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v Liverpool Corporation (1932) -Conflict arose when as to whether a later or early act (which had not been expressly repealed) should take effect -It was ruled that the later Act repeals the early through imply- i.e. implied repeal.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 Its power extents to destroying its own sovereignty ECA has limited future parliaments- but can be repealed.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 Can only be expressly repealed.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.
Alcohol Industry Association of Uganda Limited 39 Ors V The Attorney General Anor (Miscellaneous Application No 744 of 2019) 2019 UGHCCD 220 (5 November 2019)