(4) The HRA, European Union and Brexit Flashcards
Alongside judicially developed forms of statutory interpretation, how else may Parliaments provisions be subject to interpretive requirements?
Parliament themselves can enact legislative provisions that have direct implication for how legislation is interpreted - for instance the HRA 1998.
How did the HRA 1998 create interpretive requirements in relation to Acts of Parliament?
This Act provides statutory protection for certain right found in the ECHR. It does this in two main ways;
- All public bodies are placed under an obligation to act compatibly with the convention rights
- All legislation, both primary and secondary, must be interpreted and given effect ‘so far as is possible to do so’ in a way which is compatible with the Convention rights.
How do these two requirements of the HRA remain compatible with the doctrine of parliamentary sovereignty?
- Parliament is not categorised as a ‘public authority’ and thus may still legislate incompatibly with the convention rights - in keeping with complete legislative sovereignty.
- Where compatible interpretation of parliament’s legislation cannot be made the courts may make a declaration of incompatibility - but, crucially, such a declaration is not binding and does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given.
How, then, does the HRA 1998 have implications for the doctrine of Parliamentary Sovereignty?
- The HRA, in spite of its constitutional objectives it makes no attempt to insulate itself and can seemingly be repealed in the ordinary way.
- It appears not to impliedly repeal inconsistent legislation that pre-dates it – merely results in declarations of incompatibility.
- It seeks to exert an influence over legislation which post-dates it’s coming into effect.
What is the first issue of parliamentary sovereignty arising from the UK’s enactment of the ECA 1972 and consequent membership of the European Union?
- Section 2(1) of the ECA says future provisions of European Community Law would become effective as a matter of domestic law ‘without further enactment’. Consequently, future components of Community Law could appear to be translated into the domestic legal system without Parliament Specifically legislating to give effect to them - a fairly significant weakening of the dualism system currently used.
What is the second issue of parliamentary sovereignty arising from the UK’s enactment of the ECA 1972 and consequent membership of the European Union?
- Section 2(4) indicated that domestic legislation not yet passed at the point of accession to the Community would take effect subject to the requirements of Community Law. The prospect arose, as a result, that in the event of a clash between domestic legislation and provisions of the European Community the ordinary process of repeal may not be available. The UK Parliament may find itself constrained by the provisions of the 1972 Act.
How are issues arising from the UK’s membership of the EU compounded?
The European Court of Justice held that European Community Law was superior to the national laws of member states.
How should a clash between two supposedly superior forms of law be resolved?
Either Courts could abide by the principle of Parliamentary Sovereignty, but this may lead to enforcement proceedings by the European Community which would inevitably uphold the supremacy of European Community Law, or acknowledgement of the superiority of European Community Law could be given but this then fundamentally challenges the principle of Parliamentary Sovereignty.
What was the response of the UK Courts to this issue of conflicting bodies of ‘superior’ law?
The initial response by domestic courts was a confused one. Conflicting judgements in the Felixstowe Dock and Railway Co v British Transport Docks Board and Macarthys Ltd v Smith Cases epitomised this.
