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2016ACCA考试《F4公司法与商法》辅导要点4

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Chapter 4 Human rights

1 Human Rights ACT 1998

1.1 The Human Rights Act imposes a duty in "public authorities" to comply with the European Convention on Human Rights, and allows us to take action in the UK courts for violations of Convention rights.

1.2 Prior to the Act conventions rights could only be enforced in the European Court of Human Rights in Strasbourg which could be time consuming, expensive and daunting.

1.3 Now that the convention is part of UK law (HRA98) those rights can now be enforced in UK courts.

2 The rights (articles)

2.1 The main rights are:

2.1.1 the right to life (A.2)

2.1.2 prohibition of torture (A.3)

2.1.3 no slavery or forced labour (A.4)

2.1.4 right to liberty and security (A.5)

2.1.5 right to a fair trial (A.6)

2.1.6 no punishment without law (A.7) (generally therefore criminal offences should not be retrospective)

2.1.7 right to respect for privacy, family life (A.8)

2.1.8 freedom of thought, conscience and religion (A.9)

2.1.9 freedom of expression, assembly and association (A.10/A.11)

2.1.10 right to marry (A.12)

2.1.11 no discrimination in rights (A.14)

2.1.14 right to free elections.

(Note that the Articles are set out in full in your Study Text).

3 Impact on interpretation of statutes

3.1 As a 'public authority' the courts are required to construe legislation so that – as far as possible – it is compatible with the rights contained within the convention and apply existing common law in a manner that is compatible with convention rights. S2 of the Act requires future courts to take account of previous decisions of the ECHR.

If reconciliation with an Act of Parliament is not possible the existing legislation prevails although that may trigger a fast track procedure in the Act requiring Parliament to change existing laws. In such circumstances the court issues a declaration of incompatibility, it is then for the legislature to remedy the situation through new legislation. If the fast track procedure is used this gives ministers the power to alter incompatible parts of any primary legislation by way of statutory instrument.

If a court cannot reconcile 'delegated' legislation with the convention it can decide that the legislation does not apply.

It may no longer be appropriate for the courts to follow some precedents on the interpretation of statutes which pre date the Act. These may now be reviewed in light of the Act.

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