The Hard Sell: Promoting Human Rights

The Human Rights Act 1998 is one of the most important constitutional reforms to have been implemented by the New Labour administration in Britain. In addition to incorporating the European Convention on Human Rights into domestic law, its main ambition is the creation of a human rights culture. However, while citizens appear to have very little understanding of what the legislation entails, there is a strong tide of negative media publicity which depicts the Human Rights Act as a ‘villains’ charter’. It has been suggested that the government should do more to promote human rights. This paper reflects on how this may be achieved. An important strategy for creating a positive public awareness of human rights involves eradicating myths which have been allowed to flourish in sections of the British press. However, drawing on the work of Roland Barthes, this paper argues that this may be an unattainable goal. Human rights are empty signifiers which invite mythical appropriation. Both proponents and detractors of human rights legislation mobilise this capacity for mythmaking in their rhetoric.     

An Equality and Human Rights Commission Worthy of the Name

The Human Rights Act 1998 came fully into force on 2 October 2000, enabling the European Convention on Human Rights (ECHR) to be relied on directly in our domestic courts.¹ The Act lacked provision for a Human Rights Commission to advise and assist alleged victims in bringing proceedings for breaches of Convention rights, to research, intervene in court proceedings, and promote a culture of human rights, although such a Commission had been created for Northern Ireland. A White Paper has now been issued outlining plans for a Commission for Equality and Human Rights. This paper considers the future role and potential impact of the Commission and highlights opportunities that have been missed since October 2000 in its absence. We focus on its human rights aspects and summarize key conditions for the new Commission's success.     

Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

Panel recommends significant changes to federal law against discrimination

In a report released on 23 June 2000, the Review Panel tasked by the federal Minister of Justice with reviewing the Canadian Human Rights Act made some welcome recommendations for improving the Act and the way the Canadian Human Rights Commission functions. Three are of particular significance: the recommendation that "social condition" be added to the prohibited grounds for discrimination listed in the Act; the recommendation that the Canadian Human Rights Commission should have, under its governing legislation, the duty to monitor and report to Parliament and the UN Human Rights Committee on the federal government's compliance with international human rights treaties regarding economic, social, and cultural rights; and the recommendation that "gender identity" should be expressly added to the Act as a prohibited ground of discrimination.     

Regulating surrogacy--a contravention of human rights?

On the 2nd of October 2000, The Human Rights Act 1998 came into full force, signalling the incorporation of The European Convention on Human Rights into U.K. law. Areas of law believed to be inconsistent with the Convention may now be challenged in both The European Court of Human Rights and domestic courts. This article considers whether existing laws on the regulation of access to infertility services, in particular surrogacy, will be deemed incompatible with the ECHR. Human rights as enshrined within Articles 8 and 12 will be examined in light of recent suggestions that there may arise legal challenges by those who have had access to reproductive services restricted or denied. It will be shown that, although existing and potential future controls may arguably infringe these rights, it is nevertheless unlikely that they will be held to be in contravention of The Human Rights Act 1998.     

A Tort-Based Approach to Damages under the Human Rights Act 1998

This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach.     

Implications of the Human Rights Act (1998) for schools

The Human Rights Act 1998 finally came into operation on 2 October 2000 for all jurisdictions of the United Kingdom. The Act, which incorporates the European Convention on Human Rights into the UKs domestic laws, means that it will be unlawful for public authorities, which includes the DfEE and LEAs, to act in a way which is incompatible with the fundamental human rights set out in the Convention (found in Schedule 1 to the HRA). Bodies such as schools and their governing bodies, whose functions are of a public nature, are also covered by the legislation. The articles of the Act which have a particular relevance for schools and education are identified. It is probable that pupils and their legal advisers will invoke the Act in disputes over a wide range of educational issues, for example, bullying, exclusions and suspensions. Some of these issues are examined and where possible existing European human rights case law is cited. It is likely that the HRA will create interesting legal challenges involving schools and education, some of which cannot be anticipated at the moment, and that the Act will cause changes to education laws and schools regulatory procedures .     

