Roger Masterman and Ian Leigh (eds)
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.001.0001
- Subject:
- Law, Human Rights and Immigration
More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights ...
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More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.Less
More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.001.0001
- Subject:
- Political Science, Comparative Politics
This book explores bill of rights outcomes in four countries — Australia, Canada, New Zealand, and the United Kingdom — whose development exhibits an interesting combination of both commonality and ...
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This book explores bill of rights outcomes in four countries — Australia, Canada, New Zealand, and the United Kingdom — whose development exhibits an interesting combination of both commonality and difference. Whilst sharing a core ‘Westminster’ political set‐up, more recent experiences display striking diversity. Comparative analysis of some thirty‐six democracies demonstrates that the historic lack of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, by their strong British constitutional heritage. Detailed chapters then explore recent developments. In all the countries, postmaterialist socio‐economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines both the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (CBORA 1960), New Zealand Bill of Rights Act (NZBOR 1990), and the Human Rights Act (UK) (HRA 1998) were prompted politically by a relatively weak and backward‐looking ‘aversive’ reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self‐interested, and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).Less
This book explores bill of rights outcomes in four countries — Australia, Canada, New Zealand, and the United Kingdom — whose development exhibits an interesting combination of both commonality and difference. Whilst sharing a core ‘Westminster’ political set‐up, more recent experiences display striking diversity. Comparative analysis of some thirty‐six democracies demonstrates that the historic lack of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, by their strong British constitutional heritage. Detailed chapters then explore recent developments. In all the countries, postmaterialist socio‐economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines both the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (CBORA 1960), New Zealand Bill of Rights Act (NZBOR 1990), and the Human Rights Act (UK) (HRA 1998) were prompted politically by a relatively weak and backward‐looking ‘aversive’ reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self‐interested, and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).
Roger Masterman and Ian Leigh
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0001
- Subject:
- Law, Human Rights and Immigration
This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some ...
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This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some of the core constitutional questions addressed in this volume, detailing the individual essaying and highlighting common themes.Less
This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some of the core constitutional questions addressed in this volume, detailing the individual essaying and highlighting common themes.
Alice Donald
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0012
- Subject:
- Law, Human Rights and Immigration
The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences ...
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The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.Less
The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.
Helen Fenwick
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0013
- Subject:
- Law, Human Rights and Immigration
This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative ...
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This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.Less
This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.
Gavin Phillipson
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0002
- Subject:
- Law, Human Rights and Immigration
This chapter considers the relationship between the Human Rights Act (HRA) and existing key principles of the UK constitution. It proposes that rather than asking how far the HRA is transforming the ...
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This chapter considers the relationship between the Human Rights Act (HRA) and existing key principles of the UK constitution. It proposes that rather than asking how far the HRA is transforming the existing constitution, a more fruitful approach assumes that each acts upon the other. In light of this discussion, it goes on to consider particular arguments about the balance between judicial and legislative power under the HRA. First, it suggests that, contrary to a widely held view, s.3 has been used not more but less than Parliament was led to expect at the time the HRA was passed. Second, it examines recent episodes of inter-institutional disputes about rights in the light of dialogic theories which assume that governments welcome s.4 declarations as triggering an honest debate about rights; it suggests that such theories diverge sharply from political reality.Less
This chapter considers the relationship between the Human Rights Act (HRA) and existing key principles of the UK constitution. It proposes that rather than asking how far the HRA is transforming the existing constitution, a more fruitful approach assumes that each acts upon the other. In light of this discussion, it goes on to consider particular arguments about the balance between judicial and legislative power under the HRA. First, it suggests that, contrary to a widely held view, s.3 has been used not more but less than Parliament was led to expect at the time the HRA was passed. Second, it examines recent episodes of inter-institutional disputes about rights in the light of dialogic theories which assume that governments welcome s.4 declarations as triggering an honest debate about rights; it suggests that such theories diverge sharply from political reality.
Simon Evans and Julia Watson
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0010
- Subject:
- Law, Human Rights and Immigration
This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, ...
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This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.Less
This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.003.0007
- Subject:
- Political Science, Comparative Politics
This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief ...
