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.     

英国1998年人权法案

英国1998年人权法案@梁淑英~~     

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 and Legal Culture: The Judiciary and the Legal Profession

The purpose of this article is to consider the effect the United Kingdom’s currently prevailing legal culture is likely to have on the realization of cultural change presaged by the Human Rights Act. The article is in five parts. The first two address the preliminary questions: what is meant by ‘legal culture’ for these purposes, and what type of ‘human rights culture’ does the Human Rights Act envisage? The answers define the scope of the remainder of the article’s inquiry into the ways in which the Act itself and the culture of the United Kingdom legal profession and judiciary are likely to interact. The third part of the article identifies some examples of the sorts of culturally specific aspects of current legal practice which are likely to operate as serious practical constraints on the emergence of a human rights culture worthy of the name, before the fourth part considers what sorts of cultural changes will be required of judges and lawyers for the presaged cultural transformation to come about. Finally, the article asks whether there is any reason to believe that courts and lawyers can find from within their present culture the resources to bring about the necessary shift.     

A Tort-Based Approach to Damages under the Human Rights Act 1998

This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current 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.     

1998年《人权法案》及其对英国宪法的影响

人权是一个必然的、永恒的、但却是历史的概念 ;换言之 ,是一个永远随着人类社会进步而发展的认识理性。中国人在追寻宣扬人权的同时 ,西方人也在做着类似的努力。李树忠之文至少可以给我们提供以下几方面的思考与启示 :第一 ,英国的“宪法性”规则同样是其法治实践的结果 ,且长久地存在和体现于法治实践中 ,在此情况下 ,英国人是如何实现了人权保护呢 ?其政治条件和法治机制是如何对此发生作用呢 ?第二 ,1 998年《人权法案》进入英国法治实践 ,在何种程度上发生了影响 ?它对英国的政治体制和法治机制能够带来什么样的变化 ?第三 ,《人权法案》的精神与权利宣示究竟有什么样的实质性效力 ,它与国内的公共权力、司法操作以及人权文化会发生何种联系 ?所有这些均可从此文中获取一、二信息与观点的传达。英国宪制之独特及其走入世界大流之状况 ,亦可由此知之点滴而激发自察 ,是故以首篇荐之读者     

Law From Below: Women's Human Rights and Social Movements in New York City

Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human rights, they provide social movements a kind of global law from below: a form of cosmopolitan law that subalterns can use to challenge their subordinate position. Using a case study from New York City, we argue that in certain contexts, human rights can provide important political resources to U.S. social movements. However, they do so in a diffuse way far from the formal system of human rights law. Instead, activists adopt some of the broader social justice ideas and strategies embedded within human rights practice.     

The Human Rights Act 1998: research,freedom of speech and academic freedom

This article will consider rights to receive and express information and ideas from the perspective of the researcher, the researched, the researcher's institution and the wider community. It will also consider how the courts will resolve the inevitable conflicts between these rights. It does not address the right to education enshrined in Article 2 of the First Protocol² but rather the other Convention Articles, particularly Article 10, particularly relevant to the conduct of intellectual inquiry. It is intended to underline the potential reach of the Act for all public bodies which seek to be learning organisations, and the consequent need for such bodies to review their practices and procedures before the Act comes into force on 2 October 2000.     

The European Union and Human Rights: Towards A Post-National Human Rights Institution?

There is growing evidence that the European Union (EU) is becomingmore involved in human rights protection and has the capacityto turn into an unprecedented post-national human rights protectioninstitution. Based on that evidence, this article suggests differentarguments in favour of a further development in this direction.These arguments stem not only from a general global justiceapproach to post-national institutions’ responsibilities,but also from the concept of human rights itself and the specificneeds of human rights protection at the post-national level.The EU's institutional framework presents advantages that fitthe general criteria of institutional design in the human rightscontext. Of course, many doubts and critiques may be raisedagainst an entity which started primarily as a functional andeconomic institution, and important reforms, some of which areventured in the present article, are still needed to get theEU closer to this institutional ideal. More generally, the articleemphasises the unique example and precedent the EU may constitutefor normative institutional thinking about global justice atthe post-national level.