1 Introduction

Scholarly debate concerning the judicial review of parliamentary proceedings has mainly focused on the constitutional principles in the light of which such a review should be excluded, e.g. in the U.K.¹ (Dicey 1885) and the U.S.² (Choper 2005, 1505–1507); or on the constitutional principles in the light of which such a review should be grounded or at least limited, e.g. in the U.S. (Bar-Siman-Tov 2009; Bar-Siman-Tov 2011), Italy (Manetti 1990; Manzella, 2003: 61–64) and other jurisdictions (Navot, 2006; Wintr, Chmel and Askari, 2021).

The approaches taken to judicial review can differ substantially from one legal order to another.

First, distinctions can depend on whether the principle of sovereignty is rooted in Parliament or in the Constitution within a legal order (Szabó 2019: 383–384), since in jurisdictions such as the U.K. the sovereignty (thus, not simply ‘autonomy’) of Parliament is the relevant constitutional principle which thus rules out judicial review of parliamentary proceedings entirely.

In contrast, in jurisdictions where the Constitution has sovereignty, the controversial legal issue is finding the equilibrium point between the autonomy of Parliament and other constitutional principles. However, differences can also be found between these jurisdictions: these can be due to legal factors, such as the establishment of external or internal remedies and of remedies available to external persons or to parliamentarians (Szabó 2019: 383–384); or they can depend on more factual elements, such as the stature of the Constitutional Court (Navot 2006: 198). In those jurisdictions where the autonomy of Parliament also applies to the review of internal proceedings (in other words, the establishment of internal ‘judges’), the issue concerning the equilibrium point between the autonomy of Parliament and other constitutional principles is even more complex, due to the parallel role of the Constitutional Court, which is tasked with carrying out constitutional judicial review.

This is the case, for example, in Italy (which will be studied here) where Article 64 of the Italian Constitution reads as follows: ‘Each House adopts its own Rules by an absolute majority of its members’. This Article has been interpreted by the Italian Constitutional Court as the legal basis of the autonomy of the Chambers: accordingly, disputes relating exclusively to violations or the incorrect application of parliamentary regulations and the practices of each Chamber are reviewed within the Chamber itself, i.e. by internal ‘judges’ (Section 3). It is not easy, however, to draw a line between violations/incorrect applications of internal regulations/practices and violations/incorrect applications of constitutional principles.

In the final analysis, as is evident, the equilibrium point between the autonomy of Parliament and other constitutional principles is still an issue, because solutions can differ from one legal order to another. In jurisdictions (such as Italy) where internal ‘judges’ are established, the issue is even more complex, because the autonomy of Parliament involves (at least, partially) the review of internal proceedings itself. Moreover, as this equilibrium is a matter of balance, a solution cannot be stated once for all, even domestically (Manetti 1990: 158).

This essay does not try to resolve this issue. It simply aims at enriching existing studies, suggesting a methodology that might help in viewing (and critically analysing) each equilibrium point that is set within a legal order.

The first hypothesis of this article is that, when defining the scope of the autonomy of Parliament (thus balancing this principle with other constitutional principles), both supranational and international ‘constitutional’ principles should be taken into account alongside domestic constitutional principles. On the one hand, specifically ‘constitutional’ principles of a supranational or international nature depend on the supranational or international organizations every jurisdiction belongs to. Moreover, every jurisdiction is bound by some ‘constitutional’ principles of a supranational and international nature: thus, generally speaking, the hypothesis should potentially work for every jurisdiction. The first hypothesis will be tested here with regards to those States that belong to the European Union and the European Convention on Human Rights, paying particular attention to the case-law concerning Italy.

The second hypothesis is that (in those jurisdictions where domestic judicial review is not excluded) such an equilibrium point should be viewed within the theoretical framework of the system of constitutional justice established domestically: i.e. the types of standards in the light of which parliamentary proceedings can be judicially reviewed; the types of acts that can be judicially reviewed; the types of jurisdictional disputes that can be brought before the Constitutional Court; the types of subjects that can initiate disputes and the types of violations of the Constitution that can be judicially reviewed.

