Using your own knowledge as well as the extract, explain why, in practice, parliamentary sovereignty is not undermined by the Human Rights Act. (10 marks)
Parliamentary gives Parliament superior and legal authority as they can make or unmake any Act of Parliament they wish and although the House of Commonsâ has most of the dominance they always need the support of the House of Lords to pass an Act. Parliamentary sovereignty refers to this joint power. The Human Rights Act 1998 is a law passed by Parliament that has limited the application of parliamentary sovereignty as it is made unlawful for any public body to act in a way which is incompatible with the Convention although the courts can only make a declaration.
Under the Human Rights Act, it is the role of the judiciary to interpret the law, as far as possible, in a way that is compatible with the rights of the Convention. However, it is not possible to interpret an Act of Parliament and make the law compatible with the Convention as they cannot override it and only make a declaration of incompatibility, a suggestion to Parliament that the law should be changed to coincide with Convention rights. It is then the majority party that will decide in Parliament of the changes, maintaining the sovereignty. The repercussions of this in terms of maintaining a democratic government because of the fact unelected and therefore unaccountable judges are influencing elected politicians. However, sanctions from the EU can be made if a member country does not come into line, for example the organisation gave Italy an economic sanction for its policy of sending away Libyan migrants who had approached Italy by sea.
It could argued that the Human Rights Act gave Tony Blairâs Government the UK a sense that their rights were much better protected and acted as an âembellishmentâ for New Labour because with parliamentary sovereignty a law can be made or unmade by parliament as it is not entrenched. Prime Minister David...
...Question: WHAT IS PARLIAMENTARYSOVEREIGNTY IN THEORY AND IN PRACTICE?
Sovereignty is defined as the supreme power or authority. Therefore, ‘parliamentarysovereignty’ means there is supremacy or authority of parliament in making or unmaking the law as they like. According to A.V. Dicey, the parliament sovereignty is the single most important principle of the UK constitution. With the Parliament’s supremacy, 'no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament' (Roberts 2006: 87). The Fixed-term Parliaments Act 2011, for example, can be used to explainparliamentarysovereignty in theory, while other examples such as Margaret Thatcher’s poll tax, the rebels of Conservative backbenchers, devolution of power, as well as UK’s entry to the European Union and the HumanRightsAct of 1998 can be used to explainparliamentarysovereignty in practice. This essay will further discuss and explain the distinction between parliamentarysovereignty in theory and in practice.
'In theory at least, Parliament could repeal any of the laws implementing these changes.'...
...legislation is sovereign. Parliamentarysovereignty has been qualified though not departed from in different ways by our adoption of the law of the European Union through the European Communities Act 1972 and by the HumanRightsAct 1998.”
Per Lord Justice Laws, R (MISICK) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1549
Evaluate this statement with reference to appropriate legal authorities.
In order to evaluate this statement it is important to understand what Parliamentarysovereignty is and how it relates to European Union law with the enactment of the European Communities Act 1972 and the HumanRightsAct 1998.
The doctrine of parliamentarysovereignty means that Parliament is the supreme Law maker of the UK, hence Parliament is free to make or unmake any law it wishes with the exception that it cannot limit its own power or bind itself when it comes to future legislation. This dictates that all courts must uphold legislation laid down by Parliament.
“ The principle, therefore, of parliamentarysovereignty means neither more nor less than this, namely that "Parliament" has "the right to make or unmake any law whatever; and further, that no person or body is recognised by...
Discuss whether the HumanRights succeeded in doing what it was designed to do
Prior to HumanRightAct 1998, European Convention HumanRights were not directly applied by the courts and while there were infringements of the rights enshrined in the ECHR an application have to make to the Strasbourg Court when domestic avenues had been exhausted. Therefore,HumanRightAct 1998 was incorporated in UK in 2000 to bring ECHR rights to the English law and to ensure that the public authorities have due regard for Humanrights. Undeniable, it has a substantial impact in UK as according to Jack straw “these are new rights for new millennium. The HumanRightAct is the most important piece of constitutional legislation the UK has ever seen.”
However, we must also recognise that as a consequence of the incorporation of ECHR in English law, it had also led to some political tension between the Legislative and the Judiciary. Judges often being criticised that go beyond their constitutional role as a “interpreter” and hence violate the principle of parliamentary supremacy and Separation of power.
This is because the ultimate purpose of HRA was designed to give judges a mandate to ensure that legislative and...
