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Human Rights Constitutional Principles Notes

BCL Law Notes > Comparative Public Law Notes

This is an extract of our Human Rights Constitutional Principles document, which we sell as part of our Comparative Public Law Notes collection written by the top tier of Oxford students.

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Human Rights & Constitutional Theory EU & UK - both different from paradigm model No constitutional bill of rights enabling JR of legislation
? UK - Commonwealth model of human rights protections o Sources
? HRA - incorporates ECHR rights
? Common law o Courts do not determine scope of human rights o Pre-legislative scrutiny for human rights o No "British" Bill of Rights - HRA merely implements ECHR o HR protection by common law
? EU - o Sources
? EU Charter of Fundamental Rights & Freedoms
? General principles of law - developed by Courts
? (Appear to reflect each other) o BUT not part of EU Treaty - lost vote o TFEU makes clear that Charter has same status as treaties o Charter reflects ECHR (although adds some of its own) o Not a signatory to ECHR but has drafted agreement showing basis of proposed accession o Not a State - adds dimension - rights as against EU Institutions / EU States
? Interpretation of rights may differ
? France o Moved from pre-legislative to post-legislative scrutiny UK HRA 1998
? Interpretive principle: s 3 o Fairly liberally applied by reading words down/in - more liberal than Australia o Limit - no contradiction of 'fundamental feature of legislation'; no contradiction of clear words o Still some deference where parliament better equipped - eg transgender marriages should be dealt with by Parliament
? Declarations of incompatibility: s 4 o But discretionary: see Nicklinson v Ministry of Justice [2014] UKSC 48 (no need to make declaration
- assisted suicide & right to life)

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