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This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief chronological overview, the first part of the chapter explores the forces which have fuelled the gradually increased background pressures for a bill of rights. Since the 1960s, a postmaterialist rights lobby of civil libertarians and social equality seekers not only emerged politically but came to advocate for a bill of rights. The United Kingdom's participation in the European Convention on Human Rights (ECHR) also encouraged and shaped the domestic formalization of rights, particularly as instantiated in the HRA. The second part of the chapter explores the much more sporadic nature of elite political interest in a bill of rights. Focusing on the genesis of the HRA, it argues that this was politically triggered by Labour and the left's ‘aversive’ reaction against the perceived authoritarianism of Margaret Thatcher's Conservative Administration. The chapter closes with a brief consideration of the prospects of a fully indigenous British bill of rights designed either to complement or replace the HRA.Less
This chapter examines the socio‐politics of bill of rights debates and outcomes in the United Kingdom including, in particular, the origins of the Human Rights Act (HRA) (1998). Following a brief chronological overview, the first part of the chapter explores the forces which have fuelled the gradually increased background pressures for a bill of rights. Since the 1960s, a postmaterialist rights lobby of civil libertarians and social equality seekers not only emerged politically but came to advocate for a bill of rights. The United Kingdom's participation in the European Convention on Human Rights (ECHR) also encouraged and shaped the domestic formalization of rights, particularly as instantiated in the HRA. The second part of the chapter explores the much more sporadic nature of elite political interest in a bill of rights. Focusing on the genesis of the HRA, it argues that this was politically triggered by Labour and the left's ‘aversive’ reaction against the perceived authoritarianism of Margaret Thatcher's Conservative Administration. The chapter closes with a brief consideration of the prospects of a fully indigenous British bill of rights designed either to complement or replace the HRA.
Petra Butler
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0011
- Subject:
- Law, Human Rights and Immigration
This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an ...
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This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.Less
This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0011
- Subject:
- Political Science, Comparative Politics, UK Politics
Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth ...
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Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth of a human rights culture among lawyers; unpopularity with politicians and media. The weak entrenchment of HRA 1998.Less
Creation of the Council of Europe in the shadow of Nuremburg. History of gradual UK incorporation. European Court of Human Rights. Human Rights Act 1998. Human rights and unpopular minorities. Growth of a human rights culture among lawyers; unpopularity with politicians and media. The weak entrenchment of HRA 1998.
Tom Campbell, K.D. Ewing, and Adam Tomkins (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199606078
- eISBN:
- 9780191729720
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606078.001.0001
- Subject:
- Law, Human Rights and Immigration
Reacting to the poor record of the UK Human Rights Act 1998 and similar provisions in protecting human rights, this book explores ways of promoting human rights more effectively through political and ...
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Reacting to the poor record of the UK Human Rights Act 1998 and similar provisions in protecting human rights, this book explores ways of promoting human rights more effectively through political and democratic mechanisms. The book expresses ideological scepticism concerning the relative neglect of social and economic rights and institutional scepticism concerning the failures of court-centred means for enhancing human rights goals in general. Criticizing the ‘juridification’ of human rights through the transferring of the prime responsibility for defining human rights violations to courts and advocating the greater ‘politicization’ of human rights responsibilities through such measures as enhanced Parliamentary scrutiny of existing and proposed legislation, a group of twenty-four human rights scholars present a variety of perspectives on the disappointing human rights outcomes of recent institutional developments and consider the prospects of reviving the moral force and political implications of human rights values. Thus, one chapter recounts the Human Rights Act failures with respect to counter-terrorism legislation, another charts how the ‘dialogue’ model reduces parliaments' capacities to hold governments to accountable for human rights violations, a further chapter considers which institutions best protect fundament al rights, and another chapter reflects on how the idea of human rights could be ‘rescued’ in Britain today. Other chapters deal with the historical human rights failures of courts during the Cold War and in Northern Ireland, the diverse outcomes of human rights judicial review, and examine aspects of the human rights regimes in a variety of jurisdictions, including Finland, Sweden, New Zealand, Australia, Scotland, Canada, Europe, and the United States.Less
Reacting to the poor record of the UK Human Rights Act 1998 and similar provisions in protecting human rights, this book explores ways of promoting human rights more effectively through political and democratic mechanisms. The book expresses ideological scepticism concerning the relative neglect of social and economic rights and institutional scepticism concerning the failures of court-centred means for enhancing human rights goals in general. Criticizing the ‘juridification’ of human rights through the transferring of the prime responsibility for defining human rights violations to courts and advocating the greater ‘politicization’ of human rights responsibilities through such measures as enhanced Parliamentary scrutiny of existing and proposed legislation, a group of twenty-four human rights scholars present a variety of perspectives on the disappointing human rights outcomes of recent institutional developments and consider the prospects of reviving the moral force and political implications of human rights values. Thus, one chapter recounts the Human Rights Act failures with respect to counter-terrorism legislation, another charts how the ‘dialogue’ model reduces parliaments' capacities to hold governments to accountable for human rights violations, a further chapter considers which institutions best protect fundament al rights, and another chapter reflects on how the idea of human rights could be ‘rescued’ in Britain today. Other chapters deal with the historical human rights failures of courts during the Cold War and in Northern Ireland, the diverse outcomes of human rights judicial review, and examine aspects of the human rights regimes in a variety of jurisdictions, including Finland, Sweden, New Zealand, Australia, Scotland, Canada, Europe, and the United States.
