Horizontal Effect and the Constitutional Constraint

This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the Human Rights Act imposes on the courts to give horizontal effect to European Convention rights through the common law. The model requires courts to develop the common law compatibly with the Convention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA; and that by virtue of section 2 of the HRA, Convention rights function as principles rather than hard‐edged rights in this context. This further undermines the idea that the courts must strictly apply Convention rights and cannot allow them to be overridden by non‐Convention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.     

论法院执行权力的分解

传统执行体制下执行权的运行模式存在重大缺陷，导致近年来法院执行系统的违法违纪现象层出不穷。原因之一，在于传统执行体制下执行权力过于集中，其配置和运行不科学。在现有体制框架下，分解法院执行权并致其相互制衡是可供优先选择的一条路径。法院的执行权可一分为四：执行调查权、执行实施权、执行裁决权、执行监督权。     

The establishment of the Judicial Appointments Commission in Malaysia to improve the constitutional method of appointing the judges of the superior courts: a critical study

The Judicial Appointments Commission was established in Malaysia in 2009 to ensure unbiased selection of judicial candidates for the consideration of the Prime Minister, who has the final say regarding the appointment of judges to the superior courts. But the provisions concerning Prime Minister’s power to appoint the majority of the members of the Commission and his unfettered power of removing four of the five appointed members without assigning any reason, have calculatedly been devised for ensuring the selection of judicial candidates having right political patronage in accordance with the covert wishes of the Prime Minister. Furthermore, the Prime Minister’s power of rejecting the Commission’s recommendations of multiple candidates renders the undertaking of a lengthy process of selection unproductive and useless. Thus the Judicial Appointments Commission has become a superfluous body with an ineffective modus operandi to attain the stipulated objectives of improving and complementing the constitutional method of appointing judges to the superior courts. Since the Federal Constitution of Malaysia has not empowered the Parliament to enact a law providing for the establishment of a Judicial Appointments Commission, it also appears that the Judicial Appointments Commission Act 2009 is an invalid piece of legislation.     

The importance of an industrial court in the interpretation of labour statutes

The paper highlights the National Industrial Court of Nigeria’s (NICN) importance over the general courts in the interpretation of labour statutes. It compares the judicial interpretation of some provisions of labour statutes by the general courts in Nigeria (represented herein by the Supreme Court of Nigeria’s interpretation of same provisions) with the interpretation of the NICN of same provisions. It argues that the NICN’s interpretation is more favourable to labour rights than that of the general courts. It makes use of the rules of judicial interpretation and Ronald Dworkin’s discussion on interpretation as a framework and adds to it by comparing the judicial interpretation of some provisions of labour statutes by the general courts with that of the NICN. It noted that the NICN’s interpretation was more purposive and promoted labour rights than that of the general courts. The Supreme Court cases used to represent the position of the general courts were those decided before exclusive jurisdiction on employment and labour matters was conferred on the NICN in 2010. Presently, even though the general courts no more have jurisdiction to hear and interpret employment and labour matters the NICN’s interpretations continues to promote labour rights.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

UK Abortion Law: Reform Proposals,Private Members’ Bills,Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines reforms proposed in both Houses of Parliament and contextualises them within a public law analysis, showing both that the complex parliamentary processes relating to Private Members’ Bills have frustrated reform attempts, and that these attempts have been contradictory in their aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland, Scotland and Wales to show the extent to which devolutionary settlements have influenced both reforms and executive involvement. Finally, it examines the potential impact of the courts on abortion law following Re Northern Ireland Human Rights Commission's Application for Judicial Review, showing that the Supreme Court's reframing of the debate in human rights terms is likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.     

Strasbourg,the House of Lords or Elected Politicians: Who decides about rights after Re P?

In Re P , the House of Lords decided that art 14 of the Adoption (Northern Ireland) Order 1987 which prohibited unmarried couples from being eligible to adopt, violated articles 8 and 14 of the European Convention on Human Rights. Apart from its significance for adoption law and anti-discrimination law, Re P is also important in understanding the constitutional role of the courts under the Human Rights Act 1998 (HRA). Re P recognizes that if Strasbourg has determined that an issue falls within states' margin of appreciation, this does not prevent municipal courts from enforcing those rights. This comment will discuss the meaning and scope of the courts' obligation under section 2 of the HRA, the status of the rights protected by the HRA and the appropriate role of the courts in a rights dispute which is subject to moral, social, religious or political controversy.     