...The HumanRightAct 1998 is an act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.It’s aim is to “give further effect” in UK law to the right contained in the European Convention on HumanRight. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of HumanRight in Strasbourg. It also totally abolished the death penalty in UK law although this was not required by the Convention in force for the UK at that time.
In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg. Court and to interpet legislatron,as far as possible, in a way which is compatible with the convention.However,if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a dedaration of incompatibility. This declaration does not effect the validity of the Act of parliament, in the way, the Human...
...view of parliamentarysovereignty still relevant in the modern British constitution? Why (not)?
1. The orthodox view of parliamentarysovereignty
To define parliamentarysovereignty does not seem too complicated when it is assessed in isolation. Only in connection with other constitutional principles difficult tensions arise. The orthodox view of parliamentarysovereignty is simply that only parliament has the right to make or unmake law and that no other institution can challenge that right. This also includes the rule that parliament cannot bind its successors. Parliament can follow its own procedural rules as it wishes and court cannot examine the procedure by which legislation has been passed (enrolled bill rule).
2. Conflicts with national institutions
This orthodox view has been challenged in the times in the context of judicial review and academic thought.
In 2004 the case R. (Jackson) v. Attorney General raised important questions of the scope of parliamentarysovereignty. One aspect of the case is that the Attorney General, arguing for the government, accepted that the judges had jurisdiction over a procedural question and through that over the question whether the act was a valid statue. That clearly stands in conflict with the traditional enrolled...
...replacing the HumanRightsAct 1998 with a British Bill
of Rights and Responsibilities.
The HumanRightsAct 1998 (HRA 1998) is the single most effective piece of legislation, passed in the United Kingdom, which enforced the principles set out in European Convention on HumanRights in British domestic courts. A brief history as to the enactment of such a profound piece of legislation will help us understand the importance of the HumanRightsAct 1998, and reasons the current coalition government would consider replacing the HumanRightsAct 1998 with a British Bill of Rights and Responsibilities.
After World War 2, and the barbaric atrocities of the Nazi holocaust, European politicians and jurist were convinced that there was a need to forge a new Europe. The foundation of the Council of Europe was inspired by the need to guard against dictatorship, avoid risk of another war and to provide a beacon of hope. The first task was to establish rights for individuals against sovereign states. The code of the European Convention of HumanRights (ECHR) was formed, and the European Court on HumanRights (ECtHR) was established and located in Strasbourg.
This treaty was signed by member...
...written constitution, referring to the absence of a single, codified set of constitutional rules and regulations. Despite that, the UK is almost unique in this respect as they practice the doctrine of parliamentarysovereignty. According to Lord Styen in the case of R v Jackson, the doctrine of parliamentarysovereignty is a creation of the court as it is the judiciary that has created and maintained the doctrine as a basic principle of the constitution. There are two types of sovereignty being legal sovereignty and political sovereignty. Legal sovereignty is also called constitutional sovereignty where it recites in the Parliament and is recognized and enforced by the court. Political sovereignty is the actual sovereignty where it recites in the people.
The classic definition of parliamentarysovereignty is offered by Dicey, where he said Parliament has the right to make and unmake any law whatsoever and it can bind any person at all time. According to Dicey, the doctrine consists of three principles. First of all, Parliament is the supreme law-making body and it has the authority to legislate on any subject matter. For examples, Parliament can legislate with retrospective effect [Burmah Oil Company v Law Advocate][War Damage Act 1965] Parliament can...
...AND LEGAL SOVEREIGNTY
* Political Sovereignty – lies with the people
* Legal Sovereignty – vested in parliament
* AV Dicey – the people hold political sovereignty and legal sovereignty is with the Queen in Parliament.
* With a written constitution the constitution defines the limits of the government’s power
* UK powers of the government - while dependent on the electoral mandate – is unconstrained by any fundamental document and subject to Parliament’s approval.
* All law making power is derived from the sovereignty of the legislature: Parliament
ORIGINS OF PARLIAMENTARYSOVEREIGNTY
* 17th century – Crown and Parliament was in conflict
* Crown ruled through royal prerogative rather that ruling through Parliament
* Abuse of the prerogative by Charles I lead to civil war and Charles execution
* Republican ruled for a decade under Oliver Cromwell
* The monarchy was restored in 1660
* Conflicts followed over religion with James II placing RC in office
* 1688 revolution – James II fled to France – Williams of Orange and his wife Mary assumed Crown
* Long conflict ended
* Williams and Mary came to the throne subject to conditions which ensured that Parliament had ultimate sovereignty and that the royal prerogative was subject to that supremacy
* The Bill of...