Some authors have already (critically) analysed this second issue from the perspective of certain characteristics of the domestic system of constitutional justice, such as the types of standards (Navot 2006: 201–210; Lupo 2012: 207–219; Ibrido 2015: 259–290) or the jurisdictional disputes between branches of state (Rivosecchi 2003). However, no comprehensive methodology has been elaborated for viewing such an equilibrium point in the light of the whole system of constitutional justice domestically established.

The second hypothesis will be tested (and its results critically analysed) here with regards to Italy. This second hypothesis could also be applied to and further tested with regards to other jurisdictions. It is true that systems of constitutional justice (thus, the equilibrium point between the autonomy of Parliament and other constitutional principles) differ from one legal order to another. However, the methodology suggested here is to assume that the equilibrium point, whatever it is, should be viewed within the theoretical framework of the system of constitutional justice established in that legal order, whatever it is. Therefore, it is very likely that, when establishing the equilibrium point, such a methodology would give different results for each jurisdiction, although this does not mean that the general methodology does not potentially apply to them, as it can be applied whatever system of constitutional justice prevails there.

This methodology seems to be useful not only for viewing the equilibrium point between the autonomy of Parliament and other constitutional principles that is set in a legal order but also for critically analysing it from a legal perspective. As this methodology gives a broad picture of the several tools which can be employed to carry out constitutional judicial review of parliamentary acts, one can analyse whether in a legal order a fair and reasonable equilibrium between the autonomy of Parliament and other constitutional principles is actually granted, viz. whether there is an equilibrium between the tools that can/cannot be used to carry out judicial review of parliamentary acts.

Obviously, in order to carry out such a critical legal analysis (i.e. concerning a fair and reasonable equilibrium between constitutional principles), a sort of (constitutional) factual element should be used as a standard (Ruggeri-Spadaro 2019, 147–162). When it comes to analysing the grade of autonomy of Parliament, compared to the scope of judicial review that can be carried out by a Constitutional Court with regards to parliamentary acts, a constitutional factual element that is usually taken into account by scholars is the grade of consensus that characterises a political system (Rivosecchi 2003: 369–370; Lupo 2012: 218–219; Manetti 2013: 308–310). The more majoritarian and less consensual the system is, the more attention should be paid to the necessity of judicially reviewing parliamentary proceedings in order to protect those constitutional principles which are intertwined with the needs and the role of the Opposition and parliamentary minorities. This standard will be taken here, in order to critically analyse the actual equilibrium point in the Italian legal order.

The essay will proceed as follows.

The first hypothesis will be tested in light of the case-law of two ‘constitutional’ supranational or international courts: the Court of Justice of the European Union (ecj) and the European Court of Human Rights (ECtHR). First, the meaning of ‘constitutional’ principles of a supranational or international nature will be explained. It will then be demonstrated that, when defining the scope of the autonomy of a Parliament (thus balancing it with other constitutional principles), principles established by ‘constitutional’ supranational and international courts should also be taken into account domestically (Section 2).

The second hypothesis will then be proved in light of case-law of the Italian Constitutional Court. It will be demonstrated that in the Italian constitutional system the equilibrium point between the autonomy of Parliament and other constitutional principles depends on the types of standards, acts to be reviewed, jurisdictional disputes and subjects that can initiate disputes and violations of the Constitution, that characterise the Italian system of constitutional justice (Section 3).

Taking into account the broad view given by this methodology, the actual equilibrium point, as recently set out in Italy by the Constitutional Court, will finally be critically analysed, assuming as a standard the current grade of consensus that characterizes the Italian political system (Section 4).

Finally, some general conclusions will be drawn concerning the possibility of further testing such a methodology with regards to other jurisdictions (Section 5).

