Critically discuss the main provisions of the Human Rights Act 1998. To what extent does this statute present a real challenge to the principle of Parliamentary Supremacy?

Three Questions-Answer essays
By
Name of the Class/Course
Professor
Name of Univesity
Date
Question one:
“The principle of Parliamentary Sovereignty means neither more nor less than this: namely, that Parliament thus defined has, under the English Constitution right to make or unmake any law; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament (A.V. Dicey,1888). Discuss the extent to which this remains an accurate statement.
This section explores the extent to which the statement by Dicey regarding parliamentary supremacy and sovereignty is considered true or not. The United Kingdom Parliamentary Sovereignty has been a subject of debate. What is the extent of U.K parliamentary sovereignty? Can legislative sovereignty be challenged by other bodies or persons? These are critical questions that Dicey answered.
Discussions often deploy the works of Dicey to dissect relevant dichotomous and intertwining debates, such as parliamentary debates vs. the rule of law. The jurist A. V. Dicey’s study of the Law of the Constitution (1885) embodies the overarching analysis of the British constitution and the source of orthodoxy on themes including parliamentary sovereignty and the rule of law (Kirby,2019, p.33). However, such canonical status obscures the originality of Dicey’s ideas in the history of legal and political thought. Still, Dicey appears to have successfully crafted the traditional idea of sovereignty into two separate concepts: legal and political sovereignty to square the common law aspect of the sovereignty of Parliament with the democratic notion of the citizens' sovereignty (Kirby,2019, p.33).
Dicey offered a traditional view to explain the notion of parliamentary sovereignty and supremacy. First, he argued that Parliament holds the right to making or unmaking laws whatsoever. Second, the Law of England recognizes no person or body holds the right to override or set aside the enactment passed by U.K Parliament. Finally, Parliament cannot bind future Parliaments. Such elements of supremacy and sovereignty of parliaments are manifested in U.K parliament. International Law does not limit the legislative supremacy of Parliament, and U.K courts recognized that there are no territorial limits on the legislative competence of Parliament. International treaties do not limit the powers of Parliament. International Law only becomes part of the domestic system if incorporated by a national piece of legislation. The adoption and implementation of international legislation are acquired using persuasive or moral force instead of legal force. Wade's argument supports the existence of parliamentary supremacy and sovereignty, where he explained these concepts from multiple viewpoints. First, he argued that there is self-embracing sovereignty where Parliamentary authority includes the possibility to destroy its sovereignty.
Second, he talked about continuing sovereignty where Parliament cannot destroy its sovereignty and, therefore, it cannot entrench legislation. Finally, Wade considers parliamentary sovereignty as a secured and recognized concept in the U.K legal system, where he cites strong dicta in several cases, including Harris, to affirm the doctrine ( Kay,2016.p.29-31). While this Dicey doctrine is a salient characteristic of the U.K constitution, increased democratic legality and scrutiny against the executive, this doctrine is continuously being challenged as courts are finding themselves ready to enforce various constraints to parliamentary supremacy and sovereignty (Khalid,2013,p.1).
Regarding legislative sovereignty, the discussion touches on Westminster Parliament instead of United Kingdom devolved legislative bodies. The interpretation and understanding of Westminster Parliamentary Sovereignty are primarily borrowed from the argument of Dicey. Dicey laid the ground for U.K parliamentary sovereignty, which conferred legal powers to Westminster Parliament to enact, amend or repeal any law without anyone or body having similar authority to override such legislative powers. In other words, Parliament is empowered to make or to unmake laws. Is this not excessive power? What can tame such Parliament from enacting bad laws or following improper procedures while legislating? These questions examine the extent to which Dicey argument for the sovereignty of Westminster Parliament. The work of Dicey brands U.K parliament as an indisputable, unrivaled, unequaled, and absolute, unchallenged legislative house. How true and valid are these descriptions? Are Dicey argument consistent with the existent of which U.K legislative powers apply practically?
Dicey’s Law of the Constitution enjoyed canonical status. This is because it birthed the fundamental discussion on parliamentary supremacy and sovereignty. Through Law of the Constitution, Dicey advanced three principles as the blueprint of the English Constitution. First, the sovereignty and supremacy of Parliament were recognized as the capacity to make or unmake any law whatever; and denied anyone else or body an opportunity to inhibit or override U.K parliamentary legislative powers in making or unmaking laws. The second aspect involved the rule of law, which Dicey analyzed while the third captured conventions of the constitution comprising rules of constitutional morality which had no legal force but derived their strength from the law of the constitution since convention breach meant a breach of the law (Kirby,2019, p.37).
Given that U.K parliament has sovereignty in legislation regarding legislation making and unmaking. There are various ways in which legislation overreach is controlled without necessarily clipping the sovereignty powers of the Parliament. Political constitutionalism encompasses hope and legislators’ sense of morality services which act as restraining powers to sovereignty overreach during the legislation.
Are there political or moral limits to these powers involving “seamless” supremacy and sovereignty to parliamentary legislative functions? It is often subtly considered unconstitutional for the U.K Parliament to do certain things. Thus, there is a robust moral and political background that would deter Parliament from committing specific actions that are considered improper. However, the courts cannot render Acts of U.K parliament invalid.
It is often presumed that the lack of a Written Constitution in U.K confer legislative supremacy to Parliament because a written constitution has been observed to limit the legislative body's span or extent of authority. However, the written constitution provides a legal mechanism to interfere with other bodies' authority, such as parliamentary sovereignty. The legal framework espoused in the written constitution confers sovereignty to the Parliament but equally restrains its use.
