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Incorporation Of The Human Rights Act Notes

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Incorporation of the Human Rights Act _______________________________________________________

Growing Dissatisfaction pre-HRA UK was one of few Council of Europe members that had not incorporated ECHR into its domestic legal system, meaning it was not possible to rely on ECHR rights before UK domestic courts This has a political context: the Thatcher government (1979-90) emphasised 'law and order' measures & the elective dictatorship of governments & was therefore adverse to codified civil liberties Dissatisfaction born from executive dominance and the limited access to JR under traditional grounds, as two 1995 cases illustrate: Smith v Grady Prohibition of homosexual men serving in the army Some of the soldiers made an application for judicial review:
? They used the traditional JR ground of unreasonableness o Did not accede to the high threshold of Wednesbury unreasonableness
? They argued that it was contrary to EU law (equal treatment for men &
women) o Judged irrelevant
? They tried to rely on Art 8 ECHR o They judged that this provision hadn't been translated into domestic law, though this was with regret Held: (at first instance) found in favour of Minister of Defence, a decision which was upheld on appeal Held: (ECtHR) the case won, forcing UK to change their policy with regards to sexual orientation in the military Birdie v Sec of State for Home Affairs
? Per Lord Denning; it's not just about going to the Convention for interpretation, but the courts will assume that Parliament could not legislate counter to the Convention and may even invalidate acts that run counter. (however he later went against this)

Translating ECHR A number of private bills in the '70s sought to entrench an incorporation bill. However supranationalism is barred from the UK constitution. Historical run-up:
? 1992: Labour loses 4h general elections in a row

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