2 ‘Constitutional’ Supranational and International Principles to be Taken into Account when Defining the Scope of the Autonomy of Parliament Domestically

As has recently been noted in the literature, a kind of parliamentary ‘ius gentium’ or ‘ius commune’ is evolving: among other factors, parliamentary activities are increasingly being observed by international actors and repeatedly reviewed by international forums (Szabó 2019: 383 and 393; Szabó 2021: 2).

This substratum of principles established internationally (or supranationally) affects the issue considered here: when defining the scope of the autonomy of Parliament domestically (thus balancing such a principle with other constitutional principles), principles also established by ‘constitutional’ supranational and international courts should be taken into account.

Regarding ‘constitutional’ supranational and international principles (or, although less precisely, of ‘constitutional’ supranational and international courts that apply or establish such principles), these basically refer to principles concerned with human rights and the separation of powers. In the context of the EU and the European Convention on Human Rights (echr), this essentially means the Court of Justice of the European Union and the European Court of Human Rights, whose case-law will be used here to test the first hypothesis.

The legal role of the principles applied or established by these two courts are obviously different from one another. In every EU Member state, the primacy of EU law overrides domestic constitutional principles, with the exception only of domestic counter-limits (although some Constitutional Tribunals, such as the Federal Constitutional Court in Germany and, even further, the Polish Constitutional Court, have recently arrived at different conclusions). In contrast, the principles applied or established by the European Court of Human Rights play a different legal role, one which is reserved to them in every jurisdiction.

That said, the first hypothesis can be tested at this point, showing how the case law of the Court of Justice of the European Union and the case law of the European Court of Human Rights have led to the development of ‘constitutional’ principles that have affected the scope of autonomy of Parliaments domestically.

Examining first of all the case-law of the European Court of Justice, at least two statements seem to be relevant in this context.

In 1973 the European Commission brought before the Court an action seeking to establish that Italy had failed to fulfil its obligations under the Treaty by not bringing into force the laws necessary to comply with a directive. Italy observed that, in pursuance of this objective, a first bill had been laid before Parliament, but the premature dissolution of the legislature did not permit its adoption within the prescribed time. The Court of Justice declared that Italy had failed to fulfil its obligations under the Treaties, underlining that ‘the political situation invoked thus cannot, in any case, be accepted as justifying this delay’.³ The Court declared the same in 1998 with regards to France.⁴

In a slightly different case, in 1998, infringement proceedings were brought before the Court of Justice against Belgium for its failure to fulfil its obligations under the Treaty concerning public works contracts, when the Vlamse Raad (the Flemish Parliament in the Belgian federal system) followed a restricted procedure for the construction of new premises for itself, to be built in Brussels. The Belgian Government stated that public works contracts did not apply to legislative bodies, such as the Vlaamse Raad, because the independence and supremacy of the legislative authority under the Belgian Constitution prevented the legislative chambers from being subject to Ministerial authority. However, the Court of Justice stated that the Vlaamse Raad constituted a contracting authority within the meaning of the relevant directive in this field and that ‘Member State cannot rely on provisions, practices or circumstances existing in its internal order in order to justify its failure to comply with the obligations and time-limits laid down by a directive’.⁵

Relevant statements on this topic have also been issued by the European Court of Human Rights (Szabó 2019: 389–393). Limiting here the scope of the research to controversies concerning Italy,⁶ the ECtHR has issued statements on at least three areas: the immunity of Members of Parliament in respect of their votes and opinions (and its interference with the defamed person’s right of access to a court under article 6 of the echr); internal bodies of Parliament vested with judicial powers in respect of members of parliamentary staff (and their compliance with the right to a fair trial by an impartial and independent tribunal under article 6 of the echr); the non-justiciability of the decisions of the Committee that oversees the public broadcaster (and its interference with the right to an effect remedial under article 6 of the echr).

