The Commission for Equality and Human Rights:A New Institution for New and Uncertain Times

The establishment of the Commission for Equality and Human Rights(CEHR) has generated a mixture of praise, controversy and heightenedexpectations. The new Commission has more extensive enforcementpowers than did the previous equality commissions. In addition,the ongoing expansion of anti-discrimination law means thatthe CEHR has new terrain on which to press for change. However,its troubled birth, the pressure of expectation, the ever-increasingcomplexity of enforcing anti-discrimination legislation andthe tensions that lurk within its broad remit present substantialchallenges for the new Commission. It will have to be flexible,creative, strategic and tough-minded where required if it isto win credibility and ensure respect for anti-discriminationand human rights values.     

The Supremacy of Techno-Governance: Privatization of Digital Content and Consumer Protection in the Globalized Information Society

The article aims to describe the role of technology and contractin regulating access to digital content deregulating intellectualproperty law monopoly. In particular it argues that the anti-circumventionprovisions for technological protection measures and digitalrights management systems enacted in the United States and inEurope compromise the consumer’s capacity to exerciselegitimate rights, such as the private use exemption, by givingcontent owners extralegal protection for their works. It alsoanalyses how these acts have caused an inappropriate delegationof governmental decision making to a non-governmental entitywith a consequent privatization of the government’s rolein protecting intellectual property and in setting technicalstandards for digital infrastructure and interoperability.     

State Immunity from Measures of Constraints for the Property of Foreign Central Banks: The Chinese Perspective

As China's first law concerning state immunity, the Law on JudicialImmunity from Measures of Constraint for the Property of ForeignCentral Banks of 2005 grants special protection to the propertyof foreign central banks in the People's Republic of China (PRC),including Hong Kong Special Administrative Region (SAR) andMacau SAR. Although the Law itself does not reflect the restrictiveimmunity doctrine, the PRC's signature of the United NationsConvention on Jurisdictional Immunities of States and ThesisProperty in 2005 might signal a message that the PRC has switchedfrom its traditional absolute immunity stance to accept relativeimmunity in international law. The Law also reiterates the traditionalstance to the principle of reciprocity in state immunity.     

The Islamic Veil and Freedom of Religion, the Rights to Education and Work: a Survey of Recent International and National Cases

The wearing of the female Islamic dress (generally referredto as the hijab), or any feature of this dress such as the headscarf(khimar), face veil (niqab) and the head-to-toe all envelopinggarment (jilbab) is a complex and multi-faceted issue that isoften raised in public debate in most European States in recentyears particularly in the education and employment areas. Thisarticle analyses the selected State practice and judicial decisionson the banning and similar restrictions to the wearing of theIslamic dress in State schools. Two issues are analysed: (i)whether the prohibition of female Muslim pupils or studentsfrom wearing the Islamic dress, or any feature of the Islamicdress, while at State schools amounts to an unjustifiable violationof the right to education and/or an unjustifiable violationof freedom to manifest one's religion or beliefs and (ii) ifa State (or a non-State actor) prohibits a female Muslim teacherfrom wearing the Islamic dress while at a State school, doesthis amount to a violation of the teacher's right to work and/orthe teacher's right to manifest freedom of religion or belief?     

ORGANIZING FOR EU IMPLEMENTATION: THE EUROPEANIZATION OF GOVERNMENT MINISTRIES IN ESTONIA,POLAND, AND SLOVENIA

Do different levels of exposure to EU law implementation have consequences for the organization of national ministries? Previous accounts suggest that European integration has little influence on the ‘hardware’ of member state administrations. Data covering the organization of 21 ministries in Estonia, Poland, and Slovenia show the Europeanization effect to be more pronounced than might be expected. Ministries responsible for transposing many EU directives tend to institutionalize centralized oversight in legislative planning, review, and monitoring; ministries with few implementation responsibilities rarely make such adaptations. This effect holds when one controls for the impact of partisan preferences and organizational conventions. The results offer a counterpoint to the studies of old member states that find little EU effect on the organization of domestic ministries.     

The Parliamentary Standards Act 2009: A Constitutional Dangerous Dogs Measure?

The scandal which broke over MPs' abuses of the allowances system during the course of the last parliamentary session shows little sign of abating. As a result of an audit undertaken by Sir Thomas Legg, some MPs have been required to repay sums which were successfully claimed up to five years ago. Although this development has been welcomed by the public, it has been condemned by some in Parliament as being retrospective and unfair. In this article, the discussion focuses on the key provisions of the Parliamentary Standards Act 2009 which was enacted in order to tackle the issues raised by the expenses scandal. It considers their import and how they are likely to apply in practice. Since the Act is a further example of ‘fast‐track’ legislation, there was no opportunity for pre‐legislative scrutiny. This may help to explain why the Act differs in several important respects from the Bill which was originally introduced. It is highly likely that the 2009 Act will be the subject of post‐legislative scrutiny, especially since it contains a renewal provision.     

Achieving and Managing Equality in the Criminal Justice Process: Do the New Equality Measures Go Far Enough?

Abstract: This article will explore some of the legal and organisational challenges facing the various agencies involved in the delivery of criminal justice, in the UK, in adhering to the Equality Act 2006, Equality Duties and the forthcoming Single Equality Act (which, proposes a Single Equality Duty). We will consider the impact of these changes with reference to European legislation. Of particular interest will be the themes of effective implementation of the current Duties, equality of access and equality of outcome for both victims and offenders to appropriate services to tackle offending behaviour and the prevention of crime. This article will highlight issues surrounding impact assessment and the role of agency discretion and regulation. We offer some comments on future directions and the role of the regulatory bodies including the Equalities and Human Rights Commission (EHRC).     

本质的还是建构的?——论性倾向平等保护中的“不可改变”进路

性倾向和性别、种族一样,属于因出生而获得的"不可改变"特征,所以应该得到严格审查,得到宪法的平等保护。这一进路遭到了批评,因为关键问题在于政府立法和性倾向之间是否具有关联性。自然科学关于同性恋生物基础的研究对"不可改变"提供了强有力的支持,而这种本质主义的研究遭到了社会建构主义者强有力的批判,身份政治中的这一争论提醒我们,从"我也无能为力"的诉求中,同性恋权利不能获得真正的力量。     

论绑架罪的修正构成的解释与适用——兼评修正案对绑架罪的修改

刚刚通过的《中华人民共和国刑法修正案(七)》对于绑架罪进行了部分修正,增设了"情节较轻"的减轻构成规定,这虽然具有重要的意义,但是这一减轻构成的评价、理解与适用本身仍是问题。在对绑架罪的减轻构成从规定方式到下限选择作了评述之后,文章继而讨论了对于"情节较轻"的具体理解问题,特别指出在规定了绑架罪"情节较轻"的构成之后要避免的几种错误倾向。同时,修正案对于绑架罪的加重构成未作任何修改,这十分令人遗憾,而本着严格限制死刑适用的初衷,必须对于现有的加重构成进行严格的限制解释。总体而言,修正案对于绑架罪的修改虽有进步但不彻底,可谓是"半截子的革命"。