Archive:Notwithstanding clause
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A notwithstanding clause (French: Clause nonobstant), (Lat: Non Obstante) is a provision in legislation that allows a law to operate despite certain other legal rules, rights, or principles that might otherwise conflict with it. Such clauses are used to assert legislative supremacy and to prevent courts from invalidating or limiting the effect of the statute based on conflicting laws or rights.
Overview
In common law jurisdictions, a notwithstanding clause typically uses language such as "notwithstanding any other provision of this Act" or "notwithstanding any law to the contrary". It signals a clear legislative intent that the provision should take precedence over any inconsistent statutory, common law, or constitutional provisions.
Use
Canada
In some jurisdictions, notwithstanding clauses have been used to override certain constitutional rights where allowed by law, for example Section 33 of the Canadian Charter of Rights and Freedoms which allows the charter to be overridden on a time limited basis by provincial legislatures.
United States
It can also be used to ensure that statutory provisions prevail over common law principles such as due process if there is a clash, with Section 1983 of the Ku Klux Klan ActTemplate:Sfn[1]
United Kingdom
Examples
- Supremacy Clause
- Ninth Schedule of the Constitution of India
See also
References
- ↑ [Institute for Justice (U.S.), amicus brief discussing Section 1983, p. 3
- ↑ "Brick Court Chambers". https://www.brickcourt.co.uk/brexit-blog/2021/01.
- ↑ "True (Bad) Faith 2020? Part Two: Excavating the Legal Rationale for the 'Emergency Clauses' in the UK Internal Market Bill – RECONNECT". 24 November 2020. https://reconnect-europe.eu/blog/true-bad-faith-2020-part-two-excavating-the-legal-rationale-for-the-emergency-clauses-in-the-uk-internal-market-bill/.
Sources
- Jaicomo, Patrick; Nelson, Daniel (2026). "Section 1983 (Still) Displaces Qualified Immunity". Harvard Journal of Law & Public Policy 49: 151–226. https://research.ebsco.com/c/phimeb/viewer/pdf/v56clsemnb.