The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession

The purpose of this article is to consider the effect the United Kingdom’s currently prevailing legal culture is likely to have on the realization of cultural change presaged by the Human Rights Act. The article is in five parts. The first two address the preliminary questions: what is meant by ‘legal culture’ for these purposes, and what type of ‘human rights culture’ does the Human Rights Act envisage? The answers define the scope of the remainder of the article’s inquiry into the ways in which the Act itself and the culture of the United Kingdom legal profession and judiciary are likely to interact. The third part of the article identifies some examples of the sorts of culturally specific aspects of current legal practice which are likely to operate as serious practical constraints on the emergence of a human rights culture worthy of the name, before the fourth part considers what sorts of cultural changes will be required of judges and lawyers for the presaged cultural transformation to come about. Finally, the article asks whether there is any reason to believe that courts and lawyers can find from within their present culture the resources to bring about the necessary shift.     

RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998

In RR v Secretary of State for Work and Pensions – follow-on litigation from the high-profile bedroom tax cases – the Supreme Court handed down a judgment which has significant implications for social security law, the interpretation of the Human Rights Act, the tribunals system, the judicial control of delegated legislation, and access to justice. Central, however, was the issue of the enforceability of human rights. We argue that the Supreme Court was not only justified in its interpretation of the Human Rights Act but that it has made the protections of the Act more easily enforceable.     

Resources, Rights, and Environmental Regulation

Prior to the Human Rights Act 1998, there were significant expectations that it would promote the development of environmental rights and extend remedies for environmental harm. This has not been the case, but then the expectations were probably always false. The paper points to three reasons why: the retention of a strong model of parliamentary sovereignty; the need to mould human rights principles alongside the common law; the traditional reluctance of the courts to determine questions of utility where questions of resource allocation arise. The paper concludes by reflecting on whether one would hope, in any case, to advance the cause of the environment through the mechanism of the Convention and suggests that there may be reasons to doubt the wisdom of this approach.     

Accommodating Children's Rights in a Post Human Rights Act Era

This article considers why so little case law currently acknowledges that children have recognisable rights under the European Convention on Human Rights and argues that the family courts are not meeting the demands of the Human Rights Act 1998 in this regard. It suggests that a reinterpretation of the 'paramountcy principle' in the Children Act 1989 should be accompanied by a radically different judicial approach to evidence relating to children's best interests. The article considers the difficulties that such an approach might produce when applied to teenagers intent on refusing life-saving medical treatment. It further argues that the courts should call on the substantial body of rights jurisprudence to provide legal and moral support for this revised approach.     

What not to wear and other stories: addressing religious diversity in schools

This article considers the position of religion in schools in England and Wales in light of the recent decision in The Queen on the application of SB v Headteacher and Governors of Denbigh High School. This held that the refusal to allow a pupil to wear the jilbab was a breach of her rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the Human Rights Act 1998. It contrasts approaches based on human rights principles with those based on discrimination law principles, highlighting overlap and inconsistency between both the definitions applicable to different forms of discrimination and the position of teachers and pupils. It concludes that the law is in urgent need of rationalisation to provide consistency.     

The Dayton Peace Agreemnet and Human Rights in Bosnia and Herzegovina

The article provides a short insight into the functioning of one of the most interesting institution established by the Dayton Pace Agreement, that is the protecting machinery of human rights. It examines why and how the Agreement on Human Rights has been adopted wthin the Dayton strustures, reflects onthe role of the established quasiinternational organs within the Bosnian legal system. It pays special attention to the competence and practice of the Human Rights Chamberm which is the highest judicial body in the country protecting human rights.     

The Aftermath of 11 September 2001: Liberty vs. Security before the Supreme Court of Canada

