Public | Parliamentary Supremacy

Supremacy Limits: Human Rights

15 September 2012 Download

Dicey: parliament can make or unmake any law / accepted practical limits
guardian of fundamental rights / represent citizens / best placed to balance rights / consider public interest
freedom property / fundamental right / abridged by parliament / in public interest (Entick v Carrington)

UK: Human Rights Act 1998 (HRA) / incorporates European Convention on Human Rights (ECHR) / constitutional source
Weak presumption: HRA s3(1) so far as it is possible read legislation as compatible with ECHR / courts may be unable to give effect to Act in way which is compliant / no attempt to bind successors / just preserve parliamentary supremacy
ECHR abstract rights / limitations in public interest / possible accidental infringement
US Constitution: written / Bill of Rights / lists fundamental rights / amended by special procedure / Supreme Court sets aside unconstitutional law
HRA not set out framework of Government or how branches of state operate / sets out fundamental freedoms / unlike written constitution
Not entrenched / can be repealed like other Acts / no special procedure to amend
Weak presumption / no court power to invalidate contravening laws

bits of law

Rights of tenancy / Rent Act 1977: inherited by spouse or someone living as husband or wife / ECHR Article 8 relevant / using purposive approach HoL found right extended to same-sex couples / not literal words of Act (Ghaidan v Godin-Mendoza)

Declaration of incompatibility / High Court and higher / declare legislation incompatible with Convention right / not affect validity or enforcement or bind parties / remains in force unless Parliament repeals or amends
Anti-terrorism, Crime and Security Act 2001 Part 4 / incompatible ECHR Article 5(1) right to liberty / lead to Prevention of Terrorism Act 2005 & control orders (A (FC) & Ors v Home Department)

Remedial orders: delegated legislation / after declaration of incompatibility or ECtHR ruling / can repeal legislation retrospectively if necessary / Parliament must approve the order
Government may make remedial order / no obligation / political pressure (A (FC) & Ors v Home Department) / some argue almost become a constitutional convention to address issue after 4 declaration

Minister in charge of Bill must make statement of compatibility / before Second reading / or state Government wishes to proceed anyway
Aims to reduce accidental infringement / statement of compatibility allows court to presume Act should be read a compatible

bits of law