• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

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

Extracts from this document...

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. ...read more.

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Thoburn v Sunderland City Council [2002] EWHC 195.it was held ECA is a Constitutional statute and cannot be impliedly repealed.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." ...read more.

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. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Public Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Public Law essays

  1. Marked by a teacher

    Parliamentary sovereignty. " Step, by step, gradually but surely, the English principle of the ...

    4 star(s)

    Furthermore, the Supreme Court Judges are able to set aside Acts of Parliament and contradict the Act in their verdict. The contention that parliamentary sovereignty is, has and will continue to be qualified can be best summed, in the words of Lord Hope: "Our constitution is dominated by the sovereignty of Parliament.

  2. The genius of Sections 3 and 4 of the Human Rights Act 1998, is ...

    There are many cases which indicate that these sections provide adequate protection. In Anderson, section 3 was used to allow a prisoner the right to have his tariff set by an independent body, namely the judiciary. This is a clear and straightforward example of judicial authority providing effective protection of convention rights using section 3 of the HRA.

  1. Public Law divide and Judicial Review

    There is a wide distinction to be drawn between these two classes". L.J. Bankes In the case of British Oxygen Co Ltd v Board of Trade [1971] A.C. 610, Lord Reid agreed with the conclusion, and further admonished: "What the authority must not do is to refuse to listen at all.

  2. The Proportionality test inevitably takes judges in to the review in to realms of ...

    substantial approach to judicial review under the HRA act, as in their view the procedural approach would be one of merits review. However Richard Gordon41 opposes the view that the procedural process is not an adequate formula and contends that the substantive approach adopted by the House of Lord in

  1. Public law and Administration problem question

    This however would only speed up the process if anything as her payment is still due to her. Although it was a clear unambiguous promise and a moral reliance53, the treasury could argue the personnel who made the promise of four weeks was acting ultra vires54 A more prominent problem

  2. Parliamentary Sovereignty

    Secondly, as observed by Anthony Bradley, 'British membership of the European Union has caused a significant area of legislative power to pass to the European authorities'9. This is illustrated by three cases in which the courts have been requested to set aside statutes because of its inconsistency with Community law.

  1. Rule of Law

    At times of emergencies such as war, much wider powers are given by law to the Executive. For example, the Home Secretary was empowered under Regulations 18 B of the Defence(General) Regulations 1939, to imprison any person, 'if he had reasonable cause to believe such person to be of hostile origins or associations'.

  2. Explain the idea and function of Parliamentary Sovereignty in the UK Constitution

    create the acts and those who apply them, raising the question of which infact has supreme power. Parliament is the highest source of law and if a law has been passed according to Parliamentâs rules, it is valid law and must be applied by the courts, even if it is

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work