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

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Introduction

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." 1 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." 2 It has been argued that membership of the European Union has acted towards the limitation of the UK's parliamentary supremacy, and ...read more.

Middle

concerned with the individual's civil rights; "In the determination of his civil rights...everyone is entitled to a fair and public hearing...by an independent and impartial tribunal..." 12 Objectors claimed a breach of Article 6(1) over the decision of the Secretary of State for the Environment etc to grant planning permission. It was held that Article 6(1) would not be violated if the Secretary of State's decisions were reviewed by an 'independent and impartial tribunal'. The third case13 involves the Highways Act 1980 and Acquisition of Land Act 1981, in this case the Secretary of State was given power to make decisions over something which he had a personal interest in. For this case parliamentary supremacy was upheld by the statement that section 6(2) applied in that the legislation is incompatible with the Human Rights Act but still valid as no other interpretation is available.14 The fact that these cases all show the continuation of parliamentary supremacy in varying ways strengthens the argument that parliamentary supremacy still exists and is compatible with the Human Rights Act. Yet now the other side of the question needs to be considered. Again, the Human Rights Act itself is the prime place to look for evidence of incompatibility. Section 3 can also be used against the argument of compatibility. Section 3 (1) of the Human Rights Act immediately states that; "So far as is possible to do so...legislation must be...compatible with Convention rights." ...read more.

Conclusion

(Care Order: Implementation of Care Plan) with In re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 2 AC 291. 10 Supra n. 6, pg 252. 11 R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions with R (Holding and Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389. 12 Human Rights Act 1998; Article 6(1). 13 Secretary of State for the Environment, Transport and the Regions v Legal and General Assurance Society Ltd [2001] 2 WLR 1389. 14 Supra n. 12; Section 6(2); "Subsection (1) [public authorities act unlawfully if they violate a Convention right] does not apply if- as a result of one or more provisions of primary legislation, the authority could not have acted differently;" 15 Supra n. 6, pg 254. 16 Ibid. 17 Supra n. 12, s.3 (2). 18 Lord Steyn, Current Topic: Incorporation and Devolution [1998] E.H.R.L.R. 153, pg 155; "Traditionally the search has been for the one true meaning of a statute. Now the search will be for a possible meaning that would prevent the need for a declaration of incompatibility. The questions will be...can the words be made to yield a sense consistent with Convention rights? In practical effect there will be...favour of an interpretation consistent with Convention rights." 19 Example provided by H. Davis; Human Rights and Civil Liberties, pg 32. 20 R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2002] QB 1. 21 Supra n.1. Hannah Nicholson Constitutional Law and Human Rights Assignment (Group B) ...read more.

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