kløfta case” (Rt. 1976 p. 1)
have there been a relatively high number of pieces of legislation declared unconstitutional (or
not applied), between ca. 1909 and 1930, 42 but at a time when the State was more
interventionist and tried to ensure national control of the industrialization and exploitation of
national resources. 43
Despite the fact that Norway’s legal system is based on an old, resilient, written Constitution
and that the country was a pioneer in developing a system of judicial review of legislation in
the 19th century, the Norwegian parliament has managed to rise and attain a virtual
sovereignty, with characteristics close to those of Westminster.
A crucial reason is probably the consensus on the identification / assimilation of majority rule
(flertallsstyret) to democracy (and popular sovereignty). As a consequence, the sovereign
parliament had a large leeway and needed no more to bother amending the Constitution and
could legislate instead.
However the political and social context has evolved, the mentalities also, and the majority
rule is no longer the only important value to protect.
40
Smith, Eivind (1993), op. cit.; Slagstad, Rune (1995). “The Breakthrough of Judicial review in the Norwegian
System”, in Smith, Eivind (ed.), Constitutional Justice under Old Constitutions, The Hague: Kluwer Law
International, p. 81-111.
41
Slagstad, Rune (1995), op. cit., p. 109.
42
See the “Great Concession case” of 1918, Rt. 1918 p. 401.
43
Smith, Eivind (2003). “Courts and Parliament: The Norwegian System of Judicial Review of Legislation”. In
Smith, Eivind (ed.). The Constitution as an Instrument of Change. Stockholm: SNS Förlag, p. 185.
10
II. The End of an Exception? The Gradual Decline of the Storting
It has been implied above that the Storting has been a strong, even sovereign at times,
parliament, but never continuously, mostly in waves. The variations of the political
significance of the Storting follow an “ebb-and-flow” pattern. 44 Indeed, like the other
European Parliaments, the Nordic ones have not escaped the wave of “decline of legislatures”,
but it happened later. Institutional evolutions, political shifts, as well international and
supranational cooperation, at the turn of the 21st century, have been detrimental to parliament.
Especially during the last decade, the Storting’s legislative power has been quite rapidly
undermined both internally and externally. Judicial review of legislation has proved much less
deferent, more active (1.). The Government has a strong hold on the legislative power (2.).
Last but not least, even though Norway is not a member of the European Union, the Storting
has apparently become a “rubber-stamping institution” for legislation coming from Europe,
not to mention the influence of the human rights and the ECHR. But parliament has itself
“signed” for it. Has the Storting become its own enemy? (3.)
1. From respect for the law-maker to respect for the Law.
There has been a “renaissance” (Eivind Smith) of judicial review in Norway since 1970s,
amplified in 2007-2010. Its development over the last 30-40 years has revealed a shift from
respect for majority rule to constitutional democracy… and supremacy?
Constitutions are neither meant to say all, nor to be as detailed and clear as legislative acts. It
is therefore up to the State authorities to interpret it. It has been common to argue that
Parliament's interpretation of the Constitution (Stortingets syn) must be given considerable
importance. Several recent decisions suggest that this view must be modified and that the
principle of the Constitution as lex superior primes. 45 The Supreme Court now tends to crave
the fulfilment of “quality requirements” 46 from parliament’s expressed constitutional
interpretation. Indeed what is the use for a Constitution if Parliament can freely interpret it or
disregard it every time it deems it convenient or necessary?
Both the parliamentary institution and its powers stem from the Constitution. In addition, the
Constitution prescribes the rules of procedure to follow and the material limits that should not
be trespassed. 47 Parliament is bound by the Constitution, and it has to respect it, otherwise, it
will be sanctioned. That is, in a condensed way, the lesson to be learned from the Supreme
Court’s recent case law, particularly from the OVF case (Rt. 2010 p. 535), where the
Storting’s constitutional interpretation in the case was ignored and where a somewhat
“outdated” constitutional provision (§ 106) was applied respectfully by the judges. In both
this case and the rederiskatt case (Rt. 2010 p. 143), 48 the Supreme Court stated that the
44
Olsen, Johan P. (2014). Folkestyrets varige spenninger. Stortinget og den norske politiske selvforståelsen.
Oslo: Universitetsforlaget, p. 151-2; Olsen, Johan P. (1983). Organized Democracy. Political Institutions in a
Welfare State – The Case of Norway. Oslo: Scandinavian University Press, p. 42, 72.
45
There is however no direct reference to the lex superior principle by the Supreme Court. It is implied, f.ex. in
Rt. 2010 p. 143 (rederiskatt).
46
See Arne Fliflet (2013), “Noen tanker om grunnlovstolkning i en ny tid”, Jussens venner, nr. 48, pp. 140-154,
p. 146-7.
47
Smith, Eivind (1993), op. cit., p. 304-329.
