Public Law Exam Revision 2012 2013

Parliamentary Sovereignty
1. 2. 3. To what extent can AV Diceys nineteenth century theory of parliamentary sovereignty be supported in the late nineteenth century? Despite many challenges to it nature and existence, parliamentary sovereignty remains the cornerstone of the constitution. Discuss. Critically consider the view that membership of the European Community and Union requires a fundamental reappraisal of the doctrine of parliamentary sovereignty.

AV Dicey, Law of the Constitution (1885) Dicey argued that the rule of law in its practical manifestation has three main aspects: i. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law id contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint; ii. No man is above the law; every man and woman, whatever be his or her rank or condition, is subject ti the ordinary law of the realm and amenable to the jurisdiction of eth ordinary trobunals; and iii. The general principles of the constitution (as, for example, the right to personal liberty, or the right of public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. Each of these points requires examination. War Damage Act 1965 nullifying Burmah Oil decision Parliament may legislate with retrospective effect, as with the War Damage Act 1965. The War Damage Act effectively overruled the decision of the House of Lords in Burmah Oil Company v Lord Advocate (1965). In 1942, British troops had destroyed oil installations in Rangoon, with the intention od preventing them falling into the hands of the Japanese. The British government made an ex gratia payment of some 4 million to the company. Burmah Oil sued the government for some 31 million in compensation. The House of Lords held that compensation was payable by the Crown for the destruction of property caused by the exercise of the prerogative power in relation to war. The government immediately introduced into Parliament the War Damage Bill to nullify the effect of the decision. Aviation Act 1982 hijacking: extraterritorial effect It is a presumption of statutory interpretation that statutes will not be given extra-territorial effect other than where it is expressly or impliedly provided for under the Act. Such statutes will normally be passed in order to give effect to obligations undertaken under an international treaty. The Hijacking Act 1971, for example, gave j=legislative effect to the Convention for the Suppression on Unlawful Seizure of Aircraft. Section 1 of the Aviation Security Act 1982, which succeeded the Hijacking Act 1971, provided that the crime of hijacking is committed when a person on board an aircraft in flight unlawfully seizes control of the aircraft and exercises control over it by the use of force or by threats. The jurisdiction of the UK courts, with limited exceptions, extends to an act of hijacking, wherever it occurs and irrespective of the nationality of the hijacker. The doctrine of implied repeal Vauxhall Estates v Minister of Health (1932) implied repeal Ellen Streets Estates v Minister of Health (1934) implied repeal The doctrine of implied repeal provides the mechanism by which the judge gives effect to the rule against Parliament being bound by previous Parliamnets or being able to bind subsequent Parliaments, and thereby guarantees contemporary sovereignty. Parliament may, of course, repeal any previous law by expressly declaring that law to be repealed. The position of the judiciary is then clear: they must give effect to the latest expression of sovereign will and judges are not free to apply the earlier statute. The position, however, may not always be so clear cut. Parliamnet may pass, perhaps through inadvertence, a statute which, while not expressly repealing an earlier Act, is inconsistent with it. When the judges are this faced with two apparently conflicting statutes, the doctrine fo implied repeal will come into play, the judges applying the latest statute in time and deeming the earlier provisions to be impliedly repealed. Two cases illustrate the principle in operation are Vauxhall Estates Ltd v Liverpool Corporation (1932) and Ellen Street Estates Ltd v Minister Of Health (1934), each of which entailed similar facts. Section 7(1) of the Acquisition of Land (Assessment of Compensation) Act 1919 provided that: The provisions of the Act or order by which the land is autjoried to be acquired shall have effect subject to this Act and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect the Housing Act 1925 provided for a less generous scheme for compensation on the compulsory acquisition of land than the 1919 Act. In both cases, the plaintiffs argued that section 7(1) of the 1919 Act was binding on the courts and should be applied in preference to the Housing Act 1925. If that claim were to succed, the constitutional position

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would be that the provisions of the 1919 Act were effectively entrenched that is to say, have a superior legal status to that of other Acts of Parliamnet and therefore binding on a future Parliamnet. In the Vauxhall Estates case, the Divicional Court held that the 1925 Act impliedly repealed the conflicting provisions in the 1919 Act and, in the Ellen Street case, the Court of Appeal again ruled that the 1919 Act must give way to the 1925 legislation. Maugham LJ stated that: The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If, in a subsequent Act, Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature. Statute of Westminster 1931 grants of independence The Statute of Westminster 1931 was enacted to give statutory force to the constitutional convention that the UK Parliament would not legislate for Dominions without their consent. Section 4 provides: No Act of Parliament of the UK passed after the commencement of this Act shall extend,, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. Where Parliament confers partial competence on a subordinate legislature, the question arises as to whether the UK Parliament can revoke that grant of power. The principle that Parliament cannot be bound by the acts of its predecessor has already been established. The issue here is the relationship between the sovereign Parliament and a Parliament dependent for its power upon Westminster. Union with Scotland Act 1706 Prior to the accession to the throne of James I (James VI of Scotland), England and Scotland were both independent sovereign states, each having its own monarch and