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The Judiciary 4 (positive and negative rights (negative (diet says thee…
The Judiciary 4
positive and negative rights
positive
explicit rights given to citizens
entrenched rights
e.g use bill of rights
negative
not listed explicitly
rights exist as there are ni law disallowing them
e.g before HRA 1998
diet says thee are protected due to
actions of sovereign parliament will protect them
public opinion will not stand for restricting freedom
use of common law
European human rights protection
European convention of human rights
best by council of Europe 1950
violations challenged in the European court of human rights
breaches investigated by European Commission of HR then referred to courts of human rights
laid down fundamental right to be protected in eu countries
European court of human rights
if we leave eu and repeal HRA the court still has jurisdiction
not an eu institution
hears cases under european convention of human rights
est by council of Europe 1950
based in Strasbourg
issues with the ECHR leading to HRA
approx 5 years and £30,000 to take cases to the ECHR
many ECHR. cases found against the gov
prisoners - to consult a lawyer and write to an MP
corporal punishment in schools
armed services anti-LGBT policies
Jamie burger killers - not received a fair trial as Home Secretary raised sentence from 10 to 15 year
does the uk need a formal bill of rights
yes
enhanced constitutional protection
limits the state powers
reinforce rule of law
build upon HRA
raise public awareness of rights = rights culture
links tio responsibilities and duties of UK citizens
no
unnecessary - HRA and ECHR common law to
undermines parliamentary sovereignty
difficult to entrench in the absence of codified constitution
what should be included left out and who decides
undermines other rights
how judges protect human rights
human rights act article 4
judges make declaration of incompatibility
e.g a and others v secretary of state for the home dept 2004
anti terrorism crime and security act 2001 -detaining foreign suspects indefinitely without trial
judges incompatible
parliament amended law - prevention of terrorism act 2005