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HISTORY
Asked by Tasnim

Does Human Rights Act 1998 challenge parliamentary sovereignty?

It certainly ‘challenges’ parliamentary sovereignty as it made primary legislation much more easy to challenge in Court. Anderson V Secretary of State for the Home Department and A and others v the Secretary of State for the Home Department are probably the two most high profile and controversial declarations of incompatibility levelled against primary legalisation. It also provided some indication that fundamental rights are not necessarily protected adequately by Parliament alone. This questions the British constitutional notion of Parliament as an all-knowing and all-powerful body, which underpins the doctrine of parliamentary sovereignty. Arguably the HRA has also allowed an increase in the use of case law in establishing new legislation. Campbell v NGN Ltd arguably introduced a right to privacy which parliament had not legislated. However, the mechanisms of the HRA, declarations of incompatibility, to challenge Parliament are weak. Parliament can chose to ignore them. They did in Scott v Scott and Chester v the Secretary of State for Justice. Also, unlike other constitutional instruments elsewhere, the HRA can be repealed at any time by Parliament. Furthermore, the HRA has been more effective, and has much stronger mechanisms, against the Executive. Arguably, the Executive had seen a period of dominance before 1998 and the HRA has limited this, thereby strengthening the role of Parliament with this balancing. Overall, certainly a challenge, but quite a weak one.

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Michael Comba
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