Article 6 ECHR, Civil Rights and the Enduring Role of the Common Law

This article examines the role that the common law has played in Human Rights Act 1998 case law on the protection of 'civil rights' within the meaning of Article 6 ECHR. Focusing on Article 6 ECHR's 'disclosure' and 'full jurisdiction' requirements, it highlights an increasingly nuanced relationship between the ECHR and common law in cases under and outside the Human Rights Act 1998. Although the general pattern within the case law has been one of domestic court fidelity to the ECHR - something that is wholly consistent with section 2 of the Human Rights Act 1998 - the article notes areas in which the courts have been reluctant to adapt common law principles, as well as instances of common law protections exceeding those available under Article 6 ECHR. The article suggests that such lines of reasoning reveal a robustness within the common law that brings a multi-dimensional quality to the Human Rights Act 1998. It also suggests that such robustness can be analysed with reference to 'common law constitutionalism' and a corresponding imagery of 'dialogue' between the domestic courts and European Court of Human Rights.

Understanding Human Dignity

“Understanding Human Dignity” aims to help the reader make sense of current debates about the meaning and implications of the idea of “human dignity.” The concept of human dignity has probably never been so omni-present in everyday speech, or so deeply embedded in political and legal discourse. In debates on torture, abortion, same-sex marriage, and welfare reform, appeals to dignity are seldom hard to find. The concept of dignity is not only a prominent feature of political debate, but also, and increasingly, of legal argument. Indeed, courts tell us that human dignity is the foundation of all human rights. But the more important it is, the more contested it seems to have become. There has, as a result, been an extraordinary explosion of scholarly writing about the concept of human dignity in law, political philosophy, and theology. This book aims to reflect on these intra-disciplinary debates about dignity in law, philosophy, history, politics, and theology, through a series of edited essays from specialists in these fields, explored the contested concept in its full richness and complexity.

Bills of Rights:A Comparative Perspective

Bills of rights are currently a much debated topic in various jurisdictions throughout the world. Almost all democratic nations, with the exception of Australia, now have a bill of rights. These take a variety of forms, ranging from constitutionally entrenched bills of rights, such as those of the United States and South Africa, to non-binding statements of rights. Falling between these approaches are non-entrenched, statutory bills of rights. As regards the latter, a model which has become increasingly popular is that of bills of rights based on interpretative obligations, whereby duties are placed upon courts to interpret national legislation in accordance with human rights standards. The aim of this book is to provide a comparative analysis of the bills of rights of a number of jurisdictions which have chosen to adopt such an approach. The jurisdictions considered are New Zealand, the United Kingdom, the Australian Capital Territory and the Australian state of Victoria.

There have been very few books published to date which contain a detailed comparative analysis of the bills of rights which this book addresses. The book adopts a unique thematic approach, whereby six aspects of the bills of rights in question have been selected for comparative analysis and a chapter is allocated to each aspect. This approach serves to facilitate the comparative discussion and emphasise the centrality of the comparative methodology.

Reimagining rights-based accountability: Community use of economic and social rights

This article explores the ways in which marginalised groups in Northern Ireland have employed and translated for practical use human rights standards, principles and mechanisms to campaign for the implementation of economic and social rights obligations. With the support of Participation and Practice of Rights, a regional nongovernmental organisation, marginalised groups have drawn upon human rights in their local context to campaign on issues related to mental health, housing, work and play. Based on case studies from four such campaigns, this article reviews the practical steps groups took to engage directly or indirectly with economic and social rights tools and mechanisms. The article reflects on the usefulness of these frameworks and mechanisms for achieving change in the case studies discussed, as well as the value of a human rights framework for empowering marginalised communities to make rights-based demands for change. It is argued that although the realisation of economic and social rights is limited in part by the lack of traditional enforcement mechanisms, community driven campaigns offer an opportunity for reimagining mechanisms for rights-based accountability.

ECJ Fundamental Rights Jurisprudence between Member States' Prerogatives and Citizens' Autonomy

This chapter provides an analysis of the European Court of Justice's Fundamental Rights Jurisprudence, focused on the potential of Member States to maintain any positive regulatory role in supporting citizens' autonomy on the one hand, and on the impact of the Court's case law on citizens' opportunities to actually enjoy human rights within societies (substantive autonomy). It first sketches the notion of autonomy which is proposed as base of fundamental rights protection and promotion within a social reality characterized by not democratically legitimated dominance based on wealth and economic power. It proceeds to contextualize ECJ case law on fundamental rights. This section starts with a quantitative appetizer, which will formalize some assumptions and test them on a total of 150 cases before the European judiciary. The paper then offers a more conceptual recount around fundamental rights to equality and non-discrimination on the one hand and around fundamental rights of workers to actively shape employment and labor relations on the other hand. In conclusion some suggestions are made of how ECJ fundamental rights doctrine could develop more positively in order to moderate diverging interests of different parts of the citizenry in protecting fundamental rights.

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

Alternative Care and Children’s Rights in Northern Ireland

This report covers the rights of the most vulnerable children in Northern Ireland who cannot be cared for within their own family. The purpose of the report is to review the current provision and circumstances facing such children and young people and how international human rights standards can offer protection and support.

