Balance between need for continuity and stability contrasted with need for meaningful
parliamentary scrutiny
2 types of parliamentary scrutiny of delegated legislation
Primacy of EU law remain for the law that will be kept
Brief Note 6: Human Rights and constitution
● Seeks to challenge parliamentary supremacy
● Conservatives seek to abolish HRA
Human Rights and Rule of law
Rule of law: Bound by the law in the exercise of their responsibilities and function
The rule of law in written constitution
● Constitutional law should be a source, more importantly authoritative above all
● THeres a conflict of interest: ordinary law passed by legislature can contradict the
constitution
○ If there is full authority, this may give effect to interpretation of ‘ordinary law’.
■ This would mean that ordinary law would be invalid
Rule of law in unwritten constitution
● Parliament = highest authority, this led to the development of the doctrine of
parliamentary supremacy
● Impossible for some law to have higher authority than others
● Constitutional value attached to law is political not legal
Issues of rights and civil liberties
● Liberal constitution: guarantee entrenched in law that are owed to individuals
● Written constitution: law passed by legislation must conform to basic standards of
human life. In written constitution, the rights and law is less clear (for obvious
reasons)
● Jurisdiction viewed courts as civil liberties
○ Legislation that is restricted of civil liberties, courts would refer to legislation
due to parliamentary supremacy
■ EX: Foone V Blunt
● Lord Mansfield refused to read a statutory prohibition against
catholics taking land by inheritance to include payment of debt
by devise to catholic creditors
European Convention on Human Rights
● Developed by the council of Europe
Council of Europe + ECHR
, ● Council of Europe
1. Council of ministers: foreign ministers of each state
2. Parliamentary assembly: representative of various national parliaments
● Produces treaties (known as conventions)
○ Signed by member states
ECHR
● Contains civil and political rights, protocols also have social and economic rights
Rights protected under ECHR
● 11 protocols, not ratified in all states, some are subject to reservations
○ 1,4,6,7 have further rights and freedoms
● NOTE:
○ Protocol 1: right to peaceful enjoyment of possessions, education, free
election
○ Protocol 6: prohibition of the death penalty
Rule of law elements ECHR
● Limited in accordance with the law
● Prescribed by law
1. Accessibility: citizen must indicate circumstances of legal rules applicable to a given
case
2. Foreseeability: A norm cannot be law unless there’s sufficient forseeable
consequence of an action
● Silver v UK
○ Had to do with administrative discretion
○ Convention must require standard that are published not secret so
administrative discretion isn’t abused
Machinery of Enforcement
3 important features
1. Right of individual application
2. Compulsory jurisdiction of the court of HR
3. Application can only be made to the court if domestic remedies are exhausted
● Anyone can make a claim to be a victim of violation by one if the high contracting
parties set in the convention
○ High parties must undertake not to hinder in any effective exercise
Incorporating ECHR into domestic law
● Violated rights must have an effective remedy before a national authority
○ There will only be application to national authority if all other remedies are
exhausted
● Individuals should be able to obtain rights through the national system, going to the
ECHR court is the last resort
● ECHR is a standard for domestic law; it is not required to incorporate it
parliamentary scrutiny
2 types of parliamentary scrutiny of delegated legislation
Primacy of EU law remain for the law that will be kept
Brief Note 6: Human Rights and constitution
● Seeks to challenge parliamentary supremacy
● Conservatives seek to abolish HRA
Human Rights and Rule of law
Rule of law: Bound by the law in the exercise of their responsibilities and function
The rule of law in written constitution
● Constitutional law should be a source, more importantly authoritative above all
● THeres a conflict of interest: ordinary law passed by legislature can contradict the
constitution
○ If there is full authority, this may give effect to interpretation of ‘ordinary law’.
■ This would mean that ordinary law would be invalid
Rule of law in unwritten constitution
● Parliament = highest authority, this led to the development of the doctrine of
parliamentary supremacy
● Impossible for some law to have higher authority than others
● Constitutional value attached to law is political not legal
Issues of rights and civil liberties
● Liberal constitution: guarantee entrenched in law that are owed to individuals
● Written constitution: law passed by legislation must conform to basic standards of
human life. In written constitution, the rights and law is less clear (for obvious
reasons)
● Jurisdiction viewed courts as civil liberties
○ Legislation that is restricted of civil liberties, courts would refer to legislation
due to parliamentary supremacy
■ EX: Foone V Blunt
● Lord Mansfield refused to read a statutory prohibition against
catholics taking land by inheritance to include payment of debt
by devise to catholic creditors
European Convention on Human Rights
● Developed by the council of Europe
Council of Europe + ECHR
, ● Council of Europe
1. Council of ministers: foreign ministers of each state
2. Parliamentary assembly: representative of various national parliaments
● Produces treaties (known as conventions)
○ Signed by member states
ECHR
● Contains civil and political rights, protocols also have social and economic rights
Rights protected under ECHR
● 11 protocols, not ratified in all states, some are subject to reservations
○ 1,4,6,7 have further rights and freedoms
● NOTE:
○ Protocol 1: right to peaceful enjoyment of possessions, education, free
election
○ Protocol 6: prohibition of the death penalty
Rule of law elements ECHR
● Limited in accordance with the law
● Prescribed by law
1. Accessibility: citizen must indicate circumstances of legal rules applicable to a given
case
2. Foreseeability: A norm cannot be law unless there’s sufficient forseeable
consequence of an action
● Silver v UK
○ Had to do with administrative discretion
○ Convention must require standard that are published not secret so
administrative discretion isn’t abused
Machinery of Enforcement
3 important features
1. Right of individual application
2. Compulsory jurisdiction of the court of HR
3. Application can only be made to the court if domestic remedies are exhausted
● Anyone can make a claim to be a victim of violation by one if the high contracting
parties set in the convention
○ High parties must undertake not to hinder in any effective exercise
Incorporating ECHR into domestic law
● Violated rights must have an effective remedy before a national authority
○ There will only be application to national authority if all other remedies are
exhausted
● Individuals should be able to obtain rights through the national system, going to the
ECHR court is the last resort
● ECHR is a standard for domestic law; it is not required to incorporate it
