The Human Rights Act 1998 – Future Prospects

It is now over fifteen years since the Human Rights Act was enacted in November 1998. Although in legal terms it is difficult to argue with the proposition that the Act is working in an effective manner, in political terms the Act remains one of the most highly debated pieces of legislation on the UK statute books. In recent years there have been numerous calls for the repeal of the Act, and for its replacement with a ‘UK Bill of Rights’. Such calls led to the establishment of a Commission on a Bill of Rights, which issued its final report in December 2012. Little progress has since been made on the issue. One notable occurrence however was the introduction of the Human Rights Act 1998 (Repeal and Substitution) Bill, a Private Member’s Bill which was eventually withdrawn in March 2013. This article seeks to assess the current situation regarding the bill of rights debate, and ultimately the question of the future prospects of the Human Rights Act, an issue of immense legal significance. Overall, it will be questioned whether the enactment of a UK Bill of Rights would constitute an improvement on the current position under the Human Rights Act.

The European Convention on Human Rights Act 2003 – Ten Years On

The European Convention on Human Rights Act 2003 has now been in force in Ireland for ten years. This article analyses the Act itself and the impact which it has had on the Irish courts during the first decade of its operation. The use of the European Convention on Human Rights in the Irish courts prior to the enactment of the legislation is discussed, as are the reasons for the passing of the Act. The relationship between the Act and the Irish Constitution is examined, as is the jurisprudence of the Irish courts towards the interpretative obligation found in section 2(1), and the duty placed upon organs of the State by section 3(1). The article ends with a number of observations regarding the impact which the Act has had on the Irish courts at a more general level. Comparisons will be drawn with the UK’s Human Rights Act 1998 throughout the discussion.

Distal volcanic ash layers in the Lateglacial Interstadial (GI-1): problems of stratigraphic discrimination

A new Icelandic ash layer has been detected in mid-Interstadial sediments in a number of Scottish Lateglacial sequences and has been named the Penifiler Tephra. It is rhyolitic in composition and possesses a chemistry, which is similar to the Borrobol Tephra of early Lateglacial Interstadial age, which also occurs in a number of these same sequences. Where the Borrobol Tephra has been identified in these sequences it consistently exhibits a diffuse distribution accompanied in some cases by stratigraphic bimodality. A number of sedimentological and taphonomic factors are considered in order to account for this distribution. One possibility is that these distributions are produced by taphonomic factors. Another possibility is that the Borrobol Tephra may not be the product of a single Icelandic eruption, but of two events closely spaced in time. In at least two of the sequences investigated in this study, basaltic shards were found in association with the Penifiler and Borrobol tephras, suggesting either a basaltic phase associated with these eruptions, or coincident eruptions from a separate basaltic volcanic centre. The discovery of the new Penifiler Tephra makes a contribution to the regional tephrostratigraphic framework, and provides an additional isochron for assessing the synchroneity of palaeoenvironmental changes during the Interstadial. The true stratigraphic nature and age of the Borrobol Tephra, however, remains unresolved and, therefore, its use as an isochron is more problematic. The possible occurrence of basaltic populations may strengthen correlations with basaltic tephras recently detected in the NGRIP ice-core.

Age discrimination before the ECJ - Conceptual and theoretical issues

Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.

'Sorry I meant the patient's left side': impact of distraction on right/left discrimination

Context Medical students can have difficulty in distinguishing left from right. Many infamous medical errors have occurred when a procedure has been performed on the wrong side, such as in the removal of the wrong kidney. Clinicians encounter many distractions during their work. There is limited information on how these affect performance. 
Objectives Using a neuropsychological paradigm, we aim to elucidate the impacts of different types of distraction on left–right (LR) discrimination ability. 
Methods Medical students were recruited to a study with four arms: (i) control arm (no distraction); (ii) auditory distraction arm (continuous ambient ward noise); (iii) cognitive distraction arm (interruptions with clinical cognitive tasks), and (iv) auditory and cognitive distraction arm. Participants’ LR discrimination ability was measured using the validated Bergen Left–Right Discrimination Test (BLRDT). Multivariate analysis of variance was used to analyse the impacts of the different forms of distraction on participants’ performance on the BLRDT. Additional analyses looked at effects of demographics on performance and correlated participants’ self-perceived LR discrimination ability and their actual performance. 
Results A total of 234 students were recruited. Cognitive distraction had a greater negative impact on BLRDT performance than auditory distraction. Combined auditory and cognitive distraction had a negative impact on performance, but only in the most difficult LR task was this negative impact found to be significantly greater than that of cognitive distraction alone. There was a significant medium-sized correlation between perceived LR discrimination ability and actual overall BLRDT performance. 
Conclusions
Distraction has a significant impact on performance and multifaceted approaches are required to reduce LR errors. Educationally, greater emphasis on the linking of theory and clinical application is required to support patient safety and human factor training in medical school curricula. Distraction has the potential to impair an individual's ability to make accurate LR decisions and students should be trained from undergraduate level to be mindful of this.

Elements of A New Framework for the principle of Equal Treatment of persons in EC Law

In June and November 2000, the European Parliament and the Council adopted two Directives referring to ‘the principle of equal treatment irrespective of’ in their title, one relating to racial and ethnic origin, the other to disability, age, religion and belief or sexual orientation. A thorough reform of Directive 76/207/EEC on the principle of equal treatment for women and men in employment matters is pending between the European Parliament's second reading and adoption while this is written. Community secondary legislation on equal treatment of persons has thus expanded in scope and number of reasons which must not serve as starting points for differentiation. Does this signify progress in legal protection against personal discrimination? While not providing a ready answer, this article proposes an analytical framework to answer this question, concentrating on conceptions of equality in general and in particular on the problems multi-dimensional discrimination might pose for the law.

