R v Lord Chancellor, ex parte Witham [1998] QB 575, High Court (Queen’s Bench Division)

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
High Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
Lord Chancellor

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Lord Chancellor, ex parte Witham [1998] QB 575, High Court (Queen’s Bench Division). This case concerns the constitutionality of fees payable to access court processes where the applicant’s limited financial means render them unable to pay those fees. More generally it concerns the capacity of the common law to provide rights protections, notwithstanding the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

R v Lord Chancellor, ex parte Witham [1998] QB 575, High Court (Queen’s Bench Division)

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
High Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
Lord Chancellor

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Lord Chancellor, ex parte Witham [1998] QB 575, High Court (Queen’s Bench Division). This case concerns the constitutionality of fees payable to access court processes where the applicant's limited financial means render them unable to pay those fees. More generally it concerns the capacity of the common law to provide rights protections, notwithstanding the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
Rights Protection ◽  
Secretary Of State ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
Home Department

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords. This case considered whether a blanket policy excluding prisoners from cell searches was a proportionate response that was necessary to achieve the aim of that policy. There is also discussion of whether the common law could provide an alternative system of rights protection to that under the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
Rights Protection ◽  
Secretary Of State ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
Home Department

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords. This case considered whether a blanket policy excluding prisoners from cell searches was a proportionate response that was necessary to achieve the aim of that policy. There is also discussion of whether the common law could provide an alternative system of rights protection to that under the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

20. Human Rights IV: The Impact of the Human Rights Act 1998

2021 ◽  
pp. 528-578
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Rule Of Law ◽  
The Status ◽  
Legislative Policy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
The Common ◽  
The Impact

This chapter analyses some of the leading cases in which the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act has triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.

scholarly journals Smith v Chief Constable of Sussex Police; [2008] UKHL; 50

2012 ◽  
Vol 21 (1) ◽  
pp. 141-152
Author(s):  
Carol Brennan
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Law Reform ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Exclusive Focus

WHO HAS FIRST CLAIM ON “THE LOYALTY OF THE LAW”?Smith v Chief Constable of the Sussex Police (hereafter Smith) was heard by the House of Lords at the same time as Chief Constable of the Hertfordshire Police v Van Colle and another because they had two uniting factors. First, they both concerned the recurring question of the ambit of police liability in the situation described by Lord Bingham thus: “…if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2  Secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the Human Rights Act 1998 (hereafter the HRA) and the development of the common law. The Law Lords embarked on a more extensive examination of these issues in Smith and thus that case will be the exclusive focus of this note.  In addition, the study of Smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities. 

11. Judge-made law

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Uk

This chapter considers a further source of the UK constitution: the law made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law; or the interpretation of statutes. The two main approaches of the courts to interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. The interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.

11. Judge-made law

2020 ◽  
pp. 243-250
Author(s):  
Neil Parpworth
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Uk

This chapter considers a further source of the UK constitution: the law that is made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law; or the interpretation of statutes. The two main approaches of the courts to interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. In addition, the interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.

Human Rights and Judicial Technique

2013 ◽  
Author(s):  
Jack Beatson
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
International Obligations ◽  
Human Rights Act ◽  
The Common

This chapter assesses changes in judicial approach and technique since the enactment of the Human Rights Act (HRA), and whether they are irreversible. It considers the language of analysis; the significance of terms such as ‘deference’, ‘institutional competence’, and ‘weight’; and the interpretative obligation in s.3 HRA enabling radical re-interpretation, and its relationship with the s.4 power to make declarations of incompatibility. It asks whether the ‘no less, but certainly no more’ than Strasbourg approach, with its need to predict outcomes in Strasbourg, reflects a ‘domestic remedy for breach of international obligations’ view of the HRA, or is an indication of the courts' understanding of their constitutional role and its limits. Finally, it suggests it is important not to sideline or forget the potential of the common law and the continued relevance and importance of traditional common law public law techniques.

21. Human Rights V: The Impact of the Human Rights Act 1998

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Rule Of Law ◽  
The Status ◽  
Legislative Policy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
The Common ◽  
The Impact

This chapter analyses some leading cases wherein the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.

Filling gaps: the Human Rights Act 1998

2018 ◽  
pp. 209-238
Author(s):  
Matthew Williams
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Common Law ◽  
Individual Rights ◽  
The Rule Of Law ◽  
Underlying Theory ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
Legislative Language

This chapter examines whether the Human Rights Act 1998 (HRA) has been able to correct indeterminacies in other laws. It first provides an overview of the underlying theory of the HRA and traces its development since October 2000 before discussing its impact on the feasibility and desirability of indeterminate legislation. It also considers whether the HRA has provided means for agents of Parliament, particularly judges, to construct a logic of communication — that is, whether the HRA's new rules of construction filled the various gaps identified in contemporary law. The results show that the HRA has not considerably enhanced either the feasibility or the desirability of legislative language. Furthermore, the HRA has made explicit what had been implicit: that the common law was underpinned by the principles of individual rights; these principles clarified the rule of law where statutory language is indeterminate.

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