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Is Dicey(TM)s View of Parliamentary Sovereignty still valid in the UK in 2005?

Extracts from this essay...

Introduction

Is Dicey's View of Parliamentary Sovereignty still valid in the UK in 2005? Parliamentary sovereignty refers to the absence of any legal constraint upon the legislative power of the United Kingdom Parliament. The definition is given by A.V Dicey (Law of the Constitution, pp. 39-40): 'The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined (Queen, Lords, Commons)has 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 a right to overrule or set aside the legislation of Parliament.' This absence of legal restraint has three aspects; the positive that Parliament can legislate on any subject matter. The negative; that once Parliament has legislated no court or other body can deny the legal validity of the legislation. And no individual Parliament is bound by its predecessors or can bind its successors. C J Cockburn in ex parte Canon Selwyn 1872 "There is no judicial body in the country by which the validity of an Act of Parliament could be questioned.

Middle

it wishes, is therefore limited by: * Public opinion * Membership of the European Union, International law * Acts of Union * Doctrine of Implied Repeal The doctrine of implied repeals was demonstrated in Vauxhall Ests v Liverpool Corporation4and Ellen Street Ests v Minister of Health5. Parliament may enact a law that repeals any previous law. For Dicey to evaluate that Parliament is bound by its predecessors or can bind its successors provides a mechanism guaranteeing contemporary sovereignty. In Thoburn v Sunderland City Council [2002] EWHC 195.it was held ECA is a Constitutional statute and cannot be impliedly repealed. This does limit the United Kingdom Parliament where Dicey positive limb that Parliament can make or unmake law. Membership of the European Union has limited Parliament supremacy. The attitude of the European Court of Justice was expressed in the case of Costa v E.N.E.L. [1964] ECR 585 that: "Member states have limited their own sovereign rights . . . and have thus created a body of law which binds both their nations and themselves."

Conclusion

The European Court responded that Community law must be interpreted in favour of setting aside any national law that precluded interim relief by acting as an obstacle to that end. The European Court also responded to the preliminary ruling of the Divisional Court that provisions of the 1988 Merchant Shipping Act were indeed contrary to Community Law. European Court responded that a national court must interpret its own national law in the light of the wording and purpose of the Directive in order to preclude any declaration of nullity. Marleasing VA v La Comercial Internationale de Alimentations A [1992] 1 CMLR 305 For Dicey, to say that Parliament is sovereign is to say that no other human agency passes legal authority to override or hold invalid any statute that parliament enacts. It can be seen that his view is a living instrument in a sense that the concept Dicey identifies should be interpreted in the lights of political, social and economic tendency. His view of parliamentary sovereignty has moved in time to maintain a modern democratic state. It is important to note that Dicey's view is concerned with legal limits and not of political limits.

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