Parliament - HRA, length of parliaments and treaties

The Human Rights Act 1998 came into force in order to ensure that future legislations would be in accordance with the European Convention of Human Rights. However as a Domestic Law, it is possible for Parliament to repeal or amend it at any time.

Parliament has the absolute legislative authority to make or unmake laws. The main limit to Parliament’s law making supremacy is that neither Parliament can pass unchangeable Acts, according to Vauxhall Estates V Liverpool Corporation, nor it can bind its successors.

Government has to introduce a Bill. Using its legislative right, Parliament can vote in favor of the entrenchment of the Human Rights Act 1998 which indicates the requirement of a two-thirds majority, in each house, for any future appeal or amendment.

Nevertheless for common law, the Human Rights Act is recognized in the category of constitutional legislations, so the Bill which is going to entrench it has to mention clearly in express language the purpose of this legislation. This was also proved in 1993 in R V Secretary of State for the Home Department where Lord Hoffmann said that “only express repeal can amend or remove the Act”.

Finally, the above legislation, practically, cannot be an entrenchment since it is not unchangeable. As mentioned no Parliament can bind its successors thus the Human Rights Act cannot be entrenched for ever. Furthermore, since the U.K has not a written constitution, it is impossible to entrench any Act.

(b) In 1716, Parliament passed the Septelinian Act extending its own life from 3 to 7 years to avoid the effects of an election.

Under the Parliament Act 1911, Parliament is to be elected for only five years and no Parliament can lawfully extend its life. Parliament can only extend its life with the agreement of both houses and the Crown and only in very important cases, as happened during the two world wars. It has to be mentioned that, even though there is a limitation for the length of the Parliament, there is no such limitation about the ...

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(b) In 1716, Parliament passed the Septelinian Act extending its own life from 3 to 7 years to avoid the effects of an election.

The government has the right to introduce a Bill providing that there will be no elections for the House of Commons for the next 25 years. But, this Bill has to take the approval of both the Houses and finally the Royal assent, as it happens for every Bill in order to become an Act. To achieve the approval of the Houses government has to justify its intention. This is an important matter which affects not only politicians but also people who voted for the House of Commons under the impression that their choice was for a specific period of time. An extension of its life could be characterized as antidemocratic. Moreover the statement that such legislation would be antidemocratic is strongly reinforced by the fact that the other chamber of Parliament, the House of Lords, is itself unelected.

“Parliament legislates in respect of its own territory and in respect of its own citizens”. The above statement shows the moral difficulty faced by the Parliament to approve such legislation. The appropriate way to deal with the public displeasure is a referendum. Even though referendums are not legally binding, they are usually held to gain people’s agreement in important decisions.

In case government introduces a Bill which has the Royal assent and the approval of the houses, the life of the House of Commons will be legally extended for 25 years. But, there is no “safety valve” that there will be no elections for a new House of commons within the period of the extension. As mentioned before, the Prime Minister has the right to request from the Crown to dissolve the Parliament for the purposes of calling an election.

According to an International Law principle “Countries have a right to enter into treaties but also to rescind and withdraw from them”.

Since 1973, the United Kingdom is a member of the European Union which today counts 27 members. Until now there was not a member-state which withdrew from the E.U except Greenland after it obtained its independence from Denmark.

Theoretically, there are no legal obstacles to prevent a member state from leaving the treaty since the European Community Law which prevails over the national law, has only provisions on how to join the E.U and not on how to withdraw. So the United Kingdom is able to withdraw from the European Union using its Parliamentary legislative supremacy. Moreover, since the above issue can be regarded as a constitutional convention and similar to 1975 referendum about the U.K’s membership continuation, a new referendum would have to take place, even though a referendum does not legally bind the government.

In relation to the above, government can introduce a Bill which repeals the European

Communities Act 1972 and the other existing Acts which concerns the U.K’s membership in the E.U. The above bill has to receive the approval of both the Houses of the Parliament and Royal Assent in order to come into force and achieve the goal of withdrawing from the E.U.

Moreover, as shown in the case of Thoburn V Sunderland City Council, the Divisional Court, held that since the European Communities Act was a constitutional statute it could only be repealed by express words.

Finally, it should be mentioned that the European Union Constitution, which has not come into force yet, clarifies the procedure to be followed member states in order to withdraw. “Any member state may decide to withdraw from the E.U in accordance with its own constitutional requirements”.

Bibliography

Britain Unwrapped, Hilairie Barnett, 1st edition, Penguin Books
Constitutional and Administrative Law, A W Bradley and K D Ewing, 14th edition, PEARSON Longman
Studies in Constitutional Law, Colin R Munro, Butterworths
Public Law, John F McEldowney, 3rd edition, THOMSON Sweet and Maxwell
Constitutional and Administrative Law, Stanley de Smith and Rodney Brazier, 6th edition, Penguin Books
Constitutional Law, Ian Loveland, Butterworths