The traditional doctrine of parliamentary sovereignty as put forward by Dicey includes the

notion that the legislative competence of the UK Parliament is unlimited, in the sense that its
powers to make laws on any subject, to unmake or amend any Act of Parliament, are not open to
challenge. It follows that Parliament may not be bound by its predecessors; it would otherwise
suffer a limitation of its power. Any statute passed by Parliament is subject either to express
repeal or to implied repeal, whereby a later inconsistent statute impliedly repeals any earlier
statutes to the extent of their inconsistency with it. It will be argued in this essay that the HRA
purports to preserve in full the above, traditional Diceyan doctrine of sovereignty, but that a
closer look at certain aspects of the Act and recent case law thereon, together with insights
derived from the courts' treatment of the European Communities Act, reveals that the true picture
is rather more complex and nuanced.
The White Paper Bring ing Rights Home (Cm 3782) made it clear that the Act would make no
attempt to entrench itselt against either express or implied repeal. Indeed, the HRA provides that
if any statutes contain proISIons that are tound to be inconsistent with any of the Convention
ights, such statutes will remain valid and of tullerect
(ss 3(2](6) and 4(6). Section 4 states that a 'a declaration of incompatbility-made if the court
cannot interpret legislation so as to be compatible ith the Convention ghts-does not affect the
validity, continuing operation or enforcem ent of the rovision in respect of which it is given. In
part, the Act in effect simply confirms the orthodox constitutional position that later statutes
override previous inconsistent ones.
In this respect, the HRA IS of the same status as any other Act of Parliament, although it
introduces the innovation of the formal judicial declaration of incompatibility under ss 4 and 10,
which can trigger the parliamentary fast track procedure to amend the oftfending legislation by
means of secondary legislation, which, however, leaves Parliament entirely Tree as to whether to
remeay the incompatibility which the courts nave rouna to exist.
The HRA may, however, make an important a lteration to the tradition al understandin g8 of
sovereignty. Section 3(0) of the Act provides: 3o tar as is possi ble to do so, primary legislation
and subordinate legislation must be read and given efrect in a way which is compatible with the
Convention rights. This amounts to an attempt to impose a particular interpretative approach on
all future statutes, and as such, amounts to a torm of protection for the Convention rights that
may be as strong as judges care to make it. Since what is 'possible" in statutory interpretation is
not defined in the Act and is open to argument, one reading of s 3() would see it as giving a
mandate to judges to treat all legislation as Convention-compliant, unless it contains express
statements of its incompatibility, using techniques such as reading words into legislation,
ignoring vords that imply incompatibility, adopting stra ined linguistic techniques and so on
(Young [2002] CLJ 53). Just how much protection can be afforded in this way can be lustrated
by reference to the approach judges have taken in relation to the protection of EU law from
implied repeal. The equivalent provision to s 3 of the HRA is s 2l4) of the European
Communities Act 1972, which reads as follows:"... any enactment passed or to be passed... shall
be construed and have effect subject to the foregoing provisions of this section. The words
'subject to' appear to suggest that the courts must allow Community law to prevail over a
subsequent Act of Parliament. The 'foregoing Cor re those n provisions' are those of s 2(0)
importing Community law into national law.
The House of Lords in Pickstone v Freemans (1988) found that a purposive internretation of the
domestic legislation would be adopted, in other words, the plain e De roistea upon it that was not
in contict witn EL law. ine Ouse or LOras Tolowed and be ignored and a lloased a 4ich ith E
Simlar approach in Ltster V Forth DIy DOCK Engineerng g89)
It might of course be objected that the argument being made here is that Parliament has by
ordinary statute (the HRAJ altered the rules of parliamentary sovereignty itselt, precisely wnat
the orthodox doctrine will not allow. But it is submitted th at the itera ture in this area tends to
rule out the possiblity of Parlament being able to bind itseif as to manner and torm, as if the two
types of restriction may readily be lumped together. In fact, they are very distinct: there is now
clear evidence that Parliament can bind itself at least as to theform of future legislation; there is
no such evidence in relation to restrictions as to manner: cases from the Commonwealth, such as
AG for New South Wales v Trethowan (1932), are incondlusive
What then is the evidence that Parliament may now restrict itself as to the form of future
legislation? The clearest example relates to the European Commun ities Act 1972 again and its
interpretation in the case ot Secretary of State for Iransport ex p factortame No 2/ (1991.
