Skip to main content Accessibility help
×
Hostname: page-component-77c89778f8-swr86 Total loading time: 0 Render date: 2024-07-16T22:13:15.440Z Has data issue: false hasContentIssue false

12 - Devoluted human rights

from Part III - Platforms

Published online by Cambridge University Press:  05 December 2012

Conor Gearty
Affiliation:
London School of Economics and Political Science
Costas Douzinas
Affiliation:
Birkbeck College, University of London
Get access

Summary

To combine in the same mindscape the separate ideas of human rights protection and of devolution prompts a number of thoughts. Some may be at quite a high level of generality; some much more specific to the arrangements of a particular state. At the most general level one might first have in mind the contribution that the study of devolution might make to an understanding of those processes whereby rights, first formulated and proclaimed at an international level, may ‘cascade’ down to the level of the nation state and then to regions within that state and perhaps beyond. This might be seen as a process in which there is an increasing degree of specificity of the rights to be applied – perhaps involving an idea of an initial rights baseline which may be enhanced to a higher degree of rights protection (however such a notion is to be understood) or customised to take account of the conditions – political, social or legal – particular first to the state and then to the regions of a state. If such a cascading vision is to be adopted, it has presumably to be routinely assumed that this process is one that will not be wholly unproblematic. Some of the conditions, specific to a state or region, may, at least at first, conflict, either in their substance or their procedures, with the cascaded rights. Rights deriving from prior national or regional (e.g. Europe-level) rights may not chime precisely with existing ‘rights’ at the devolved level. Judicial procedures for the enforcement of rights (including, for instance, those rules which determine who may seek the enforcement of rights, on what time scale and in the expectation of what remedies) may also adjust only with some difficulty to the enforcement of the newer generation of rights. Rules and procedures may well be necessary for the resolution of uncertainties of hierarchy to decide which rights rules should prevail. Institutions (presumably mainly courts but not exclusively so) need to be empowered to apply these rules of conflict resolution, an issue which may be of particular concern where there is some expectation of a degree of uniformity in the application of rights and yet also a sensitivity to local conditions.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Boyle, A. et al. (eds.), Human Rights and Scots Law (Oxford University Press 2002)
Himsworth, C., ‘Human Rights at the Interface of State and Sub-State: The Case of Scotland’, in Campbell, T., Ewing, K. D. and Tomkins, A. (eds.), The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press 2011)Google Scholar
Himsworth, C. ‘Rights versus Devolution’, in Campbell, T., Ewing, K. D. and Tomkins, A. (eds.), Sceptical Essays on Human Rights (Oxford University Press 2001)Google Scholar
Murdoch, J., ‘Protecting Human Rights in the Scottish Legal System’, in McHarg, A. and Mullen, T. (eds.), Public Law in Scotland (Edinburgh: Avizandum 2006)Google Scholar
O’Neill, A., ‘Limited Government, Fundamental Rights and the Scottish Constitutional Tradition’ (2009) 85 Juridical Review85–128Google Scholar
O’Neill, A., ‘Human Rights and People and Society’, in Sutherland, E. E. et al. (eds), Law Making and the Scottish Parliament (Edinburgh University Press 2011)Google Scholar
Reed, R. and Murdoch, J., A Guide to Human Rights Law in Scotland, 3rd edn (London: Bloomsbury 2011)Google Scholar
Tierney, S., ‘Convention Rights and the Scotland Act: Redefining Judicial Roles’ (2001) 38 Public Law38–49Google Scholar
Tierney, S., Constitutional Law and National Pluralism (Oxford University Press 2004)Google Scholar
Walker, N. (ed.), MacCormick’s Scotland (Edinburgh University Press 2012)
Weiler, J. H. H., The Constitution of Europe (Cambridge University Press 1999) 102–7.Google Scholar
Cairns, A. C., Charter versus Federalism: The Dilemmas of Constitutional Reform (Montreal: McGill–Queen’s University Press 1992).Google Scholar
de Smith, S. A., The New Commonwealth and its Constitutions (London: Stevens & Sons 1964) .Google Scholar
Bringing Rights Home (Cm 3782 1997)
Himsworth, C. M. G., ‘Devolution and its Jurisdictional Asymmetries’ (2007) 70 MLR31.CrossRefGoogle Scholar
Tierney, S., ‘Convention Rights and the Scotland Act: Redefining Judicial Roles’ (2001) PL 38Google Scholar
Cameron v. Cottam 2012 SLT 173 and Salveson v. Riddell [2012] CSIH 26
Himsworth, C. M. G., ‘Conflicting Interpretations of a Relationship’ (2008) 12 Edinburgh Law Review321Google Scholar
Scotland’s Future: Draft Referendum (Scotland) Bill Consultation Paper (February 2010)
Himsworth, C. M. G., ‘Jurisdictional Divergencies over the Reasonable Time Guarantee in Criminal Trials’ (2004) 8 Edinburgh Law Review255CrossRefGoogle Scholar
(2009) 49 EHRR 19. While the High Court had taken the view in HMA v. McLean 2010 SLT 73
(Law, Justice and Democracy, London: BBC 1986)
Cadder was ‘flawed, mistaken and misconceived’ ((2011) 15 Edinburgh Law Review 276)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×