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Vol 22 No 10 Oct/Nov 2017

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Lindley & Banks on Partnership

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Parliamentary Sovereignty and the Human Rights Act

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ISBN13: 9781841138305
Published: December 2008
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00



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The Human Rights Act 1998 is criticised for providing a weak protection of human rights. The principle of parliamentary legislative supremacy prevents entrenchment, meaning that courts cannot overturn legislation passed after the Act that contradicts Convention rights.

This book investigates this assumption, arguing that the principle of parliamentary legislative supremacy is sufficiently flexible to enable a stronger protection of human rights, which can replicate the effect of entrenchment. Nevertheless, it will be argued that the current protection should not be strengthened. If correctly interpreted, the Human Rights Act can facilitate democratic dialogue that enables courts to perform their proper correcting function to protect rights from abuse, whilst enabling the legislature to authoritatively determine contestable issues surrounding the extent to which human rights should be protected alongside other rights, interests and goals of a particular society.

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Subjects:
Constitutional and Administrative Law, Human Rights and Civil Liberties
Contents:
1. INTRODUCTION
I. Defining Parliamentary Sovereignty: Dicey's Conception
II. The Compatibility of the Human Rights Act 1998 with Dicey's Theory of Parliamentary Sovereignty
III. Sovereignty Explored
IV. In Defence of the Human Rights Act 1998
V. In Defence of Dicey
2. INTERPRETATION AND IMPLIED REPEAL
I. Continuing Parliamentary Legislative Supremacy and the Doctrine of Implied Repeal: the Orthodox Account
II. The Narrow Scope of Implied Repeal
III. How to give Human Rights an 'Entrenchment Effect'
IV. Conclusion
3. REDEFINITION AND THE RULE OF RECOGNITION
I. Continuing and Self-embracing Parliamentary Legislative Supremacy
II. Manner and Form and Redefinition
III. Methods of Entrenchment
IV. Conclusion
4. DEMOCRACY AND RIGHTS
I. Dicey and Democracy
II. Constitutional Rights
III. Democratic Dialogue
IV. Conclusion
5. DEMOCRATIC DIALOGUE AND THE HUMAN RIGHTS ACT 1998
I. Models of Dialogue
II. Justification of Democratic Dialogue
III. Justifications of the Human Rights Act 1998
IV. Dialogue and Institutional Competences
V. Towards a Theory of Adjudication
VI. Conclusion
6. A THEORY OF ADJUDICATION
I. The Current Legal Test
II. A New Theory of Adjudication
III. Conclusion
7. CONCLUSION
I. A Modest Defence of Continuing Parliamentary Legislative Supremacy
II. Conclusion