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International Human Rights Law

Explain the impact of the Human Rights Act 1998, to what extent (if any) does this erode Parliamentary Sovereignty?

Sample Answer

The Human Rights Act, 1998 (Act) is a legislation applicable in the United Kingdom and gives effect to the different provisions of the ECHR, i.e., European Convention on Human Rights in the laws of UK. As a result of this, major changes were made to the constitutional law of the UK and new powers were granted under the Act to the judges. However, as is claimed, this Act does not disrupt or destruct the Parliamentary Sovereignty and this is with particular reference to section 3 and 4 of the Act (Campbell, 2017).

Interplay Of The Act With Parliamentary Sovereignty
As per the Parliamentary sovereignty principle, the Parliament has the power of both creating and unmaking the law, as per its discretion and is deemed as the supreme law making in the nation. In other words, no other body in the nation can set aside a piece of legislation, particularly an Act of the Parliament. And in the end, there is a lack of official power which is in the hands of the courts for striking down the statute in the Act and the Act is not ingrained. Hence, the same cannot be deemed as destructive of the Parliamentary Sovereignty and this means that the Parliamentary supremacy would continue (Barnett, 2017).

The Act however, has provided the courts with two different measures which can be taken by the courts. The first one in this regard is covered under section 3, as per which, the legislation is to be construed in such a manner which is consistent with the rights stated under the ECHR, at places where it is possible. In case the same is not possible, there is a need to identify such an interpretation which is consistent, which is done by the higher courts as they have the option to a subsequent measure based on section 4, for issuing a statement of incompatibility (UK Legislation, 2017).

Based on section 3, there is a need for the courts to interpret and provide proper effect to the statute in such a way so that the same is attuned with the ECHR, as far as it can be done possibly. Apart from this, the usual purposive approach towards analysis is stronger than it. R v A (No. 2) [2002] I AC 45 was a case in which the use of interpretation by the courts in an illustrated manner based on section 3 of the Act was highlighted. Under section 41(3)(c) of the Youth Justice and Criminal Evidence Act, 1999 pertaining to the ‘rape shield’ restricted the defence of an individual (Davis, 2016). It was up to the House of Lords to judge the level to which this rape shield was attuned with the Article 6 of ECHR’s right to fair trial. These provisions were held to be not interference to the right to a fair trial as per Lord Steyn and also opted for a creative interpretation in order to make certain that the same was compatible with Article 6, in permitting the cross examination of the plaintiff with regards to the current intimacy or intercourse amid the defendant and the plaintiff (Swarb, 2016).

Apart from this, the interpretation of the statute by the court based on section 3 does not present an elucidation which is consistent with the Parliament’s intent while enacting the statute. Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30 was a case in which Lord Nicholls provided that in the normal court of legislation’s interpretation , there was an involvement of seeking the intention which was reasonably attributed to the Parliament in using the language, currently in question (Barlow and Lowe, 2015). Lord Roger went on to state that no matter how powerful the duty covered under section 3(1) of the Act, it does not permit the court to change the provision’s substance in entirety for changing the provision from one in which Parliament states that something is to take place, particularly in saying that the same thing would not take place. The question being discussed in this case was whether the courts could look for a possible or true meaning (UK Parliament, 2017).

And so, the statute could be given a different meaning by the courts to something which had been the original intention of the Parliament. Irrespective of this, the supremacy of Parliament would remain. Parliament can still enact the statute which is not consistent with the ECHR in a very lucid manner, and the courts would be required to support a statue which is not compatible with ECHR, even when the same cannot be construed in a well-suited manner based on section 3 of the Act. Hence, stating that Parliamentary Sovereignty is restricted in certain manner is completely wrong (Foster, 2016).

In such cases where doing so is not possible, where the interpretation of a statute is not compatible with the ECHR based on section 3, the recourse is available with the courts based on section 4 for issuing a declaration of incompatibility. This only shows that a specific provision is not compatible with ECHR and it does not annul the statute; however, under section 10, the minister can modify the legislation through a fast track process. And so, the courts cannot put down a Parliament’s Act which means that the Parliamentary Sovereignty remains intact in a formal manner and Parliament has the option of acting (Foster, 2016).

Lastly, the Act is not entrenched in any matter at all. The same can be repealed through the legislative process carried out in the Parliament of the nation. And so, the Act is not in any manner destructive of the parliamentary Supremacy or its Sovereignty. The parliament continues to be a superior law making body for the nation, which can create, amend and repeal a legislation, which includes the Human Rights Act, which is not compatible with the ECHR (Barnett, 2017).

Hence, based on section 3 and section 4 elucidated above, in addition to the quoted cases, it can be established that the parliamentary supremacy and sovereignty is not hampered through the Human Rights Act, 1998.

Barlow, A., and Lowe, N. (2015) European Family Law in Action: Informal Relationships in England and Wales.

Barnett, H. (2017) Constitutional and administrative law. London: Taylor & Francis.

Campbell, T. (2017). 9. Democratising Human Rights. Revival: Human Rights in Philosophy and Practice (2001).

Davis, H. (2016) Human Rights Law Directions. Oxford: Oxford University Press.

Foster, S. (2016). Concentrate Questions and Answers Human Rights and Civil Liberties. Oxford: Oxford University Press.

Swarb. (2016) Regina v A (Complainant’s Sexual History) (No 2): HL 17 May 2001. [Online] Swarb. Available from: https://swarb.co.uk/regina-v-a-complainants-sexual-history-no-2-hl-17-may-2001/ [Accessed on: 19/10/17]

UK Legislation. (2017) Human Rights Act 1998. [Online] UK Legislation. Available from: https://www.legislation.gov.uk/ukpga/1998/42/contents [Accessed on: 19/10/17]

UK Parliament. (2017) Judgments - Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent). [Online] UK Parliament. Available from: https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm [Accessed on: 19/10/17]


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