This document delves into the essential connection between human rights and the constitution within the domain of Public Law. It provides a comprehensive exploration of the constitutional foundations and protections of human rights. Topics covered include the incorporation of human rights into cons...
Balance between need for continuity and stability contrasted with need for meaningful
parliamentary scrutiny
2 types of parliamentary scrutiny of delegated legislation
Primacy of EU law remain for the law that will be kept
Brief Note 6: Human Rights and constitution
● Seeks to challenge parliamentary supremacy
● Conservatives seek to abolish HRA
Human Rights and Rule of law
Rule of law: Bound by the law in the exercise of their responsibilities and function
The rule of law in written constitution
● Constitutional law should be a source, more importantly authoritative above all
● THeres a conflict of interest: ordinary law passed by legislature can contradict the
constitution
○ If there is full authority, this may give effect to interpretation of ‘ordinary law’.
■ This would mean that ordinary law would be invalid
Rule of law in unwritten constitution
● Parliament = highest authority, this led to the development of the doctrine of
parliamentary supremacy
● Impossible for some law to have higher authority than others
● Constitutional value attached to law is political not legal
Issues of rights and civil liberties
● Liberal constitution: guarantee entrenched in law that are owed to individuals
● Written constitution: law passed by legislation must conform to basic standards of
human life. In written constitution, the rights and law is less clear (for obvious
reasons)
● Jurisdiction viewed courts as civil liberties
○ Legislation that is restricted of civil liberties, courts would refer to legislation
due to parliamentary supremacy
■ EX: Foone V Blunt
● Lord Mansfield refused to read a statutory prohibition against
catholics taking land by inheritance to include payment of debt
by devise to catholic creditors
European Convention on Human Rights
● Developed by the council of Europe
Council of Europe + ECHR
, ● Council of Europe
1. Council of ministers: foreign ministers of each state
2. Parliamentary assembly: representative of various national parliaments
● Produces treaties (known as conventions)
○ Signed by member states
ECHR
● Contains civil and political rights, protocols also have social and economic rights
Rights protected under ECHR
● 11 protocols, not ratified in all states, some are subject to reservations
○ 1,4,6,7 have further rights and freedoms
● NOTE:
○ Protocol 1: right to peaceful enjoyment of possessions, education, free
election
○ Protocol 6: prohibition of the death penalty
Rule of law elements ECHR
● Limited in accordance with the law
● Prescribed by law
1. Accessibility: citizen must indicate circumstances of legal rules applicable to a given
case
2. Foreseeability: A norm cannot be law unless there’s sufficient forseeable
consequence of an action
● Silver v UK
○ Had to do with administrative discretion
○ Convention must require standard that are published not secret so
administrative discretion isn’t abused
Machinery of Enforcement
3 important features
1. Right of individual application
2. Compulsory jurisdiction of the court of HR
3. Application can only be made to the court if domestic remedies are exhausted
● Anyone can make a claim to be a victim of violation by one if the high contracting
parties set in the convention
○ High parties must undertake not to hinder in any effective exercise
Incorporating ECHR into domestic law
● Violated rights must have an effective remedy before a national authority
○ There will only be application to national authority if all other remedies are
exhausted
● Individuals should be able to obtain rights through the national system, going to the
ECHR court is the last resort
● ECHR is a standard for domestic law; it is not required to incorporate it
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