Human Rights Acts: The Mechanisms Compared

by Kris Gledhill

Overview

There are now a number of statutes in different parts of the world that offer non-constitutional protection for human rights through mechanisms such as strong interpretive obligations, quasi-tort actions and obligations on legislatures to consider whether statutes are felt to breach human rights obligations. They exist in New Zealand, the United Kingdom, Ireland, the Australian Capital Territory and Victoria.

The aim of this book is to consider the jurisprudence that has developed in these various jurisdictions relating to these mechanics for the promotion of human rights; relevant case law from countries such as Canada, South Africa and the United States that have a supreme law constitutional approach is also featured. Chapters cover such matters as the choice between a supreme law and non-supreme law bill of rights, the different approaches adopted as to how legislators are alerted to possible breaches of fundamental rights as Bills progress, the extent of the interpretive obligation, the consequences of failing to reach a rights-compliant interpretation, and the remedies available in litigation.

The book is aimed at practitioners and also at academics and policy makers.

'… Kris Gledhill addresses for the first time, and in some considerable detail, the dynamics operating within different common law systems that seek to integrate international fundamental rights obligations into domestic law . . . The strength of this book is to explore apparent antitheses . . . with intellectual depth so that the relationship between human rights law on the international level and human rights law on the domestic level becomes clearer and comes to be seen not so much as a sharp legal dichotomy but, rather, as the fashioning of mechanisms . . . to integrate international and domestic fundamental rights regimes so that they work harmoniously.' From the Foreword by Richard Gordon QC, Brick Court Chambers

'Gledhill's study bridges the gap between the promise of international human rights commitments and the protection afforded those rights by statutory bills of rights, a model that has been adopted in countries such as New Zealand, the UK, Ireland, and Australia. It is an invaluable resource.'
Grant Huscroft, Western University Faculty of Law

Product Details

ISBN-13:	9781849460965
Publisher:	Bloomsbury Academic
Publication date:	02/26/2015
Series:	Hart Studies in Comparative Public Law , #5
Pages:	592
Product dimensions:	6.70(w) x 9.60(h) x 1.30(d)

About the Author

Kris Gledhill is a Senior Lecturer in the Law School at the University of Auckland.

Table of Contents

Foreword v

Preface vii

Table of Cases xv

Table of Legislation xxv

Table of Treaties and Other International Documents xxxi

1 Introduction: Aims and Outline 1

I The Statutes Outlined 2

A The Canadian Bill of Rights 1960 and Charter of Rights and Freedoms 1982 2

B The New Zealand Bill of Rights Act 1990 and Human Rights Act 1993 4

C UK?The Human Rights Act 1998 7

D Ireland?The European Convention on Human Rights Act 2003 10

E Australian Capital Territory?The Human Rights Act 2004 13

F Victoria?Charter of Human Rights and Responsibilities Act 2006 15

G Australia?Human Rights (Parliamentary Scrutiny) Act 2011 18

II The Questions to be Explored 18

2 The Obligation to Secure Internationally Recognised Human Rights 22

I The International Human Rights Regime and the Obligation in International Law to Guarantee Rights 23

