Publications

The interpretation of human rights inevitably requires value judgements. But if the power of interpretation and limitation of human rights is left to elected legislators on the basis of majority voting, perpetual minorities may be perpetually subordinated. But leaving judges to make the final decision flies in the face of the basic principle that all fundamental decisions in society should be taken by the people themselves. Prisoners’ voting rights throw the dilemma into particularly sharp relief. Should an elected legislature have the final say on removing the fundamental right to vote from a section of the population, particularly one which is deeply unpopular and which politicians have no natural interest in defending? The most promising way out of this dilemma is to move away from a polarisation between courts and legislatures, and instead regard both as contributing to a democratic resolution of human rights disputes. An increasingly influential stream of thought characterises the relationship as one of dialogue. Rather than courts having the final say, judicial decisions provoke a response from the legislature. In this paper, I aim to go beyond a dialogic model and propose one based on deliberative democracy. Drawing on the distinction between interest bargaining and value-based or deliberative decisions, I argue that human rights can only be properly addressed within a democracy through deliberative means. In other words, the power of the principle should constitute the reason for adopting it, rather than the power of those whose interests it serves. Otherwise, those without political power risk perpetual subordination, undermining the raison d’être of human rights protection. It is here that the courts are in a position to make a unique contribution to the democratic resolution of human rights issues. I argue that courts should ensure that human rights decisions are indeed taken deliberatively within the constraints set by the human rights themselves. I call this a ‘bounded deliberative’ approach. The final section applies these principles to prisoners’ voting rights cases in South Africa and the UK.

Despite increasingly sophisticated antidiscrimination laws, dis- crimination and inequality have proved remarkably resilient. This prompts questions about the limits of law’s ability to achieve social change. One way forward is to fashion new legal tools, which impose duties to promote or achieve equality, rather than focusing on individual rights against specific perpetrators. In the past decade in Britain, such fourth generation equality laws have been developed in a distinctive format, requiring the decision-maker to “have due regard” to equality, rather than taking action to achieve such objectives. Thisstandard has triggered a spate of judicial review cases, particularly in response to austerity measures imposing deep budgetary cuts on disadvantaged groups. This Paper’s aims are two-fold. The first is to examine the judicial approach to the due regard standard in the light of recent regulatory theory. Do courts consider the due regard standard as a signal for deference, or can it be understood as an example of “reflexive law,” facilitating deliberative decision-making rather than imposing external standards likely to meet with resistance from the regulated body? The Paper concludes that courts have struggled to deal with the regulatory challenges presented by the “due regard” standard, wavering between appropriate and inappropriate intervention. The second aim is an analysis of whether a deliberative standard is appropriate in the equality context. The record of judicial review cases demonstrates that such a standard risks legitimating or simply reconfiguring existing inequalities.

ISBN: 0002-919x

DOI: 10.1093/ojlr/rwr029

This article will argue that although, historically, religious minorities were the primary trigger for the institutionalization of the international framework of minority rights, they have long since been sidelined from its protections. This sidelining is evident in a variety of international human rights norms and mechanisms, the focus below being on the jurisprudence of the UN Human Rights Committee. The article offers a number of explanations for this diversion of religious minorities away from the international minority rights regime. It also argues for a cautious reintegration of religious minorities within the minority rights regime after having sought understanding with regard to some issues of concern.

ISBN: ISSN 2047-0770

This article contests the notion, prevalent in British jurisprudence regarding ECHR Article 6, and recently adopted by the Grand Chamber in Al-Khawaja v UK, that the right to a fair trial involves the 'balancing' of the rights of the defendant against the rights of the prosecution, the complainant and other witnesses, and the community at large. It argues that the whole notion of balancing is fundamentally misconceived, setting up a conflictual trap whereby defence rights are always seen as being in antithesis to those of the prosecution representing the overarching public interest. Instead, I propose a model embodying a sense of objective fairness predicated upon the right to a verdict with integrity; as such this right is not allocated to any one participant in the trial but is a common good, erasing any perceived antitheses within Article 6. The article goes on to explore the concept of "the essence of the right" in Article 6(3) caselaw, and explains why this has been extinguished by the approach to Article 6 of the Grand Chamber in Al-Khawaja, sacrificing principle to juridical, and possibly political, expediency. The consequence is that Article 6 now only serves to protect the right to a 'fair-ish' trial.

