Home About us Contact
|
Home About us Contact | ||
|
|
||
Human Rights Act (human + right_act)
Selected AbstractsIdeology, Power Orientation and Policy Drag: Explaining the Elite Politics of Britain's Bill of Rights DebateGOVERNMENT AND OPPOSITION, Issue 1 2009David Erdos This article argues that three factors have framed elite political debate and outcomes on a Bill of Rights in Britain , the degree of commitment to an ideology of social liberalism, the executive/non-executive power orientation of key actors and the phenomenon of policy drag. These factors explain not only the overall historical contours of political debate but also (1) Labour's ,aversive' conversion to the Bill of Rights agenda and passage of the Human Rights Act (1998); and (2) the Conservatives' more positive recent attitude to the Bill of Rights agenda. [source] Harnessing the Power of the Past?JOURNAL OF LAW AND SOCIETY, Issue 4 2005Lord Hoffmann, the Belmarsh Detainees Case This article examines styles of judicial reasoning under the Human Rights Act. It uses Lord Hoffmann's short speech in the Belmarsh Detainees case as a springboard from which to explore some important developments. The first part of the article examines the way in which some judges are ,turning to the local' by using historical examples as a means of countering powerful lines of argument run by the government in defence of its anti-terrorist policies. Later in the article, I turn to investigate the use of strategic decision-making by judges when applying the HRA. I conclude by asking whether the introduction of the HRA might lead to the development of a strange counterpoint between internationalist and nationalist rhetoric in judicial decision-making. [source] 11 September 2001, Counter-terrorism, and the Human Rights ActJOURNAL OF LAW AND SOCIETY, Issue 1 2005Conor Gearty The attacks of 11 September 2001 and the reaction to them has been the gravest challenge to date to the Human Rights Act 1998. The Antiterrorism, Crime and Security Act 2001 has expanded the remit of the Terrorism Act 2000 and there has been a new concentration on antiterrorism by government. This article assesses the impact of human rights law on the debate about liberty and security following 11 September. It considers how the provisions of the Human Rights Act have influenced the formulation and interpretation of anti-terrorism laws, and examines the role of the judiciary in adjudicating on disputes between the individual and the state. It ends with some general discussion about the security-driven challenges to human rights that lie ahead. [source] A Family by any other Name ... or StarbucksTM comes to EnglandJOURNAL OF LAW AND SOCIETY, Issue 2 2001Alison JDiduck The article examines the recent House of Lords decision in Fitzpatrickv. Sterling Housing Association from two perspectives. The first adopts a perspective of rights and discrimination and speculates as to how a court may in future decide such a case in the light of Britain's obligations under the Human Rights Act 1998. The second offers a review of some of the literature which questions the effectiveness of such a rights-based approach for achieving justice for lesbian women and gay men, and, from a feminist perspective, expresses caution about instantiating in law a traditional idea of ,family' and the privilege attached to that ideal. [source] The common law and international law , a dynamic contemporary dialogueLEGAL STUDIES, Issue 1 2010Hon Michael Kirby AC CMG International law, as expressed in treaties and in customary law, is of growing importance in municipal jurisdictions throughout the world. Some barriers to the use of international law in national courts are identified. Occasionally, they include scepticism and even hostility about this body of law. However, the past 60 years have witnessed a remarkable change in judicial attitudes in final courts in most Commonwealth countries. In the UK, the impact of Europe has helped create an ,incoming tide'. In South Africa, India and Canada, constitutional provisions have stimulated the change. New Zealand is now affected by its Bill of Rights Act. But, in Australia, none of these forces was available and decisional authority adhered for decades to strict dualism. The changing pace of utilisation of international law in the UK and Australia are described. In the UK, the Human Rights Act 1998 now consolidates a trend already happening in the courts. In Australia, the Mabo decision in 1992 effectively endorsed the Bangalore Principles on the municipal application of international human rights norms. This paper describes the contrasting case-law. In the foregoing countries, it concludes with a response to criticisms of judicial utilisation of international law and a suggestion of the proper jurisprudential basis that can be identified to sustain a judicial process that is now well advanced in the countries surveyed. [source] Dead, but not buried: bodies, burial and family conflictsLEGAL STUDIES, Issue 3 2003Heather Conway While recent public attention has focused on disputes concerning the fate of the dead such as the Bristol and Alder Hey organ retention scandals, this paper considers a much less publicised area of dispute which has nevertheless generated a significant amount of case law and potentially affects a much wider proportion of society. The paper looks at conflicts which arise when relatives cannot agree on how to bury their dead, the motives behind such disputes and the factors which influence their resolution. It examines the legal framework which has been applied by courts to date, proposes alternative solutions to this framework and questions the potential impact of the Human Rights Act 1998 on family burial conflicts. [source] Seeking the principle: chancels, choices and human rightsLEGAL STUDIES, Issue 2 2002Ian Dawson Chancel liability is an ancient property right, enforced by a Parochial Church Council, attaching to certain former rectorial lands. It requires a landowner to bear the cost of repair of the parish church chancel. The right poses particular problems for a purchaser, not least because it is hard to discover and is not limited to the value of the land. A recent decision of the Court of Appeal has found that a Parochial Church Council falls within section 6 of the Human Rights Act 1998 as a public authority, and that chancel liability infringes article I of the First Protocol of the European Convention on Human Rights. