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Constitutional & administrative law.

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Introduction

Constitutional & Administrative Law 2001/2002 'Desirable as it is, the full entrenchment of the Human Rights Act 1998 remains impossible due to Parliamentary Sovereignty'. Analyse and critically assess the above statement. I am of the opinion that full enforcement of the Human Rights Act can not be possible due to the long standing constitutional doctrine of Parliamentary Sovereignty. In this essay it will be discussed the origins of Parliamentary Supremacy and the effect of the incorporation of the Human Rights Act 1998 will have on this. The theory of Parliamentary Sovereignty, its meaning and how allowing individuals all the rights and freedoms as laid out in the named Act would undermine this, therefore I believe that fully incorporating and abiding by the Human Rights Act will be impossible due to the theory of the supremacy of Parliament. Parliament is the legislative assembly of the United Kingdom of Great Britain and Northern Ireland. Over the centuries it has become more than a legislative body; it is the sovereign power of Great Britain, whereas the monarch remains sovereign in name only. It has the power to: create new laws (eg Transport Act 1981), amend existing Acts (eg the Transport Act 1981 amended the Transport Act 1972), pass a Consolidation Act which brings together other Acts which cover similar areas of Law (eg Sale ...read more.

Middle

Due to the British constitution being largely unwritten, an Act was passed: The European Communities Act 1972. the Act seemed to provide the courts with instruction to obey Community law, but was not clear on what to do if this conflicted with an Act of Parliament. They were advised to interpret in ways so as not to create discrepancy between them. There was no direct clash between EC law and British law until the Factortame cases in 1990 and 1991. these concerned an apparent clash between EC law forbidding discrimination on grounds of nationality and the Merchant Shipping Act 1988 which imposed discriminatory rules on fishing boats. They challenged the application to them of the 1988 Act and asked for an interim injunction suspending the Act, pending a reference to the European Court of Justice. English law would not have permitted such suspension as it would undermine the doctrine of Parliamentary supremacy, the European Court of Justice said that EC law could require it. The House of Lords chose to obey the 1972 European Communities Act and awarded the injunction. The basic rule of European Union Law is that The European Communities Act of 1972 provides for the incorporation of European Community law into UK law. ...read more.

Conclusion

Most importantly, the duty of disclosure under Article 6 of the Convention is not dependent upon disclosure of the defence case. In light of current events, like in the case of Lincolnshire Police as advertised in The Times on 5/2/2, stating that the private client-lawyer conversations were bugged and this is where the murder charge was 'confessed to'. Part of the prosecutions case was obtained as result of overhearing what the accused had discussed confidentially with his solicitor. This case saw the conviction quashed due to the infringement of basic rights which the convention guarantees: Article 6.3 the right to a fair trial and Article 8 the right to privacy. This is an example of where the rights of the individual have come before the aims of Parliament in securing a conviction of someone guilty of a serious offence. It is my opinion that to fully respect and take individuals rights as paramount would mean taking the rights and prerogative of the state as second. This in itself shows that desirable as it may be, to fully establish human rights as a central part of the system it will not be entirely possible due to the long standing doctrine of Parliamentary Sovereignty. ...read more.

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