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]
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stated that its provisions applied notwithstanding specified provisions of the Human Rights Act 1998,[3] the Act was repealed in 2025.[4]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] The House of Lords European Union Committee described the relevant provision as a “notwithstanding clause”.[8] The provisions were withdrawn before the Bill received royal assent.[9]
Other Examples include:
Examples
[edit]- Supremacy Clause
- 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
- ↑ "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.
- ↑ 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.
- ↑ "European Union (Withdrawal Agreement) Act 2020, section 38: Explanatory Notes". legislation.gov.uk. 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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