The terrorist acts of 11 September 2001 and the war on terrorismthat followed have induced a pervasive sense of insecurity inCanada, as elsewhere, and brought about a shift of public policytowards a confinement of security risks in a global era. Inthe polity, as in the legal sphere, there has been an obviousshift of paradigm, from liberty to security. In December 2001,Canada passed an Anti-Terrorism Act. As far as human rightsand freedoms are concerned, the Anti-Terrorism Act is a farcry from the draconian measures of the American Patriot Act,with its military tribunals, incommunicado confinement, preventivedetention without charge, and potentially expeditious applicationof the death penalty. Nevertheless, the Canadian Anti-TerrorismAct remains, in nature, an emergency legislation. In particular,as will be seen here, there has been a clear change of mind,within the Supreme Court of Canada, regarding the authorityof international human rights law, at least where highly sensitivesecurity matters are involved, such as deportation of politicalrefugees suspected of being linked with terrorist organisations. To emphasize this shift in attitude, an analytical framework,allowing us to distinguish between various types of constitutionalreasoning, is needed. This heuristic device must also be sophisticatedenough to single out the emergency situation from the normalstate of affairs. This may not be apparent in day-to-day life,but, since 11 September, the concept of emergency, and the notionthat an exceptional state of affair exists, have been a majorinfluence on our political world.     

Clashing Rights, the Welfare of the Child and the Human Rights Act

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.     

Human Rigghts: A Culture of Controversy

Many arguments in favour of constitutionally entrenched Bills of Rights are undermined by the inherently controversial nature of human rights with respect to their content, their form, and their valence. Even in the case of civil and political rights, the concretization of rights at the level of specificity required to decide particular cases must always be politically and morally controversial. There is no accepted moral or legal method that can be utilized to give the requisite objectivity to the value choices inherent in human rights jurisprudence. Positivization of human rights increases their utility but compromises their moral status. It follows that legitimate articulation of human rights requires ongoing democratic dialogue and decision-making. Although perceived as a stop-gap measure, the Human Rights Act 1998 could facilitate an enduring partnership between courts and parliaments, placing human rights more firmly on the political agenda and establishing a proper balance between the inputs of courts and parliaments which recognizes that the development of positivized human rights must be primarily located in electorally-based politics.     

Human rights: in the real world

Legal context. The impact of human rights on intellectual property("IP"), particularly in the light of the Human Rights Act 1998and growing criticism of IP by civil society. Key points. There can be a greater legal, as well as political,role for human rights in the development of IP. The place ofhuman rights in IP litigation is established: see decisionsin Levi v Tesco, Ashdown v Telegraph and ITP v Coflexip. However,the impact of human rights has been limited to extreme peripheralcases, without challenging the central priority accorded tothe interests of IP owners. After considering practical applicationsin "non commercial", "hybrid" and "commercial" fields, thisarticle argues for a more pervasive and central role for humanrights, by greater reference to the Human Rights Act 1998, theEU Charter, international human rights instruments, TRIPS anddecisions of other jurisdictions. This should enable a morebalanced outcome to be reached in many, but not all, cases. Practical significance. IP owners, those challenging IP rights,and those advising them should all consider greater use of humanrights in IP litigation—not just in exceptional cases.Those resisting infringement may increase their prospect ofsuccess; those arguing for infringement will be better placedto counter arguments which may be raised. However, revisionof national, regional and international IP legislation wouldbe required to address all perceived social difficulties withIP.     

Protecting mental health clients' dignity — The importance of legal control

Protecting human beings' dignity is a fundamental value underlying the UN's Universal Declaration of Human Rights as well as several recommendations and conventions derived from this, among them the European Convention of Human Rights (ECHR), a declaration that also takes precedence over Norwegian legislation. Still, clients' stories inform us that their dignity is not always protected in the mental health service systems.The aim of the study has been to investigate violations of dignity considered from the clients' points of view, and to suggest actions that may ensure that practice is brought in line with human rights values.The method used has been a qualitative content analysis of 335 client narratives.The conclusion is that mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. The main focus of this discussion is the role of the ECHR and the European Court of Human Rights as instruments for protecting mental health clients' human rights. To bring about changes, recommendations and practices should be harmonized with the new UN Convention on the Rights of Persons with Disabilities (2006). Under this convention, the European Court of Human Rights has support for the application of the ECHR without exemptions for special groups of people.     

Human Rights,Linguistics and the Law: The UK and Beyond

This article examines mediarepresentation of cases decided in respect ofthe United Kingdom Human Rights Acts (1998).These representations suggest that only somepeople are deserving of human rights. Further,a distinction between legal human rights andhuman rights is made because of this problem ofaccess. Indeed, before one can be clear abouthow to protect human rights in a legal context,one has to be clear about what human rights areuniversally and uncontroversially.     

In Defence of Due Deference

The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights.