Public Law – Lecture 28-10-19
Parliamentary Sovereignty and the Human Rights Act
Does the human rights act 1998 compromise parliamentary sovereignty?
A.V Dicey’s definition of parliamentary sovereignty:
“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.”
A.V. Dicey, Introduction to the Study of the Law of the Constitution
(London: Macmillan, 8th ed. 1915), at 37-38
HRA Sections 6 and Section 3 and 4 remain the largest challenges to parliamentary
sovereignty.
S6:
(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(2) Subsection (1) does not apply to an act if –
(3) As the result of one or more provisions of primary legislation the authority could not
have acted differently: or
(4) In the case of one or more provisions of, or made under, primary legislation… the
authority was acting so as to give effect to or enforce those provisions.
(5) In this section “public authority” …. Does not include either house of parliament.
S3:
This makes it extremely hard for parliament to violate our rights but not unlawful to so,
therefore if absolutely necessary, parliament retains the power to do so.
S4:
(2) if the court is satisfied that the provision is incompatible with a convention right, it may
make a declaration of that incompatibility.
(6) A declaration under this section (incompatibility) –
(a) does not affect the validity, continuing operation or enforcement of the provision in
respect of which it is given, and
(b) is not binding on the parties to the proceedings in which it is made.
Parliamentary Sovereignty and the Human Rights Act
Does the human rights act 1998 compromise parliamentary sovereignty?
A.V Dicey’s definition of parliamentary sovereignty:
“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.”
A.V. Dicey, Introduction to the Study of the Law of the Constitution
(London: Macmillan, 8th ed. 1915), at 37-38
HRA Sections 6 and Section 3 and 4 remain the largest challenges to parliamentary
sovereignty.
S6:
(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(2) Subsection (1) does not apply to an act if –
(3) As the result of one or more provisions of primary legislation the authority could not
have acted differently: or
(4) In the case of one or more provisions of, or made under, primary legislation… the
authority was acting so as to give effect to or enforce those provisions.
(5) In this section “public authority” …. Does not include either house of parliament.
S3:
This makes it extremely hard for parliament to violate our rights but not unlawful to so,
therefore if absolutely necessary, parliament retains the power to do so.
S4:
(2) if the court is satisfied that the provision is incompatible with a convention right, it may
make a declaration of that incompatibility.
(6) A declaration under this section (incompatibility) –
(a) does not affect the validity, continuing operation or enforcement of the provision in
respect of which it is given, and
(b) is not binding on the parties to the proceedings in which it is made.
