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Do Courts Have to Show Deference: Notes on Paul Craig's View on the HRA
Published online by Cambridge University Press: 06 March 2019
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The 1998 Human Rights Act (HRA) has incorporated the European Convention of Human Rights into English law. Undoubtedly, it constitutes a very important event since it purports to create a new system of rights protection. In order to achieve this aim, the act also introduces some norms empowering the courts to review acts of the legislative and executive branches. The main vehicle for this provision is Section 3 of the Act, (1) which establishes a presumption of compatibility between national legislation and rights laid out in the articles of the European Convention on Human Rights (ECHR). Such a presumption requires courts to systematically attribute to legislation and executive acts the meaning that is most consistent with the protection of rights. Article 3 has been very controversial, (2) particularly concerning the scope of the power it attributes to the courts.
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- Copyright © 2001 by German Law Journal GbR
References
(1) Section 3 (1): So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.Google Scholar
(2) Cf. For example, G. Marshall, “Two kinds of incompatibilities: more about Section 3 of the HRA”, …Google Scholar
(3) P. Craig, “The Courts, the HRA and Judicial Review”, LQR, October 2001, p. 590.Google Scholar
(4) P. Craig, “The Courts, the HRA and Judicial Review”, LQR, October 2001, p. 590.Google Scholar
(5) N. Lavender, “The problem of the margin of appreciation”, 1997, EHRLR, p.380.Google Scholar
(6) J. Wadham & H. Mountfield, Blackstone's guide to the Human Rights Act 1998, 2000, London, Blackstone Press, p.18.Google Scholar
(7) P. Craig, Cf supra n°1, p.590.Google Scholar
(8) Ibid., p.590.Google Scholar
(9) Ibid., p.590Google Scholar
(10) Cf for example, R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC, p. 513; Duport Steels Ltd v Sirs, [1980] 1 All ER, p.529.Google Scholar
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(12) P. Craig, ibid., p.590.Google Scholar
(13) Ibid., p.589.Google Scholar
(14) Ibid., p.590.Google Scholar
(15) R (Alconbury Developments Ltd) v. Secretary of the State for the Environment, Transport and the Regions, [2001] 2 Weekly Law Reports, p.1389.Google Scholar
(16) Bamforth, N., “Parliamentary Sovereignty and the HRA 1998, Public Law, Autumn 1998, p. 287.Google Scholar
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(18) Cf, footnote n°10.Google Scholar
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(20) The Lord Chancellor is the highest judicial charge within the British systems. He covers at the same time the function of minister of Justice, and of the president of the higher judicial court of the country, the House of Lords.Google Scholar
(21) Cf footnote n° 19.Google Scholar
(22) Cf footnote n°19.Google Scholar
(23) P. Craig, ibid., p.590.Google Scholar
(24) Cf footnote n° 15, para. 70.Google Scholar
(25) P. Craig, ibid., p.591.Google Scholar
(26) P. Craig, ibid., p.590.Google Scholar
(27) Cf for instance the Court's ruling in Ruiz Mateos v. Spain, 16 EHRR 505, where the ECtHR affirmed the pre-eminenceof rights over legislation; the decision is available at: http://hudoc.echr.coe.int/Hudoc1doc/HEJUD/sift/423.txt (last visited 4 December 2001).Google Scholar
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