Australian Bills of Rights and the ‘New Commonwealth Model of Constitutionalism’

2013 ◽  
Author(s):  
Simon Evans ◽  
Julia Watson
Keyword(s):  
Human Rights ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Key Features ◽  
The Uk ◽  
High Court Of Australia ◽  
The Impact

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.

19. Human Rights and The UK Constitution

Public Law ◽  
2020 ◽  
pp. 761-816
Author(s):  
Mark Elliott ◽  
Robert Thomas
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

This chapter examines human rights protection in the UK. It examines the reasons why the Human Rights Act 1998 (HRA) was enacted, the effects of the HRA, the principal mechanisms through which the HRA affords protection to human rights in UK law; the scope of the HRA; and the debate concerning the potential repeal, reform, or replacement of the HRA. The chapter also introduces the notion of human rights, including the practical and philosophical cases for their legal protection, and the European Convention on Human Rights, to which the HRA gives effect in UK law.

18. Human Rights and the UK Constitution

Public Law ◽  
2017 ◽  
Author(s):  
Mark Elliott ◽  
Robert Thomas
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

This chapter examines human rights protection in the UK. It examines the reasons why the Human Rights Act 1998 (HRA) was enacted, the effects of the HRA, the principal mechanisms through which the HRA affords protection to human rights in UK law, the scope of the HRA, and the debate concerning the potential repeal, reform, or replacement of the HRA. The chapter also introduces the notion of human rights, including the practical and philosophical cases for their legal protection, and the European Convention on Human Rights, to which the HRA gives effect in UK law.

scholarly journals Too attentive to our duty: the fundamental conflict underlying human rights protection in the UK

Legal Studies ◽  
2018 ◽  
Vol 38 (3) ◽  
pp. 360-378
Author(s):  
Benedict Douglas
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Fundamental Conception ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Individual ◽  
The Uk

AbstractAre we defined by the choices we make or the duties we owe? This paper argues that there is a conflict between the fundamental conception of the individual as possessing the capacity to choose how to live, which has been held to be the foundation of the European Convention on Human Rights, and the understanding of the individual as a bearer of duties which has long underpinned the UK Constitution. Through case law analysis, it is shown that the tension between these two understandings of the individual underlies the troubled acceptance of the Human Rights Act 1998, and influences the UK judiciary's substantive interpretations of the Convention rights. It is ultimately argued that for the Convention rights to be fully accepted in the UK, the evolution from a duty to a choice-based understanding of the individual, which was artificially accelerated by the Human Rights Act, must be more widely accepted by society and the courts.

The United Kingdom's Statutory Bill of Rights

2013 ◽  
Keyword(s):  
Human Rights ◽  
Political Elite ◽  
Bill Of Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Constitutional Principle ◽  
The Status ◽  
Human Rights Act ◽  
The Uk ◽  
The Impact

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’.

15. The European Convention on Human Rights and the Human Rights Act 1998

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Liberties ◽  
European Convention ◽  
Bill Of Rights ◽  
Rights Protection ◽  
Positive Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts' historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

2. Legislation

Legal Skills ◽  
2019 ◽  
pp. 14-42
Author(s):  
Emily Finch ◽  
Stefan Fafinski
Keyword(s):  
Human Rights ◽  
European Convention ◽  
European Economic ◽  
Eu Legislation ◽  
Domestic Courts ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
The Impact ◽  
Law Making

This chapter first considers the process by which Acts of Parliament come into being. It then turns to delegated legislation—that is, law that is made by other bodies under Parliament’s authority. Next, it looks at EU legislation, which had an increasingly significant effect from the time that the UK joined the European Economic Community in 1973. It explains the various institutions of the EU and their role in the law-making process; the different types of EU legislation; and the circumstances in which individuals may use them in domestic courts, pre-Brexit. Finally, the chapter discusses the impact of the European Convention on Human Rights and the Human Rights Act 1998.

2. Legislation

2021 ◽  
pp. 19-48
Author(s):  
Emily Finch ◽  
Stefan Fafinski
Keyword(s):  
Human Rights ◽  
European Convention ◽  
European Economic ◽  
Eu Legislation ◽  
Domestic Courts ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
The Impact ◽  
Law Making

This chapter first considers the process by which Acts of Parliament come into being. It then turns to delegated legislation—that is, law that is made by other bodies under Parliament’s authority. Next, it looks at EU legislation, which had an increasingly significant effect from the time that the UK joined the European Economic Community in 1973. It explains the various institutions of the EU and role they had in the law-making process; the different types of EU legislation; and the circumstances in which individuals could use them in domestic courts, prior to Brexit. Finally, the chapter discusses the impact of the European Convention on Human Rights and the Human Rights Act 1998.

The right to healthcare

2020 ◽  
pp. 195-208
Author(s):  
Ann Marie Gray
Keyword(s):  
Human Rights ◽  
Social Care ◽  
Health And Social Care ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
The Right ◽  
The Impact ◽  
The Relationship

This chapter explores the relationship between human rights and health and social care. It begins by setting out the main international mechanisms, at UN, EU and ECHR levels, and the obligations they place on governments. It then discusses the impact of international and domestic human rights instruments through an examination of developments in social care policy, and with regard to reproductive health care rights in Northern Ireland. It also highlights issues relating to devolution and the implementation of human rights in the UK and in particular the role of the Human Rights Act (1998).

scholarly journals Assisted dying challenges: Dynamic and stasis in the UK courts: Conway v. Secretary of State for Justice

2018 ◽  
Vol 18 (4) ◽  
pp. 256-270
Author(s):  
Clark Hobson
Keyword(s):  
Human Rights ◽  
Assisted Suicide ◽  
Private Life ◽  
European Convention ◽  
High Court ◽  
Secretary Of State ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Legitimate Interests ◽  
The Uk

This commentary reviews the High Court Decision in Conway v. Secretary of State for Justice. Mr Conway’s argument, that section 2(1) Suicide Act is incompatible with his right of respect for his private life under Article 8(1) European Convention on Human Rights, adopted as a Convention right for the purposes of the Human Rights Act 1998, was dismissed. The comment discusses four themes arising from the case. First, it examines how the High Court attempts to distinguish claimants who can act to end their own lives, such as Mr Conway, from individuals who cannot carry out any act to commit suicide. This distinction is arguably morally arbitrary and runs counter to principles of equal concern and respect. Second, Mr Conway puts forward an alternative statutory scheme with specific procedural criteria, designed to safeguard relevant competing legitimate interests; to protect the weak and vulnerable while legalizing assisted suicide in certain circumstances. However, the nature of Mr Conway’s argument regarding this alternative statutory scheme misses the point. It is possible for a court to find the current legislative measure, section 2(1) Suicide Act, to disproportionately interfere with a claimant’s Article 8(1) right in principle, without having to be satisfied there is a future legislative measure that does better balance competing legitimate interests. Third, the comment shall consider the High Court’s reasoning behind holding that Nicklinson was not binding insofar as deciding Mr Conway’s case. Finally, the ethical nuance of the court’s consideration of the aim of section 2 shall be considered briefly.

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