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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National and International Legal Systems

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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.

Next we need to focus on the European Convention on Human Rights (ECHR).  This is based on the United Nations Declaration of Human Rights and is a treaty of the Council of Europe, established after World War II.  The ECHR was brought into force on September 3rd 1953 after being signed on November 4th 1950.  It was aimed at constructing a viable form of civilisation on mainland Europe in order to “promote closer formal associations between the sovereign states of Europe.”  This came after the investigations into the human rights abuses that had taken place at Nuremberg.  The basis of the human rights has said to come from nine documents created after the Second World War.  These are the United Nations Charter 1945, the United Nations Declaration of Human Rights 1948, the American Declaration of the Rights and Duties of Man 1948, the ECHR 1950, the European Social Charter 1961, the International Covenant on Civil and Political Rights 1966, the International Covenant on Economic, Social and Political Rights 1966, the American Convention on Human Rights 1978 and the African Charter on Human and Peoples’ Rights 1981.

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Enforcement of the Convention is via the European Court of Human Rights, which has the power to over rule decisions of the member states.  The Court has taken a purposive approach to the interpretation of the Convention.  Thus providing for more rights and freedoms.

The court has heard 155 cases since January 2002 and as Bailey et al say this has resulted in the UK changing its own domestic legislation on several occasions including the law relating to homosexuality in Northern Ireland being brought into line with the rest of the UK and dropping the policy stopping homosexuals joining the armed ...

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