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C &A Essay

Limits of Parliamentary Sovereignty by EU membership


Has parliamentary sovereignty been completely destroyed or does it just
no longer resemble a Diceyan theory?
Dicey Definition-Cannot bind/be bound
-Can legislate on any matter
-No body can question the validity
Dicey argued that parliamentary sovereignty is the cornerstone of the
constitution- is this still the case?
EU membership has undoubtedly weakened the prominence of
parliamentary sovereignty.
Britain became a member of EU in 1972 with section 2 of the European
Communities Act allowing community law to take direct effect in domestic
law.
Parliamentary sovereignty no longer resembles the traditional Diceyan
theory.
Make or unmake any law
-i.e. can legislate on any matter and cannot bind or be bound.
However, questions arise when domestic law conflicts with EU law.
Prior to EU membership
-Doctrine of Implied Repeal
-Illustrated by Vauxhall Estates Ltd v Liverpool Corporation (1932)
-Conflict arose when as to whether a later or early act (which had not
been expressly repealed) should take effect
-It was ruled that the later Act repeals the early through imply- i.e. implied
repeal.
But is Parliament really sovereign if there is something it cannot do- i.e.
entrench legislation? Wade- continuing sovereignty- one that cannot be
destroyed therefore it cannot entrench legislation.
Since EU membership
Different
Macarthys V Smith (1981)
Lord Denning
We are entitled to look at the treaty as an overriding force
Whenever Parliament passes legislation it intends to fulfill its obligations
under the treaty. Earlier EC treaty taking affect over a later Act of
Parliament

Factortame (1991)- legislation inconsistent with ECA 1972 should be set


aside- therefore a body is questioning the validity of legislation and
setting it aside, and ECA 1972 is binding future parliaments. Factortame
undermines the doctrine of implied repeal.
Shift from continuing sovereignty (Parliament cannot limit itself) to selfembracing (parliament can place limit on its powers in relation to future
parliament). Its power extents to destroying its own sovereignty
ECA has limited future parliaments- but can be repealed.
PS does exist just in a different form.
Thoburn v Sunderland City Council (2002)
Laws LJ- difference between ordinary statute and constitutional statute,
which is not subject to implied repeal. Can only be expressly repealed.
Therefore, supremacy can still be reclaimed and restored to a Diceyan
manner.
There is nothing in the European Communities Act 1972 represents an
attempt to entrench its provision to make them immune from amendment
or repeal. Does not have to be repealed by some specified manner and
form- e.g. certain conditions.
However, it is clear that the doctrine of implied repeal does not operate in
relation to ECA 1972.