Balancing National v Convention Priorities A03 Flashcards
(13 cards)
What are the 4 WDPs for an essay on balancing national and conventional priorities
Living instrument principle
Margin of Appreciation
ECtHR not aligning with UK law
s.2 HRA 1998
+P1: Living instrument principle from Tyrer v UK
allows the law to evolve with modern societal issues rather than remain stagnant and only reflecting the time in which it was written = ensures that each case is considered individually which leads to fairness
+DP1: The ECtHR holding that the denial of transgender identity recognition in the Goodwin v UK violated Article 8 compelled the UK to..
modernise the law to accommodate for transgender individuals with the enactment of the Gender Recognition Act two years later = ECtHR influencing the uk to evolve with modern societal issues
-WDP1: Despite leading to positive changes in the law such as the Marriage (Same Sex Couples) Act….
ECtHR’s lack of strict adherence to precedent allows for legal flexibility, yet this can undermine legal certainty and clarity of the law within member states = problematic
+P2: The margin of appreciation doctrine is intended to strike a balance between national sovereignty and international human rights as seen in Handyside v UK
where the ECtHR upheld the UK’s decision to ban an obscene book, adhering to the UK’s moral stands which reinforces domestic discretion.
+DP2: However, in A and Ors v UK, the ECtHR ruled that the UK’s indefinite detention of foreign terror suspects under the Anti-Terrorism, Crime and Security Act 2001 breached..
Article 5 demonstrating the fundamental role of the ECtHR in ensuring that member states are not giving too much discretion and cannot infringe on integral limited rights
+WDP2: similarly, in Gillian and Quinton v UK, the ECtHR found that the UK’s broad stop-and-search powers under the Terrorism Act violated….
Article 8, which again reinforces the ECtHR’s crucial role in ensuring that police to do not use their powers arbitrarily
+P3: These cases demonstrate that while the ECtHR serves as a check on domestic legal systems which ensures no corruption of use of arbitrary power by member states. However….
its judgments can be perceived as undermining national sovereignty and democratic decision-making
-DP3: In Thompson and Venables v UK, the ECtHR ruled that….
rying two juveniles as adults in an adult courtfor murder violated Article 6, directly challenging the UK’s legal approach to serious juvenile offences. However, this didn’t stop the UK from maintaining the law that if a juvenile commits murder they can be tried in an adult court, bringing into question the level of agency the ECtHR has
+WDP3: Similarly, in Hirst v UK, the ECtHR’s ruling against the UK’s blanket prisoner voting ban sparked parliamentary resistance….
with successive governments refusing to implement full compliance with the reform of some prisoners being able to vote which shows how the UK still has discretion which allows for domestic independence
-P4: s.2 of the Human Rights Act 1998 establishes that UK courts must “take into account” ECtHR rulings but are not strictly bound by them
This provision preserves judicial independence, yet the UK courts often align with the ECtHR which leads to concerns over excessive European influence
+DP4: The debate over this issue contributed to proposals for a UK Bill of Rights, which aimed to strengthen domestic control over human rights interpretation.
Arguably this replacing the HRA would restore sovereignty and allow for a more UK-centric approach - However, it can be criticised that it could weaken human rights protections and distance the UK from international legal standards
-WDP4: The tension between national autonomy and international obligations remains unresolved, with the UK’s commitment to the ECHR in question
While the current framework attempts to balance both legal systems, ongoing political discourse suggests that the UK’s relationship with the ECtHR remains fragile, with future reforms potentially redefining this balance
