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Is the Human Rights Act destructive of Parliamentary Sovereignty?

The Human Rights Act 1998 (HRA) gives effect to provisions of the European Convention on Human Rights (ECHR) into UK law. This made significant changes to the UK’s constitutional law and judges were given new powers under the HRA. However, the HRA is not destructive of Parliamentary Sovereignty and this will be discussed in the context of sections 3 and 4 of the HRA. 

The principle of Parliamentary sovereignty is that Parliament can make or unmake any law it wants to - it is the supreme law making body in the UK - and no other body can set aside an Act of Parliament. Ultimately, there is no official power given to courts to strike down legislation in the HRA and the HRA is not entrenched and thus, is not destructive of Parliamentary Sovereignty. Parliamentary supremacy still remains.

The Human Rights Act though gives courts two measures that they can take. The first, under section 3, requires legislation to be interpreted in a way that is consistent with Convention rights where possible. If it is not possible to find a consistent interpretation, the higher courts have recourse to a second measure, under section 4, to issue a declaration of incompatibility. 

Under section 3, the courts are required to interpret and give effect to statutes in way that is compatible with convention rights so far as it is possible to do so. This is in addition to the normal purposive approach to interpretation and is stronger than it (R v A). Further, the courts’ interpretation of a statute under s.3 does not need to provide an interpretation that is consistent with the intention of Parliament when it enacted the statute  (Ghaidan v Godin-Mendoza). Hence, the courts could give a statute a different meaning to that originally intended by Parliament. Nonetheless, Parliament remains supreme. It can still enact a statute that is inconsistent with Convention rights with very clear language and courts would have to uphold an ECHR-incompatible statute if it cannot be interpreted in a compatible way under section 3. Therefore, Parliamentary Sovereignty is not restricted at all.

Where it is not possible to interpret a statute compatibly with the ECHR under Section 3, the courts can have recourse to Section 4 of the HRA and issue a declaration of incompatibility. This merely indicates that the particular provision is incompatible with the ECHR - it does not invalidate the statute, but a minister can amend the legislation via a fast track process (s.10). Hence, as the courts can not strike down an Act of Parliament, Parliamentary Sovereignty remands formally intact. Parliament simply has the option to act.

Finally, the Human Rights Act itself is not entrenched at all. It can be repealed by the legislative process in Parliament. Therefore, the Human Rights Act is not at all destructive of Parliamentary Sovereignty or Parliamentary Supremacy. Parliament is still the supreme law making body in the UK - it can make or unmake any law, including the Human Rights Act itself or legislation that is incompatible with the Convention.

William A. A Level Law tutor, GCSE Law tutor, A Level Economics tutor...

1 year ago

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