1. Wagner, A. and Barth, G. (2016)
‘Judicial interpretation or judicial vandalism? Section 3 of the Human Rights
Act 1998’, Judicial Review, vol. 21, no. 2, pp. 99–104.
2. Kavanagh, A. (2015) ‘What’s so
weak about “weak-form review”? The case of the UK Human Rights Act 1998’, International
Journal of Constitutional Law, vol. 13, no. 4, pp. 1008–39.
Human Rights Act 1998 was being enacted, the key concern across the political
spectrum was to find a way of allowing judges to enforce human rights standards
while preserving the notion of parliamentary sovereignty.
(Kavanagh, 2015, p. 1014)
With reference to the arguments
and evidence presented about the Human Rights Act 1998 (HRA) in both articles,
and your own knowledge based on the module materials, evaluate whether
parliamentary sovereignty has been preserved or undermined by the enforcement
of human rights standards in the UK.
You should explain the key
provisions of the HRA that may impact on parliamentary sovereignty, and make an
argument either that parliamentary sovereignty has been preserved in the UK
(because or in spite of the HRA) or that parliamentary sovereignty has been
undermined by the HRA.
POSSIBLE CONCLUSION: These developments do not fundamentally undermine the principle of
parliamentary sovereignty, since, in theory at least, Parliament could repeal
any of the laws implementing these changes.
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.
evaluate whether Parliamentary sovereignty has been has been preserved or undermined
by the enforcement of human rights standards in the UK, a
person must first analyse the dynamic which existed between human rights and
Parliamentary sovereignty before the introduction to the Human Rights Act 1998.
It is then essential to examine the role of each relevant section of the HRA
and how they affected human rights and Parliamentary sovereignty. Subsequently,
the ongoing relationship between thhe Parliament and judiciary in relation to
the Human Rights Act 1998 must be examined. Once this has been done, one can
better understand the effect the HRA has had on the balance of power between
them, thus answering the question of whether parliamentary sovereignty has been preserved or
undermined by the enforcement of human rights standards in the UK.
The UK’s lack of a wholly written constitution has always
affected its constitutional law, most notably the powers and position of
parliament. The long established view of parliamentary sovereignty was derived
by A V Dicey’s view on the british constitution. According to A.V. Dicey (Law
of the Constitution, 1885), “In theory Parliament has total power. It is sovereign.” Dicey’s view of parliamentary sovereignty
consisted of four factors; Parliament is competent to pass laws on any subject;
Parliament’s laws can regulate the activities of anyone, anywhere; Parliament
cannot bind its successors as to the content, manner and form of subsequent
legislation; and Laws passed by Parliament cannot be challenged by the courts.
INSERT QUOTE AND/OR DEFINITION OF PARLIAMENTRY SOVERIGNTY
Recently, Dicey’s traditional
mindset when it comes to understanding parliamentary sovereignty has faced increasing
amounts of pressure.
Over the years, laws have been
passed, reflecting political developments both within and outside the United
Kingdom, which limit the application of parliamentary sovereignty. One of the
most notable and controversial examples is the Human Rights Act 1998.
The Human Rights Act 1998 came
into effect in October 2000. It represented a fudemental restructuring of the
Uk’s constituition as it transferred political power from the legislature and
the executive to the judiciary. The introduction of the HRA created a greater
emphisi on the protection of basic human rights. The title of the Government’s
proposals in the white paper read “Rights Brought Home”, as that was the
acts’s main aim.