Ruling on the immunity of Members of Parliament in respect of their votes and opinions, in 2003 the ECtHR stated that it would be incompatible with the purpose and object of the Convention if the Contracting States, by adopting a particular system of immunity, were absolved from their responsibility to protect rights under the Convention in relation to parliamentary activity. Parliamentary immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court, as embodied in article 6 of the Convention: thus, in order to be covered by this immunity, the opinions of Members of Parliament must be connected with the exercise of parliamentary functions in their strict sense.⁷

With respect to the internal bodies of Italian Chamber of Deputies vested with judicial powers in respect of members of parliamentary staff, in 2009 the ECtHR declared that the power of the Italian Chamber of Deputies to preserve its autonomy by establishing such bodies was not (and could not be) called into question before the Court. However, the ECtHR found that the internal bodies of the Italian Chamber of Deputies lacked objective impartiality and independence with regard to one of the parties to the dispute (the Chamber of Deputies), particularly as concerns the arrangements for appointing their members. The appellate body, whose decisions were final, was made up entirely of members of the Bureau: viz., the body of the Chamber of Deputies that had jurisdiction for ruling on its main administrative matters, including those concerning finance and the organisation of staff recruitment competitions. On this basis, the ECtHR found that the internal bodies of the Chamber of Deputies lacked independence and impartiality and that this situation thus violated article 6 of the Convention.⁸

As for the non-justiciability of the decisions (of a political nature) of the Committee that oversees the public broadcaster, in 2021 the echr stated that such a non-justiciability interfered with the applicant’s right to an effective remedy under article 6 of the Convention.⁹

In conclusion, from the aforementioned case-law, one can infer that the autonomy of a domestic Parliament cannot jeopardise the primacy of EU law. Alongside this, Parliaments are allowed to adopt a particular system of immunity, although these measures must meet the requirement by the echr not to impose (disproportionate) restrictions to the rights under it.

Although as regards the Italian case the first hypothesis has been tested here, the scope of the autonomy of the Parliament domestically has also been affected in recent times by ‘constitutional’ principles established by supranational and international courts: namely, in the case of States such as Italy, the Court of Justice of the European Union and the European Court of Human Rights.

3 The Equilibrium Point in Italy as Viewed through the Theoretical Framework of its System of Constitutional Justice

The second hypothesis to be tested here is that the equilibrium point between the autonomy of Parliament and other constitutional values should be viewed through the theoretical lens of the system of constitutional justice established domestically. Focusing on Italy and relying on the case-law of the Italian Constitutional Court, it will be demonstrated that in the Italian legal order the equilibrium point between those principles depends on the types of standards, the types of acts to be reviewed, the types of jurisdictional disputes, the types of subjects that can initiate disputes and the types of violations of the Constitution that characterise the Italian system of constitutional justice.

One should bear in mind that, among other tasks of the Constitutional Court, the Italian system of constitutional justice (on which Barsotti, Carozza, Cartabia and Simonicini 2016) is characterized by concrete scrutiny (giudizio di legittimità in via incidentale)¹⁰ and abstract scrutiny (giudizio di legittimità in via principale)¹¹ concerning the constitutional legitimacy of Acts of Parliament and of primary legislation issued by the Government or enacted by the Regions; and by concrete scrutiny concerning disputes between branches of state (giudizio per conflitto di attribuzione tra poteri dello Stato) and between the State and the Regions (giudizio per conflitto di attribuzione tra enti).

As regards the equilibrium between the autonomy of Parliament and other constitutional principles, the first main element of the Italian system of constitutional justice that affects that equilibrium, according to the case-law of the Italian Constitutional Court, is the type of standards in light of which the review of parliamentary proceedings can be carried out.

