Beyond Disagreement
Open Remedies in Human Rights Adjudication
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Product details:
- Publisher OUP Oxford
- Date of Publication 25 October 2012
- ISBN 9780199669301
- Binding Hardback
- No. of pages256 pages
- Size 241x162x21 mm
- Weight 544 g
- Language English 0
Categories
Short description:
Providing the first empirical analysis of declarations of incompatibility under the UK Human Rights Act and their aftermath in the legislative process, this book details these 'open remedies' and draws comparisons with similar human rights mechanisms in the US, Canada, South Africa, and Australia.
MoreLong description:
Examining the role of 'open remedies' in human rights adjudication, this book provides a new perspective informing comparative constitutional debates on how to structure institutional relationships over fundamental rights and freedoms.
Open remedies declare a human rights violation but invite the other branches of government to decide what corrective action should be taken. Open remedies are premised on the need to engage institutions beyond courts in the process of thinking about and acting on human rights problems. This book considers examples across the United States, South Africa, Canada, and internationally, emphasising their similarities and differences in design and the diverse ways they could operate in practice.
he book investigates these possibilities through the first systematic legal and empirical study of the declaration of incompatibility model under the United Kingdom Human Rights Act. This new model provides a non-binding declaration that the law has infringed human rights standards, for the legislature's consideration. By design, it has the potential to support democratic deliberation on what human rights require of the laws and policies of the State, however, it also carries uncertainties and risks.
Providing a lucid account of existing debates on the relative roles of courts and legislatures to determine the requirements of fundamental rights commitments, the book argues that we need to look beyond the theoretical focus on rights disagreements, to how these remedies have operated in practice across the courts and the political branches of government. Importantly, we should pay attention to the nature and scope of legislative engagement in deliberation on the human rights matters raised by declarations of incompatibility. Adopting this approach, this book presents a carefully argued view of how courts have exercised this power, as well as how the UK executive and Parliament have responded to its use.
Table of Contents:
Introduction
Part I: Typology and Interactions
Open Remedies in Human Rights Adjudication
The Role of the Legislature
From Dialogue to Engagement
Part II: Declarations of Incompatibility in the Courts
The Criteria for a Declaration of Incompatibility
Judicial Restraint and Activism Considered
Part III: Responsive Deliberation in Practice
The Pattern of Institutional Dialogue
Remedial Deliberation in the Legislature
Belmarsh Prisoners and Dialogue over Control Orders
Epilogue
Conclusion
Bibliography