Parliamentary Sovereignty,Judges and the Asylum and Immigration (Treatment of Claimants etc.) Bill

It is an aspect of the traditional view of Parliamentary sovereignty that the courts will not rule as invalid an Act of Parliament, or any part of an Act, which has been passed in the correct fashion. This view has been questioned by some, including some senior judges. They argue that certain limits on the legislative competence of Parliament are necessary to protect those fundamental values that are essential in a democracy. Many who argue for limits to the legislative competence of Parliament also suggest that the relationship between the different arms of the government is one based on mutual respect, restraint and co-operation. If Parliament legislates in such a way as to breach this mutuality, and in a way that will cause conflict between Parliament and the courts, then, it is suggested, the courts may reply in kind by holding that legislation, or part of it, invalid. It is argued here that in the recent quarrel between the Government and the courts over the ouster clause contained in the Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003, the Government was encouraged to undertake to amend the legislation as a result, at least in part, of intimations by senior judges that the clause could be overruled by the courts. This demonstrates, it is argued, that both sides believed this threat to have some force.Lecturer in Law, Department of Law and Criminology, Edge Hill College of Higher Education. Email: mcgarryj@edgehill.ac.uk. I am grateful to Kas Wachala and Maggi Eastwood for their comments on earlier drafts of this article. Any errors remain my own.     

Possession of cannabis legal for now

In two recent rulings the Ontario Court of Justice threw out charges of possession of cannabis contrary to section 4(I) of the Controlled Drugs and Substances Act (CDSA). The courts found that the accused in each case had been charged with an offence not known to law. Parliament never re-enacted the CDSA section prohibiting simple possession of cannabis (marijuana) after it was struck down by the Ontario Court of Appeal in the Parker case.     

Reconceptualising the Custody Threshold in England and Wales

The custody threshold provision in England and Wales was intended to operate as a limit on the use of custodial sentences, preserving what is the system’s most severe sanction for the most serious offences. However over the past few decades it has become apparent that the custody threshold is failing. Academics have discussed the reasons for this failure, which has seen the prison population double in space of a quarter of a century. This piece explores the custody threshold in the context of the use of custody in other Western European jurisdictions. It examines the courts’ response to the provision and various judicial attempts to amplify Parliament’s language. The authors then consider the academic critiques of the custody threshold provision, analysing the extent to which said criticism can be seen as a solution to the problem, before offering a new critique of their own. Finally, in a move towards more a more principled approach to the custody threshold, the piece offers a solution which would, it is argued, make the provision more effective and more theoretically sound.     

Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that ‘final and binding’ SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is ‘patently unreasonable’ while ‘correctness’, according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of ‘patently unreasonable’ rather than ‘correctness’ is not consistent, furthermore, with the child's ‘best interests’ or in meeting international obligations to disabled children under the Convention on the Rights of the Child.     

Judges as Readers,Authors and Dialecticians: Legal Interpretation in the EC<Emphasis Type="Italic">t</Emphasis>HR Cases on Mental Disability

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities.     

Activist Lawyers in Post‐Tiananmen China

What do the activities of twenty‐first‐century Chinese lawyers tell us about the origins and prospects of legal activism under authoritarianism? This essay fits China's Human Rights Lawyers (2014) into an emerging literature on authoritarian legality. The book offers an insider view of a circle of lawyers interested in using China's newly accessible courts as a platform for social activism. It highlights the difficulty of rights lawyers’ day‐to‐day work against the backdrop of the Chinese state's long‐term experiment in how to harness the power of law without ceding political control.     

The Hermeneutics of Jurisdiction in a Public Health Emergency in Canada

This paper investigates the state of the law in Canada in regards to a public health emergency, and in particular the jurisdictional logic that might come into effect were a public health emergency to occur. Although there has yet to be a national public health emergency in Canada, threats of such crises are likely to arise in the future. It is therefore recognised as necessary to address Canada’s legal preparedness for a public health emergency and evaluate proposed reforms to the legal structure that could facilitate response. This paper contributes to this goal by identifying multiple jurisdictional factors that could inform legal interpretations in a public health emergency. It considers how the legal system and the courts are dealing with public health as a national security issue (political and collective matter) while taking into account s. 7 of the Canadian Charter (individual rights). It also looks at the power of the government defined in the Emergencies Act [1985, c. 22] and a proposed legal reform that would make it easier for the government to act unilaterally in a public health emergency. The paper draws on the legal theory of Robert Cover to analyse the hermeneutics of jurisdiction that characterise legal interpretations of public health in Canada, as well as the relationship between jurisdiction and legal violence that these hermeneutics imply. It then develops a case study of the use of medical triage in a public health emergency to explore the possibility of holding the state liable under private law for harm caused to individuals by public health decisions. The paper concludes by suggesting that the state’s public health power can be conceptualised as a form of legal violence and that the courts in Canada should adopt a jurisgenerative approach to legal interpretation in the area of public health.     