Enforcing Employment Discrimination Law - Potential Transplants from Italy to Britain and Vice Versa?

While substantive EU non-discrimination law has been harmonized in great detail, the enforcement regime for EU non-discrimination law consists merely of a few isolated elements. Thus, the pursuit of unity through harmonization in substantive EU law is accompanied by considerable regulatory autonomy for Member States in securing the efficiency of those laws, reflecting the diversity of national enforcement regimes, and resulting in twenty-seven different national models for enforcing discrimination law in labour markets. This article pursues two connected arguments through a comparison of rules for enforcing non-discrimination law in labour markets in Britain and Italy. First, it argues that enforcing non-discrimination law in labour markets is best achieved when responsive governance, repressive regulation and mainstreaming equality law are combined. Second, the article submits that diversity of national legal orders within the EU is not necessarily detrimental, as it offers opportunities for mutual learning across legal systems.The notion of mutual learning across systems is proposed in order to analyse the transnational migration of legal ideas within the EU. Such migration has been criticized in debates about the ‘transplantation’ of legal concepts or legal irritation through foreign legal ideas, in particular by comparative labour lawyers. However, EU harmonization policies in the field of non-discrimination law aim to impact on national labour laws. The article develops the notion of mutual learning across legal systems in order to establish conditions for transnational migration of legal ideas, and demonstrates the viability of these concepts by applying them to the field of non-discrimination law

Short comment: To Nail a Jellyfish? Finding a progressive agenda for EU anti-discrimination law

The title of this short (about 4500 words) intervention translates to "To Nail a Jellyfish? Finding a progressive agenda for EU anti-discrimination law". I engage with those criticising EU anti-discrimination law as yet another emanation of the EU's "neo-liberal" nature which fails to establish a viable social policy regime. I criticise this in two directions. First, I take issue with the theory that anti-discrimination law and policy has to be part of social policy. Actually, the field has a mission which differs from social policy, in that it addresses disadvantage resulting from othering, combating stereotypes as well as promoting accomodation of difference. Second, I show how the critique of judicialisation of policy is not unique to anti-discrimination law and policy. The so called turn to rights based employment law has been criticised under this mantra by those who fear that collective labour law mechanisms will become less prevalent. Further, those who have engaged with anti-discrimination law for a much longer time than those criticising it have also devised means to overcome the individualistic tendencies of rights adjudication. They have (partly successfully) argued in favour of establishing equality bodies and creating positive obligations. Thus, the critique neglects the field it takes on, and does not accept the fact that anti-discrimination law and policy must be considered a field in its own right instead of the servant of social law and policy.
Now, this is more a summary than an abstract - since I realise that not everyone reads German.

Proportionality in Age Discrimination Cases - a Model Suitable for Socially Embedded Rights

This chapter discusses the use of proportionality in age discrimination cases before the Court of Justice of the European Union. It argues that the Court does not use this concept systematically - indeed it exposes some contradiction that make the case law seem arbitrary - and proposes a more fruitful use of the principle, which is in line with a modern conception of human rights. The chapter argues that the principle of proportionality stems from the time when human rights served the recently liberated burgeois elite in guarding their rights to property and liberty against the state. Today, states not only respect human rights (which is fully sufficient for this elite, who can rely on their inherited wealth to fend for themselves). They also protect and promote human rights, and these activities are a precondition for human rights to be practically relevant for the whole population. This also means that state activity, which is experienced as a limitation of rights to property and liberty by some, may constitute a measure to promote and protect human rights of others. In employment law - the only field where the EU ban on age discrimination is applied - this is a typical situation. If such a situation occurs, the principle of proportionality must be applied in a bifurcated way.It is not sufficient that the limitation of property rights is proportionate for the achievement of a public policy aim. If the aim of public policy is to enable the effective use of human rights, the limitation of the state action must be proportionate to the protection and promotion of those human rights. It is argued that the principle of proportionality is superior to less structures balancing acts (e.g. the Wednesbury principle), if it is applied both ways. Going over to the field of age discrimination, the chapter identifies a number of potentially colliding aims pursued in this field. Banning age discrimination may relate to genuine aims of anti-discrimination law if bias against older or very young workers is addressed. However, the EU ban of discrimination against all ages also serves to restructure employment law and policy to the age of flexibilisation, replacing the synchronisation principle that has been predominant for the welfare states of the 20th century. The former aim is related to human rights protection, while the latter aim is not (at least not always). This has consequences for applying the proportionality test. The chapter proposes different ways to argue the most difficult age discrimination cases, where anti-discrimination rationales and flexibilisation rationales clash

European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law

EU equality law is multidimensional in being based on different rationales and concepts. Consequently, the concept of discrimination has become fragmented, with different instruments envisaging different scopes of protection. This raises questions as to the ability of EU law to address the situation of persons excluded on a number of grounds. This edited collection addresses the increasing complexity of European Equality Law from jurisprudential, sociological and political science perspectives. Internationally renowned researchers from Scandinavian, Continental and Central European countries and Britain analyse consequences of multiplying discrimination grounds within EU equality law, considering its multidimensionality and intersectionality. The contributors to the volume theorise the move from formal to substantive equality law and its interrelation to new forms of governance, demonstrating the specific combination of non-discrimination law with welfare state models which reveal the global implications of the European Union. The book will be of interest to academics and policy makers all over the world, in particular to those researching and studying law, political sciences and sociology with an interest in human rights, non discrimination law, contract and employment law or European studies.