A The Background: the United Nations and the Council of Europe 23

B The Universal Declaration of Human Rights 1948 27

C The European Convention on Human Rights 1950 28

D The International Covenant on Civil and Political Rights 1966 31

E Further Conventions?Council of Europe 34

F Further Conventions?United Nations 36

G Purpose of This Material 52

II The Need for an Effective Domestic Remedy 54

III International Monitoring and Complaint Provisions 60

A The Bodies Involved 61

B The Processes 63

i Monitoring 63

ii Inquiries 66

iii Complaints 66

C Remedies in the International Mechanisms 77

i Compensation 78

ii Enforcement 81

3 The Pre-Existing Protection of Human Rights 83

I Fundamental Rights in the Common Law Tradition 84

A The Rule of Law 84

B The Substantive Rights Protected 89

C The Method of Protection?Legality 93

D The Method of Protection?Control of Executive Discretion 107

II The Value of International Law in the Common Law Tradition 110

A Customary International Law 110

B International Treaty Law 114

i Ireland 115

ii The United Kingdom 118

iii The UK and Ireland: the European Union 128

iv Australia 133

v New Zealand 138

vi Discussion 144

III Conclusion?The Extent and Limits of the Common Law Approach 146

4 The Desire to Move Further 151

I The Purpose of the Bills of Rights Statutes 152

A Introduction 152

B Relevant Statutory Provisions 153

C White Papers and Explanatory Memoranda 158

i New Zealand 158

ii United Kingdom 163

iii UK and Ireland 169

iv Ireland 171

v Australia 173

D The UK Devolution Legislation 175

E Discussion 185

5 Working Out the Content of Rights 191

I The Structure of Rights and Limitations in International Documents 193

A UDHR 193

B ECHR 194

C ICCPR 200

D Other Regional Treaties 206

E Summary; The Margin of Appreciation 208

II The Approach to Interpreting Human Rights Standards 210

A General Principles in the International Arena 210

B Taking Account of Other Conventions 213

C Common Law Approach 216

III Limiting Clauses in Domestic Bills of Rights Instruments 217

A The Statutory Language 218

B White Papers and Other Indications of Legislative Purpose 222

C Leading Case Law as to the General Limiting Clauses 227

i Canada 228

ii South Africa 232

iii Hong Kong 237

iv New Zealand 240

v Australia 246

D Deference to the Legislature 249

IV The Relationship Between International Rights and Tribunals and Domestic Rights and Tribunals 252

A Relevant Provisions 253

B White Papers and Explanatory Memoranda 255

C Discussion 257

i The Terminology of the Rights Standards 257

ii The Common Law Power Compared 258

iii The Discretion Involved 261

iv The Duty to Take into Account?UK and Ireland 263

v Domestic Precedent Rules 287

6 Pre-Enactment Scrutiny 292

I Legislative Statements of Compatibility 294

A The Statutory Provisions 294

B Supporting Policy Documents 298

C Variations in Law and Practise 302

II Parliament Scrutiny 311

III Legislative Override 318

IV Delegated Legislation 321

7 The Duty to Respect Rights 324

I State Responsibility at the International Law Level 327

II Responsibility at the Domestic Level 332

A Introduction 332

B The Statutory Language 333

C Analysis of the Statutory Language 340

D The Executive 343

E Functions of a Public Nature 344

i Introduction 344

ii The UK Case Law 346

iii Discussion 361

F Application to the Judiciary 371

i Introduction 371

ii Judicial Action based on the Statutes 374

iii Judicial Action where the Statutes do not Apply 376

iv Rediscovery of the Common Law, Including where the Statutes also Apply 381

8 Interpretive Obligation 392

I Introduction 392

II The Statutory Language 396

III The Case Law 401

A Early New Zealand Case Law 401

B UK Case Law 404

C Later New Zealand Case Law 419

D Australian Comparative Material 421

E Irish Material 424

F Case Study?Reverse Burdens of Proof 426

IV Legality and the Statutory Obligation 432

V Discussion 434

9 Litigation and Complaint Procedures 440

I The Statutory Provisions 442

A Summary 442

B The Statutory Language Analysed 444

II Who Can Bring an Action??Standing 453

A Implying a Cause of Action 453

i Constitutional Settings 453

ii Statutory Bills of Rights 456

B Who Can Bring an Action? 462

i Natural or Legal Persons? 462

ii Victims 463

iii Comparative Material 465

C Interventions and Parties 467

III Time Limits 474

10 Remedies 478

I The Remedy When Conduct is Illegal 479

A The Relevant Provisions 480

B The Range of Remedies 487

C Damages; the Nature and Purpose of the Remedy Provisions 493

i The Purpose and Nature of the Remedy 493

ii Quantum of Damages 513

iii Exemplary Damages 516

II The Remedy When Conduct is Required by an Incompatible Statute?Declarations of Incompatibility or Inconsistency 518

A The Limits on the Interpretive Obligation 518

B The Regimes Outlined 519

C The Express Power to Make a Declaration 520

D The Implied Power to Make a Declaration 523

i The UK Devolution Legislation 523

ii The NZBORA 526

E The Propriety of the Power; the Discretion as to its Exercise 530

F Consequences?the Retention of the Statute; Political Steps 537

G Consequences?A Remedy for the Victim 545

11 Summaries and Conclusions 547

Index 551

Editorial Reviews

Kris Gledhill's book Human Rights Acts: The Mechanisms Compared is a magisterial work of scholarship, and would interest human rights lawyers and public lawyers, scholars and students.” —Public Law Review

“Over 10 substantive chapters Gledhill demonstrates a mastery of the subject matter, providing practitioners, students and researchers with an essential guide to the application of statutory, "non-entrenched", human rights instruments.” —Law Quarterly Review

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