Essay
Essay Public Law
- Module
- Public Law
- Institution
- University Of Greenwich
this essay explain the extent to which the Human Rights Act 1998 affects the doctrine of supremacy of parliament.
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Explain the extent to which the Human Rights Act 1998 affects the doctrine of supremacy ofparliament.
Parliamentary supremacy (parliamentary sovereignty) is a principle belonging to the UK
constitution which determines Parliament as the supreme legal authority within the UK over
every other legislative body including executive/judicial bodies, obtaining power to create or
end law. Dicey says 1 parliamentary sovereignty permits Parliament to have the right to
make or unmake any law whatsoever. The definition of Parliament Sovereignty is not entirely
agreeable as although they can create any law they wish to; the ECtHR must step in so
parliament can readjust their law, so it complies with the ECHR.
In the case of Smith and Grady v UK 19992 the high court and appellate court rejection of this
case was overturned by the European Courts of human Rights, so the UK altered the law to
comply with the ECtHR. S.2 of the Human Rights Act3 requires tribunals and domestic courts
to take into consideration any judgements/opinions by the ECtHR, however they are not
bound to them. Before the Human Rights Act commenced in October 2000, cases had to be
taken directly to the ECtHR. Malone v UK4 highlighted the right to a private life and other
factors were unclear under English Law.
One way the HRA affects parliament’s sovereignty is the declaration of compatibility. S 3 of
the Human Rights Act 19985 states primary and subordinate legislation is to be read and be
compatible with the ECHR as much as possible which is applicable to all legislation, even
those passed before the force of the HRA meaning the ECHR is given precedence over the
domestic laws in the UK. In the case of Ghaidan v Godain Mendoza 20046 S 2 (2) of the
Renting Act 19777 was to be interpreted differently “as if they were his or her wife or
husband” to comply with Article 8: the right to respect for a private life. Article 14 of the
ECHR8 is the right not to be discriminated by against in any respect of these rights, including
one’s sexual orientation, also violating Article 109 the freedom of expression – parliamentary
supremacy did not overrule the basic necessity of domestic rights (homosexual relationships),
highlighting primary legislation is to be given effect in a way that is compatible with the
convention rights. S 6 of the HRA 199810 state is it unlawful for a public body to act in
manner incompatible with a Convention right, excluding the house of Parliament. The case of
R v Abbassi11, the Court of Appeal held the foreign office held no duty to make specific
representation on behalf of the defendant. The declaration of compatibility affects the
supremacy of parliament due to courts needing to comply as they are in no position to
1
Colin Faragher, Public Law Concentrate Law Revision and Study Guide Public Law Concentrate: Law
Revision and Study Guide (7th edn) (7th edn, 2021)
2
Smith and Grady v United Kingdom [1999] ECHR 72
3
Section 2 Human Rights Act 1998
4
Malone v. The United Kingdom (1984) 7 EHRR 14
5
Section 3 Human Rights Act 1998
6
Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30
7
Section 2 (2) of the Renting Act 1977
8
Convention from the Protection of Human Rights and fundamental freedoms (European Convention on Human
Rights, as amended) (ECHR) Art 14
9
Convention from the Protection of Human Rights and fundamental freedoms (European Convention on Human
Rights, as amended) (ECHR) Art 10
10
Section 6 of the Human Rights Act 1998
11
R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598
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