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A rigorous analysis of the relationship between proportionality and deference under the Human Rights Act.
Book Synopsis Proportionality and Deference Under the UK Human Rights Act by : Alan D. P. Brady
Download or read book Proportionality and Deference Under the UK Human Rights Act written by Alan D. P. Brady and published by Cambridge University Press. This book was released on 2012-05-03 with total page 311 pages. Available in PDF, EPUB and Kindle. Book excerpt: A rigorous analysis of the relationship between proportionality and deference under the Human Rights Act.
Proportionality is used by the UK Courts when reviewing the Convention-compatibility of the activities of the other branches of government. There are two related problems with the current analysis of proportionality. First, there has been a heavy emphasis on the division of constitutional space between the judiciary and the other branches of government. This focus on spatial conceptions of institutional responsibility has distracted attention from the structure of the relationship between proportionality and deference. The second problem is that there has been insufficient attention paid to the manner in which the test is affected by the distinctions between the different governmental institutions which can be judicially reviewed under the HRA. The individual stages of proportionality are based on certain premises about the institution being reviewed. This needs to be explicit if a sophisticated understanding of proportionality is to be developed. I plan to overcome these two problems by setting out a structural, institutionally sensitive model of proportionality and deference. The model is structural in that it takes account of the operation of deference within the process of proportionality. The model is institutionally sensitive in that it takes account of the differences between the institutions which the courts can review under the HRA. The model is based on the work of Alexy, but adapted for the UK context and developed to make it institutionally sensitive. I trace the operation of this structural model through three institution-specific case studies in order to establish its relevance in the UK. The case studies concern administrative decision-making in immigration cases, rule-making in criminal justice cases and judgments concerning both administrative decisions and legislation in housing cases. This diverse range of subject matter provides the basis for proving the applicability of the structural, institutionally sensitive model, which overcomes the two related problems with the existing analysis.
Book Synopsis A Structural, Institutionally Sensitive Model of Proportionality and Deference Under the Human Rights Act 1998 by : Alan David Patrick Brady
Download or read book A Structural, Institutionally Sensitive Model of Proportionality and Deference Under the Human Rights Act 1998 written by Alan David Patrick Brady and published by . This book was released on 2009 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt: Proportionality is used by the UK Courts when reviewing the Convention-compatibility of the activities of the other branches of government. There are two related problems with the current analysis of proportionality. First, there has been a heavy emphasis on the division of constitutional space between the judiciary and the other branches of government. This focus on spatial conceptions of institutional responsibility has distracted attention from the structure of the relationship between proportionality and deference. The second problem is that there has been insufficient attention paid to the manner in which the test is affected by the distinctions between the different governmental institutions which can be judicially reviewed under the HRA. The individual stages of proportionality are based on certain premises about the institution being reviewed. This needs to be explicit if a sophisticated understanding of proportionality is to be developed. I plan to overcome these two problems by setting out a structural, institutionally sensitive model of proportionality and deference. The model is structural in that it takes account of the operation of deference within the process of proportionality. The model is institutionally sensitive in that it takes account of the differences between the institutions which the courts can review under the HRA. The model is based on the work of Alexy, but adapted for the UK context and developed to make it institutionally sensitive. I trace the operation of this structural model through three institution-specific case studies in order to establish its relevance in the UK. The case studies concern administrative decision-making in immigration cases, rule-making in criminal justice cases and judgments concerning both administrative decisions and legislation in housing cases. This diverse range of subject matter provides the basis for proving the applicability of the structural, institutionally sensitive model, which overcomes the two related problems with the existing analysis.
The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
Book Synopsis The Margin of Appreciation in International Human Rights Law by : Andrew Legg
Download or read book The Margin of Appreciation in International Human Rights Law written by Andrew Legg and published by OUP Oxford. This book was released on 2012-07-05 with total page 272 pages. Available in PDF, EPUB and Kindle. Book excerpt: The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
The courts use the proportionality test to assess the Convention-compatibility of the full range of government action, from administrative decisions to primary legislation. In applying the test, the courts are often conscious of the need to pay some deference to the expertise and competence of other branches of government. This rigorous analysis of the relationship between proportionality and deference under the Human Rights Act sets out a model of proportionality, drawn from existing case law, which integrates deference within the multi-stage proportionality test. The model is 'institutionally sensitive' and can be applied to proportionality-based judicial review of all forms of government activity. The model is shown in operation in three fields that span the full range of government activity: immigration (administrative action), criminal justice (legislation) and housing (multi-level decisions).
Book Synopsis Proportionality and Deference under the UK Human Rights Act by : Alan D. P. Brady
Download or read book Proportionality and Deference under the UK Human Rights Act written by Alan D. P. Brady and published by Cambridge University Press. This book was released on 2012-05-03 with total page 311 pages. Available in PDF, EPUB and Kindle. Book excerpt: The courts use the proportionality test to assess the Convention-compatibility of the full range of government action, from administrative decisions to primary legislation. In applying the test, the courts are often conscious of the need to pay some deference to the expertise and competence of other branches of government. This rigorous analysis of the relationship between proportionality and deference under the Human Rights Act sets out a model of proportionality, drawn from existing case law, which integrates deference within the multi-stage proportionality test. The model is 'institutionally sensitive' and can be applied to proportionality-based judicial review of all forms of government activity. The model is shown in operation in three fields that span the full range of government activity: immigration (administrative action), criminal justice (legislation) and housing (multi-level decisions).