Reasoning Rights: Comparative judicial engagement

This edited book is about comparative reasoning in human rights cases, exploring the questions: How is it that notionally universal norms are reasoned by courts in such dramatically different ways? What is the shape of this reasoning? What techniques are common across the transnational jurisprudence? What techniques are diverse? With contributions by a team of world-leading human rights scholars, the book moves beyond simply addressing the institutional questions concerning courts and human rights, which too often dominate discussions of this kind. Instead, it seeks a deeper examination of the similarities and divergence in the content of reasons being developed by different courts when addressing comparable human rights questions. These differences, while partly influenced by institutional issues, cannot be attributable to them alone. The book explores the diverse and rich underlying spectrum of human rights reasoning, as a distinctive and particular form of legal reasoning, evident in the case studies across the selected jurisdictions. It is a fascinating study for all those interested in human rights law and legal reasoning.

Reva Siegel and the Role of Religion in Constructing the Meaning of ‘Human Dignity

The “religious understanding” of dignity is a topic of considerable complexity and is the subject of extensive scholarship. In this paper, I consider understandings of dignity that are currently under discussion in Roman Catholic circles, not least because Catholic discussions of dignity are often seen as influential in public policy and legal interpretation, directly and indirectly. I shall focus on one relatively neglected issue in legal scholarship: how scholars go about the task of identifying what a particular religion’s understanding of human dignity involves.
To illustrate the methodological problems that such an enterprise raises, I shall take one attempt by a scholar writing in the field of secular legal scholarship to describe Catholic understandings of dignity in the context of abortion and same-sex marriage. The discussion is that of Reva Siegel, an academic lawyer at Yale University; her recent analysis of differing understandings of dignity illustrates some of the issues that arise when the secular scholarly community addresses religious understandings of dignity.

In Pursuit of Human Dignity

The discussion of human dignity raises such complex issues, and the issues that current scholarship now considers central to its understanding are so daunting, that we are in danger of not being able to see the forest for the trees. This Introduction forms the first chapter of a book of essays (Christopher McCrudden (ed.), UNDERSTANDING HUMAN DIGNITY,
Proceedings of the British Academy/Oxford University Press, in press) by a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, arising from a Conference held in Rhodes House, Oxford In June 2012. The Introduction aims to provide a guide, a map, through the thicket of current dignity scholarship. It situates the subsequent chapters of the book within an overview of the terrain that currently constitutes debates about the use of dignity in these fields. I have not attempted to put forward my own
comprehensive account of dignity. Mostly based on the rich conversations that took place at the Conference, I have sought, rather, to probe the potential strengths and weaknesses of all of the principal positions identified, at least in some contexts taking on the role of a Devil’s Advocate.

Childhood, Rights and Justice in Northern Ireland

Building on primary research and previous publications (Haydon, 2012; Haydon, 2014; Haydon and Scraton, 2008; McAlister, Scraton and Haydon, 2009; Scraton and Haydon, 2002), this chapter will provide a critical analysis of children’s rights and youth justice in Northern Ireland. More broadly, it will consider recent research concerning the criminalisation of children and young people in the United Kingdom and profound concerns regarding the policing and regulation of children raised in successive concluding observations about the UK Government’s implementation of the UN Convention on the Rights of the Child (UN Committee on the Rights of the Child, 1995, 2002, 2008). From this generic context, the chapter will map the ‘particular circumstances’ of Northern Ireland - a discrete legal jurisdiction to which powers for justice and policing were devolved only in 2010. Emerging from four decades of conflict and progressing through an uneasy ‘peace’, rights-based institutions and enabling legislation have, in principle, promoted and protected human rights. Yet children and young people living in communities marginalised by poverty and the legacy of conflict continue to experience inconsistent formal regulation by the police and the criminal justice system, while enduring often brutal informal regulation by paramilitaries. The chapter will explore evident tensions between the dynamics of criminalisation and promotion/ protection of children’s rights in a society transitioning from conflict. Further, it will analyse the challenges to securing children’s rights principles and provisions within a hostile political and ideological context, arguing for a critical rights-based agenda that promotes social justice through rights compliance together with policies and practices that address the structural inequalities faced by children and young people.

Bouyid v Belgium: The “minimum level of severity” and Human Dignity's Role in Article 3 ECHR

The Grand Chamber of the European Court of Human Rights recently delivered an important judgment on Article 3 ECHR in the case of Bouyid v Belgium. In Bouyid, the Grand Chamber was called upon to consider whether slaps inflicted on a minor and an adult in police custody were in breach of Article 3 ECHR, which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Overruling the Chamber judgment in the case, the Grand Chamber ruled by 14 votes to 3 that there had been a substantive violation of Article 3 in that the applicants had been subjected to degrading treatment by members of the Belgian police; it found that there had been a breach of the investigative duty under Article 3 also. In this comment, I focus on the fundamental basis of disagreement between the majority of the Grand Chamber and those who found themselves in dissent, on the question of whether there had been a substantive breach of Article 3. The crux of the disagreement lay in the understanding and application of the test of ‘minimum level of severity’, which the ECtHR has established as decisive of whether a particular form of ill-treatment crosses the Article 3 threshold, seen also in light of Article 3’s absolute character, which makes it non-displaceable – that is, immune to trade-offs of the type applicable in relation to qualified rights such as privacy and freedom of expression. I consider the way the majority of the Grand Chamber unpacked and applied the concept of dignity – or ‘human dignity’ – towards finding a substantive breach of Article 3, and briefly distil some of the principles underpinning the understanding of human dignity emerging in the Court’s analysis.