Asked by TasnimGeneral 🏛

How is judicial review challenge Parliamentary Sovereignty in terms of Human Rights Act 1998?

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Michael Comba

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The basis of the British constitution is that parliament is sovereign - meaning parliament is the supreme law making body and no other body can amend or override parliament’s law making powers. The HRA 1998 introduced the European Convention on Human Rights into the British legal system. The court now has to determine actions made by the government (often by virtue of laws passed by parliament). If it believes these to be incompatible it may issue a “Declaration of Incompatibility” - a non-binding declaration. Whilst there is no onus on parliament to affect these declarations, there are only a few examples of Parliament ignoring the court’s decisions. Prisoner voting rights remains the only notable example. Nonetheless, judicial review of legislation remains fairly uncommon in the U.K., meaning the HRA has had a fairly limited impact on parliamentary sovereignty. Indeed, arguably the HRA has in some areas enhanced parliamentary sovereignty. In Miller v Secretary of State for Exiting the European Union, the Court held that Parliament had to approve withdrawing from the European Union, rather than the executive through prerogative powers.

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