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
[edit]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
[edit]Canada
[edit]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
[edit]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 Act[1][2]
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.[3]
United Kingdom
[edit]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stated that its provisions applied notwithstanding specified provisions of the Human Rights Act 1998,[4] the Act was repealed in 2025.[5]
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.[6][7][8][9] The House of Lords European Union Committee described the relevant provision as a “notwithstanding clause”.[10] The provisions were withdrawn before the Bill received royal assent.[11]
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.[12] In 2004,[13] 2007[14] and 2009[15] - 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[16] and restricting free movement of labour into the UK.[17]
India
[edit]- Ninth Schedule of the Constitution of India
See also
[edit]References
[edit]- ↑ Jaicomo & Nelson 2026, pp. 161–183.
- ↑ [Institute for Justice (U.S.), amicus brief discussing Section 1983, p. 3
- ↑ Garcia, Michael John (27 January 2017). Barriers Along the U.S. Borders: Key Authorities and Requirements (PDF) (Congressional Research Service Report R43975). Congressional Research Service. Retrieved 29 September 2026.
- ↑ "Safety of Rwanda (Asylum and Immigration) Act 2024, section 3". legislation.gov.uk. Retrieved 29 September 2026.
- ↑ "Border Security, Asylum and Immigration Act 2025, section 40". legislation.gov.uk. Retrieved 29 September 2026.
- ↑ 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?". BBC News. Retrieved 29 September 2026.
- ↑ "Brick Court Chambers".
- ↑ "True (Bad) Faith 2020? Part Two: Excavating the Legal Rationale for the 'Emergency Clauses' in the UK Internal Market Bill – RECONNECT". 24 November 2020.
- ↑ "The United Kingdom Internal Market Bill: Part 5". House of Lords European Union Committee. 16 October 2020. Retrieved 29 September 2026.
- ↑ "Brexit: UK and EU reach deal on Northern Ireland border checks". BBC News. 8 December 2020. Retrieved 29 September 2026.
- ↑ The EU Bill and Parliamentary Sovereignty (Report). House of Commons European Scrutiny Committee. 24 December 2010. Retrieved 29 September 2026.
- ↑ "Sovereignty of Parliament (European Communities) Bill". House of Commons. 2004. Retrieved 29 September 2026.
- ↑ "Sovereignty of Parliament (European Communities) Bill". UK Parliament. Retrieved 29 September 2026.
- ↑ "Sovereignty Of Parliament (European Communities) Bill". UK Parliament. Retrieved 29 September 2026.
- ↑ Benefit Entitlement (Restriction) Bill 2015–16 (Report). House of Commons Library. 2 February 2016. Retrieved 29 September 2026.
- ↑ "UK Borders Control Bill" (PDF). House of Commons. 7 July 2014. Retrieved 29 September 2026.
Sources
[edit]- Jaicomo, Patrick; Nelson, Daniel (2026). "Section 1983 (Still) Displaces Qualified Immunity". Harvard Journal of Law & Public Policy. 49: 151–226.
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