Archive:Notwithstanding clause
Template:Short description Template:For
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]
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorises the Homeland Security Secretary, “notwithstanding any other provision of law” to waive legal, particularly environmental requirements blocking construction of border barriers.[2]
United Kingdom
In the United Kingdom, legislation has used notwithstanding language to clarify the relationship between an Act and otherwise applicable domestic or international law. The Safety of Rwanda Act stated that its provisions applied notwithstanding specified provisions of the Human Rights Act 1998,[3] the Act was repealed in 2025.[4]
During the Brexit process, the Internal Market Bill initially included provisions enabling ministers to make regulations that would operate despite incompatible domestic or international law.[5][6][7][8] The House of Lords European Union Committee described the relevant provision as a “notwithstanding clause”.[9] The provisions were withdrawn before the Bill received royal assent.[10]
In 2010 the European Scrutiny Committee held hearings on the sovereignty clause in the 2010-11 European Union Bill, particularly about whether explicit notwithstanding clauses aimed at European Union law would be upheld by British courts, with most but not all constitutional-law experts who appeared saying that courts were likely to apply them.[11] In 2004,[12] 2007[13] and 2009[14] - during the Blair administration - a series of private members' bills proposed that a subsequent Act of Parliament could expressly disapply specified EU obligations by operating notwithstanding the European Communities Act 1972, and later more targeted bills were proposed on restricting benefits to UK nationals[15] and restricting free movement of labour into the UK.[16]
India
- Ninth Schedule of the Constitution of India
See also
References
- ↑ [Institute for Justice (U.S.), amicus brief discussing Section 1983, p. 3
- ↑ Template:Cite report
- ↑ "Safety of Rwanda (Asylum and Immigration) Act 2024, section 3". https://www.legislation.gov.uk/ukpga/2024/8/section/3/enacted.
- ↑ "Border Security, Asylum and Immigration Act 2025, section 40". https://www.legislation.gov.uk/ukpga/2025/31/section/40/enacted.
- ↑ https://www.gov.uk/government/publications/government-statement-on-notwithstanding-clauses/government-statement-on-notwithstanding-clauses
- ↑ Islam, Faisal (1 December 2020). "Will there be a further Brexit breach of the law?". https://www.bbc.co.uk/news/business-55144313.
- ↑ "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/.
- ↑ "The United Kingdom Internal Market Bill: Part 5". House of Lords European Union Committee. 16 October 2020. https://committees.parliament.uk/publications/3019/documents/28597/default/.
- ↑ "Brexit: UK and EU reach deal on Northern Ireland border checks". 8 December 2020. https://www.bbc.co.uk/news/uk-politics-55229681.
- ↑ Template:Cite report
- ↑ "Sovereignty of Parliament (European Communities) Bill". House of Commons. 2004. https://publications.parliament.uk/pa/cm200304/cmbills/076/04076.i-i.html.
- ↑ "Sovereignty of Parliament (European Communities) Bill". https://bills.parliament.uk/bills/247.
- ↑ "Sovereignty Of Parliament (European Communities) Bill". https://bills.parliament.uk/bills/433.
- ↑ Template:Cite report
- ↑ "UK Borders Control Bill". House of Commons. 7 July 2014. https://publications.parliament.uk/pa/bills/cbill/2014-2015/0053/15053.pdf.
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.