Judicial deference to the other branches of government has become a common judicial technique in cases arising under the Human Rights Act. The author outlines the current approach of British courts in deciding when to defer, arguing that it is flawed and unprincipled. The author goes on to argue that a principled approach to deference is necessary, and offers examples of when and how courts should defer to the other branches of government when considering constitutional claims.
The purpose of this article is to examine the nature and potential impact of s 3 of the Human Rights Act 1998. The article draws upon the experience of courts in other Commonwealth jurisdictions which operate a similar provisions. The author analyses the nature of the interpretative technique, reading down, that s 3 requires and illustrates its potential by reference to a number of situations involving statutory imperfections such as ambiguity and overbreadth. The author also outlines the impact that s 3 may have on the exercise of statutory discretion. The author further argues that reading down should not be confused with more intrusive remedies, such as reading in, which are not available under the Human Rights Act.
The reformulation of employee rights constitutes one important dynamic in the ongoing refashioning of US private-sector employment relations. Rights are currently being contested because of the growing inefficacy of traditional worker protections rooted in collective contracts and statutes; new rights forms, especially enterprise rights (rights unilaterally granted by employers) have assumed an increasing importance, especially since a dramatic new jurisprudence of labor law based on contract theory has substantially eroded the traditional doctrine of at-will employment. Enterprise rights based on market competition may serve workers effectively, but only if they are supported by certain key interventions in market processes. One possible schema, Choosing Rights, is explored.
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