In 1959 the Italian Constitutional Court clearly stated that only violations of constitutional provisions were to be judicially reviewed by the Constitutional Court itself while any violation of the regulations of the Chamber was a matter of internal parliamentary review. Through this theoretical tool of constitutional justice (the types of standards determining which constitutional judicial review can/cannot be carried out), the Italian Constitutional Court was able to set an equilibrium point between the aforementioned constitutional principles: as the Italian Constitutional Court stated, the autonomy of the Chambers (‘la posizione costituzionale di indipendenza delle Camere’) does not entail the non-justiciability of their proceedings by the Constitutional Court (‘non implica […] l’insindacabilità da parte della Corte costituzionale del procedimento’), so as to protect the principles established in the relevant provisions of the Constitution.¹² In 1984 the Italian Constitutional Court took a further step to protect the autonomy of Parliament: it stated that constitutional provisions leave a rather broad margin for their interpretation and application and that each Chamber is tasked with carrying out such interpretation and application (‘l’interpretazione ed attuazione in parola sono di esclusiva spettanza di ciascuna Camera’).¹³

The second element is the type of acts that can be judicially reviewed.

As already noted, the Italian Constitutional Court can judicially review (under article 134 of the Italian Constitution) acts of Parliament and primary legislation issued by the Government or enacted by the Regions. In 1985 the Italian Constitutional Court stated that the regulations of the Chambers, since they were not included in article 134 of the Italian Constitution, are not justiciable before the Constitutional Court. Through this theoretical tool of constitutional justice (the types of acts that can be/cannot be judicially reviewed), the development of the case-law of the Italian Constitutional Court was rather coherent with its precedents. In the name of the autonomy of Parliament, the regulations of the Chamber cannot be used as standards for judicial review by the Constitutional Court: thus, logically, they cannot belong to those acts that can be judicially reviewed by it either. In this way, the equilibrium point between the aforementioned constitutional principles was kept the same: once again, as the Constitutional Court stated, the non-justiciability of the regulations of the Chambers is a consequence of the safeguarded autonomy (‘un’indipendenza guarentigiata’) that is vested in the Parliament.¹⁴

The third element is the type of jurisdictional disputes that can be brought before the Constitutional Court.

In 1988 the Constitutional Court realized that the autonomy of Parliament might jeopardise some fundamental rights, in some situations: for example, in connection with the right to honour, if the Parliament was allowed to decide, without any review by the Constitutional Court, on the immunity of its members in respect of their votes and opinions in a concrete case. One should bear in mind that in the Italian system of constitutional justice, there is no direct recourse for citizens to the Constitutional Court (such as an actio popularis). This is the reason why the Constitutional Court allowed the possibility of reviewing parliamentary decisions (in that specific case: decisions concerning the immunity of its Members) via the concrete scrutiny concerning disputes between branches of state (in that specific case: disputes brought by the Courts, which assumed that the decision of a Chamber over the immunity of its Members compromised their constitutional powers), as an indirect tool to also protect citizens’ rights. By means of this theoretical tool of constitutional justice (the types of disputes that can/cannot be brought before the Constitutional Court), the equilibrium point was slightly moved in the direction of the protection of other constitutional principles, namely the right to honour, shifting away from the protection of the autonomy of Parliament. The Constitutional Court grounded this statement on the fact that the Italian Constitution protects fundamental rights (including the right to honour and to reputation) and established a body, namely the Constitutional Court, tasked with constitutional judicial review (‘riconosce i diritti inviolabili dell’uomo (fra cui il diritto all’onore e alla reputazione) come valori fondamentali dell’ordinamento giuridico e prevede un organo giurisdizionale di garanzia costituzionale’).¹⁵

In 1996 the Constitutional Court summarized this new equilibrium point in the light of types of standards, acts subject to review and disputes before itself. The Court stated that jurisdictional disputes before itself, concerning the Parliament, cannot concern disputes relating exclusively to violations or the incorrect application of parliamentary regulations and the practices of each House. Where they may be exhaustively classified in accordance with parliamentary law, the prerogatives asserted by the members of the Houses are protected within those Houses. Conversely, when they cannot be exhaustively classified in accordance with parliamentary law, because the disputes involve other constitutional principles (‘perché coinvolga beni personali di altri membri delle Camere o beni che comunque appartengano a terzi’), the ‘big’ rule of law shall prevail (‘la ‘grande regola’ dello Stato di diritto ed il conseguente regime giurisdizionale al quale sono normalmente sottoposti, nel nostro sistema costituzionale tutti i beni giuridici e tutti i diritti (art. 24, 112 e 113 della Costituzione’).¹⁶

