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Challenges to Legislation under the Human Rights Act
Chris Rowe 
Public Law, Issue: 2, Pages: 293 - 315
Swansea University Author:
Chris Rowe
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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...
| Published in: | Public Law |
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| ISSN: | 0033-3565 |
| Published: |
Sweet & Maxwell
2024
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| Online Access: |
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| 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. |
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| Keywords: |
Declarations of incompatibility; Human rights; Immigration; Proportionality |
| College: |
Faculty of Humanities and Social Sciences |
| Issue: |
2 |
| Start Page: |
293 |
| End Page: |
315 |