48
See Smith, Eivind (2011). “Norway - Supreme Court strongly reaffirms supremacy of constitution by striking
down controversial legislative provisions”, Public Law, p. 188-190.
11
constitutional violation was so clear that it was irrelevant what the Parliament as the
legislature might have meant about the constitutionality of the draft legislation. 49
The reasoning of the minority of the Supreme Court in the OVF case was dismissed, even
though the second-to-vote, Justice Endresen, asserted that article 106 of the Constitution on
church property “was out of date” and that this provision could “not be used as an obstacle for
the legislator” [at 235]. As long as a constitutional provision, however old or obsolete, is not
amended, it remains valid and binding. The Storting now risks seeing its legislative acts
systematically set aside by the courts whenever they violate the Constitution. This contributes
to legal certainty and stability.
Since 2007-2010, the Norwegian courts have indeed shown less deference to the expressed
interpretation of the Constitution by the Storting and have begun setting legislative provisions
aside more often – and they intend to continue to do so. 50 The Supreme Court underlines the
importance of the separation of powers, both horizontally and vertically, as it actually urges
parliament to re-think its functions, both legislative and constituent: it has to use its
constitutional powers properly, instead of trying to bend the Constitution according to its wish.
If a constitutional provision stands in the way of a legislation, it has to be amended in the
proper way (according to § 112 of the Constitution) before the law is passed. The Supreme
Court’s ruling in the OVF case has demonstrated that it can be “formalist” when needed.
Respect for the rule of law, and for the Constitution in particular, now seems to prime over
respect for the will of the people expressed through the political majority in parliament.
2. A legislative power controlled by the Executive?
Quite schematically, the relationships between the Government and the Storting can be
summed up as following: while it is, as a rule, strong in times of minority governments (f.ex.
between 1985 and 2005) and sends clear signals and instructions, the Storting usually loses its
legislative power to the Government in times of majority governments (more recently
between 2005 and 2013). 51 Its powers vary according to the political – and international –
context.
More than 90% of the laws passed by parliament have been initiated by the Government. 52 In
a way, it controls the legislative process, as it disposes of a well-developed apparel (inter alia
the Legislation department of the Ministry of Justice) drafting almost all the bills before they
are submitted to parliament for consideration. It is not easy to say who the real legislator is
when the bills are mostly prepared by the Government and its ministries and when parliament
49
As Eivind Smith explains, it is now beyond doubt that Parliament’s views have an independent weight only in
situations where at least two answers to what the Constitution allows for, appears justifiable (and the legislator
has chosen one of these). “It is not that striking if the Constitution is taken seriously.” – Smith, Eivind (2010),
“Hvem bør endre grunnloven? - Randbemerkninger til plenumsdommen om Opplysnings-vesenets Fond”, Lov
og rett, nr. 6, pp. 305-306.
50
For ex.: Rt. 2010 p. 143 (rederiskatt); Rt. 2010 p. 535 (OVF), Rt. 2010 p. 1445 (krigsforbrytelse).
51
Between 1945 and 1961, the Norwegian Labour party had an absolute majority in the Storting. Otherwise,
there have been minority governments during most of the 20th century.
52
When an MP present a draft proposal, he does it to mark the position of his party, and these “document 8proposals” are usually voted down by the Storting.
12
seldom makes significant changes to a bill (even though there are, in theory, few limits to its
amending power). 53
Another worrying issue is the quantitative amount of delegations of power to the Government.
The Constitution states that the legislative power is exercised through the Storting. In practice,
however, the Storting delegates much of the normative function to the Government and public
administration. This is done by adopting framework Acts or enabling Acts that give the
Government or public administration the authority to issue further provisions, rules and
regulations. There are approximately three times as many regulations as Acts. This is one
aspect of a deeper problem, which is that the Storting might be held responsible for its own
decline.
3. Is the Storting its own “enemy”?
The decline of the Storting’s legislative power goes hand in hand with the europeanisation of
Norway. But this should not conceal the fact that parliament’s internal organisation is a matter
for concern.
a. “No power in this Chamber”? – The issue of the dispersion of the legislative
power.
European integration confronts the Nordic countries to different legal and constitutional
cultures, to other conceptions of constitutions and democracy. However, most of them, like
Norway, have a protective system, a dualist legal order, according to which international law
has to be transformed into national law in order to have legal effect. This is consistent which a
tradition of strong legislative parliaments. Yet the Storting’s legislative power has been
undeniably undermined by some of Norway’s most important agreements with the EU and on
the protection of human rights.