To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.
Book Synopsis Proportionality and the Rule of Law by : Grant Huscroft
Download or read book Proportionality and the Rule of Law written by Grant Huscroft and published by Cambridge University Press. This book was released on 2014-04-21 with total page 433 pages. Available in PDF, EPUB and Kindle. Book excerpt: To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.
Under the Human Rights Act, British courts are for the first time empowered to review primary legislation for compliance with a codified set of fundamental rights. In this book, Aileen Kavanagh argues that the HRA gives judges strong powers of constitutional review, similar to those exercised by the courts under an entrenched Bill of Rights. The aim of the book is to subject the leading case-law under the HRA to critical scrutiny, whilst remaining sensitive to the deeper constitutional, political and theoretical questions which underpin it. Such questions include the idea of judicial deference, the constitutional status of the HRA, the principle of parliamentary sovereignty and the constitutional division of labour between Parliament and the courts. The book closes with a sustained defence of the legitimacy of constitutional review in a democracy, thus providing a powerful rejoinder to those who are sceptical about judicial power under the HRA.
Book Synopsis Constitutional Review under the UK Human Rights Act by : Aileen Kavanagh
Download or read book Constitutional Review under the UK Human Rights Act written by Aileen Kavanagh and published by Cambridge University Press. This book was released on 2009-05-07 with total page 470 pages. Available in PDF, EPUB and Kindle. Book excerpt: Under the Human Rights Act, British courts are for the first time empowered to review primary legislation for compliance with a codified set of fundamental rights. In this book, Aileen Kavanagh argues that the HRA gives judges strong powers of constitutional review, similar to those exercised by the courts under an entrenched Bill of Rights. The aim of the book is to subject the leading case-law under the HRA to critical scrutiny, whilst remaining sensitive to the deeper constitutional, political and theoretical questions which underpin it. Such questions include the idea of judicial deference, the constitutional status of the HRA, the principle of parliamentary sovereignty and the constitutional division of labour between Parliament and the courts. The book closes with a sustained defence of the legitimacy of constitutional review in a democracy, thus providing a powerful rejoinder to those who are sceptical about judicial power under the HRA.
In this 2010 book, Roger Masterman examines the dividing lines between the powers of the judicial branch of government and those of the executive and legislative branches in the light of two of the most significant constitutional reforms of recent years: the Human Rights Act (1998) and Constitutional Reform Act (2005). Both statutes have implications for the separation of powers within the United Kingdom constitution. The Human Rights Act brings the judges into much closer proximity with the decisions of political actors than previously permitted by the Wednesbury standard of review and the doctrine of parliamentary sovereignty, while the Constitutional Reform Act marks the emergence of an institutionally independent judicial branch. Taken together, the two legislative schemes form the backbone of a more comprehensive system of constitutional checks and balances policed by a judicial branch underpinned by the legitimacy of institutional independence.
Book Synopsis The Separation of Powers in the Contemporary Constitution by : Roger Masterman
Download or read book The Separation of Powers in the Contemporary Constitution written by Roger Masterman and published by Cambridge University Press. This book was released on 2010-12-02 with total page 297 pages. Available in PDF, EPUB and Kindle. Book excerpt: In this 2010 book, Roger Masterman examines the dividing lines between the powers of the judicial branch of government and those of the executive and legislative branches in the light of two of the most significant constitutional reforms of recent years: the Human Rights Act (1998) and Constitutional Reform Act (2005). Both statutes have implications for the separation of powers within the United Kingdom constitution. The Human Rights Act brings the judges into much closer proximity with the decisions of political actors than previously permitted by the Wednesbury standard of review and the doctrine of parliamentary sovereignty, while the Constitutional Reform Act marks the emergence of an institutionally independent judicial branch. Taken together, the two legislative schemes form the backbone of a more comprehensive system of constitutional checks and balances policed by a judicial branch underpinned by the legitimacy of institutional independence.
In this completely revised and updated second edition of Human Rights Law, the judicial interpretation and application of the United Kingdom's Human Rights Act 1998 is comprehensively examined and analysed. Part I concerns key procedural issues including: the background to the Act; the relationship between UK courts and the European Court of Human Rights; the definition of victim and public authority; determining incompatibility including deference and proportionality; the impact of the Act on primary legislation; and damages and other remedies for the violation of Convention rights. In Part II of the book, the Convention rights as interpreted and applied by United Kingdom courts, are discussed in detail. All important Convention rights are included with a new chapter on freedom of thought, conscience and religion. Other Convention rights considered in the national context include: the right to life; freedom from torture; the right to liberty; fair trial; the right to private life, family life and home; the right to peaceful enjoyment of possessions; and the right to freedom from discrimination in the enjoyment of Convention rights. The second edition of Human Rights Law will be invaluable for those teaching, studying and practising in the areas of United Kingdom human rights law, constitutional law and administrative law.
