The Human Rights Act 1998 (UK): The Preservation of Parliamentary Supremacy in the Context of Rights Protection

Abstract

The Human Rights Act 1998 (UK) incorporates the European Convention of Human Rights into the domestic law of the United Kingdom. The model for incorporation is unique among domestic rights instruments. The Human Rights Act imposes an interpretive obligation on the judiciary, requiring it to interpret legislation in a manner that is compatible with Convention rights wherever it is possible to do so. Where such interpretation is not possible, the judiciary is empowered to make declarations of legislative incompatibility. Such declarations do not affect the validity of the legislation; rather, notify the executive and parliament of the violation, and shift the onus to remedy the defect on them. This model attempts to marry rights promotion and protection with the retention of parliamentary sovereignty. It also ensures that rights are a matter of inter-institutional dialogue, as opposed to judicial monologue. This article critically assesses the capacity of the HR Act to retain traditional notions of parliamentary sovereignty, whilst committing to human rights protection and sharing the responsibility for human rights across all three arms of government. It also critically assesses the capacity of the judiciary to fulfill its mandated human rights contribution to an inter-institutional dialogue in the context of a strong commitment to parliamentary sovereignty.

Keywords: human rights instruments, bills of rights, Human Rights Act 1998 (UK), parliamentary sovereignty, dialogue