Even though Norway’s relations with the EU are based on association without membership
via the European Economic Area agreement (EEA agreement), it has undertaken the task to
adopt and to comply with a significant proportion of EU policies and rules. Mainly through
Parliament (because of Norway’s dualistic system), it has adopted large parts of the acquis
communautaire and has a high level of implementation. Indeed, since Norway has been part
of the EEA, EU legislation has flowed in Norway, via the quasi-automatic adoption of
legislative acts by the Storting. “EU law has been incorporated to some extent into around 170
of a total of 600 Norwegian statutes and approximately 1 000 Norwegian regulations.” 54 A
striking and worrying example of quasi-automatic adoption of EU legislation despite the
dualist system is the vote by the Storting, in December 2012, on the transfer of the power to
impose penalties, coercive fines, etc. to authorities outside Norway, among others to the
EASA (European Aviation Security Agency): the Storting devoted a grand total of four
minutes to the issue, voted unanimously (but not according to § 93) and there was no
debate. 55
53
More than 70% of the bill initiated by the Bondevik II government between 2001 and 2005 have been voted
without any change. – Salomonsen, Marianne Øyfoss (2006), Stortingets makt på lovgivningsområdet, Master
dissertation in political science, University of Oslo, p. 102.
54
NOU 2012:2, Outside and Inside. Norway’s Agreements with the European Union.
55
http://www.stortinget.no/no/Saker-og-publikasjoner/Publikasjoner/Referater/Stortinget/20122013/121218/8/#votering
13
Moreover, neither EU nor ECHR law has been introduced in domestic law at constitutional
level. They do not enjoy a semi-constitutional status either. However, one can find
primacy/precedence clauses in two core legislations incorporating them into national law (see
article 2 of the EEA Act of 1992 and article 3 of the Human Rights Act of 1999) that give
precedence to either these acts or their content in case of conflict with another piece of
legislation.
The facts show clearly that the Storting (whether it had foreseen it or not when ratifying the
EEA agreement and others) has lost much of its legislative power, especially to Europe. But
there is no place for any longer analysis here.
Lastly, even though parliament is a mandatory forum for decisions regarding membership of
the EEA and other international agreements, parliament cannot really influence decisionmaking at EU level before decisions have actually been taken.
About the protection of human rights, following the incorporation of the ECHR and other
conventions or covenants in the Norwegian Human Rights Act, one can detect a tendency to
move towards a rights-based constitutionalism. Legislative acts will probably be increasingly
submitted to rights-based judicial review performed by an “empowered” Supreme Court,
especially if a two-thirds majority of the Storting votes for the comprehensive reform
proposals at the occasion of the celebration of the 200 year anniversary of the Constitution
this year.
b. “The empty Chamber” – A Deserted Political Arena
The televised broadcasts of the Storting usually show a deserted Storting, with only few MPs
sitting during the debates. Where are the 169 MPs? How can the Storting be a political arena
when 90 % of the seats are empty?
According to the parliament’s official information leaflet, “An individual Member is therefore
usually present in the Chamber when he or she is involved in a particular item of business,
takes a special interest in a specific measure, or would like to hear what a certain Member has
to say on a matter, perhaps with a view to taking part in the debate. Members often follow the
debates via online TV.” 56
At least half of the Members of the Storting are required to be present in the Chamber when
the meeting is convened, and to participate in all votes (unless they have «paired off» or are
on leave of absence), as a law or any other kinds of parliamentary decisions cannot be passed
without a certain quorum (§ 73 of the Constitution): When voting on ordinary matters, at least
half of the Members must be present in the Chamber, whereas two-thirds of the Members
must be present when voting on amendments to the Constitution. But most matters are
debated in the 12 permanent standing committees and in party groups. Real, heated, open
parliamentary debates are infrequent. Usually, there is a full Storting only for the vote of the
budget and the annual Speech from the Throne.
56
https://stortinget.no/Global/pdf/Hovedbrosjyre%20div%20spraak/2013_engelsk.pdf
14
Moreover, the Storting’s apparatus is not as well developed and specialised as the
Government’s and cannot compete with the Legislation Department’s high level of legal
expertise.
*
The origins and development of a country’s political institutions are unique, because they
reflect the national history and preoccupations of this country at a certain point in time. But
“the underlying value and functional ideas are much more common across systems” 57, at least
for the Western and Nordic ones. The challenges they have to confront are also remarkably
similar, because of the tighter relationships and collaboration between them and because of
the effects of globalisation.
This paper has hopefully demonstrated that the Norwegian parliament enjoys a considerable
amount of power overall, but the full extent of its legislative power depends on the
willingness or cooperation of the two other powers, especially as it is gradually
(irremediably?) eroded because of Norway’s membership to the EEA and other international
agreements. An additional concern, only touched upon here, is its declining role as an
effective political and democratic arena.
The variations in the Storting’s power reveal an everlasting quest of balance of powers in the
Norwegian democracy and end up painting the paradoxical image of a sporadically sovereign
Parliament.
57
Bell, John, “Does public law need to be comparative?”, www2.law.ed.ac.uk/bacl/files/bell%20paper.doc, p. 2.
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