Judicial Reasoning under the UK Human Rights Act

Lord Irvine: human rights law developed on false premise
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A British bill of rights that acted as a substitute for the Human Rights Act would have destroyed that dialogue. Indeed, there is a general decline in the number of adverse judgments of the ECtHR against the UK and a trend towards the Strasbourg court using the reasoning of UK judges in its decisions.

The chart below, drawing from data on adverse judgments collated by Dr Alice Donald from ECtHR annual reports, demonstrates a pronounced downward trend. While further research is required to establish any causation, the trend is consistent with the point made here as well as by judges of the ECtHR. Pingback: Discussion forum. Self-taught Human Rights person here.

It is difficult to see how any UK Bill of Rights can have much impact. You are commenting using your WordPress.

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Edited by Helen Fenwick, University of Durham, Gavin Phillipson, University of Durham, Roger Masterman, University of Durham. By Helen Fenwick, Roger Masterman, Gavin Phillipson. 5 - Choosing between sections 3 and 4 of the Human Rights Act judicial reasoning after Ghaidan. *FREE* shipping on qualifying offers. Judicial Reasoning under the UK Human Rights Act is a collection of essays written by leading experts in the field.

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Contents: 1. The Interpretation of the Human Rights Act 2. Aspiration or Foundation? In the real world, however, owing to epistemic limitations, we are able to only crudely distinguish levels of deference, lest the criteria become too difficult to apply and judgments become arbitrary. Under epistemic constraints, it is sensible to assign MD a mid-point value of 0. The values of 0, 0. As such, the numerical values can function as a heuristic device for illustrating relative levels of deference, but they cannot be used to make comparisons with mathematical precision.

However, this is not really a concern because mathematical precision is meaningless in this context. What we want to ascertain, and what can be revealed by a framework using approximate figures, are relative measures of deference, for example, the relative impact of various factors on the level of deference, to determine whether particular judges, courts or periods attract more deference than others. The sensitivity analyses in Section 4 demonstrate that these relative measures are unlikely to change much with slight alterations in the values.

The lack of numerical precision is not a problem because we do not need that level of precision to usefully analyze deference.

Judicial reasoning under UK

After weights and values have been assigned, the proposed framework can generate two sets of basic scores: i a strategy of deference score for each applicable strategy this score will be 0, 0. Two ways of calculating the latter score have been considered. The first is to simply add up the deference scores for each applicable strategy.

The second is to take the average, i. I propose to adopt the second method because the number of strategies of deference available to the courts, which differs across units of analysis, should not be correlated to the level of deference. Suppose that in both units A and B, rights definition is not an issue. For unit A, all three strategies at the rights limitation stage are applicable, whereas for unit B, only two strategies are applicable because the court is bound by a higher court on the standard of justification.

Assume that for both units, the court is highly deferential on all available strategies. If only the sum of the strategy scores were considered, then unit A, which has a sum of 3, would appear to be more deferential than unit B, which has a sum of 2. That would give a misleading impression. Unit A should not be considered more deferential simply because more strategies of deference happen to be available to it.

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The taking of an average accommodates the diverging number of applicable strategies in rights cases by measuring the extent to which courts make use of the opportunities for deference available to them. We are now in a position to see how the quantitative framework can be applied. Table 2 pulls together the deference scores of the UK units of analysis that have been discussed thus far, with the most deferential unit at the top.

The rationale behind the coding has been explained above. As can be seen from the table, a unit may score HD on one strategy but ND on another.

Also, breaking down each unit of analysis by strategy of deference facilitates the detection of inconsistencies in judicial attitudes. For example, looking at the COA column, we can see that even when the same right is involved, say the right to education, the cogency of arguments demanded by the court varies. Further, the table allows us to compare the levels of deference across cases and within a case.

These illustrative units are not a representative sample of all HRA cases and cannot be used to distill patterns in judicial attitudes. Such distillation, however, would be possible if the framework were applied to a large-scale study. That study is still underway, and its full and final results will be reported in a separate article. My aim here is to use some preliminary results from the study to highlight the kinds of findings that a quantitative use of the framework can yield.

In the period under study — , cases broken down into units of analysis in which a measure was challenged for violating a right to which the proportionality test applies were identified.

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Each unit of analysis has been coded with strategy of deference scores, a unit deference score, and the following variables:. Lam Kwong Wai ; Commissioner of Police. These variables have been defined, and a scheme for coding them has been developed. The choice of variables to be coded should be determined by the hypotheses that the researcher wishes to test.

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Hong Kong Housing Authority [] H. The harmonization of human rights laws: Guaranteeing the plurality of individual rights. The Commission did also not take the opportunity to engage with the jurisprudence from African national courts which has found corporal punishment unconstitutional. Supposedly, well informed, apparently unbiased elites are better qualified to rule. Judgment, 7 July. Messrs Chester and McGeoch came away with little. Table 2.

The above-cited variables have been chosen to test certain assumptions about the deferential behavior of the Hong Kong courts, such as that certain judges are more deferential than others; that certain types of decisions attract more deference than others; that courts are more deferential when a case involves a moral controversy, the allocation of scarce resources, or is politically sensitive; that the courts are more deferential when more judicial challenges against the government have been brought; and that certain landmark cases have an impact on the level of deference in subsequent cases.

To test the effects of multiple variables on the level of deference, multiple regression analysis can be conducted using the unit deference score as the dependent variable and the factors to be tested as the independent variables.

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Positive coefficients indicate that the presence of the factor in question renders a court more deferential, whereas negative coefficients indicate that its presence renders a court less deferential. These results enable us to conclude that the presence of certain factors renders a unit more or less deferential and to determine the relative force of those factors. For example, they show that in freedom of expression cases, the courts are considerably less deferential when commercial expression is at stake.

The findings also tell us that if the decision under challenge is a policy or individual decision by the executive, involves rights to political participation or a moral controversy, or attracts a dissenting judgment, the courts are less deferential, although the anti-deference force of these factors is not as great as that of commercial expression. The presence of immigration concerns regarding non-residents, when combined with the presence of welfare, occupation and family rights, renders a unit significantly more deferential.

If the decision at issue is made by a professional body, involves welfare, occupation and family rights or non-commercial and non-political expression rights, or is politically sensitive, the courts are also more deferential. Other factors that render a court more deferential include the decision under challenge involving an allocation of scarce resources or being primary legislation, although their deferential force is not as great as the factors just named.

And so on and so forth.