Between 2014 and 2017 the Italian Constitutional Court made efforts to resolve the issue of compliance with the Constitution of the internal bodies of the Italian Chambers vested with judicial powers in respect of members of parliamentary staff (also considering the aforementioned judgment of the ECtHR on the issue¹⁷). The Court resolved this issue by applying the tools mentioned above. First, in 2014 it declared inadmissible the question concerning the constitutionality of the relevant article of the regulations of the Italian Senate: viz. the article that vests the Senate with the exclusive power to rule with definite effect on appeals against the acts and measures adopted by the administration of that Chamber in respect of its own employees, because, as mentioned above, the regulations of the Chambers cannot be judicially reviewed.¹⁸ Then, in 2017, it reviewed the decision of the Italian Senate to approve the regulations that vested its internal bodies with judicial powers in respect of members of parliamentary staff. This time, however, the dispute was between branches of the state, brought by the courts which assumed that their constitutional powers to judicially review citizens’ rights had been compromised by that decision of the Italian Senate.¹⁹

The fourth element is the type of subjects that can bring jurisdictional disputes before the Constitutional Court.

In 2019 the Constitutional Court realized that the autonomy of Parliament could jeopardise certain other fundamental rights in specific cases. The Constitutional Court thus stated that any Member of Parliament is capable of acting as a branch of the state: viz. they are capable of acting as parties within proceedings involving jurisdictional disputes between branches of state before the Court. The Constitutional Court had already recognized the quality of branch of state in every single Chamber (or single Committee), as such, before 2019. The difference was that in 2019 it recognized that quality in any Member of Parliament, considering the range of prerogatives vested in each of them, which are different and distinct from those vested in them as members of the Chamber, which – by contrast – it falls to each Chamber to uphold. Once again, through this theoretical tool of constitutional justice (the types of subjects that can/cannot bring jurisdictional disputes before the Constitutional Court), the equilibrium point moved slightly in the direction of the protection of other constitutional principles, namely constitutional prerogatives vested in any Member of Parliament, and away from the protection of the autonomy of Parliament (as a whole). The Constitutional Court stated that any member of Parliament, by virtue of their institutional role, is vested with distinct quotas or fractions of powers guaranteed under the Constitution (‘sono organi-potere titolari di distinte quote o frazioni di attribuzioni costituzionalmente garantite’): thus, they must be able to apply to the Constitutional Court whenever their powers are infringed upon or usurped by other parliamentary bodies, including the Chamber they belong to.²⁰

The fifth element is the type of violations of the Constitution that can be judicially reviewed.

In 2019 (in the same order mentioned above) the Constitutional Court stated that, when it comes to jurisdictional disputes brought by individual Members of Parliament, the review of the Constitutional Court shall be strictly limited to those breaches that result in manifest violations (‘violazioni manifeste’) of the constitutional prerogatives of the Member of Parliament: in other words, such violations must be evidently identifiable already within a summary consideration by the Constitutional Court (‘rilevabili nella loro evidenza già in sede di sommaria delibazione’).²¹ This restriction was explained in terms of the autonomy of the Parliament: as the Constitutional Court stated, in an analogous manner to the position in other areas in which the Constitution leaves broad scope for political assessments, the Houses must be recognised as having a broad margin of appreciation in the application of parliamentary rules.²²

4 A Critical Analysis of the Equilibrium Point in Italy, as Recently Set by the Italian Constitutional Court (2019)

Having considered the background, we shall now move on to critically analyse the equilibrium point between the autonomy of Parliament and other constitutional principles, as set by the Constitutional Court definitively by its 2019 decision: such an equilibrium point gives rise to several areas of concern, for at least four reasons.

