This thesis sets out to review the extent to which the European Convention for the Promotion and Protection of Human Rights and Fundamental Freedoms(1) has influenced the political and legal order of England and Wales.(2) Analysis is explored along a number of lines of investigation. A review of the influence of the ECHR on the constitutional order of the UK is prefaced by analysis of its early influence on the order of the Netherlands, Germany and France.(3) Analysis gives rise to two questions Does the ECHR, dependent on the signatory-state with its own constitutional arrangement and legal culture, support a claim that a collective enforcement of human rights (4) protection can not exist empirically, therefore can not achieve as a transcending philosophy? Does the ECHR's apparent affinity with the monist order of the civil-law tradition render it in relation to the UK dualist order an impracticable statement of ideal? Drafted under the auspices of the Council of Europe, the rights and freedoms of the ECHR are accorded a generic structure, essentially subject to derogation. Whether the ECHR is capable of advancing an effective fon-n of human rights protection, this thesis examines the genesis of the ECHR, including its absence of inquisitorial function. Analysis gives rise to the question: What is to be expected of the ECHR: the promotion of a common understanding of HR intimated by the Congress of Europe 1948, or a collective enforcement of protection inherent in an understanding of the telos of the ECHR? Narrowing the focus of analysis to the UK, this thesis examines its response to the concern of terrorism, asylum and various aspects of criminal justice and asks: Whether the concept of HR protection has become the last haven of sui-generis positivism, and if so, the ECHR a raison d'etre of the signatory- state? With regard to the judicial treatment of the rights and freedoms of the individual post the (5) Human Rights Act 1998(5), this thesis examines the functioning of Section 3 of the HRA. Analysis raises a number of questions: Does a division in judicial reasoning exist between, and/or within, the higher and lower courts regarding the application of the HRA/ECHR? If so, on what grounds? Can a universal humanity exist in a legal order where rights are treated as a form of residual liberty remaining after legal restraints are subtracted? Whether post 2000, a decline in autonomous law has resulted in a convergence of the legal and political and the creation of a national responsive law in which the HR concern of the individual is placed below that of the prevailing Government and judiciary, the findings of this thesis are used to test the assertion that: The Article I ECHR agreement by the UK to secure to everyone within its jurisdiction the rights defined in Section 1, is not matched by a realisation of those rights by everyone within its jurisdiction; Subject to the sovereignty of Governments and politics of the national judiciary, the ECHR constitutes an order for the popularisation of the concept of HR protection, as opposed to a system for the collective enforcement of the rights and freedom of the individual. (1) Hereafter, ECHR (2) Excluding the legal order and legislative autonomy of Scotland. Hereafter, UK (3) Following its ratification by the Netherlands, Germany and France (4) Hereafter,HR (5) Hereafter, HRA
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:490966 |
| Date | January 2008 |
| Creators | Lugton, Alis Margaret |
| Publisher | University of Leeds |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://etheses.whiterose.ac.uk/271/ |
Page generated in 0.0016 seconds