Parliamentary sovereignty and the EU

Question 1

What is Dicey’s doctrine?

Answer 1

Parliament has the right to make or unmake any law whatever; and, further, that no person or body of persons is recognised by the law of England as having a right to override or set aside the legislation fo Parliament

Question 2

What are the two limbs of Dicey’s doctrine?

Answer 2

– Positive (Parliament has the right to make or unmake any law whatever)
– Negative (no person or body of persons has the right to override or set aside legislation of Parliament)

Question 3

What are the three theories of Parliamentary sovereignty?

Answer 3

– Continuing view
– Self-embracing view
– Manner and form theory

Question 4

Explain the continuing view of Parliamentary sovereignty

Answer 4

Each new Parliament has absolute sovereignty and is not bound by the enactments of its predecessors

Question 5

Explain the self-embracing view of Parliamentary sovereignty

Answer 5

The current Parliament has absolute sovereignty to do anything, including limiting the sovereignty of future Parliaments

Question 6

Explain the manner and form theory of Parliamentary sovereignty

Answer 6

To enact a valid law, Parliament must follow the relevant procedure in force at that time; however, the sovereign Parliament remains theoretically unrestrained from adopting any new procedural rules it can think of

Question 7

Can Parliament make it harder to legislate in the future? Explain

Answer 7

Yes: if the sovereign Parliament can redefine itself downwards to remove or modify the requirement for the consent of HL, it may redefine itself upwards to require a particular Parliamentary majority or a popular referendum

Question 8

What are the limits on Parliament’s power to legislate in the three theories of Parliamentary sovereignty?

Answer 8

– Dicey: political limits
– Manner and form: self-imposed limits by Parliament
– Rule of law: external legal limits enforced by the courts

Question 9

Why is EU legislation supreme over UK legislation?

Answer 9

s 2(4) European Communities Act 1972: “any enactment passed or to be passed…shall be construed and have effect subject to the foregoing provisions of this section”

Question 10

What was significant about the Factortame (No 2) case? What was the court’s rationale for their decision?

Answer 10

HL suspended ('disapplied') an Act of Parliament (Merchant Shipping Act 1988) 
Rationale: "whatever limitation fo its sovereignty Parliament accepted when it enacted the ECA was entirely voluntary"

Question 11

What was significant about the case Thoburn v Sunderland City Council (2002)?

Answer 11

It established that the ECA was immune from implied repeal because it (and others) was a ‘constitutional statute’