Judicial Reasoning under the UK Human Rights Act

Sprednja platnica
Helen Fenwick, Gavin Phillipson, Roger Masterman
Cambridge University Press, 6. sep. 2007
Judicial Reasoning under the UK Human Rights Act is a collection of essays written by leading experts in the field, which examines judicial decision-making under the UK's de facto Bill of Rights. The book focuses both on changes in areas of substantive law and the techniques of judicial reasoning adopted to implement the Act. The contributors therefore consider first general Convention and Human Rights Act concepts – statutory interpretation, horizontal effect, judicial review, deference, the reception of Strasbourg case-law – since they arise across all areas of substantive law. They then proceed to examine not only the use of such concepts in particular fields of law (privacy, family law, clashing rights, discrimination and criminal procedure), but also the modes of reasoning by which judges seek to bridge the divide between familiar common law and statutory doctrines and those in the Convention.
 

Mnenja - Napišite recenzijo

Na običajnih mestih nismo našli nobenih recenzij.

Vsebina

Expansionary arguments
179
Distinguishing proportionality from Wednesbury
182
inevitably now reach its own view both of whether the
186
competence of the Prison Service in making a decision going
187
to the Act If it turns out not to be
188
way undemocratic The 1998 Act gives the courts a
191
haveforeclosedtheoptionsopentothedecisionmakerThisstrategyraises
196
Huang v Secretary of State
200

enjoyment of his rights in his national legal system to
27
seem a fundamental omission from the ECHR mechanism that its
29
The duty of national courts is to keep pace with
34
no jurisprudence reference must be made to the Convention itself
36
under the HRA be enjoyed with respect to conduct which
41
This would correspond with the international law view that the
42
under Article 3 but a right to have assistance to
46
b the Secretary of State is not satisfied that the
47
national courts use the Human Rights Act as though it
56
3
57
The first of these approaches places legal certainty at its
60
Returning to this theme in R on the Application of
71
Aspiration or foundation? The status of Convention rights
75
and to thepurposeof the ECHR to limit domestic courts to
76
This interpretation of the courts role under the Human Rights
78
Lord Woolf had gone on to indicate that the cultural
79
institutions make no distinction between the respective competences of
80
principles deriving from the Strasbourg jurisprudence should generally
82
Conclusion
85
4
87
action to exercise an absolute right to possession of land
107
legislative norm to concrete facts with the requirements of the
108
ideal that is thought to underlie the textual expression of
111
Conclusion
113
5
114
HRA elsewhere16 this chapter will concentrate on the question of
119
scrutiny Echoing Lord Nicholls fears about the semantic lottery he
121
issues are involved However it does place a premium on
125
to which paragraph 22 already applied On my analysis the
127
Section 31 as a remedial provision
128
The argument from dialogue
135
6
143
of a common law action to protect the right to
148
governing public authorities and legislation governing private individuals
149
The preCampbell caselaw on horizontal effect
154
with it contextually rather than as a question of overarching
157
the Court of Appeal decision which he as part of
160
The analysis of the minority
161
In reaching this conclusion it is not necessary to pursue
162
against private persons or corporations It is by virtue of
164
good faith applicable to confidential personal information and trade
165
Note that her Ladyship in the second sentence specifically claims
166
The House unanimously takes the view that since the 1998
168
In this country unlike the United States of
171
Conclusions
172
7
174
classified as concerned with a policy decision Some of the
202
The Strasbourg Court pointed out that Alconbury postdated the
205
8
206
I now come to comment on Lord Justice Laws third
210
9
215
Article 8 or declaring the existence of a general tort
216
Campbell and breach of confidence
220
the nature of the information itself I start therefore
231
imageright an intriguing possibilityalthough onebeyondthescopeof
234
public interest concerning as it did the lobbying activities as
252
revitalise the common law and remedy the longstanding failure of
254
10
255
upon privacy in Re S Finally a suggested model for
261
The action for breach of confidence could be utilised in
263
consideredfurtherbelowistoreinterpretthewelfareprincipleunder s31
278
118 the steps to betaken under
294
11
308
by the judiciary with respect to these two issues in
309
assumptions stereotypes and basic prejudices are able to flourish6
311
generally been welcomed by commentators12 However the very
313
v UK did the House of Lords feel empowered to
317
Summary
321
rationalised as they stand these two key family law cases
322
public law care proceedings61 However although the importance of the
324
monitoring the authoritys discharge of its responsibilities That was the
330
with a strong plea to the government to take the
333
Private law disputes over children
334
A strong example of how the process of reasoning has
338
articulated as such in the judgments it is in these
346
12
348
suffers an impairment to the equality of his or her
357
The domestic courts and analogous comparators
360
treatment42 The analogous comparator step in the analysis does not
362
already recognised as problems Meanwhile the courts are precluded
366
symmetrical label androgynous to deny benefits or advancement to a
372
androgynous in the eyes of the employer By the same
374
Conclusions
375
13
377
Five judgments on the presumption of innocence
381
Ex parte Kebilene15
383
Since on closer examination s925 turned out to be compatible
403
Sheldrake v DPP
407
More striking in many ways than the majoritys conclusion in
411
14
424
that in the public sphere of family law also thepictureis
429
United Kingdom courts going beyond the minimum protection that the
440

Druge izdaje - Prikaži vse

Pogosti izrazi in povedi

Bibliografski podatki