Parliament. With Jamess accession to the English throne in 1603, the two countries were united under one monarch but retained their sovereign Parliaments until 1706. The Treaty of Union 1706 effected, conceptually, the abolition of both Parliaments and the birth of the Parliament of Great Britain. Article I of the Act of Union provides: That the two kingdoms of England and Scotland shall upon the first day of May which shall be in the year one thousand seven for ever after he united into one Kingdom by the name of Great Britain MacCormick v Lord Advocate (1953) Act of Union MacCormick sought an injunction against the Lord Advocate, as representative of the Crown, preventing the use of the title Queen Elizabeth II of the UK of Great Britain. The objection to the use of the title was based on historical inaccuracy and a contravention of Article I of the Treaty of Union which provided for the union of the two countries from 1707. The petition was dismissed, as was the subsequent appeal. Lord Cooper, the Lord President, however, proceeded to discuss the doctrine of sovereignty: The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done I have not found in the Union legislation any provision that the Parliament of Great Britain should be absolutely sovereign in the sense that that Parliament should be free to alter the Treaty at will. Gibson v Lord Advocate (1975) Act of Union The issue tested was whether allowing fishermen of Member States of the European Community to fish in Scottish coastal waters infringed Article XVIII of the Act of Union. Article XVIII provides that: no alteration be made in laws which concern private r ight except for the evident utility of the subjects within Scotland. The claim was dismissed, Lord Keith ruling that the European Community Regulations did not confer rights or obligations on individual citizens and accordingly were matters of public and not private law and, accordingly, that Article XVIII could not be invoked. On the sovereignty question, Lord Keith, however, stated: Like Lord President Cooper, I prefer to reserve my opinion what the position would be if the UK Parliament passed an Act purporting to abolish the Court of Session or the Church of Scotland or to substitute English law for the whole body of Scots law. I am, however, of the opinion that the question whether a particular Act of the UK Parliament altering a particular aspect of Scots private law is or is not for the evident utility of the subjects within Scotland is not a justiciable issue in this court. The making of decisions upon what must essentially be a political matter is no part of the function of the court, and it id highly undesirable that it should be.

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Colonial Laws Validity Act 1865 manner and form requirements The Colonial Laws Validity Act 1865 represented a landmark in the clarification of powers between the sovereign UK Parliament and subordinate colonial legislatures. The Act gave statutory affirmation to the non-legal conventional rule that laws enacted in the colony which were contradictory to statute or the common law of the UK would not be held to be invalid by the courts of the UK. The Act further clarified the extent to which the colonial legislature had power to amend its own composition and procedure. Section 5 is the all-important provision for current purposes. It provides that: every representative legislature shall have and be deemed at all times to have had, full power to make laws respecting the constitution, power, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as nay from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the said colony. AG for New South Wales v Trethowan (1932) manner and form In 1929, the government of New South Wales, Australia, sought to prevent a subsequent government form abolishing the Legislative Council (the upper chamber). An Act of Parliament was passed, amending the Constitution Act 1902, providing that any Bill purporting to abolish the upper House must have the approval of both legislative chambers and of two-thirds of the members of each chamber. Further, there had to be popular electoral support for the abolition, to be determined in a referendum. In addition, to prevent a subsequent Parliament ignoring the provisions of the 1929 Act, it was provided that any Bill attempting to repeal the 1929 Act must follow the same procedure: a device known as double entrenchment. In 1930, following an election, the incoming government decided to abolish the upper chamber and to do so by ignoring the provisions of the 1929 Act. Members of the Legislative Council sought an injunction restraining the grant of royal assent to the Bill, and a declaration that such a grant of assent would be unlawful, being ultra vires the lower House. The High Court of Australia ruled that the provisions of the 1929 Act could not be avoided, and that royal assent could not be given to the Bill. The matter was referred to the Privy Council, which affirmed the judgment of the High Court of Australia. The government of New South Wales was not free to introduce the 1932 Bill and attempt to enact it other than in conformity with the requirements of section 5. Section 5 required that the legislature complied with the manner and form provisions in force. The specific manner and form provisions were tho se laid down in the 1929 Constitution Act, and these requirements could not merely be ignored by the subordinate legislature. In the High Court of Australia in the Trehowan case, Rich J denied the proposition that the New South Wales Parliament had unlimited sovereign power. Pickin v British Railways Board (1974) This case illustrates, the courts are mindful of Parliaments sovereign right to determine its own composition and procedure reluctant to look as the procedure employed in enacting law. The correct contemporary judicial view on the authority of statute was expressed by Lord Reid: In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete. Jackson v AG (2005) This case represents a recent challenge to the validity of a statute, and also provides an opportunity for the House of Lords to consider the validity of an Act which has been passed under the Parliament Act procedure. The claimants argued unsuccessfully that the Hunting Act 2004 was invalid because it had been passed under the Parliament Act 1949, which was also invalid. The reason for claiming that the 1949 Act was invalid was because it had been passed