First, it is true that, with its decision in 2019, the Italian Constitutional Court took a step in the direction of actually protecting other constitutional values (such as the constitutional prerogatives of the individual Members of Parliament), when it recognised individual Members of Parliament as branches of state; and a step forward in the direction of the actual protection of the autonomy of Parliament, when it stated that only manifest violations of the Constitution could be reviewed in those jurisdictional disputes between the branches of state. However, as mentioned above, the Constitutional Court had already limited before (in 1959) its judicial review to violations of constitutional standards, as regards parliamentary acts – the 2019 decision further limited constitutional judicial review to manifest violations of constitutional standards only, once again in the name of the autonomy of Parliament.

One can object that this further restriction applies only in disputes between branches of state that are brought before the Constitutional Court by individual Members of Parliament against acts of the Chambers (thus, an area where issues are highly politically sensitive and the autonomy of Parliament should be strongly protected); and not when the Constitutional Court is carrying out a concrete or abstract scrutiny concerning the constitutional legitimacy of Acts of Parliament.

That much is clearly true. However, it is somewhat confusing that the Constitutional Court used a theoretical key to open a door that would allow highly politically issues to be brought to the fore (viz., the recognition of the quality of branch of state to individual Members of Parliament); while at the same time establishing a tool that would allow itself to easily close it (viz., the necessity of manifest violations of the Constitution), at least when it comes to legislative process (Piccirilli 2020, p. 146), as has been the case for all the concrete cases so far since 2019.²³

Secondly, when the Constitutional Court stated that its review shall be strictly limited to those breaches that result in manifest violations, it did not give any criteria for defining whether a violation should be considered as manifest. The only definitions given are rather tautological: the Constitutional Court stated that such violations must be evidently identifiable already within a summary consideration and that it is necessary for the individual Member of Parliament to allege and prove a substantial denial or an evident impairment of the function vested in them under the Constitution. In the recent past, when the Constitutional Court has made references to other areas in which the Constitution leaves broad scope for political assessments (such as the scrutiny carried out by the Parliament on the requirements for the Government to issue emergency decrees to be converted into an Act of Parliament), the Constitutional Court listed certain criteria for identifying the manifest lack of those requirements, in light of which a constitutional judicial review could be carried out by the Constitutional Court.²⁴

Thirdly, it is true that in its 2019 decision the Italian Constitutional Court properly noted that the application by the Members of the Senate overlooked certain contextual aspects which, had due consideration been given to them, would have offered a more complex and nuanced framework compared to that represented by the applicants. The Members of the Senate challenged the procedural contrivances which occurred during the approval of the annual budgetary law, assuming that this practice prevented them from holding a specific discussion of and making an appropriate consideration of the bill. According to the Court, however, the applicants did not take into account that the way the bill was examined and approved was the consequence of time pressure due to the lengthy engagement with European Union institutions that led to the alteration of the overall figures included in the budget at an advanced stage of the parliamentary procedure and entailed broad amendments to the initial bill²⁵ (for a positive comment on this specific issue, see Albanesi 2020: 229–232).

It could be argued, however, that this factual contextual aspect might otherwise have been taken into account by the Constitutional Court: for example, the Constitutional Court could simply have stated that, due to that factual contextual aspect, no violation of the Constitution had occurred. In fact, the Constitutional Court took this aspect into account in a different way: as mentioned above, it took it as a hint of the lack of manifest violations of the Constitution in that concrete case.

Finally, the equilibrium point should be analysed from the perspective of the level of consensus that currently characterizes the Italian political system. Since the 1990s the Italian political systems has been characterised by a bipolar/triple-polar and majoritarian framework, a high level of tension between opposing political parties and a low level of consensus (‘bipolarismo conflittuale’, as it was called by Lippolis and Pitruzzella 2007). As noted, against such a background, Italian scholars have underlined since the nineteen-nineties the importance of undertaking judicial review of parliamentary proceedings in order to protect the constitutional principles that are intertwined with the needs and the role of the Opposition and the parliamentary minorities (Rivosecchi 2003: 369–370; Lupo 2012: 218–219; Manetti 2013: 308–310).

