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Explain and discuss the statement in Thorburn v Sunderland City Council [2002] 3 W.L.R.

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Introduction

Public Law A Nicole Spreng Explain and discuss the statement in Thorburn v Sunderland City Council [2002] 3 W.L.R.: "Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom." Within Lord Justice Laws' judgment in Thorburn v Sunderland City Council [2002] 3 WLR, many references are made to constitutional conventions, Acts and institutions such as 'Parliament's legislative supremacy in the United Kingdom', and its ability or otherwise to 'bind its successors', 'implied' and 'express repeal', and the 'ECA'. Each of these terms has to be defined and explained before the statement can be properly understood and discussed. When Laws LJ refers to 'Parliament's legislative supremacy' he speaks of the constitutional principle that the legislative competency of parliament is unquestionable and unlimited. The respected legal academic, AV Dicey, explains that 'Parliament...has, under the English constitution, the right to make or unmake any law whatever; and...no person or body is recognised...as having a right to override or set aside the legislation of Parliament.'1 Dicey's theory is often applied by judges, and can be seen in Blackburn v. ...read more.

Middle

2) also states that '[u]nder the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court...to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.'8 However, as previously mentioned, Lord Justice Salmon maintained that Parliament 'can enact, amend and repeal any legislation it pleases',9 and like Lord Bridge, he recognised that joining the European Community was not an illegal surrender of sovereignty, because 'whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.'10 In other words, all of the EU's powers flow from Parliament's sovereignty by way of the original Act, and thus Parliament retains ultimate sovereignty because it could repeal the original Act. Lord Justice Laws seems also have taken the stance of Lord Bridge and Salmon LJ by stating that 'Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA' because they 'cannot stipulate as to the manner and form of any subsequent legislation'.11 Following Dicey's opinion that 'no person or body is recognised...as having a right to override or set aside the legislation of Parliament'12, Laws LJ further states that 'there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom'.13 Hence it would seem he says that the ECJ has no right to assume absolute permanent sovereignty as it tried to in Costa. ...read more.

Conclusion

The compromise has been made: the UK courts will override national law which is found to be in conflict with Community law, but that the supremacy that this law has is retractable at any point by Parliament. 1 Dicey (1898) 1959, p 39 2 Blackburn v. Attorney General [1971] 2 All ER 1380 3 Thorburn v Sunderland City Council [2002] 3 WLR, paragraph 59 4 Dicey (1898) 1959, p68 5 http://www.parliament.the-stationery-office.co.uk/pa/ld200001/ldhansrd/vo010119/text/10119-04.htm, Lord Kingsland, [accessed 1st November 2002] 6 Thorburn v Sunderland City Council [2002] 3 WLR, paragraph 59 7 Costa v ENEL (Case 6/64) [1964] ECR 1125 8Regina v Secretary of State for Transport, ex parte Factortame ltd. and others (No. 2) (Case C 213/89), [1991] 1 A C 603 9 Blackburn v. Attorney General [1971] 2 All ER 1380 10 Regina v Secretary of State for Transport, ex parte Factortame ltd. and others (No. 2) (Case C 213/89), [1991] 1 A C 603 11 Thorburn v Sunderland City Council [2002] 3 WLR, paragraph 59 12 Dicey (1898) 1959, p 39 13 Thorburn v Sunderland City Council [2002] 3 WLR, paragraph 59 14 Thorburn v Sunderland City Council [2002] 3 WLR. Paragraph 62 15 Thorburn v Sunderland City Council [2002] 3 WLR. Paragraph 63 16 Hilaire Barnett, Constitutional and Administrative Law, (Cavendish: 2002), p191 17 Hilaire Barnett, Constitutional and Administrative Law, (Cavendish: 2002), p189 18 Hilaire Barnett, Constitutional and Administrative Law, (Cavendish: 2002), p187 19 Thorburn v Sunderland City Council [2002] 3 WLR, paragraph 62 1 Elizabeth Mount, Group 19BS ...read more.

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