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Research On The Human Rights Act 1998

Posted on:2007-03-21Degree:DoctorType:Dissertation
Country:ChinaCandidate:X F LuFull Text:PDF
GTID:1116360182991369Subject:Legal theory
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The promulgation of the Human Rights Act 1998 (hereafter abbreviated as"HRA")in UK became a new starting point in human rights history of UK because itended the history that UK had no written Constitution and laws to protect humanrights of its people. However UK is a country in which its people are very proud of itshuman rights protection tradition through unwritten Constitution. Why did UK changethis tradition? How did UK change its tradition? What influence does the changeproduce? What can we learn from this change in UK who has such a long history?The dissertation just discusses theses questions.The first chapter discussed the human rights protection mode in UK throughanalyzing the liberty protection tradition which is born in the age of the Great Charter.I believe that the human rights protection tradition in UK is a kind of balance of themany factors operation result, the most important ones of which are the century's oldtradition of respecting individual liberties and rights, the common law that is opening,the active judicial remedy system to human rights and the make-up effect of thewritten law to the uncertainty of the common law. At the same time, I think whetherthis balance can be maintained when it met the strike from the amalgamation ofEurope and the enhancement of consciousness of human rights in the whole world.The second part discussed the influence of international human rights conventionand regional human rights treaties which UK had signed or approved on the humanrights protection of UK. As to the influence of international human rights conventionon human rights protection of UK, I think that its most important effect to UK is toenhance the consciousness of human rights in UK because they have no force effect inUK and they must be transformed by act of parliament so that they can be applied indomestic. However, regional human rights treaty represented by EuropeanConvention on Human Rights (hereafter abbreviated as ECHR) had great impact onthe human rights practice in UK because they have special human rights protectionsystem such as individual complaints procedure. Since European Court of HumanRights (hereafter abbreviated as ECtHR) decided many human rights violation casesthat come from UK, UK had actually realized its deficiency in human rightsprotection.Though international and regional human rights conventions have importantinfluence on UK, the human rights violations committed by the power-centralizedgovernence in the period of Conservative Party of UK being in the saddle became thedirect reason to reform the human rights protection system in UK. The third chapterdiscussed this question. Because of its tradition for respecting liberties and humanrights, people of UK reacted actively to look for new ways to protect their rights whenthey found their deficiency. Moreover, this part introduced the debate on what methodthey should adopt when reforms its tradition. By analyzing these debate we can findthat how UK make up their deficiency through the reform.The fourth chapter discussed the content and the frame of HRA as the integratedresult of the international and regional human rights conventions and the UK domesticlaw. And because the HRA stipulated that UK courts must consider the judgments,statements and the opinions of ECtHR when they decided human rights cases in UK,it is necessary to analyze the deciding criterion and the means of ECtHR applyingECHR through its judgments and statements.In the fifth chapter and the sixth chapter I discussed the influence of theimplement of the HRA on UK human rights practice. The fifth chapter discussed theinfluence on UK legislation and legal interpretation. The HRA created a newprocedure for UK legislation to keep laws compatible with Convention rights andprevent legislation from infringing Convention rights. As to the legal interpretation,the HRA stipulate new interpretation principles which should be applied firstly whenthe courts decide the cases in reference to Convention rights. And from theenforecement of HRA the interpretation methods and techniques of ECtHR also canbe applied in UK courts to some extent.The sixth chapter mainly discusses the impact of HRA to judicial review of UK.At the beginning I cast back to the developing history of judicial review of UK.During this process the scope and reasoning of judicial review extended step by step.But the appliance of judicial review in UK must be subjected to the parliamentsovereignty until HRA came into force. The enforcement of HRA brings threechanges. The first change is the principle of proportionality must be used when courtsdeal with cases concerning Convention rights. The second change is that HRA createa new reason that if any public authorities' activities is incompatible with Conventionrights, it will be decided to be illegal by judicial review. The third change is the acts ofparliaments can be check by judicial review, if the act is incompatible withConvention rights although courts can not repeal the act but they can announce thatthe act is incompatible with the act. It still depends on the parliament to decide wetherthe act will be corrected. Although courts can not deny and repeal acts of parliament,courts have been independent from the status being subject to the parliamentsovereignty, the status and authority of courts have been raised.Conclusion of this dissertation focuses on what can China use HRA forreference.
Keywords/Search Tags:Human rights act, European convention on human rights, human rights, judicial review
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