Dicey view’s parliamentary sovereignty has three principles, both positive and negative effects, the positive is that the Queen is able to pass laws legally. Parliament is able to make or unmake any laws it wishes as there is nothing to prevent them from doing so, because the UK has a written constitution, it considered more flexible, parliament is able to make and enforce any rules to change this, as the rules of the constitution are not protected as it is not written, it is harder to enforce as there is not written document stating the rule of law. Parliament is the highest legislative body within the UK and it has the ability to invoke any law that it feel’s nessacery. The negative is that no one is able to can question any law of parliament; neither judge nor court is able to question a statute. Their job is to apply and interpret the law rather than question it regardless of their own personal opinion. It can be argued that judges should have more power, as statutes may be hard to interpret to fit around every case to that it applies. Parliament is unable to bind its successors, which means that parliament of 2016 cannot bind any law or legislation that the parliament of 2018 want to pass. This has had good effect as, it enables each parliament to have full control and bring in their policy measures that the public have voted for through general election. This is vital as society constantly changes and future parliaments will need to change with society in order to be representative them to the public and keep the UK up to date.
The UK joined for membership of the EU in 1972 European Communities Act 1972 was provides the basis of incorporation and international law. This was setup to allow the EU to give precedent over UK law, in areas of conflict; EU law will always prevail over national law.
Professor Wade’s view
Craig’s view expressed in Thoburn case
Dicey’s doctrine and his importance in constitutional law
European Communities Act 1972
S2(1) says that without further enactment treaties are to be given legal effect in the UK, this means that parliament no longer have as much power over legislation within the UK, any law in the UK that conflicts with EU law, the EU law will always prevail. EU will always give precedent over our national law, this shows that the UK is slowly but surely losing ultimate control.
S2(4) Says that any legislation that is passed before and after the UK joined the European Communities Act 1972 must be compatible with EU law, any law that is passed after the UK joined the European Communities Act 1972 must be amended to fit otherwise EU law will prevail.
Explain impact on parliamentary sovereignty
Factortame is a series of cases that highlighted the supremacy of EU law prevailing over UK law, under the Merchants Shipping Act 1988 only vessels registered as British could fish in British waters. To be able to register as British, the owner had to be a citizen of the UK or live in Britain legally or 75% of the British shareholders have to be British. Factortame was a Spanish company who had been registered but due to the changes in Merchant Shipping Act 1988 they could no longer register to fish in the UK. The Spanish company Factortame sought a Judicial review for the Act on the basis of discrimination contrary to EU law. The division court made a reference to the European Court of Justice and granted Factortame an interim injunction. This meant for time being the Act could not be enforced against Factortame, however the Court of appeal set aside this as they felt the divisional court had no authority to grant the injunction on the ground that no one can question an act of parliament. The House of Lords then confirmed that the divisional court had no authority but they did refer the question of whether it was necessary of a national court to grant an interim injuction, to protect the parties rights of European Law whist the European Court of Justice’s decision was pending. In 1990 European Court said that national courts have the right and requirement to grant to interim injunctions to protect the rights of European Law, this was then reinstated by the House of Lords and following the decision from the European Court in 1991, the divisional court ruled that the Merchant Shipping Act had been in breach of European law. In response to this, parliament passed the Merchant Shipping (Registration) Act 1993. In 2000, factortame were awarded compensation for their losses and expenses.
The principle of parliamentary sovereignty means neither more nor less than this, namely, that parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further that no person or body is recognised by the law of England as having as having a right to override or set aside the legislation of parliament.’
(A Dicey, Introduction to the Study of Law of the Constitution, 10th Edn, Macmillian, 1959, pp39-40)
In the Factortame case, the principle that no one can question an act of parliament was questioned, courts were only able to do this because of the power given to them from the European Communities Act 1972 s2(4).
Interpret the effect of EU law on national sovereignty
Refer to views on impact of EU law