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dc.contributor.authorFairclough, Thomas
dc.date.accessioned2018-11-20T09:40:21Z
dc.date.available2018-11-20T09:40:21Z
dc.date.issued2019-01-26
dc.date.submitted2018-07-17
dc.identifier.urihttps://www.repository.cam.ac.uk/handle/1810/285494
dc.description.abstractThe Human Rights Act 1998 (HRA) is seen as a landmark piece of constitutional legislation that brought about many legal and political changes in the United Kingdom’s human rights architecture. Yet the HRA is vulnerable to repeal; successive governments have promised to repeal or otherwise alter the HRA. In this climate, the Supreme Court has instructed counsel to argue common law rights first, with the HRA there to supplement and fill the gap on the occasions where the common law does not go as far as the HRA. The logical conclusion of this is that the Supreme Court, or at least some Justices, think that the common law adequately protects rights to a level near, if not the same as, the HRA does; the results of arguing the common law will often be the same as those resulting from reliance on the HRA. The academic commentary regarding these judicial statements has been far from enthusiastic. The consensus is that common law rights do not go as far as the HRA in terms of their width, that the enforcement mechanisms lack rigour compared to s 3 HRA and the proportionality principle, and that they are vulnerable to legislative override. Therefore, a loss of the HRA would be a loss for the legal protection of rights. This thesis disputes the conclusion stated in the foregoing paragraph. It argues that one has to view the vectors against which one can measure the potency of common law rights through the lens of the rule of law. This principle, the controlling factor in the constitution, promises protection against arbitrary behaviour by state actors because it embodies the value of equality of concern. Once this is appreciated, an entirely new dimension of common law rights becomes apparent; the reach of rights, their rigour of protection, and their constitutional resilience are revealed to be much stronger than orthodoxy suggests.
dc.description.sponsorshipAHRC
dc.language.isoen
dc.rightsAll rights reserved
dc.rightsAll Rights Reserveden
dc.rights.urihttps://www.rioxx.net/licenses/all-rights-reserved/en
dc.subjectAdministrative Law
dc.subjectJudicial Review
dc.subjectHuman Rights Act 1998
dc.subjectConstitutional Law
dc.subjectCommon Law Rights
dc.titleThe Human Rights Act 1998 in Constitutional Context: The Common Law, The Rule of Law, and Human Rights
dc.typeThesis
dc.type.qualificationlevelDoctoral
dc.type.qualificationnameDoctor of Philosophy (PhD)
dc.publisher.institutionUniversity of Cambridge
dc.publisher.departmentLaw Faculty
dc.date.updated2018-11-19T18:35:06Z
dc.identifier.doi10.17863/CAM.32852
dc.publisher.collegeGonville and Caius
dc.type.qualificationtitlePhD in Law
cam.supervisorElliott, Mark Christopher
cam.thesis.fundingfalse
rioxxterms.freetoread.startdate2019-11-20


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