British and Canadian Public Law in Comparative Perspective

Description

This book explores current human rights controversies arising in UK law, in the light of the way such matters have been dealt with in Canada. Canada’s Charter of Rights predates the United Kingdom’s Human Rights Act by some 20 years, and in the 40 years of the Charter’s existence Canada’s Supreme Court has produced an increasingly sophisticated body of public law jurisprudence. In its judgments, it has addressed broad questions of constitutional principle relating to such matters as the meaning of proportionality, the ‘horizontal’ impact of human rights norms, and the proper role of judicial ‘deference’ to legislative decision-making. The court has also considered, more narrowly, specific issues of political controversy such as assisted dying, voting rights for prisoners, the wearing of religious symbols, parental control of their children’s upbringing, labour relations and collective bargaining, the meaning of obscenity in the context of pornography, and the law regulating libel actions brought by politicians. All of these issues are discussed in the book. The contributions to this volume provide detailed analyses of such broad and narrow matters in a comparative perspective, and suggest that the United Kingdom’s public law jurisprudence and scholarship might benefit substantially from a closer engagement with their Canadian counterparts. Preface Acknowledgements Table of Contents Contributors 1. Introduction I. The Chapters in this Volume II. Thematic Concerns III. Conclusion 2. Assisted Dying I. The Resilience of the British Blanket Ban on Assisted Dying II. The Canadian Assisted Dying Reform: Striking a Fair(er) Balance? III. Principled Concerns: Inviolability-of-Life vs Self-Determination IV. Pragmatic Concerns: The 'Protection of the Vulnerable' Argument V. Necessity and Proportionality VI. The Constitutional Role of the Judiciary in Highly Divisive Ethical Debates VII. Conclusion 3. Voting Rights for Prisoners I. Background Issues – History and Policy II. The Canadian Approach – Issues Highlighted in Sauvé v Canada No 2 III. The UK's Position on Prisoner Disenfranchisement IV. On Dialogue and Deference V. Is Felon Disenfranchisement Justifiable? IV. Conclusion 4. Horizontal Effect of Human Rights in the UK and Canada I. Measuring the Extent and Highlighting the Underpinning Considerations II. Horizontal Effect under the HRA 1998 III. Horizontal Effect under the Canadian Charter IV. Overall Conclusions 5. Private Law, Public Law, Libel Law I. Wason v Walter (1868): A Tentative Recognition – Soon Forgotten in English Law – of 'Political Libels' II. Wason v Walter: A Tentative Recognition – Seized upon and Built upon in American Law – of 'Political Libels' III. Traditional Perspectives on 'Political Libels' in England and Canada in the Near Sullivan Era IV. And the Charter Makes no Difference – Hill v Church of Scientology V. But Perhaps the ECHR does Make a Difference? From Blackshaw to Reynolds – And Jameel VI. Second (and Third) Thoughts on whether the Charter makes a Difference VII. Conclusions – A Judicial or Legislative Responsibility? 6. Criminalising Pornography I. The Roots of Pornography Offences: Obscenity II. Changes in Direction III. Criminalising Pornography: Feminist Success, or Damp Squib? IV. Broader Comparative Perspectives V. Conclusions 7. 'Labouring under the Canadian Constitution' Revisited I. Introduction II. Labour Law and the Charter III. Dunmore: Turning the Tide IV. BC Health Services: Repudiating the First Labour Trilogy V. Fraser: Two Steps Forward, One Step Back VI. Contradiction Reinforced: The Police Cases VII. Saskatchewan Federation of Labour: Final Repudiation of the First Labour Trilogy or Flattering to Deceive? VIII. Conclusion 8. Wearing Religious Symbols I. Assessing Religious Motivations II. Justification (or Balancing?) III. Religious Symbols and Public Officials IV. Conclusion 9. Raising Children in Accordance with Unorthodox Religious Beliefs I. Historical Background(s) II. Multiculturalism and Collective Values III. Parental Disputes and Children's Religious Upbringing IV. Religious Upbringing and Education V. Conclusion Index