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded, widely regarded as incongruous and does not bear scrutiny in its modern context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law. [source] Religious charities and the juridification of the Charity CommissionLEGAL STUDIES, Issue 1 2001Peter W Edge LLB, PhD (Cantab) The Charity Commissioners have indicated that they possess a law-making role. This paper evaluates the extent to which the Commissioners have exercised this role in relation to charities for the advancement of religion, and evaluates this role in the light of the Human Rights Act 1998. The analysis draws upon both case law and decisions of the Commissioners, in particular the decision of the Commissioners to refuse status as a religious charity to the Church of Scientology. [source] Reading down legislation under the Human Rights ActLEGAL STUDIES, Issue 3 2000Richard A Edwards The purpose of this article is to examine the nature and potential impact of s 3 of the Human Rights Act 1998. The article draws upon the experience of courts in other Commonwealth jurisdictions which operate a similar provisions. The author analyses the nature of the interpretative technique, reading down, that s 3 requires and illustrates its potential by reference to a number of situations involving statutory imperfections such as ambiguity and overbreadth. The author also outlines the impact that s 3 may have on the exercise of statutory discretion. The author further argues that reading down should not be confused with more intrusive remedies, such as reading in, which are not available under the Human Rights Act. [source] A Tort-Based Approach to Damages under the Human Rights Act 1998THE MODERN LAW REVIEW, Issue 5 2009Jason N. E. Varuhas This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach. [source] Demanding Service or Servicing Demand?THE MODERN LAW REVIEW, Issue 2 2008Charities, Regulation, the Policy Process Charities in the Victorian era were characterised by the notions of service and pressure, acting as a shield and a sword for social change. Charities continue to pursue such policies, but do so at the behest of state agendas on public service provision and civic engagement. This article examines the regulatory and policy challenges of the service and pressure dynamic, focusing upon the provision of public services by charities, considering the decision of the Charity Commission in the cases of Trafford and Wigan, and the hurdles faced by charities wishing to pursue a political agenda alongside the state's concern with protecting against terrorism. The article concludes by considering the arbitrary choice made within the regulatory framework between acceptable and unacceptable political conduct and the focus upon good governance in charities and the issues which arise under section 6(3)(b) of the Human Rights Act 1998. [source] The Enjoyment of Rights and Freedoms: A New Conception of the ,Ambit' under Article 14 ECHRTHE MODERN LAW REVIEW, Issue 5 2006Aaron Baker, Article first published online: 16 AUG 200 Article 14 of the European Convention on Human Rights, as applied by the UK judiciary under the Human Rights Act 1998, is in danger of becoming as ,parasitic' as it is often described. Judges have inappropriately narrowed the scope of the ,ambit' of other Convention articles, and thus limited the number of claims to which Article 14 can apply, by defining it according to considerations more properly weighed in a justification analysis incorporating proportionality. The emerging approach departs from Strasbourg jurisprudence, and fails to give full effect to the language and intent of Article 14. This trend need not continue. This article begins the process of fashioning a new conception of the ambit of Convention articles: one that could change the fortunes of Article 14 cases in the UK, but that flows naturally from the precedents of the European Court of Human Rights, and gives effect to the spirit of the HRA. [source] The Presumption of Innocence and the Human Rights ActTHE MODERN LAW REVIEW, Issue 3 2004Victor Tadros There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions. [source] The Alchemists' Search for the Philosophers' Stone: The Status of Registered Social Landlords under the Human Rights ActTHE MODERN LAW REVIEW, Issue 5 2003Jill Morgan Social housing in Great Britain is undergoing a radical transformation with the transfer of local authority housing to housing associations, more particularly registered social landlords (RSLs). While the former are clearly ,public authorities' for the purposes of the Human Rights Act (HRA), the status of the latter is less clear. The first part of this article addresses the increasingly important role played by housing associations in the provision of social housing, and the significant implications of the stock transfer process. It goes on to explore the meaning of ,public authority' for the purposes of claims under the HRA, taking into account available approaches to interpretation as well as the tests traditionally used to determine amenability to judicial review. It concludes that there is a strong case for acknowledging that RSLs are hybrid authorities for the purposes of the HRA, given in particular their ,publicness' and the fact that they are often carrying out the same functions as local authorities. [source] Transforming Breach of Confidence?THE MODERN LAW REVIEW, Issue 5 2003Towards a