human rights law;by Professor McGonagall

With reference to the Human Rights Act (HRA) 1998 and related case law, evaluate the accuracy (or not) of the following hypothetical views expressed by Professor McGonagall, at the start of a lecture on the HRA 1998.

“In enacting the Human Rights Act (HRA) 1998 Parliament has, for the first time, provided the courts in the United Kingdom (UK) with clear guidelines for resolving any civil liberties issues that arise in a case before them, without, however, impacting on Parliamentary supremacy.

According to section 2 HRA 1998, the UK courts now have the choice whether or not to consider the case law from the Strasbourg Court, but they do not need to follow this case law. Cases show that it is in fact rare for UK courts to follow and apply the Strasbourg jurisprudence, so maintaining Parliamentary supremacy.

Section 3 HRA 1998 provides the UK courts with enhanced powers of statutory interpretation. Courts must now interpret any legislation (no matter when it was enacted by Parliament) to comply with the rights in the HRA 1998, no matter whether that legislation is ambiguous or not. All judges, however, have shown their unwillingness to reinterpret Parliament’s legislation, either by reading words into such legislation or by reading down the meaning of the words used in the legislation, to ensure its compatibility with human rights. In behaving so, the judges have preserved Parliamentary supremacy. 

Section 4 HRA 1998 contains the most powerful tool that the courts possess for the protection of rights, the declaration of incompatibility. Once granted, Parliament has no choice but to act on such a declaration and change the law concerned by passing a new statute. Thankfully, to date, the UK courts have rarely used this section. So again preserving Parliamentary supremacy.”


Assessment Learning Outcomes. The learning outcomes to be addressed through this assignment are:
a) Understand and compare the operation of different systems for the protection of civil liberties and human rights;
b) Identify and understand the social, moral, and political considerations underlying the law relating to civil liberties and human rights;

c) Explain the implications for civil liberties and human rights of the law in specific areas, and the limitations of the law as a vehicle for the protection of civil liberties and human rights.
d) Identify the legal issues arising from particular factual situations, and apply specific legal rules and principles to solve the legal problem;
e) Critically examine academic and legal opinion as to the operation of the law in this area;
f) Evaluate the effectiveness of the legal system for the protection of civil liberties and human rights in the United Kingdom.
g) Identify problems and to apply legal concepts, legal principles and legal techniques in order to generate solutions, choose between alternatives and take appropriate action;
h) Express, discuss and present knowledge, ideas and viewpoints in a variety of formats with confidence and clarity.

Assessment Grading Criteria.
The main skills being assessed by this assignment are:
• Application of law to facts
• Analysis of legal rules and principles
• Written communication (structure, clarity of explanation)
• Problem solving (identification of issues, identification of solutions, reasoned judgment as to the most appropriate solution)

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