under the Parliament Act 1911 without the consent of the House of Lords, a position which contrasts with the 1911 Act, which could only be amended with the consent of the House of Lords. Human Rights Act 1998 As with the devolution of power to the nations, the manner in which the government chose to incorporate the rights protected under the ECHR into domestic law is based on the premise of ensuring that Parliament retains its sovereignty over law making. Whereas under most constitutions which include fundamental guarantees protecting human rights, those rights are protected from encroachment by the legislature, and the legislature thereby limited in what it may enact and is subject to the rulings of a constitutional court the Human Rights Act 1998 utilizes a peculiarly British device which preserves Parliaments theoretical sovereignty, the Act provides that judges in the higher courts may issue declarations of compatibility between statute and the Convention rights incorporated under the Act. Where such a declaration is made, the matter is then referred to the executive, which mat choose whether and how to amend the law to bring it into line with Convention rights. Further, where proposals for legislation are introduced into Parliament, the relevant minister must declare whether the Bill in question accords with Convention rights. If it does not, an explanation as to the necessity for the legislation must be given. While both of these measures undoubtedly improve the protection of rights and generate a more right-conscious society, they fall far short of making individual rights and freedoms immune from legislative change.

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However, the traditional theory of sovereignty, as applied to the Human Rights Act 1998, disguises the importance of the constitutional change which the Act represents. All aspects of policy and practices of public and quasi-public bodies now fall for scrutiny in accordance with Convention requirements. The Human Rights Act has quickly become established at the heart of the legal system, providing a yardstick against which all actions of government and other public bodies may be judged. While the government adopted a constitutional mechanism which preserves Parliaments sovereignty, and maintains the conventional (and subordinate) role of the judiciary, the working of the Act is more subtle than the restatement of sovereignty implies. The judges are under a duty to interpret legislation in a manner which gives effect to Convention requirements, save where such an interpretation is impossible. Here, there is a significant shift in the process of judicial reasoning which traditionally focuses on interpreting the latest will of parliament as expressed in legislation. The requirement that ministers must state that legislative proposals are in compliance with Convention requirements, coupled with the directive to judges to interpret in line with Convention rights, gives rights a special constitutional and moral status. That the ultimate decision to amend the law in line with a declaration of incompatibility rests with the executive and Parliament does not suggest a lessening in the importance of rights so much as an ingenious device by which to keep constitutional fundamentals sovereignty and separation of powers intact, rather than turning the constitution on its head by reversing the balance of power between judges and Parliament. Nevertheless, the Act does give to judges an unprecedented scope for statutory interpretation and development of the common law in line with Convention rights. The emergence of the constitutional statute? It has been seen above that however significant the subject matter no Act of Parliament has any formal special status. The effect of this is that no Act may be entrenched: there are no special mechanisms necessary for amendment or repeal of any Act; and that all Acts are subject to implied repeal. However, the courts have long recognized that the European Communities Act 1972, at least has a special status and that the principle of implie d repeal does not apply The constitutional reform programme undertaken since 1997, and most particularly the Human Rights Act 1998, has revised the question whether implied repeal applies to all statutes, or whether some because of their constitutional importance may only be expressly repealed. Two cases illustrate this view: R v SS for the Home Department ex parte Simms (2000) and Thoburn v Sunderland CC (2002). The case of ex parte Simms concerned a prisoners right (under Article 10 of the European C onvention) to communicate with journalists with a view to challenging his conviction for a crime. On parliamentary supremacy and the status of the Human Rights Act, Lord Hoffmann was to state that: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words in the absence of express language or nece ssary implication to the contrary, the courts therefore presume that even the most general words were intended to the subject to the basic rights of the individual. In this way the courts of the UK, through acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. The case of Thoburn v Sunderland CC (2002) concerned the Weights and Measures Act 1985, which authorized both metric and imperial measures for the purposes of trade, and subsequent regulations made under section 2(2) of the European Communities Act 1972, which prohibited dual use and gave priority to the metric system. It was argued that the regulations were inconsistent with the 1985 Act and that this later Act must be taken as having implied amended section 2(2) of the ECA 1972. The court held that there was no inconsistency between the 1985 Act and the 1972 Act, so there was no need to discuss implied repeal. Laws LJ, however, chose to consider the issue: We should recognize a hierarchy of Acts of Parliament: as it were ordinary statutes and constitutional statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope which we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also in instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998. The European Communities Act clearly belongs to this family Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statutes, the court would apply this test: is it shown that the legislatures actual not imputed, constructive or presumed intention was to effect the repeal or abrogation? I think that this could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes.