Roger Masterman
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0005
- Subject:
- Law, Human Rights and Immigration
The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of ...
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The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of judicial discussions on the nature and extent of the ‘Convention rights’ in domestic law, and has exercised a powerful influence over how those rights have been given legal effect. This chapter argues that the mirror principle is based on an overly narrow interpretation of the purpose of the Human Rights Act, provides an inadequate foundation for the development of domestic rights jurisprudence, and is an increasingly inaccurate description of judicial and constitutional practice.Less
The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of judicial discussions on the nature and extent of the ‘Convention rights’ in domestic law, and has exercised a powerful influence over how those rights have been given legal effect. This chapter argues that the mirror principle is based on an overly narrow interpretation of the purpose of the Human Rights Act, provides an inadequate foundation for the development of domestic rights jurisprudence, and is an increasingly inaccurate description of judicial and constitutional practice.
C. R. G. Murray
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0003
- Subject:
- Law, Human Rights and Immigration
Much of the judicial-dialogue debate implies that this process was initiated by the Human Rights Act, but developments since its enactment arguably refine the long-established process whereby the ...
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Much of the judicial-dialogue debate implies that this process was initiated by the Human Rights Act, but developments since its enactment arguably refine the long-established process whereby the courts interact with the other branches of government. For example, when individuals (often supported by pressure groups) pursue rights-based claims they may do so not with the expectation that the courts will uphold their claim, but in the hope that judges will issue a declaration of incompatibility with which they can influence political debate. The Human Rights Act marks an increase in the volume (in both senses of the word) of such dialogue. Judges must now consider their decisions not only regarding their impact upon UK government policy but also with one eye towards ensuring that the European Court of Human Rights upholds their decisions. This chapter examines these efforts, focusing in particular on the growth in ‘protest cases’ before the courts.Less
Much of the judicial-dialogue debate implies that this process was initiated by the Human Rights Act, but developments since its enactment arguably refine the long-established process whereby the courts interact with the other branches of government. For example, when individuals (often supported by pressure groups) pursue rights-based claims they may do so not with the expectation that the courts will uphold their claim, but in the hope that judges will issue a declaration of incompatibility with which they can influence political debate. The Human Rights Act marks an increase in the volume (in both senses of the word) of such dialogue. Judges must now consider their decisions not only regarding their impact upon UK government policy but also with one eye towards ensuring that the European Court of Human Rights upholds their decisions. This chapter examines these efforts, focusing in particular on the growth in ‘protest cases’ before the courts.
Merris Amos
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0006
- Subject:
- Law, Human Rights and Immigration
In recent years, there has been considerable discussion of the dialogue which takes place between UK courts, adjudicating in claims brought under the Human Rights Act 1998, and the European Court of ...
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In recent years, there has been considerable discussion of the dialogue which takes place between UK courts, adjudicating in claims brought under the Human Rights Act 1998, and the European Court of Human Rights. This chapter examines the characteristics of this relationship and, utilising case law examples, considers the question of whether the metaphor of dialogue is entirely accurate. Also considered are the outcomes, both actual and potential, from a dialogue between national courts and a supranational court. It is clear that dialogue can have an impact on the creation of human rights norms, judicial power, and the legitimacy of human rights law. The UK example is employed to illustrate these outcomes in practice, and also to highlight the potential pitfalls of extensive dialogue with a supranational court.Less
In recent years, there has been considerable discussion of the dialogue which takes place between UK courts, adjudicating in claims brought under the Human Rights Act 1998, and the European Court of Human Rights. This chapter examines the characteristics of this relationship and, utilising case law examples, considers the question of whether the metaphor of dialogue is entirely accurate. Also considered are the outcomes, both actual and potential, from a dialogue between national courts and a supranational court. It is clear that dialogue can have an impact on the creation of human rights norms, judicial power, and the legitimacy of human rights law. The UK example is employed to illustrate these outcomes in practice, and also to highlight the potential pitfalls of extensive dialogue with a supranational court.
David Feldman
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0036
- Subject:
- Law, Legal History
This chapter focuses on the important contributions that the House has made to protecting human rights in the UK. In the last twenty years, and particularly since 2000, human rights have become ...
