Essay on Human Rights: am i straying off?
The question reads
"Despite the fact that the HRA 1998 only provides for a declaration of incompatibility, the judiciary is no longer inferior to Parliament in the matter of Convention rights. Discuss critically."
My main question is, will i be going off topic if i talk about the obligations imposed by s.2 (Strasbourg jurisprudence), s,3 (stat interpretation) in addition to s.4 (incompatibility)? If i just talk about incompatibility, then realistically i won't have much to write about - only the case of A v SOS for Home Secretary comes to mind.
MY approach to this question is that the HRA provides more than just declaring incompatibility. It also does a host of other 'indirect things', though prima facie, s.4 appears its most powerful feature.
What do fellow forummers think? Pls advise. This question has spoilt my day.
"Despite the fact that the HRA 1998 only provides for a declaration of incompatibility, the judiciary is no longer inferior to Parliament in the matter of Convention rights. Discuss critically."
My main question is, will i be going off topic if i talk about the obligations imposed by s.2 (Strasbourg jurisprudence), s,3 (stat interpretation) in addition to s.4 (incompatibility)? If i just talk about incompatibility, then realistically i won't have much to write about - only the case of A v SOS for Home Secretary comes to mind.
MY approach to this question is that the HRA provides more than just declaring incompatibility. It also does a host of other 'indirect things', though prima facie, s.4 appears its most powerful feature.
What do fellow forummers think? Pls advise. This question has spoilt my day.
I don't think so. The question seems to be drawing together parliamentary sovereignty with HR law so you would need to talk about s.3 because obviously the judiciary can go much further than previously in terms of interpreting legislation in a compatible manner - so de facto the courts are much less inferior (but only because of HRA 1998 which comes from P, so a kind of delegated power which could be revoked) even though de jure the courts can only make a declaration of incompatibility (cf: dissapplying an Act if it contravenes EU legislation).
Original post by apcycles
The question reads
"Despite the fact that the HRA 1998 only provides for a declaration of incompatibility, the judiciary is no longer inferior to Parliament in the matter of Convention rights. Discuss critically."
My main question is, will i be going off topic if i talk about the obligations imposed by s.2 (Strasbourg jurisprudence), s,3 (stat interpretation) in addition to s.4 (incompatibility)? If i just talk about incompatibility, then realistically i won't have much to write about - only the case of A v SOS for Home Secretary comes to mind.
MY approach to this question is that the HRA provides more than just declaring incompatibility. It also does a host of other 'indirect things', though prima facie, s.4 appears its most powerful feature.
What do fellow forummers think? Pls advise. This question has spoilt my day.
"Despite the fact that the HRA 1998 only provides for a declaration of incompatibility, the judiciary is no longer inferior to Parliament in the matter of Convention rights. Discuss critically."
My main question is, will i be going off topic if i talk about the obligations imposed by s.2 (Strasbourg jurisprudence), s,3 (stat interpretation) in addition to s.4 (incompatibility)? If i just talk about incompatibility, then realistically i won't have much to write about - only the case of A v SOS for Home Secretary comes to mind.
MY approach to this question is that the HRA provides more than just declaring incompatibility. It also does a host of other 'indirect things', though prima facie, s.4 appears its most powerful feature.
What do fellow forummers think? Pls advise. This question has spoilt my day.
Hm, just my opinion on your question:
(a) Despite the fact that the HRA 1998 only provides for a declaration of incompatibility,(b) the judiciary is no longer inferior to Parliament in the matter of Convention rights. Discuss critically
(a) The word "only" is impliedly suggesting that a declaration of incompatibility could be somehow not sufficient. What is the effect of a declaration of incompatibility in legal and political terms? True, it does not deprive legislation of its legal effect. Ultimately Parliament has to decide and if it wants it could ignore it. But consider also the political pressure (branding) and that a claimant could still seek redress in Strasbourg. Bogdanor has furthermore argued that there is maybe a convention arising that Parliament would amend incmopatible legislation -> de facto power to strike down legislation
b) How was the situation before the HRA (Lord Hoffmann: "fundamental rights cannot be overridden by ambiguous words". Theory and reality?). I would consider s.3, especially R v A, Re W and B, Ghaidan. I would also refer to the points made under (a)
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