Are the Human Rights Act 1998 and the doctrine of Parliamentary supremacy compatible?

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Hannah Nicholson                                  Constitutional Law and Human Rights Assignment

(Group B)

Question 1

Are the Human Rights Act 1998 and the doctrine of Parliamentary supremacy compatible?

The doctrine of Parliamentary supremacy is the concept that Parliament made legislation, e.g. Acts of Parliament are the superior form of law that nothing but Parliament itself can undo.  Probably the most well known (and most quoted) writer on the subject of the UK constitution is A.V. Dicey.  In describing parliamentary supremacy, reference to Dicey is essential.  He famously stated that the British Parliament 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 statement clearly sums up the doctrine of parliamentary supremacy that is being threatened by the overwhelming urge of Parliament and Europe as a whole to protect the basic human rights and freedoms that everyone should be entitled to.

The UK is currently a member of the European Union and as a member state; Britain is subject to European Community law in accordance with the European Communities Act 1972, which causes all;

“…rights, powers, liabilities, obligations and restrictions…created or arising by or under the Treaties [e.g. Community law]…to be given legal effect or used in the UK shall be recognised and available in law, and enforced, allowed and followed accordingly.” 

It has been argued that membership of the European Union has acted towards the limitation of the UK’s parliamentary supremacy, and this is supported by the fact that the 1972 Act causes the UK to be subject to laws and legislation enacted by a body outside of it.  For example in the case of R v Secretary of State for Transport ex parte Factortame Ltd and Others ; amendments to the Merchant Shipping Act 1988 and Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, caused several companies to need interim relief granting to them to avoid a substantial loss, but under UK law, the courts had no power to grant such relief.  However, it was ruled that if the only obstacle between carrying out Community law (which would grant the required relief) was a rule of domestic, national law then that rule should be set aside in order that the Community law be followed.

 

However, the journey towards the enactment of the Human Rights Act 1998 in fact originates from before the 1972 Act, with the Council of Europe, an official body that is concerned with the protection of civil rights and fundamental freedoms.  The Council of Europe developed the European Convention on Human Rights and Fundamental Freedoms in 1950, of which the UK was one of the first signatories, but, despite supporting the Convention, the UK did not incorporate its principles into UK law.  Then, with the amendment of the Treaty on European Union 1992 (also referred to as the Maastricht Treaty) in 1997, the common goal of the two separate bodies of the European Union and the European Court of Human Rights for the protection of fundamental rights was unified.  

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Integration of the Convention into UK law finally occurred with the new Labour government of 1997’s enactment of the Human Rights Act 1998 on 2nd October 2000.

Various academics and even judges have presented both sides of the argument surrounding the question of compatibility between the protection of human rights and the doctrine of parliamentary supremacy.  For compatibility to occur, the protection for human rights provided through the 1998 Act needs to be able to occur alongside UK Parliament remaining superior.

Nonetheless, if compatibility can be found between the two systems, the best place to look will be in the ...

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