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Sovereignty and the European Union: European Union Act 2011 In chapter 7 and 8, the aims, organization and law-making power of the institutions of the EU are considered, and the relationship between the law of the UK and European law will become clearer after the those chapters have been studied. Nonetheless, it is necessary to consider here, in outline the impact of membership of the EU on the doctrine of parliamentary supremacy. The UK became a member of the EC (now EU) in 1973/ the original communities had their own constitutional structure as defined in the Treaties. The ECJ has, since 1960s, asserted the supremacy of EU law over the law of any Member State, as will be seen later , the Court of Justice has adopted the view that, by becoming signatories to the Treaties, Member States have limited their own legislative competence in EU matters, conferring the supreme power to legislate on these matters on the law-making institutions of the Union. The laws of the Union the Treaties, laws enacted by the Council of Minsters and the European Parliament together with the judicial decisions of the European Court are biding on all Member States. In the UK, the acceptance of EU law is under the European Communities Act 1972 an Act of the UK Parliament. Accordingly, all EU law derives it force and authority under this Act, which , as with any Act, has no special legal status within the constitution. However, membership of the EU raises some unique questions for the sovereignty of Parliament. The principal issue for consideration is the attitude of the judges both domestic and European towards Eu law. It is clear that fomr the perspective of the European Court, EU law prevails over domestic law, and that domestic legislatures have no power to enact binding legislation contrary to the requirements of EU law. From the domestic perspective, however, the issue is not so clear-cut. The issues which require explanation are: a) The extent to which the judges are prepared to accept and apply EU law; b) The manner in which, and extent to which, inadvertent or deliberate parliamentary Acts are reconciled with the requirements of EU law; and c) Whether membership of the EU entails an irrevocable relinquishment of Parliamentary supremacy. The application of EU (formerly Community) Law Section 2 of the ECA 1972 provides that Community (now EU) law shall have direct shall have effect applicability in the UK 1. All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the UK shall be recognized and available in law, and be enforced allowed and followed accordingly; and the expression enforceable Community right and similar expressions shall be read as referring to one to which this sub-section applies. Section 2(4) provides for the primacy of Community (now EU) law, without expressly stating the law of the Community is supreme: The provision that may be made un sub-section (2)above includes, subject to Schedule 2 of this Act, any such provision (of any such extent) as might be made by Act of parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section. Accordingly, all the rights, powers, liabilities, obligations and restrictions provided for under section 2(1) are to be given effect by the courts, and section 2(4) operates as a rule of construction to the courts to interpret law in accordance with requirements of EU law. The manner in which the courts have achieved the objectives expressed in the ECA 1972 are considered in Chapter 7 and 8, as is the view of ECJ on the supremacy of EU law However, it would be misleading to leave this chapter on the traditional Diceyan theory of sovereignty without giving some introductory overview of the challenge which EU law has posed. The ECJ adopts as it guiding principle the supremacy of the law of the EU. In the ECJs view, a new legal order has been founded, a sovereign legal order within its sphere of competence. The sovereignty of EU law must, according to the ECJ, be respected by Member States, because through accession to the EU, Member states have surrendered their sovereign power in relation to those matters now regulated by the Union. The ECJ has adopted several means by which expand the applicability of EU law and to assert its supremacy. First, the Treaty of Rome, as amended, under the Article 10, imposed a duty on all Member states to comply with EU law and not to impede the application of EU law. Secondly, Article 249 of the EU Treaty provides that a regulation made under the Treaty (in part) shall be binding in its entirely and directly applicable in all Member State. This principle of Direct Effect has been adapted and developed by the E CJ to ensure the harmonious application of the EU law throughout the legal systems of all Member states. Where provisions of EU law have direct or indirect effect, the individual citizens of the state has a right of redress against the Member State, or against bodies which the ECJ deems to be emanations of the state, and under certain circumstances, the right to compensation from the state. Moreover, while the ECJ does not rule on the validity of domestic legislation, it does rule on the requirements of EU law as interpreted by the Court, and once the interpretation is received by the domestic courts, that interpretation must be given effect notwithstanding incompatible domestic law. While it would be premature to reach firm judgment on the fate of convention Diceyan theory before studying the structure, organization and objectives of the EU, some tentative conclusions may be suggested. Without rehearsing