Book Synopsis Human Rights Law by : Merris Amos
Download or read book Human Rights Law written by Merris Amos and published by Bloomsbury Publishing. This book was released on 2014-12-01 with total page 989 pages. Available in PDF, EPUB and Kindle. Book excerpt: In this completely revised and updated second edition of Human Rights Law, the judicial interpretation and application of the United Kingdom's Human Rights Act 1998 is comprehensively examined and analysed. Part I concerns key procedural issues including: the background to the Act; the relationship between UK courts and the European Court of Human Rights; the definition of victim and public authority; determining incompatibility including deference and proportionality; the impact of the Act on primary legislation; and damages and other remedies for the violation of Convention rights. In Part II of the book, the Convention rights as interpreted and applied by United Kingdom courts, are discussed in detail. All important Convention rights are included with a new chapter on freedom of thought, conscience and religion. Other Convention rights considered in the national context include: the right to life; freedom from torture; the right to liberty; fair trial; the right to private life, family life and home; the right to peaceful enjoyment of possessions; and the right to freedom from discrimination in the enjoyment of Convention rights. The second edition of Human Rights Law will be invaluable for those teaching, studying and practising in the areas of United Kingdom human rights law, constitutional law and administrative law.
This thesis presents a phenomenology of deference in proportionality. There is a relatively broad consensus that proportionality balancing as a method for resolving conflicts of fundamental rights in cases of judicial review needs to be coupled with some kind of doctrine of deference. Although there is a significant literature on many aspects of this question, thus far one of the more basic ones, namely what deference looks like in cases of proportionality, has received less attention. In order to analyze this question, this thesis analyses the case law of four courts – the German Federal Constitutional Court, the Supreme Court of Canada, the Constitutional Court of South Africa and the European Court of Human Rights – with regard to three sets of rights – freedom of expression, the right to privacy and freedom of religion. From this analysis a number of points emerge: In the first place it shows that deference in balancing takes place through adapting the normative and empirical arguments required by that exercise to the institutional limitations attendant to courts. Further, we find a variety of similarities and differences in how deference operates between different rights and different courts. Here we can observe that proportionality is often constructed in a similar fashion among the same right between the different courts. This means that, the way in which courts balance is, often, very similar in Canada, South Africa, Germany and the ECtHR. We can further observe, that there are differences in the practice of balancing between the different rights. The normative and empirical questions that occupy courts with regard to different rights pose different institutional challenges and require courts to balance differently. Behind these two general observations there are more subtle and nuanced differences and similarities about each of the courts and rights that all contribute to a richer understanding of what deference looks like in proportionality cases.
Book Synopsis Proportionality and Deference by : Juha Tuovinen
Download or read book Proportionality and Deference written by Juha Tuovinen and published by . This book was released on 2017 with total page 235 pages. Available in PDF, EPUB and Kindle. Book excerpt: This thesis presents a phenomenology of deference in proportionality. There is a relatively broad consensus that proportionality balancing as a method for resolving conflicts of fundamental rights in cases of judicial review needs to be coupled with some kind of doctrine of deference. Although there is a significant literature on many aspects of this question, thus far one of the more basic ones, namely what deference looks like in cases of proportionality, has received less attention. In order to analyze this question, this thesis analyses the case law of four courts – the German Federal Constitutional Court, the Supreme Court of Canada, the Constitutional Court of South Africa and the European Court of Human Rights – with regard to three sets of rights – freedom of expression, the right to privacy and freedom of religion. From this analysis a number of points emerge: In the first place it shows that deference in balancing takes place through adapting the normative and empirical arguments required by that exercise to the institutional limitations attendant to courts. Further, we find a variety of similarities and differences in how deference operates between different rights and different courts. Here we can observe that proportionality is often constructed in a similar fashion among the same right between the different courts. This means that, the way in which courts balance is, often, very similar in Canada, South Africa, Germany and the ECtHR. We can further observe, that there are differences in the practice of balancing between the different rights. The normative and empirical questions that occupy courts with regard to different rights pose different institutional challenges and require courts to balance differently. Behind these two general observations there are more subtle and nuanced differences and similarities about each of the courts and rights that all contribute to a richer understanding of what deference looks like in proportionality cases.
The Asian Yearbook of Human Rights and Humanitarian Law aims to publish peer-reviewed scholarly articles and reviews as well as significant developments in human rights and humanitarian law. It examines international human rights and humanitarian law with a global reach, though its particular focus is on the Asian region. The focused theme of Volume 4 is India and Human Rights.
Book Synopsis The Asian Yearbook of Human Rights and Humanitarian Law by :
Download or read book The Asian Yearbook of Human Rights and Humanitarian Law written by and published by BRILL. This book was released on 2020-07-27 with total page 538 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Asian Yearbook of Human Rights and Humanitarian Law aims to publish peer-reviewed scholarly articles and reviews as well as significant developments in human rights and humanitarian law. It examines international human rights and humanitarian law with a global reach, though its particular focus is on the Asian region. The focused theme of Volume 4 is India and Human Rights.