The judicial review of legislation in the United Kingdom: a public choice analysis

The Human Rights Act 1998 unprecedentedly enabled the senior courts in the United Kingdom to review parliamentary enactments for compatibility with the European Convention on Human Rights. This article seeks to analyze within the framework of public choice economics two phenomena arising from this development that are counterintuitive: What made Parliament voluntarily invite the judiciary to monitor its acts? Why has Parliament consistently complied with rulings of the Judicial House of Lords that challenged primary legislation over the last 10 years? It argues that the Act was designed in a way that fulfilled the electoral commitments of the enacting majority by supplying promised policies to its constituencies, while minimizing agency costs and information problems in favor of Parliament’s corporate interests. Significantly, the Act left intact the veto powers of Parliament and the European Court of Human Rights in Strasbourg. As such, it disincentivized the Judicial House of Lords to risk costly overturns of its rulings by Parliament for straying too far from the range of the ideal policy positions spanned by Parliament and Strasbourg. Drawing from the empirical evidence of the past decade, it will be shown that in nearly all cases the Law Lords have either upheld the compatibility of challenged statutes, reaffirmed parliamentary preferences, or followed the jurisprudence of the Strasbourg Court.     

Mixed Messages and Mixed Results: The EU's Promotion of Human Rights in Turkey

In spite of the fact that human rights appear, based on proclamations made by EU representatives, to be of critical importance in the EU's negotiations with Turkey, human rights reform has not been a primary target of pre‐accession aid to Turkey. Why is human rights reform not a central priority in the EU's allocation of aid in this case? First, Commission representatives and Members of the European Parliament disagree over the relative importance of the status of human rights in the pre‐accession reform process. Second, the format of the aid allocation process magnifies inconsistencies in the EU's approach to human rights reform.     

The reluctant activist: the Italian parliament and the scrutiny of EU affairs between institutional opportunities and political legacies

ABSTRACT

The article analyses the participation of the Italian Parliament in the scrutiny of EU affairs after the entry into force of the Treaty of Lisbon and its implementation through the national Law 234/2012. The empirical analysis highlights that notwithstanding the presence of favourable institutional and political conditions, the involvement of the Italian Parliament in EU affairs moderately increased. The Treaty of Lisbon and Italian legislation improved Parliament’s rights to participate in the ascending phase but without altering significantly the balance of powers between the European Commission and NPs, and between the Italian Parliament and the Government. Moreover, MPs perceive the EWS and the PD as not impactful on decision-making at the EU and the national level.     

Equal opportunities: protecting the rights of AIDS-linked children in the classroom

Within the past few years a number of children have been excluded from attending public school because they are linked to AIDS. School boards have justified their decisions to exclude these children on the basis that protecting the public's health, safety and welfare outweighs the rights of these children. Most courts have rejected this justification and have held that either under the equal protection clause of the Constitution or section 504 of the Rehabilitation Act of 1973, children cannot be excluded from the classroom solely because they are linked to AIDS. This Note discusses both section 504 and equal protection analyses used by the courts. When analyzing a school board's decision to exclude an AIDS-linked child from the classroom, most courts have used a higher level of scrutiny and individualized inquiry in order to ensure that the rights of both the AIDS-linked child and his or her uninfected classmates and teachers are protected. After applying these analyses to a hypothetical case, this Note concludes that both section 504 and the equal protection clause ensure that AIDS-linked children will not be barred from the classroom unless the presence of additional factors increases the risk of these children transmitting the virus to others.     

Employment law

This article attempts to trace the history of the award of ‘vindicatory’ damages under Commonwealth Caribbean constitutions, to determine, first, why the courts were hesitant to grant damages for breach of constitutional rights; second, the circumstances and the principles that informed the decision of the courts to accept that an award of damages was an acceptable form of redress under Commonwealth Caribbean constitutions; third, the manner in which these principles have evolved over the past decades in Commonwealth Caribbean human rights jurisprudence; and fourth, examine the principles that underlie the award of the recently‐coined, ‘vindicatory damages’ for infringements of the Constitution.     

Accommodating Children's Rights in a Post Human Rights Act Era

This article considers why so little case law currently acknowledges that children have recognisable rights under the European Convention on Human Rights and argues that the family courts are not meeting the demands of the Human Rights Act 1998 in this regard. It suggests that a reinterpretation of the 'paramountcy principle' in the Children Act 1989 should be accompanied by a radically different judicial approach to evidence relating to children's best interests. The article considers the difficulties that such an approach might produce when applied to teenagers intent on refusing life-saving medical treatment. It further argues that the courts should call on the substantial body of rights jurisprudence to provide legal and moral support for this revised approach.