Flashcards in Human Rights Deck (13):
Responses to declaration of incompatibility
- Minister use remedial order to arbitrarily amend (MASSive Henry VIII Clause); rarely used though but as 2ndary lit. open to court review
Bamforth on HRA effects on parliamentary sovereignty
Lord Simon:S.4's political obligation overrides implied repeal something essential to P.S.
Bamforth argues that s.4 orde does not saying incompatible with HRA, just that if outside scope of S.3 then is beyond scope of HRA and so there's no Q. of implied repeal
Not Beyond Strasbourg
Animal Defenders International
The judgements of ECtHR are not binding on domestic courts. [Need only 'take into account'] Although, Parl. can leg. for greater protection it did not intend to give courts power to leap ahead of Strasbourg
It is open to the domestic court to decline to follow the Strasbourg decision
Al-Khawaja and Tahery v UK
The Grand Chamber took on board the views of the UK Court, and modified its case law in response
It was not for the court to expand the scope of rights under the Convention further than the jurisprudence of the ECtHR justified.
L. Kerr dissented saying is duty of dom. court to resolve whether a claim to a convention right is viable or not, with s.2 of HRA imposing such duty
L. Bingham: Courts should follow any clear and constant jurisprudence from Strasbourg.
National courts must keep pace with Strasbourg no more, no less
Lord Kerr [Dissent] in Ambrose
Don't have to follow Strasbourg
Animal Defenders: ECtHR judgements are not binding on domestic courts
Horncastle: Open to dom. courts not to follow Strasbourg where there's no grand chamber decision
The courts can go beyond Strasbourg through an application of the common law, but not through an extension on the definition of Convention rights.
Strasbourg should be presumptively followed according to case law unless
Rabone: Area is governed by common law and court is permitted to exercise its discretion to depart from Strasbourg line
Animal Defenders International: The court attaches 'great weight' to a legislative decision which determines the balance to be struck between rights and interests in a way that might be interpreted as inconsistent with the Strasbourg authority
Horncastle: Wheere the court wants to enagae in dialogue with the ECtHR on basis applicable case law may be wrong and/or badly informed