Common Law Right of Privacy under the Human Rights Act This article examines the development of a remedy for unauthorised publication of personal information that has resulted from the fusion of breach of confidence with the limited ,horizontal' application of Article 8 of the ECHR via the Human Rights Act. Its analysis of Strasbourg and domestic post-HRA case law reveals the extent to which confidence has in some areas been radically transformed into a privacy right in all but name; however it also seeks to expose the analytical and normative tensions that arise in the judgments between the values of confidentiality and privacy as overlapping but not coterminous concepts, due in part to the failure to resolve decisively the horizontal effect conundrum. This judicial ambivalence towards the reception of privacy as a legal right into English law may, it will argue, also be seen in the prevailing judicial approach to the resolution of the conflict between privacy and expression interests which, it will suggest, is both normatively and structurally inadequate. [source] Human rights commissions and public policy: The role of the Canadian Human Rights Commission in advancing sexual orientation equality rights in CanadaCANADIAN PUBLIC ADMINISTRATION/ADMINISTRATION PUBLIQUE DU CANADA, Issue 2 2008Annette Nierobisz The case study is informed by commission annual reports, speeches by past chief commissioners, presentations by the commission to parliamentary committees, and an examination of 442 sexual orientation complaints closed by the commission by 2005. The study shows that, from its inception, the commission had a simple and consistent message: sexual orientation should not be the basis for denying individuals employment, services or benefits. Using a variety of strategies, the CHRC facilitated the incorporation of this message into the Canadian Human Rights Act by promoting the designation of sexual orientation as a prohibited ground of discrimination. Subsequently, the commission became actively involved in securing equal access to employment-related benefits in the federal sphere for same-sex couples and also added its voice in support of legal recognition of same-sex marriage. The authors conclude by discussing how the unique position of human rights commissions gives them the potential to play an important role in public policy development, even when there may be a lack of political will or public support. Sommaire: Le présent article examine l'aptitude des commissions des droits de la personne à encourager les changements dans la politique publique en mettant l'accent sur la Commission canadienne des droits de la personne (CCDP) et son rôle dans la promotion des droits à l'égalité en matière d'orientation sexuelle au Canada. L' étude de cas tire ses informations des rapports annuels de la commission, des allocutions prononcées par d'anciens présidents de la commission, des présentations faites par la commission aux comités parlementaires, et d'un examen de 442 plaintes relatives à l'orientation sexuelle traitées par la commission jusqu'en 2005. L' étude indique que, depuis sa création, la commission avait un message simple et unanime : l'orientation sexuelle ne devrait pas être un motif invoqué pour refuser de l'emploi, des services ou des avantages sociaux à des particuliers. Grâce à diverses stratégies, la CCDP a facilité l'intégration de ce message à la Loi canadienne sur les droits de la personne en faisant en sorte que l'orientation sexuelle soit désignée comme un motif de discrimination interdit. Par la suite, la commission a été active sur la scène fédérale pour assurer que les conjoints de même sexe bénéficient de l' égalité d'accès aux avantages liés à l'emploi, et elle a également soutenu la reconnaissance légale du mariage des conjoints de même sexe. En conclusion, les auteurs discutent la position unique des commissions des droits de la personne qui leur offre le potentiel de jouer un rôle important dans l' élaboration des politiques gouvernementales, même avec un manque de volonté politique ou de soutien public. [source] Legal dilemmas for clinicians involved in the care and treatment of children and young people with mental disorderCHILD: CARE, HEALTH AND DEVELOPMENT, Issue 4 2010M. Bowers Abstract Background The 2008 revised Mental Health Act Code of Practice describes the legal framework governing the admission to hospital and treatment of children and young people for mental disorders as complex. Clinicians are required to be conversant with common law principles as well as the Mental Health Act (MHA), Children Act, Mental Capacity Act (MCA), Family Law Reform Act, Human Rights Act, and the United Nations Convention on the Rights of the Child. Professionals working with the MHA and the MCA have a legal duty to have regard to the respective Codes of Practice (MHA Code and MCA Code). In addition there is a need to keep up-to-date with developments in case law. The recent guidance from the National Institute for Mental Health in England, ,The Legal Aspects of the Care and Treatment of Children and Young People with Mental Disorder' draws all of the legal regimes together and suggests pointers on the most appropriate course of action when the regimes overlap. Discussion This paper will aim to highlight legal dilemmas relating to the care and treatment of under 18-year-olds for mental disorder and to discuss the impact of these on clinical practice. The new legal framework will be discussed with reference to hypothetical cases. Key issues include age and maturity, capacity, deprivation of liberty and the zone of parental control (ZPC). Conclusions It is essential that clinicians are aware of their responsibilities within the new legal framework in order to avoid becoming a target for litigation. This paper is aimed at meeting the recommendation for clinicians to be aware of their responsibilities and engage in appropriate training. [source] | |||||||||||||