영국에서의 인권법 시행과 의회주권원칙의 변화

Abstract

In the UK, the doctrine of parliamentary sovereignty has been the fundamental legal premise of the constitution. Under the doctrine, Parliament has unlimited legal power to enact any law and a law made by Parliament must conclusively be accepted as binding by the courts. However, the doctrine is subject to several challenges. One of them is that international legal requirements, in particular those of the European Union restrict parliamentary sovereignty. In 1988, the UK Parliament passed the Human Rights Act which incorporated the European Convention on Human Rights into domestic law. The Human Rights Act represents an important change in the doctrine of parliamentary sovereignty by giving judges powers to hold that laws passed by Parliament are in breach of the Convention and so invalid. Although parliamentary sovereignty is retained by the Act on the one hand, the Act have changed the nature of the relationship between the courts and Parliament on the other hand. However, the significance of the practical change remains to be seen. From the UK experience of incorporating European Convention into domestic law, we can learn a couple of lessons. First, we can grip with the recent development of the constitutionalism in the UK from the comparative perspective. Second, we come to understand how EU member countries incorporate a European Convention into their domestic law and thus agree to restrict their sovereignty. This in turn will help us to understand how the European Union works with its member countries to consolidate its unity by promoting its legal basis.