Parliament was quite evidently trying to alter th e rule of parliamentary sovereignty itself in the
ECA and the decision in tactortame (No 2) appears to indicate that the courts are quite willing to
allow it to do so, quite contrary to Wade's view that this rule is ultimate and unalterable by any
legal authority' (The basis of legal sovereignty 11955] CL 189). Ihe case arose because the
Merchant Shipping Act 1988 placed restrictions on the abilities of non-British fishermen to fish
in British waters. As such, it was in clear conflict with the non-discrimination principle of EU
law. The House of Lords held that notwithstanding that the Merchant Shipping Act (MSA) post-
dated the European Communities Act, the former would prevail: the MSA must be disapplied to
the extent of its inconsistency with EU law. The clear finding of law to be drawn from the
decision is that if Parliament wishes to legislate contrary to EU law, it must use express words,
either instructing the court to disregard EU law when applying the particular statute, or possibly
by repealing the European Communities Act first. In any event, it is clear that the courts accepted
that Parliament could change the law of sovereignty. As Lord Bridge remarked, Parliament had
'Voluntarily accepted'a diminution of its sovereignty by passing the European Communities Act
in 1972. The courts' view at least (and it is the courts that ultimately determine the parameters of
the sovereignty doctrine) seems to be that Parliament an, in principle, alter the application of the
doctrine of sovereignty to particular statutes The 5uch a change.

question is whether they have useds 3() of the HRA in order to effect ust how potent s 30) is can
be seen by the decision of the House ot Lords in A t200* a1 of the Youth Justice and etation to
be 9 e auy evuee oE E dapld an's sevin tapist, exceptin very imited drcumstances. Inis was
thougne to taise an issue of Compatibility with Art 6 of the ECHR, which provides, inter alia,
that: 'In the determination of ... any criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal established by
law. Lords Steyn and Hutton were prepared to hold that, given the very strong wording ofs 3)
and Pepper v Hart statements in Parliament to the effect that declarations of incompatibility were
to be a remedy of last resort, the only way in which Parliament could legislate contrary to a
Convention right would be by 'a clear limitation Convention rights... stated in terms' (emphasis
added). This approach led them imply to read into the relevant part ofs as vords that were not
there, namely that was to be admitted where that was necessary to achieve a fair trial. It may be
trast, considered that this approach went too far, crossing noted that Lord Hope the line from
internretation to leoislatinn ue d alanderctanding of the word that the j dae's tack we I judge s
then ise itda to nd those words, clearly not something that Lords Steyn and ruttd ide entif t e
LOGs STeyn and Hutton-and r tnat matter Lord siynn-undertook.
Lord Hope s approach arguabiy found more support trom the House of Lords in Re W un 200, n
wnic tnelir Lorasnps empnasised tne impontance or not stepping over the boundary Trom
statutory interpretation to statutory amendment. A more activist Pproacn, arguaby invoving the
rewriting. ratner than tne reinterpretation or legislation Occurred in unaiaan Vvie O04.
However, tne aecIsion enger that the e vBeling er (2003) clearly indicated that the courts will
sometimes refuse to engage even in relatively straightrorward reinterpretation or legisiation, in
terms of linguistics, where it is felt that the cnange is complex and signihcant enough to require
consideration by Parliament. In that case, the House of Lords retused to interpret the word
Temale in the Matrim onial Causes Act 1973 So that it incuded post-operative male-to-female
transsexuals and Would thus allow the applicant validly to marrya man. To change the meaning
of a single word in this way was clearly theretore a possible' interpretation even under the most
modest views of what that elusive word means. However, the interpretation was rejected and a
declaration of incompatibility made instead.
In contrast, in the recent decision in Secretary of State jor the Home Dept exp MB (2007 the
House of Lords read into the Prevention of Terrorism Act 2005a broad saving to the effect that a
clear rule preventing disclosure of sensitive evidence to the suspect in ontrol order cases was to
be read as qualiied by the requirement not to act ncompatibly with Art 6 of the ECHR. This
exercise was repeated, more boldly, in ecretary of State for the Home Department vAF (No 3)
(2009) in order to read into the same statutory scheme a requirement that at least the gist of the
evidential case against the suspect must be disclosed to him. Thus the approach taken in AF,
MB, A and Mendoza shows that at least in some areas of rights protection, Parliament has,
through s 31), succeeded in imposing a requirement of express words upon such of its successors
that wish to legislate incompatibly with the Convention rights.
In conclusion, it is clear that s 3(1) of the HRA can be used by the judges as a vehicle to
safeguard Convention rights against implied repeal: A is an example of this, although the radical
approach of this case has not been used consistently. Moreover, the broader politico-
constitutional picture reveals that it is naive and crude simply to take the HRA on its face as an
'ordinary' statute: it is not a Bill of Rights, but it does have a different status from other Acts of
Parliament.