Sections 3 and 4 of the Human Rights Act and their impact on the United Kingdom’s constitutional arrangements
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In the late 1990s, the Human Rights Act 1998 (HRA) was incorporated into British law. Section 3 of the HRA grants British judges to go as far as they can when interpreting domestic legislation in line with the European Convention on Human Rights. This article reviews relevant case law to assert that despite this extension of judicial power, British judges interpret domestic legislation in line with its fundamental purpose when reviewing whether it is compliant with the European Convention on Human Rights. This article also considers the impact of section 4 of the HRA on the UK’s constitutional arrangements. Section 4 allows judges to issue a ‘declaration of incompatibility’ upon finding domestic legislation to be incompatible with the European Convention on Human Rights. Although section 4 has empowered senior British judges to issue declarations of incompatibility, Parliament must still decide whether those declarations can invalidate domestic law. This reality has sparked a debate about bi-polar sovereignty between the Parliament and the judiciary. Despite this clear tension between the Parliament and the judiciary, this article contends that parliamentary sovereignty has not been eradicated due to sections 3 and 4 of the HRA.
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