The Human Rights Act 1998 and Parliamentary Sovereignty - Essay Example

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Although Section 3(1) of the Human Rights Act 1998 provides for a limitation on the court’s power, in practice it appears as though it is the courts rather than Parliament that ultimately determines the extent to which human rights can be enforced and protected. …
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The Human Rights Act 1998 and Parliamentary Sovereignty
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Download file to see previous pages Although Section 3(1) of the Human Rights Act 1998 provides for a limitation on the court’s power, in practice it appears as though it is the courts rather than Parliament that ultimately determines the extent to which human rights can be enforced and protected. 1 Section 3(1) of the Human Rights Act 1998 provides that courts are required to interpret national legislation in such a way as to ensure that they are consistent with human rights under the European Convention on Human Rights.2 However, in practice Parliament seemingly ceded parliamentary sovereignty relative to Convention rights to the judiciary. As Young notes, Section 3(1) of the Human Rights Act 1998 “could have the same effect as if it impliedly repealed the provisions of all statutes” that are inconsistent with Convention rights.3 Some members of the judiciary have expressed concerns over how the judiciary’s enhanced role under the Human Rights Act 1998 can be applied in a manner that corresponds with Parliamentary sovereignty.4 Goldsworthy however, argues that concerns about the Human Rights Act 1998 usurping Parliamentary sovereignty and introducing judicial sovereignty are unfounded. The Human Rights Act 1998 does confer unprecedented authority upon the judiciary in terms of interpreting statutes so as to render them consistent with Convention rights. At the same time, the Human Rights Act 1998 does not provide the judiciary with the authority to “disapply” or “invalidate” those statutes....
Lord Hope observed that: The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.10 Therefore from Lord Hope’s perspective, Parliamentary sovereignty has evolved with the implementation of the Human Rights Act 1998 and has not altered the UK’s constitutional principles and values. Lord Steyn, however alludes to a dual sovereignty shared by the judiciary and Parliament as a result of the Human Rights Act 1998.11 Keene argues that the Judiciary under the deference principles implicit in the Human Rights Act 1998, attempts to strike a fair balance between individual rights and “the need to respect Parliament’s proper function”.12 This balancing act can be observed in the judgment of Laws LJ in International Transport Roth GmbH v Secretary of State for the Home Department. In this case Laws LJ set fourth four guiding principles for judicial application and interpretation of Convention rights under the authority permitted by the Human Rights Act. To begin with, the courts must give deference to Acts of Parliament rather than to executive or other official decisions and measures. Secondly, there will be no deference in instances when the Convention calls for a fair balance or where the rights under the Convention are absolute. Thirdly, where parliament will be given deference in instances where the manner is within their constitutional prevue and less deference will be given when the matter is within the judiciary’s constitutional prevue. Finally: Greater or less deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the ...Download file to see next pagesRead More
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