Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act

This article argues that resistance to the Human Rights Acthas built up in the context of disputes relating to childrenand that such resistance is founded in the attachment of thecourts to the welfare or paramountcy principle as currentlyconceived—the principle that the child’s welfareautomatically prevails over the rights of other family members.It argues that the failure to take account of Convention argumentscould only be a legitimate stance if there was no conflict betweenthe demands of the welfare principle and those of the Conventionguarantees, but that in fact the approach of the European Courtof Human Rights differs considerably from that of the UK courtssince it seeks to balance the rights of different family members.The article goes on to argue that, taking account of the Strasbourgstance and of the already established domestic recognition ofthe presumptive equality of competing qualified Convention rights,it is time to accept the adoption of a new model of judicialreasoning in the context of disputes over children—the‘parallel analysis’ or ‘ultimate balancingact’.     

11 September 2001, Counter-terrorism, and the Human Rights Act

The attacks of 11 September 2001 and the reaction to them has been the gravest challenge to date to the Human Rights Act 1998. The Antiterrorism, Crime and Security Act 2001 has expanded the remit of the Terrorism Act 2000 and there has been a new concentration on antiterrorism by government. This article assesses the impact of human rights law on the debate about liberty and security following 11 September. It considers how the provisions of the Human Rights Act have influenced the formulation and interpretation of anti-terrorism laws, and examines the role of the judiciary in adjudicating on disputes between the individual and the state. It ends with some general discussion about the security-driven challenges to human rights that lie ahead.     

英国1998年人权法案

英国1998年人权法案@梁淑英~~     

The Politics of the Human Rights Act

The Human Rights Act is the result of post-war changes in Europe. It is the consequence less of the campaigning of dedicated individuals and more of the change in the position of the United Kingdom in Europe and the world. Objections to incorporation of the Convention have given way to the desire to be like the rest of Europe. Traditional views of the judicial role have given way to a perception of the judiciary as the last bastion against an over-powerful executive, unchecked by Parliament.     

The Presumption of Innocence and the Human Rights Act

There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.     

Academic judgement,the university Visitor and the Human Rights Act 1998

Students have proved increasingly willing to challenge academic judgements in court, and the passage into law of the Human Rights Act 1998 is likely to have a major bearing on future challenges. The Act will make it unlawful for a public authority (including both a university and the courts) to act in a way which is incompatible with many of the provisions in the European Convention on Human Rights (and the Protocols attaching thereto). It will also permit a victim of such unlawfulness to bring proceedings in an appropriate court or tribunal, whether in the High Court as part of an application for judicial review or as an ordinary civil action for negligence or breach of contract. The court will have the power to grant whatever remedy it considers to be just and equitable, including an award of damages where it feels such an award to be appropriate. This could have significant consequences for the use of the Visitor in chartered universities as the final arbiter in disputes over academic judgements. For the Visitor does not conduct hearings in public and often fails to follow any recognised procedure. It may even be doubted whether the Visitor can be said to be truly independent of the institution against whose decision the student is appealing. In future, therefore, universities may have to be prepared to justify any marks awarded in the public forum of the courtroom.     

International Human Rights Law, Global Economic Reforms, and Child Survival and Development Rights Outcomes

Are recent trends in international law supporting child rights and promoting neoliberal economic reforms complementary or contradictory? To answer this question, we identify the component parts of child rights mobilization, recent global economic reforms, and child rights outcomes to theorize the particular relationships among them. Focusing on child survival and development rights in 99 poor and middle‐income countries from 1983 to 2001, we find that countries' acquiescence to established international law concerning economic rights influences the successful implementation of most of these rights, while the ratification of child rights treaties does not show an effect during the period studied. National links to child rights nongovernmental organizations are also associated with improved child rights outcomes, as is being selected to receive a loan from the World Bank (for reducing child labor and increasing immunizations). We find weak support for the hypothesis that the implementation of loan conditionalities is more deleterious for rights that are costlier to implement. We also find that achieving the goal of neoliberal economic reforms—trade openness—results in less successful implementation of most child rights outcomes considered. Finally, in a related analysis, we find that the ratification of child rights treaties, as well as the adoption and implementation of structural adjustment agreements, enhances the presence of child‐related organizations within countries.     

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.     

The Human Rights Act 1998 and the individual's right to treatment

The right to demand treatment--even when life-saving--is not recognised by English common law. The courts have consistently stated that they do not have the jurisdiction to order a doctor to perform a particular treatment. This article considers whether the impending Human Rights Act 1998 can be interpreted so as to allow this right. While a general right to treatment is discussed the argument focuses on life-saving treatment. As an illustration, the David Glass case will be analysed and the impact of the Human Rights Act will be examined by considering how the judgment might have differed had the Act been in force.