The Human Rights Act and JR: A South African Perspective

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Abstract:

The Human Rights Act 1998 (HRA) will bring about a legal revolution similar to that achieved in South Africa in 1994. Like the HRA, South Africa's interim and final Constitutions made human rights immediately justiciable. In South Africa this has impacted dramatically on the judicial review of administrative action. The provisions of the HRA are not as radical as those contained in South Africa's interim and final Constitutions. However, the approach taken by South African courts to the incorporation of human rights into South African administrative law may help shed some light on the impact of the HRA on judicial review in England. The use of foreign law to interpret the rights incorporated into English law by the HRA ought not to be confined to those principles that emerge from the various organs of the Council of Europe. For example, in examining the applicability of the right to freedom of expression English courts have drawn on South African case law. In the area of administrative law South Africa has much in common with England. Thus an examination of the principles governing judicial review that have arisen in the light of South Africa's experience with a Bill of Rights is relevant to English law.

Keywords: Bill of Rights; Human Rights Act 1998; Judicial Review; South Africa

Document Type: Research Article

Publication date: June 1, 1999

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  • Judicial Review is now firmly established as the UK's leading journal for lawyers engaged in judicial review, catering for both practitioners and academics. It offers invaluable insights from today's foremost judicial review experts, combining analysis of general judicial review matters with practical information and guidelines for use by practitioners in the prepartation and conduct of applications for judicial review. The journal includes short and accessible items on the law, practice and procedure and recent cases. There is coverage of sub-topics within judicial review such as constitutional change, prison cases, commercial, and environmental judicial review. Other popular features are reviews of the academic literature, surveys of the leading cases, case commentaries and summaries of recent research.

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