The statutory protection of rights and parliamentary sovereignty: Guidance from the United Kingdom?

This article examines statutory mechanisms adopted in the United Kingdom for protecting rights derived from its membership of the European Union and the European Convention on Human Rights. Despite its interpretative character, the first mechanism considered has enabled British courts to "disapply" legislation that is inconsistent with earlier legislation notwithstanding the normal rule in favour of the implied repeal of legislation. An attempt is made to explain this development and its consistency with parliamentary sovereignty. The second mechanism authorises the courts to declare legislation to be incompatible with a protected right even though the legislation is not invalid. The article considers whether both mechanisms can be adopted in Australia to protect human rights and other rights. This includes whether such declarations can be granted by courts exercising federal jurisdiction given the concept of a "matter" which conditions the exercise of such jurisdiction under Ch III of the Australian Constitution.