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the arguments set out before, there two differing approaches which may be taken to this conundrum. First, it may be argued that unreconstructed Diceyan theory remains unimpaired, despite all appearances and arguments to the contrary, on the basis that the UK voluntarily acceded to the European Union, the force of EU law within domestic law deriving from the 1972 European Communities Act, That Act, as seen, is consistent with constitutional law and convention not entrenched (no could it be) and remains, in legal theory, repealable. From this perspective, parliamentary sovereignty remains the fundamental rule of the common law, and the key to the source of sovereignty lies with judges. While the judges continue to cling to the rationale that EU law is given effect even to the point setting aside legislation because of the rule of construction provide under section 2 of the ECA 1972, judicial loyalty remains unaffected. The clearest evidence for this view is expressed by Lord Bridge in R v secretary of State for Transport ex parte Factortame (No2) (1991) , When he states that: By virtue of section 2(4) of the Act of 1972, Part II of the (Maerchant Shipping Act 1998] is to be construes and take effect subject to enforcement community rights this has precisely the same effect as if a section were incorporated in Part II of the Act 1988 Moreover, it will be seen from the cases of Macarthys v smith (1979) and Garland v British Rail Engineering ltd (1983) that bot he CA and HL, respectively endorsed that view that, while effect must be, in accordance with section 294) of the ECA 1972, be given to Community (now EU law, if Parliament chose expressly to legislate contrary to the community law, that intention would be given effect by the judges. NO more so would this be clearer than if Parliament, implausible though this hypothesis may seem, choose to repeal the 1972 Act. Alternatively, it could possibly be argued, as HWR Wade has argued, that, for the first time the constitutional history, Parliament succeeded in entrenching a provision (section 2(4) of the 1972 Act), so as to bind future Parliaments. This position wade submits, is more than evolutionary: it represents more than a rule of construction to be applied by the courts, and is rather a illustration of the Parliament 1972 imposing a restriction upon the Parliament of 1988 (p570.). If this argument had substance, there would indeed have been a revolution in the constitution. However, the argument does not convince in light of the dicta of the judges, exemplified y the Lord Bridge cited above, which confirms the conventional allegiance of the judiciary to the UK parliament. Moreover, successive cases raising questions on EU law have come before the CA and HL in which the courts have found the requisite interpretative mechanism to accommodate the requirements of EU law as interpreted by the Court of Justice. Judicial interpretative techniques are the essence of the common law, and the essence of the common law is its capacity to evolve in accordance with the socio-political and legal domain within which it resides. In this light, the insistence on the part of the domestic courts section 2(4) of the ECA 1972 is a rule of construction to be applied to future legislation is hardly revolutionary but rather more a recognition of the requirements of the European legal order and the overriding force of EU law for which the 1972 Act provided. However, as discussed below, there is evidence that some judges are prepared to recognize that certain statues including the 1972 Act have a special constitutional status. The preoccupation with parliamentary sovereignty is understandable given that sovereignty has conventionally, in the absence of a written constitution, represented the cornerstone or foundation of the British constitutional. Membership of the EU, and the insistence of the ECJ on the supremacy of EU law, inevitably challenges traditional understands of the concept, an raises hitherto unforeseen questions. While traditional Diceyan theory can accommodate membership of the Union, it can do so only be clearly demarcating, as did its author. The realms of the legal and political. Legal theory resides against the backcloth of the political. political sovereignty, while the UK remains a member of the Union, may (arguably) lie in the Institutions and law-making processes of the Union, in which every Member State participates, and which is supported by the political will of the citizens of the Member States. The political sovereignty, while membership continues, has a profound impact on the extent to which the domestic legislature may legislate over areas within the ambit of treaties establishing the Union. Thus, as Dicey himself argued, aback in the 19th century under the fundamentally different socio economic and political conditions, the extra-legal may de facto limit the exercise of sovereign power. This de Facto limitation on legal sovereignty remains ultimately conditional on the political commitment of the UK government and people to continue membership of the unique legal order which it voluntarily joined 1972.