There is nothing in any way novel in according supremacy to the rules of Community law in those areas to which they apply (Lord Bridge of Harwich in Factortame (No 2)) In what ways (if at all) can Parliamentary supremacy be reconciled with

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Ryan Page

‘There is nothing in any way novel in according supremacy to the rules of Community law in those areas to which they apply…’ (Lord Bridge of Harwich in Factortame (No 2))

In what ways (if at all) can Parliamentary supremacy be reconciled with the supremacy of European Community law after Factortame.

A question such as this calls for an understanding of what the doctrine of Parliamentary Supremacy is before it can be ascertained whether it is possible for it to continue today in a United Kingdom which continues to modernise, or whether the EU, which also calls for supremacy, can be brought into line with the UK’s sovereign parliament. It will have to be understood what Parliamentary sovereignty meant before Factortame and whether the hugely significant impacts which the case has caused will ever be compatible with a doctrine of supreme Parliament in the UK. Dicey’s analysis of Parliamentary Supremacy is one which is still used today to define the intended meaning of the doctrine: “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 a right to override or set aside the legislation of Parliament”. This doctrine is fundamental to the British constitution; however, with the existence of an uncodified constitution it is difficult to see how the doctrine will withstand large threats to its existence from EU laws. The increased prominence of international law has led to the compromise of parliamentary sovereignty in favour of respecting the UK’s obligations to the EU under the European Communities Act 1972 and the Human Rights Act 1998.

Parliamentary Supremacy originated as a result of an increased will to diminish the power of the monarch in favour of respecting the general will of the people. Historically, any Act needed parliamentary and monarchical approval before being passed; whilst this is still in place today, it is clear that parliament take a much larger role in the proceeding s than the Queen. Civil war further removed power from the crown and royalist viewpoints, which asserted the divine right of the King, were quashed in favour of a Parliamentarian view that the two Houses better represent the people and their will. It is clear that the doctrine of parliamentary supremacy, born from this history, is important to the UK as it effectively marks a transition from autocracy to democracy.

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Dicey’s original assessment of the doctrine of parliamentary supremacy pre-Factortame was criticised largely by academics and was also put into effective practice within case law. One of the features of Parliamentary supremacy is that Parliament cannot bind its successors; this is held in place largely by the doctrine of implied repeal which states that, where an Act of Parliament conflicts with an earlier one, the later Act takes precedence. This can be seen to have taken place in the case of Ellen Street Estates. The judgment of this case can be clearly summarised in the words of Maugham LJ who ...

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