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Challenges to Legislation under the Human Rights Act

Chris Rowe Orcid Logo

Public Law, Issue: 2, Pages: 293 - 315

Swansea University Author: Chris Rowe Orcid Logo

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Abstract

This article critically analyses a line of case law in which the courts have held that for legislation to be incompatible with a Convention right on proportionality grounds, it must produce incompatible outcomes in “all or nearly all cases”. The effect of the test is to immunise legislative measures...

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Published in: Public Law
ISSN: 0033-3565
Published: Sweet & Maxwell 2024
Online Access: Check full text

URI: https://cronfa.swan.ac.uk/Record/cronfa65920
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Abstract: This article critically analyses a line of case law in which the courts have held that for legislation to be incompatible with a Convention right on proportionality grounds, it must produce incompatible outcomes in “all or nearly all cases”. The effect of the test is to immunise legislative measures from certain forms of challenge, which in some circumstances can render Convention rights nugatory. The test’s spread from its emergence in challenges to the immigration rules to cases involving both primary and secondary legislation is traced, along with different formulations of the test employed by the judiciary. It is shown that whilst the test significantly undermines human rights protection, it is only in the immigration context that the courts have been consistently willing to employ the test. It is argued that the test should have no place in human rights law, with other much more appropriate tools available to the judiciary to give effect to any overreach concerns.
Keywords: Declarations of incompatibility; Human rights; Immigration; Proportionality
College: Faculty of Humanities and Social Sciences
Issue: 2
Start Page: 293
End Page: 315