Since the enactment of statutes such as HRA 1998, the question was raised that if it is the requirement of HRA 1998 to enact always in line with ECHR or never in contradiction with ECHR, then is this statute attempting to limit Parliament in its law makin
Human Rights Act 1998 incorporates ECHR rights into domestic law. Therefore, this Act is seen pursuant to objectives and individual rights conferred under the ECHR. It must be considered, that British Membership of the EU & EC imposes a legal not simply a political challenge on the Parliament. Before the impact of HRA 1998 is considered; UK’s Parliamentary sovereignty must be understood.
Parliamentary Sovereignty
The nature of United Kingdom’s Parliament is quite unique and extra-ordinary. Three aspects of Parliamentary Sovereignty are offered by AV Dicey.
- Parliament is the supreme law making body and may enact laws on any subject matter.
- No Parliament may be bound by a predecessor or bind a successor
- No person or body- including a court of law- may question the validity of parliament’s enactment
Judiciary - HRA 1998 – Sovereignty
The Judicial authorities will always look to safeguard the second rule of Diceyan Parliamentary sovereignty by means of the doctrine of express and implied repeal. The courts have long accepted Dicey’s view that Parliament has no power to bind its successor either as to the manner or as to the form of subsequent legislation. Logically, it is one of the cornerstones of Parliamentary Sovereignty that, parliament can make, or unmake any law and each parliament must enjoy the same degree of law making power and such power cannot be restricted by another piece of legislature. Preceding case law shows that judges are not wlling to compromise when comes to the retention of traditional doctrine of sovereignty. The position is- if an Act of Parliament is contrary to the law of God or natural justice it would seem only fair to disregard it. But it was provided in Pickin v British Railway Board that “since the supremacy of Parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete”.But Since the enactment of statutes such as HRA 1998, the question was raised that if it is the requirement of HRA 1998 to enact always in line with ECHR or never in contradiction with ECHR, then is this statute attempting to limit Parliament in its law making power? And while this statute seems entrenched, it will be against the legal theory of sovereignty to consider that it is not subject to implied repeal, and has a special status thereby needing a special mechanism to repeal this statute. The judiciary however, in few instances, have taken a moderate approach rather than a strict stand on this.
