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Secretary of State for the Home Department v AF (No 3)[2009] UKHL 28, Lord Scott [93] Critically evaluate the extent to which Parliament is able, and should be able, to enact laws which violate the

Human Rights Law

Essay question:

“It is, of course, open to Parliament to enact legislation that is incompatible with one or more of the Convention rights. The ability to do so is inherent in the constitutional role of a sovereign Parliament.”

Secretary of State for the Home Department v AF (No 3)[2009] UKHL 28, Lord Scott [93]

Critically evaluate the extent to which Parliament is able, and should be able, to enact laws which violate the European Convention on Human Rights.

For this Assessment you will be assessed against the following Learning Outcomes:

  • Demonstrate knowledge and understanding of relevant principles of Human Rights law and the broader context within which the law operates. 
  • Critically analyse complex actual or hypothetical problems and evaluate a range of solutions in the light of the legal issues raised and make critical judgments on the merits of particular arguments. 
  • Undertake directed and self-directed research to retrieve and evaluate accurate, current and relevant information from a range of sources.
  • Devise and sustain a legal argument, recognising ambiguity and synthesis, using tailored evidence in writing and be able to community these to specialist and non-specialist audiences.
  • Communicate clearly and concisely, using correct grammar and spelling, and using appropriate technical legal language where necessary.

Assessment Instructions:

  1. Total word count for this assessment should not exceed 2000 words (excluding footnotes). Any words over this total will not be marked.
  2. OSCOLA Referencing (not included in the word count)
  3. Provide a list of References at the end of the essay (not included in the word count)

Essay Plan:

1. Introduction

  • Opening Statement: Introduce the issue of parliamentary sovereignty versus human rights protection, emphasizing its significance in contemporary legal debates.
  • Context: Provide a succinct overview of the ECHR, the Human Rights Act 1998 (HRA), and the principle of parliamentary sovereignty in the UK.
  • Thesis Statement: Clearly state the essay`s objective to critically evaluate the extent to which Parliament is able and should be able to enact laws that violate the ECHR.
  • Outline of Main Points: Briefly outline the key areas that will be covered in the essay to guide the reader through the forthcoming analysis.

2. Principles of Human Rights Law and the ECHR

  • Historical Context: Trace the historical development of the ECHR and its incorporation into UK law via the HRA.
  • Core Principles: Detail the fundamental principles enshrined in the ECHR, focusing on key rights such as the right to life, freedom from torture, and the right to a fair trial.
  • Parliamentary Sovereignty: Define the principle of parliamentary sovereignty and its implications for human rights legislation.
  • Comprehensive Knowledge: Demonstrate a thorough understanding of the relevant principles of human rights law and the broader constitutional context within which these laws operate.

3. The Interaction Between Parliamentary Sovereignty and the ECHR

  • Legal Framework: Discuss the legal framework governing the interaction between UK law and the ECHR, including the role and provisions of the HRA.
  • Judicial Interpretation: Analyze key cases such as R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 to illustrate how UK courts interpret and apply the ECHR in domestic law.
  • Declarations of Incompatibility: Explain the concept and significance of declarations of incompatibility under the HRA, referencing A v Secretary of State for the Home Department [2004] UKHL 56.
  • Critical Evaluation: Provide a detailed analysis of how parliamentary sovereignty interacts with the ECHR, supported by relevant case law and legal principles.

4. Parliament’s Ability to Enact Legislation Violating the ECHR

  • Scope of Parliamentary Power: Evaluate the legal and constitutional extent to which Parliament can enact legislation that contravenes ECHR rights.
  • Case Studies: Discuss notable examples such as the Anti-Terrorism, Crime and Security Act 2001, examined in A v Secretary of State for the Home Department [2004] UKHL 56, and the Investigatory Powers Act 2016, scrutinized in Liberty v Secretary of State for the Home Department [2018] EWHC 975 (Admin).
  • Legal and Political Constraints: Examine the legal (e.g., judicial review) and political (e.g., public opinion, international pressure) constraints on Parliament’s ability to violate ECHR rights.
  • Sustained Arguments: Construct reasoned arguments about the scope of parliamentary power, supported by concrete examples and legal analysis.

5. Should Parliament Have the Ability to Violate ECHR Rights?

  • Arguments For: Present arguments supporting Parliament’s ability to enact such laws, emphasizing democratic legitimacy, national sovereignty, and security concerns.
  • Arguments Against: Present counterarguments emphasizing the protection of fundamental human rights, the rule of law, and adherence to international obligations.
  • Balancing Interests: Discuss potential solutions to balance parliamentary sovereignty with human rights protection, such as reforms to the HRA or the introduction of a British Bill of Rights.
  • Critical Judgements: Evaluate the merits of these arguments, making well-supported judgements and proposing balanced solutions.

6. Research and Sources

  • Range of Sources: Identify a diverse range of sources including academic articles, case law, government reports, and expert opinions.
  • Evaluation of Sources: Explain the criteria for selecting sources, emphasizing relevance, accuracy, and currentness.
  • Effective Research: Demonstrate the ability to retrieve and critically evaluate accurate, current, and relevant information from a wide range of sources to support the essay’s arguments.

7. Conclusion

  • Summary of Key Points: Recap the main arguments and insights, highlighting the critical evaluation of Parliament’s ability and justification for enacting laws that violate the ECHR.
  • Final Reflections: Reflect on the broader implications of the debate for the future of human rights protection and parliamentary sovereignty in the UK.
  • Thesis Restatement: Restate the thesis in light of the evidence and analysis provided.
  • Professional Presentation: Ensure the conclusion is clearly and concisely communicated, demonstrating excellent grammar, spelling, and structured communication.

References

Comprehensive and Relevant: Provide a meticulously formatted list of all primary and secondary sources used in Chronological order, referring to OSCOLA Referencing. Critically evaluate the extent to which Parliament is able, and should be able, to enact laws which violate the European Convention on Human Rights.

Diverse Range: Include a wide selection of academic articles, case law, government reports, and expert opinions to underpin the analysis.

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