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Human Rights Constitutional Principles Notes

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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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