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This chapter focuses on the important contributions that the House has made to protecting human rights in the UK. In the last twenty years, and particularly since 2000, human rights have become central to the work and thinking of the Law Lords. This reorientation of values has significantly changed public law and may come to affect private law as well. Principled consistency is becoming more important than substantive rationality and pragmatism in most cases, although the search for consistent principles is proving difficult and the essential requirements that judicial decisions should be workable and ultimately acceptable still operate.Less
This chapter focuses on the important contributions that the House has made to protecting human rights in the UK. In the last twenty years, and particularly since 2000, human rights have become central to the work and thinking of the Law Lords. This reorientation of values has significantly changed public law and may come to affect private law as well. Principled consistency is becoming more important than substantive rationality and pragmatism in most cases, although the search for consistent principles is proving difficult and the essential requirements that judicial decisions should be workable and ultimately acceptable still operate.
Shazia Choudhry
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0020
- Subject:
- Law, Family Law, Human Rights and Immigration
The effect of domestic violence upon children has become an issue of serious concern. Research has demonstrated that children can experience domestic violence not only as direct victims but also as ...
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The effect of domestic violence upon children has become an issue of serious concern. Research has demonstrated that children can experience domestic violence not only as direct victims but also as witnesses. The impact of the research on the effects of witnessing or experiencing violence on children has not been confined to so-called ‘intact’ families. It has also led to an increased awareness of the continued risks posed to child victims during post separation contact with the abusive parent. The concern is such that it has led to a number of calls for a legal presumption against contact in such cases, such as that adopted in New Zealand. Facilitating post separation contact between a child and a parent has generally been viewed as being in the best interests of the child and as a result is very rarely entirely refused. This chapter assesses the current legal response to the issue within the context of the relevant provisions of the Human Rights Act 1998 and the European Convention on Human Rights, and whether the implementation of a legal presumption against contact in cases involving domestic violence would represent a breach of those provisions.Less
The effect of domestic violence upon children has become an issue of serious concern. Research has demonstrated that children can experience domestic violence not only as direct victims but also as witnesses. The impact of the research on the effects of witnessing or experiencing violence on children has not been confined to so-called ‘intact’ families. It has also led to an increased awareness of the continued risks posed to child victims during post separation contact with the abusive parent. The concern is such that it has led to a number of calls for a legal presumption against contact in such cases, such as that adopted in New Zealand. Facilitating post separation contact between a child and a parent has generally been viewed as being in the best interests of the child and as a result is very rarely entirely refused. This chapter assesses the current legal response to the issue within the context of the relevant provisions of the Human Rights Act 1998 and the European Convention on Human Rights, and whether the implementation of a legal presumption against contact in cases involving domestic violence would represent a breach of those provisions.
Paul Rock
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199275496
- eISBN:
- 9780191699832
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199275496.003.0005
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the impact of the enactment of the Human Rights Act on the victims' rights issue in Great Britain. Though the Act was never explicitly intended for the victims of commonplace ...
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This chapter examines the impact of the enactment of the Human Rights Act on the victims' rights issue in Great Britain. Though the Act was never explicitly intended for the victims of commonplace crime, it helped redefine British citizens and victims as rights-bearers. Its apparent favouring of the defendant and suspect prompted the Home Office to emphasize the existence of victims' rights in the Act. It also encouraged the emergence of talk about rights, which involved those responsible for designing policies for victims.Less
This chapter examines the impact of the enactment of the Human Rights Act on the victims' rights issue in Great Britain. Though the Act was never explicitly intended for the victims of commonplace crime, it helped redefine British citizens and victims as rights-bearers. Its apparent favouring of the defendant and suspect prompted the Home Office to emphasize the existence of victims' rights in the Act. It also encouraged the emergence of talk about rights, which involved those responsible for designing policies for victims.
Conor Gearty
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199287222
- eISBN:
- 9780191700422
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287222.001.0001
- Subject:
- Law, Human Rights and Immigration
The Human Rights Act 1998 was one of the first pieces of legislation passed by New Labour. Some ministers believe that it is the greatest thing that they have done, ...