When Parliament overreaches its sovereignty powers, the courts often intervene by quashing unconstitutional legislation or negate its application. Thus, the written constitutions play a fundamental role in allocating sovereignty powers to legislative bodies and equally prescribing how such sovereignty powers are applied. So, how does U.K considering its absence of a written constitution, deal with sovereignty and supremacy powers conferred to its Westminster parliament as described by Dicey?
While one might think that the Parliament may express excessive sovereign authority in the absence of a written constitution due to the absence of a clear constitution mechanism of balancing such powers, which might not be true. However, even in the absence of a written constitution, the sovereignty of parliaments is not always a subject to overreach exercise. Arguably, the unwritten U.K constitution may allocate power and circumscribe the use or application of such power as Westminster legislative sovereignty and supremacy. It means that limitations of parliamentary sovereignty are not only derived from the written constitution. The parliamentary sovereignty is limited by the fact that enacted laws are only considered valid to the degree in which they are in tandem with the superior constitution, where textual constitutions in U.K confers point of reference of limitation to parliamentary supremacy.
The discussion surrounding the perception of sovereign legislative powers to U.K parliament and consequential limitation as directed by the twin functional doctrine of the constitution is fluid and pretty elusive. The superior constitutional text has not presented a precise approach to ascribing and circumscribing parliamentary supremacy legislative powers. From such disagreement, scholars such as Wade argue that Parliamentary sovereignty is not purely anchored on or by law. Instead, it is a political ideology that underpins the existence of parliamentary sovereignty and supremacy. It appears that convincing evidence is suggesting that that consensus on the sovereignty of Parliament has been secured for a long time where no judgment of a U.K court has rejected the notion of parliamentary sovereignty.
The supremacy and sovereignty of U.K parliament are subject to limitation. Thus, it can be concluded that what Parliament prescribes via legislation is considered final with absoluteness. When one talks about Parliamentary Supremacy, it can mean that courts are not entitled to challenge the Acts of Parliament, even such enactments have been obtained improperly. However, courts can interpret the statutes. Is this a quasi-legislative function? This observation illustrates how courts can limit parliamentary supremacy and sovereignty. There is an increasing role of courts in managing parliamentary supremacy. Lord Reid affirmed in Madzimbamuto that the courts must enforce all enactments of the Parliament irrespective of their constitutionality and the impropriety of its motive ( Khalid, 2013,p.3). In the same breath, Jackson, the Law Lords recognized obiter that there might be restrictions to the Parliament’s absolute sovereignty ( Khalid, 2013,p.3). As a result, the courts might be obligated to enforce such limitations where governmental action subverted the rule of law. While U.K parliament can legislate laws without undue influence from internal environments, its sovereignty is restricted where it is not expected in practice to enact laws that are contrary to the Comity of Nations. In 1991 the House of Lords, in its decision in R. v Secretary of State for Transport ex p. Factortame Ltd. (No. 2) affirmed the propriety of interim judicial relief that deterred the application of an act of Parliament that conflicted with European law ( Kay,2016.p.29-31). The decision was grounded on section 2(4) of the European Communities Act 1972, which declared European law to prevail over any statutes passed or passed ( Kay,2016.p.29-31). These instances show how the extent of U.K parliamentary sovereignty and supremacy is limited and constrained. The proponents of supremacy and sovereignty include Wade, are too theoretical and abstract.
The interactions of courts and parliament interpretations, restrain, and legislation forms the tenets of the rule of law. According to Lord Bridge (1991), sovereignty and supremacy of Parliament are integral concepts to the entire legal system from a law perspective (Bradley,2011. p.26). However, the rule of law rests on twin foundations where the sovereignty of the Queen in legislation in Parliament is critical, and the Queen's sovereignty in the interpretation and application of the law is equally essential (Bradley,2011. p.26).
Question two:
Critically discuss the main provisions of the Human Rights Act 1998. To what extent does this statute present a real challenge to the principle of Parliamentary Supremacy?
a)Fundamental Provisions of the Human Rights Act 1998
The Human Rights Act 1998 (HRA) is a crucial component of the British constitution. The Human Rights Act was enacted in 1998 and became an effective force in 2000. It provides an enhanced effect in U.K law to certain rights and freedoms derived from the European Convention on Human Rights(ECHR), and these rights are called the Convention rights. It defines many areas of law in the U.K and influences core tenets of practice and principles in all public bodies. The HRA encapsulates the human rights provisions contained in the European Convention on Human Rights form part of U.K law in three ways. The major human rights provisions include the following (Ministry of Justice,2010,p.5).
* The right to life.
* The prohibition of torture and inhuman and degrading treatment.
* The prohibition of slavery and forced labour the right to liberty and security
* The right to a fair trial
* The prohibition of retrospective criminal penalties; the right to private and family life
* The freedom of thought, conscience, and religion.
* The freedom of expression
* The freedom of assembly and association
* The right to marry
* The right to free enjoyment of property
* The right to education
* the right to free and fair elections.
* The prohibition of discrimination in the protection of other rights.
First, U.K law must be interpreted in a way that is compatible with HRA rights. Second, when an Act of Parliament breaches these rights, the courts can declare such legislation incompatible with its rights. However, this does not affect the validity of the law: the HRA maintains parliamentary sovereignty because Parliament decides whether or not to amend the law. Third, it is unlawful for any public authority to act incompatibly with human rights. However, incompatibilities with human rights may occur under statutory direction. Under section 19 of the 1998 Act, the Minister in charge of a Government Bill should present a statement regarding Bill's compatibility with the Convention rights during its introduction to the House of Parliament ( Bradley,2011. p.26).
Section 3 of the Act mandates courts and tribunals to interpret all legislation to establish the compatibility with the Convention rights. The Human Rights Act doesn’t permit ...