Conversely, in 2019 the Constitutional Court limited the possibility for individual Members of Parliament to seek such review only with regards to manifest violations of the Constitution.

Once again, one can object that the Constitutional Court made that restriction only with regard to an area where issues are highly politically sensitive and the autonomy of Parliament should be strongly protected. However, the main criticism hinges on the fact that the Italian Constitutional Court made that restriction, just taking into consideration the needs and the role of the Majority (and the Government): as clearly stated by the Constitutional Court, bad practices within parliamentary proceedings have become consolidated over time and have been frequently used since the mid-nineties by governments of every political colour in search of answers to requirements of governability (emphasis added).

The Constitutional Court is right in its analysis: actually, that is the factual reason why those bad practices have been so frequently used in parliamentary proceedings (Albanesi 2019: 107–125 and 280–283). However, the Constitutional Court took into account and mentioned some needs, such as those of the Majority (and the Government), that were not relevant in order to set the equilibrium point between the autonomy of Parliament and other constitutional principles (in this case: the constitutional prerogatives of individual Members of Parliament) and to justify the restriction to manifest violations of the Constitution only.

5 Conclusions: a Methodology that Could Potentially be Applicable to Other Jurisdictions

Two hypotheses have been tested here, in order to suggest a methodology for viewing and critically analysing the equilibrium point between the autonomy of Parliament and other constitutional principles, as set within a legal order (Section 1).

First, it has been demonstrated that, when defining the scope of the autonomy of Parliament, supranational and international ‘constitutional’ principles should be taken into account as well as domestic constitutional principles. This first hypothesis was tested by analysing some case-law of the European Court of Justice and some case-law (mainly concerning Italy) of the European Court of Human Rights (Section 2).

Secondly, it has been proved that such an equilibrium point should be viewed within the theoretical framework of the system of constitutional justice established domestically: i.e. the types of standards in light of which parliamentary proceedings can be judicially reviewed; the types of acts that can be judicially reviewed; the types of jurisdictional disputes that can be brought before the Constitutional Court; the types of subjects that can initiate disputes and the types of violations of the Constitution that can be judicially reviewed. This second hypothesis was tested by examining some case-law of the Italian Constitutional Court (Section 3).

The equilibrium point set by the Italian Constitutional Court has also been critically analysed here from a legal perspective, in order to determine whether, in the Italian legal order, a fair and reasonable equilibrium between the autonomy of Parliament and other constitutional principles is actually ensured, while taking into account the poor quality of consensus that currently characterises the Italian political system. Several concerns have been expressed here, concerning the current equilibrium point, as set by the Italian Constitutional Court in 2019 (Section 4).

Finally, one may ask whether the methodology that has been tested here with regards to Italy can be applied with regard to other jurisdictions.

The answer seems to be potentially positive.

With regard to the first hypothesis, it is true that specifically ‘constitutional’ principles of supranational or international nature depend on those supranational or international organizations that every jurisdiction belongs to. However, every jurisdiction is bound by some ‘constitutional’ principles of a supranational and international nature: thus, generally speaking, the hypothesis should potentially work for every jurisdiction.

As for the second hypothesis, it is true that systems of constitutional justice (and hence the equilibrium point between the autonomy of Parliament and other constitutional principles) differ vastly from one legal order to another. However, the methodology suggested here assumes that the equilibrium point, whatever it is, should be viewed within the theoretical framework of the system of constitutional justice established in that legal order, whatever it is. Therefore, it is very likely that, when it comes to the equilibrium point, such a methodology would give different results from different jurisdictions. This does not mean, however, that the general methodology does not potentially apply to them, as it can be applied whatever system of constitutional justice is established there.