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The Human Rights Act 1998 was one of the first pieces of legislation passed by New Labour. Some ministers believe that it is the greatest thing that they have done, whereas others view it as a dangerous mistake. This volume explains what the Act is about and where it fits into Britain's constitutional tradition, and explores whether or not it has achieved its goals. Since the act was passed, a large body of case law has built up around it. The Act has enjoyed its fair share of controversies and has produced its own range of disappointments. It has become part and parcel of law courses in all universities, and has attracted the attention of practitioners from all areas of practice. It is now part of Britain's constitutional furniture, of interest and relevance not only to lawyers but also to political scientists, contemporary historians, and the general public. This book takes a fresh look at the place of the Human Rights Act in Britain's constitutional order. It locates the measure in its political and historical context and analyses the case law from the perspective not only of principle but also of practical experience. It examines the effect of the Act, and provides the tools to make informed predictions on the likely outcome of cases.Less
The Human Rights Act 1998 was one of the first pieces of legislation passed by New Labour. Some ministers believe that it is the greatest thing that they have done, whereas others view it as a dangerous mistake. This volume explains what the Act is about and where it fits into Britain's constitutional tradition, and explores whether or not it has achieved its goals. Since the act was passed, a large body of case law has built up around it. The Act has enjoyed its fair share of controversies and has produced its own range of disappointments. It has become part and parcel of law courses in all universities, and has attracted the attention of practitioners from all areas of practice. It is now part of Britain's constitutional furniture, of interest and relevance not only to lawyers but also to political scientists, contemporary historians, and the general public. This book takes a fresh look at the place of the Human Rights Act in Britain's constitutional order. It locates the measure in its political and historical context and analyses the case law from the perspective not only of principle but also of practical experience. It examines the effect of the Act, and provides the tools to make informed predictions on the likely outcome of cases.
Paul Rock
- Published in print:
- 2005
- Published Online:
- January 2012
- ISBN:
- 9780197263143
- eISBN:
- 9780191734939
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197263143.003.0012
- Subject:
- Sociology, Social Research and Statistics
This chapter examines the way in which the victim of crime, the ‘forgotten party’ of the criminal justice system has started to regain something of the standing of an interested party with recognised ...
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This chapter examines the way in which the victim of crime, the ‘forgotten party’ of the criminal justice system has started to regain something of the standing of an interested party with recognised rights in the justice system. A number of causal narratives are involved in this gradual process of change. First, there have been outside influences with statements and declarations of individual rights from the United Nations, North America and Europe which saw the eventual enactment of the Human Rights Act in 1998. Second, the ‘new managerialism’ of recent Conservative and Labour governments gave rise to the idea of the citizen as a customer in a market of services delivered by the state. Third, is the notion of reintegrative shaming, modelled on Maori justice in New Zealand, and intended to lead to a rapprochement in which the victim is no longer so fearful or angry and the offender better understands the impact of his actions and is reunited with the moral community rather than outlawed from it.Less
This chapter examines the way in which the victim of crime, the ‘forgotten party’ of the criminal justice system has started to regain something of the standing of an interested party with recognised rights in the justice system. A number of causal narratives are involved in this gradual process of change. First, there have been outside influences with statements and declarations of individual rights from the United Nations, North America and Europe which saw the eventual enactment of the Human Rights Act in 1998. Second, the ‘new managerialism’ of recent Conservative and Labour governments gave rise to the idea of the citizen as a customer in a market of services delivered by the state. Third, is the notion of reintegrative shaming, modelled on Maori justice in New Zealand, and intended to lead to a rapprochement in which the victim is no longer so fearful or angry and the offender better understands the impact of his actions and is reunited with the moral community rather than outlawed from it.
Brice Dickson
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199204939
- eISBN:
- 9780191695599
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199204939.003.0011
- Subject:
- Law, Human Rights and Immigration
This chapter examines the impact on the Human Rights Act 1998 in Northern Ireland. The Act was passed at Westminster in the same month as the Northern Ireland Act 1998 and it incorporated into the ...
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This chapter examines the impact on the Human Rights Act 1998 in Northern Ireland. The Act was passed at Westminster in the same month as the Northern Ireland Act 1998 and it incorporated into the laws of all parts of Great Britain most of the rights contained in the European Convention on Human Rights of 1950. Evidence suggest that the influence of the Act has already been profound and the relative ease with which the it has infused the legal system is a cause for hope that when a Bill of Rights is eventually enacted for Northern Ireland it will also gain quick and ready acceptance.Less
This chapter examines the impact on the Human Rights Act 1998 in Northern Ireland. The Act was passed at Westminster in the same month as the Northern Ireland Act 1998 and it incorporated into the laws of all parts of Great Britain most of the rights contained in the European Convention on Human Rights of 1950. Evidence suggest that the influence of the Act has already been profound and the relative ease with which the it has infused the legal system is a cause for hope that when a Bill of Rights is eventually enacted for Northern Ireland it will also gain quick and ready acceptance.
