Judicial Reasoning under the UK Human Rights Act

An edited collection of essays examining the processes of judicial decision-making under the Human Rights Act 1998. Focusing on content and process, it considers changes in the substantive law and the new processes of judicial reasoning being adopted. To this end it considers first general Convention and HRA concepts since they arise across all areas of substantive law; it then proceeds to examine not only the use of such concepts in particular contexts, but also the modes of reasoning adopted as judges seek to straddle the divide between familiar common law and statutory concepts/doctrines and European ones. While cross-cutting themes emerge, it will also be found that there are interesting variations between substantive areas, due to particular judicial approaches that have - often for historical reasons - become established in such areas.

Judicial Reasoning under the UK Human Rights Act is a collection of essays written by leading experts in the field, which examines judicial decision-making under the UK's de facto Bill of Rights. The book focuses both on changes in areas of substantive law and the techniques of judicial reasoning adopted to implement the Act. The contributors therefore consider first general Convention and Human Rights Act concepts – statutory interpretation, horizontal effect, judicial review, deference, the reception of Strasbourg case-law – since they arise across all areas of substantive law. They then proceed to examine not only the use of such concepts in particular fields of law (privacy, family law, clashing rights, discrimination and criminal procedure), but also the modes of reasoning by which judges seek to bridge the divide between familiar common law and statutory doctrines and those in the Convention.

1. Judicial Reasoning and the Human Rights Act 1998 Helen Fenwick, Roger Masterman and Gavin Phillipson; Part I. The Interpretation of the Human Rights Act 1998: 2. The System of the European Convention on Human Rights and the Human Rights Act: The View from the Outside Colin Warbrick; 3. Aspiration or Foundation? The Status of Strasbourg Jurisprudence and the 'Convention Rights' in Domestic Law Roger Masterman; 4. Institutional Roles and Meanings of 'Compatibility' under the Human Rights Act 1998 David Feldman; 5. Choosing between Sections 3 and 4 Human Rights Act 1998: Judicial Reasoning after Ghaidan v Mendoza Aileen Kavanagh; 6. Clarity postponed? Horizontal Effect after Campbell and Re. S. Gavin Phillipson; 7. The Standard of Judicial Review and Legal Reasoning after the Human Rights Act Ian Leigh; 8. Principles of Deference under the Human Rights Act Sir David Keene; Part II. The Human Rights Act and Substantive Law: 9. The Common Law, Privacy and the Convention Gavin Phillipson; 10. Judicial Reasoning in Clashing Rights Cases Helen Fenwick; 11. Family Law and the Human Rights Act 1998: Judicial Restraint or Revolution? Sonia Harris-Short; 12. Article 14: A Protector, Not a Prosecutor Aaron Baker; 13. Criminal Procedure, The Presumption of Innocence and Judicial Reasoning under the Human Rights Act Paul Roberts; 14. Concluding remarks Ian Leigh.

A collection of essays examining judicial decision-making under the Human Rights Act 1998. Focusing on content and process, it considers changes in the substantive law and the new processes of judicial reasoning being adopted. The uses of such concepts are examined, as are the modes of reasoning adopted by judges.