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"Amos, Merris"
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Transplanting Human Rights Norms: The Case of the United Kingdom's Human Rights Act
In this article, the United Kingdom's Human Rights Act is considered as a legal transplant of the European Convention on Human Rights to the domestic system. Existing literature concerning legal transplants is applied to determine whether the problems experienced by the HRA are partly due to its status as a transplant. It is concluded that whilst the Act has not been a failure, the literature can explain some of the issues that have arisen. In particular, the UK experience demonstrates that for longevity and legitimacy, building a national human rights instrument requires more than a simple transplant from the international legal system to the national.
Journal Article
DEMOCRATIC STATE, AUTOCRATIC METHOD: THE REFORM OF HUMAN RIGHTS LAW IN THE UNITED KINGDOM
On 22 June 2022 the Bill of Rights Bill to replace the Human Rights Act 1998 was introduced to the United Kingdom (UK) Parliament. Just over a year later, it was withdrawn. This was not a minor update, as claimed by the Conservative government, but a wholesale revision of a fundamental feature of UK constitutional arrangements. Given that the UK has no codified constitution, it is not out of the ordinary for constitutional change to proceed via ordinary Act of Parliament. But what was unusual was the informal methods used by the government in its attempt to push through its bill of rights. Searching for a word or phrase to capture what happened over this time in the UK is difficult, not only because of the absence of a conventional method for constitutional change. Most scholarship focuses on formal rather than informal processes for amendment. The purpose of this article is therefore to make a contribution towards filling this gap by introducing the phrase ‘autocratic method’ to describe a particular method of constitutional change as opposed to its substance. Using existing scholarship, and examples from other States, a preliminary definition and essential features of the autocratic method are set out. Further detail is gained through a study of the attempted replacement of the Human Rights Act. Whilst the Bill of Rights Bill is no longer going ahead, this episode in UK constitutional history contains important lessons not just for the UK but for any State embarking on a process of constitutional change.
Journal Article
Democratic state, autocratic method
On 22 June 2022 the Bill of Rights Bill to replace the Human Rights Act 1998 was introduced to the United Kingdom (UK) Parliament. Just over a year later, it was withdrawn. This was not a minor update, as claimed by the Conservative government, but a wholesale revision of a fundamental feature of UK constitutional arrangements. Given that the UK has no codified constitution, it is not out of the ordinary for constitutional change to proceed via ordinary Act of Parliament. But what was unusual was the informal methods used by the government in its attempt to push through its bill of rights. Searching for a word or phrase to capture what happened over this time in the UK is difficult, not only because of the absence of a conventional method for constitutional change. Most scholarship focuses on formal rather than informal processes for amendment. The purpose of this article is therefore to make a contribution towards filling this gap by introducing the phrase 'autocratic method' to describe a particular method of constitutional change as opposed to its substance. Using existing scholarship, and examples from other States, a preliminary definition and essential features of the autocratic method are set out. Further detail is gained through a study of the attempted replacement of the Human Rights Act. Whilst the Bill of Rights Bill is no longer going ahead, this episode in UK constitutional history contains important lessons not just for the UK but for any State embarking on a process of constitutional change.
Journal Article
THE FUTURE OF HUMAN RIGHTS LAW IN THE UNITED KINGDOM
Having enjoyed a period of relative stability, the human rights law framework in the United Kingdom is about to undergo considerable change. Both Brexit and the more deferential approach by the European Court of Human Rights to the United Kingdom will re-orient the structure of protection towards a more national rather than international focus. In this article, the impact of these changes is considered with a particular focus on the role of the UK judiciary in mediating between the ends of the internationalist/ nationalist spectrum. It is demonstrated that despite the direction of recent changes, it is likely that human rights law will not arrive at an entirely nationalist destination and that the United Kingdom will continue with its blended approach combining aspects of national and international systems.
Journal Article
From dynamic to static: the evolution of the relationship between the UK and the European Court of Human Rights
In this article the evolution of the relationship between the UK and the European Court of Human Rights is examined. With strong human rights protection through law now present at the national level, it is concluded that the relationship has moved from a dynamic to static. The implications of this for the protection of human rights in the UK are considered and evaluated.En este artículo se examina la evolución de la relación entre el Reino Unido y el Tribunal Europeo de Derechos Humanos. Teniendo en cuenta que ya existe a nivel nacional una importante garantía y protección de los derechos fundamentales, se observa que la relación ha cambiado de dinámica a estática. Las implicaciones que este paradigma tiene para el caso particular del Reino Unido será objeto de examen y discusión.
Journal Article
THE DIALOGUE BETWEEN UNITED KINGDOM COURTS AND THE EUROPEAN COURT OF HUMAN RIGHTS
In this article the scope for dialogue between UK courts and the European Court of Human Rights is considered in theory and in practice. Having demonstrated that meaningful dialogue does take place in certain circumstances, the author considers the impact of dialogue and questions whether or not there can be any further expansion in dialogue whilst avoiding negative outcomes such as confusion over the creation of human rights norms and a loss in legitimacy for national courts adjudicating upon human rights issues.
Journal Article
FROM DYNAMIC TO STATIC: THE EVOLUTION OF THE RELATIONSHIP BETWEEN THE UK AND THE EUROPEAN COURT OF HUMAN RIGHTS
In this article the evolution of the relationship between the UK and the European Court of Human Rights is examined. With strong human rights protection through law now present at the national level, it is concluded that the relationship has mewed from a dynamic to static. The implications of this for the protection of human rights in the UK are considered and evaluated.
Journal Article
Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?
Recently there has been much discussion of the prospect of replacing, or supplementing the Human Rights Act 1988 (HRA) with a British bill of rights. The Government, opposition Conservative Party and others have published detailed plans and research reports. Whilst there has been some limited examination of the alleged failures of the HRA in providing effective legal protection for human rights, the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms. Drawing on research concerning aspects of the HRA carried out over the past ten years, it is possible to identify concrete problems which have prevented the HRA from meeting the objectives originally set for it. But given the limitations of the present debate, future plans do not adequately address many of these problems making it uncertain how effective any new bill of rights will actually be.
Journal Article
Derechos humanos y la pandemia del Covid-19 en el Reino Unido
Este trabajo aborda dos cuestiones generales: la posibilidad de modificar la protección de la Ley de Derechos Humanos mediante una derogación del CEDH; y el impacto de las múltiples facetas de la protección contenida en el artículo 2 del CEDH, a saber, el derecho a la vida.
Journal Article