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Discuss whether incorporation of the European Convention on Human Rights into the domestic legislation of the UK via the Human Rights Act 1998 compromises Parliamentary sovereignty.

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Introduction

National and International Legal Systems Ll1SO4 Assessed coursework 2 The Doctrine of sovereignty of Parliament is a dominant and characteristic feature of English Constitutional Law and Theory. Dicey states that: The principle of Parliamentary sovereignty means neither more nor less than this; namely that Parliament has, under 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. In light of this statement discuss whether incorporation of the European Convention on Human Rights into the domestic legislation of the UK via the Human Rights Act 1998 compromises Parliamentary sovereignty. For this question the first concept that we need to look at is Parliamentary sovereignty. This concept of Parliamentary sovereignty means, in theory at least, that Parliament is the supreme law making body in our constitution and that these laws take precedence over any other laws, i.e., common law derived from the courts. The most famous definition comes from A.V Dicey of which the above statement has come from. From this statement we can see that he believes that Parliament is the supreme law maker, Parliament can legislate on any matter whatsoever, no Parliament can be bound by a predecessor and that no person or body can question the validity and competence of Parliament's enactments.1 Next we need to focus on the European Convention on Human Rights (ECHR). ...read more.

Middle

The case of McCann v UK (1995)8 involves this particular right in that it was held that a state has a positive duty to protect life and that they cannot take it. Another right that has been incorporated is the prohibition of torture and inhuman or degrading treatment (Article 3). This is a right that cannot be derogated from at any time, not even during war. This also places a positive duty on the state not to engage in torture or degrading treatment and to ensure that this does not happen in its own state. The UK was in breach of this in the case of Ireland v UK.9 Unlike Article 3 Article 5, the right to liberty and security of person can be derogated from in times of war and national emergency. As in the case of A and Others v Home dept. (2002)10 The last one we will look at is Article 6, the right to a fair trial. This is linked to due process and Art.6(1) provides that every person has a right to a fair and public hearing within a reasonable time and by an independent and impartial tribunal. The UK will no doubt have to make changes to the law of evidence in order to be in accordance with this particular Convention right. The case of R v Lambert [2001]11 deals with this Article. The defendant appealed after the commencement of the Act. This case involved the Misuse of Drugs Act 1971 which included a reverse burden of proof. ...read more.

Conclusion

Many academics have argued that we have not 'lost' or had our sovereignty undermined as we have only 'lent it out', this being because we may withdraw from the European Union at any time that we want. In all fairness this is unlikely to happen as it could cause problems with international trade etc and that they is not any sign of this emerging or even being contemplated. However if there was to be an entrenched Bill of Rights placed in our law, which some have said the HRA is only a stepping stone towards, then this last argument and maybe this entire question of the undermining of our Parliaments sovereignty would need to be looked at once again and reconsidered. 1 Barnett.H., 2002. Constitutional and Administrative Law. 4th ed. Cavendish Publishing Ltd. Page 192 2 Blackburn.R., Polakiewicz.J., 2001. Fundamental Rights in Europe. Oxford University Press. Oxford. Page 6. 3 Ibid. Page 3. 4 Fenwick.H., 1999. Civil Liberties. 2nd Ed. Cavendish Publishing Ltd. London. Page 17. 5 Infra n.12 6 [2000] Crim. L.R. 767 7 Stone.R., 2000. Textbook on Civil Liberties and Human Rights. 3rd Ed. Blackstone Press. London. Page 27. 8 (1995) 21 EHRR 97 9 (1978) 2 EHRR 25 10 11 [2001] UKHL 37 12 Smith.S.H., Ching.J.P.L., Gunn.M.J., Ormerod.D.C., Smith, Bailey & Gunn on the Modern English Legal System. 2002. Sweet and Maxwell Ltd. London. Page 525. 13Ibid. Page 526. 14 Supra n.11 15 [2002] EWHC 195 16Supra n.12. Page 299. 17 Ewing.K.D ed., 2000. Human Rights at Work. The Institute of Employment Rights. London. Page 8. 02005514 ...read more.

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