Judicial control of legislation
Section 4 HRA 1998 expressly retains the principle of parliamentary sovereignty in stating that the courts cannot declare primary legislation invalid as being contrary to the rights protected by the Act. The only way the courts can challenge such legislation is by issuing a declaration of incompatibility in such circumstances (Bellinger v Bellinger (2003)). It is then for Parliament to act on such a declaration to remedy any shortcoming in the law if it so wishes (the Bellinger case led to the enactment of the Gender Recognition Act 2004). However, such limitation does not apply to secondary legislation, which the courts can now declare invalid on the grounds of not being compatible with the HRA.
Furthermore, a validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted; but equally it only has effect to the extent that its enabling Act authorises it. Consequently, it is possible for delegated legislation to be challenged, through the procedure of judicial review, on the basis that the person or body to whom Parliament has delegated its authority has acted in a way that exceeds the limited powers delegated to them or has failed to follow the appropriate procedure set down in the enabling legislation. Any provision in this way is said to be ultra
vires and is void.
It should also be recalled that the primacy of European Union law over domestic law, means that any domestic law made in contravention of European Union law is subject to challenge and overturning in the courts. |
