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Assessment: You have been asked to write a legal brief for 'More Rights', an independent human rights group, that addresses the following questions with reference to the facts and the issues in the mooting problem: (a) to what extent does section 3 of the Human Rights Act 1998 give judges the power to legislate; and (b) what impact does the power conferred on judges by section 3 of the Human Rights Act 1998 have on parliamentary sovereignty?

This is a fictional scenario and the characters are all fictitious. You must answer the question on the basis of real decided cases. A v Ministry of Justice Human rights – new approach to statutory interpretation – declarations of incompatibility – prisoners’ rights – right to free elections – right to vote – margin of appreciation – failure to enact amending legislationAgreed facts The claimant is a woman, who is serving a 4 year sentence of imprisonment for fraud. In March 2012 she sent a letter to the electoral services officer for her local authority in whose district the prison is located to request to be put on the electoral register. She received a response that she could not be registered to vote in any elections in the United Kingdom. According to section 3(1) of the Representation of the People Act 1983 and section 8 of the European Parliamentary Elections Act 2002 a convicted prisoner while serving her sentence in prison is legally incapable of voting in domestic or European Union elections. It has been seven years since the Grand Chamber of the European Court of Human Rights in Hirst v UK (2) (2006) E.H.R.R. 41 held that a statutory blanket ban on prisoners voting in elections violated article 3 of the First Protocol to the European Convention on Human Rights. The Secretary of State has openly acknowledged that domestic law was incompatible with the Convention right to the free expression of the opinion of the people: see Chester v Secretary of State for Justice and Wakefield Metropolitan District Council [2010] EWCA Civ 1439. With a view to the upcoming general election on 7 May 2015 and the Government’s continued delay in complying with the ruling in Hirst, the claimant filed a claim before the High Court in June 2012. Proceedings before the court Before the High Court the claimant argued that the court should exercise its powers under the Human Rights Act 1998 (HRA) in the following way: either pursuant to section 3(1) of the HRA the court should read section 3(1) of the Representation of the People Act 1983 so as to give effect to a prisoner’s right to vote as set out in the Hirst judgement; or in the alternative it should issue a declaration of incompatibility in accordance with the powers granted to the court under section 4 of the HRA due to the delay in enforcing the Hirst judgement and the failure to enact amending legislation. The High Court decided in favour of the claimant. It held that 1. to give effect to the Convention right as established by the Hirst judgement, section 3(1) of the Representation of the People Act 1983 as amended by section 24 of and paragraph 1 of Schedule 4 to the Representation of the People Act 1985 should be read as follows: ‘ A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election only in exceptional circumstances and where there is a link between the offence of which he has been convicted and the integrity of the democratic system.’2. a declaration of incompatibility was not necessary. The Secretary of State had already accepted that domestic law was incompatible with the Convention right. It is not the role of a judge to reprimand Parliament for failure to enact amending legislation nor the Government for the delay in enforcing a judgement of the European Court of Human Rights. Assessment: You have been asked to write a legal brief for ‘More Rights’, an independent human rights group, that addresses the following questions with reference to the facts and the issues in the mooting problem: (a) to what extent does section 3 of the Human Rights Act 1998 give judges the power to legislate; and (b) what impact does the power conferred on judges by section 3 of the Human Rights Act 1998 have on parliamentary sovereignty?

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