DOI: 10.1093/ojls/gqr024

Proponents of dignity see it as a useful tool which solves the most important (if not all) of the practical and theoretical problems in human rights law. Arguing against this sympathetic position on the other side of the debate are the sceptics, who have raised troubling questions about dignity’s alleged indeterminacy, as well as about the illiberal role that it has allegedly played in certain contexts. In this paper, I argue that designing a defensible and useful conception of dignity which is distinguishable from other values such as equality and autonomy may be possible, but not without addressing some genuine infirmities that the critics have pointed out. If there is indeed such a conception of dignity, it is likely to be "expressive" in character. I therefore argue that the legal ideal of dignity is best understood as an expressive norm: whether an act disrespects someone’s dignity depends on the meaning that such act expresses, rather than its consequences or any other attribute of that act.

Poverty is increasingly a human rights issue. The aim of this paper is to consider what role the right to equality can and should play in relation to poverty. It draws on the experience in Britain, Canada, the US and South Africa to develop several ways in which equality could function in relation to poverty. It concludes that while the right to equality can make a valuable contribution to apsects of pvoerty based on misrecognition and oscial exclusion, it has not yet been sufficiently developed to address distributive inequalities in its own right.

ISBN: 1016-4359

A key advance of the Equality Act 2010 is its introduction of a single equality duty. The new ‘public sector equality duty’ harmonises the earlier duties and extends its coverage to include other protected characteristics. In addition, the statutory aims have been deepened to reflect a substantive conception of equality. However, the core of the duty is unchanged. It is a duty to ‘have due regard’, not to take steps or to achieve equality. Is this an attempt to incorporate a deliberative, reflexive approach to achieving equality, recognising that a straightforward command and control approach might encounter unproductive resistance? Or does it reflect a fundamental ambivalence as to the importance of equality issues? Section 2 below examines the structure of the statutory provisions. Section 3 asks whether the statutory provision is an example of reflexive law. Particular attention is paid to the spate of judicial review cases relying on the equality duty to challenge a range of budget cuts. It is argued that courts have struggled to deal with the regulatory challenges presented by the equality duties. Nor is it clear that a reflexive approach is appropriate to achieve substantive equality.

ISBN: 1464-366

The Terrorist Asset-Freezing etc Act 2010 came into force on 17 December 2010. The 2010 Act repealed the previous Temporary Provisions Act. This article does not purport to provide comprehensive coverage of the Act; it outlines four main areas of concern that arose in respect of the Draft Terrorist Asset-Freezing Bill and that now arise in respect of the Terrorist Asset-Freezing etc Act 2010. In summary, these are as follows: problems of parliamentary scrutiny relating to the scope of the Act; problems relating to the reasonable suspicion test; problems relating to judicial process; problems relating to ECHR rights.

DOI: 10.1163/157181110X512151

The international concern with minorities has benefitted from a range of rationales and gone through a number of permutations over recent decades. Within these are included a wide spectrum of objectives from concern with their very obliteration covered under genocide instruments to soft law instruments concerned with their positive flourishing. This article will address just one aspect of those concerns – those protecting minorities from hate speech.

This paper considers minorities in English law through the prism of international standards related to both freedom of religion or belief and minority rights. These two sets of international normative standards are brought together in order to emphasize the fact that persons belonging to religious minorities have access not only to general human rights standards including freedom of religion or belief, but also to minority rights. Combining the implications of these applicable rights, the paper will suggest that ‘religious minorities’ should be (i) taken to include persons belonging to minorities on grounds of both religion or belief; (ii) that their religious practice should not only be considered ‘manifestation’ of religion or belief but also the practice of a minority culture; and that (iii) States have a duty to protect the survival and continued development of the identity of religious minorities and allow such persons to enjoy their culture. The paper will then move to considering a few recent cases in English law, in order to examine the extent to which these three implications are realized within them.

ISBN: ISBN 978-90-04-19521

The protection of the human rights of all without discrimination on the basis inter alia of religion or belief, the protection of religious minorities, and manifestation of religion or belief in association with others - these are all well-established norms of international human rights law. Yet violations continue world-wide, and new manifestations of these age-old problems continue to multiply.[1] All Muslim states have ratified, and therefore voluntary adopted, legal commitments with regards to these obligations. Nevertheless, these protections remain very much wanting in many instances with respect to both Muslim and non-Muslim minorities in Muslim states. In fact, freedom of religion or belief and religious minority rights have long been recognised as being amongst the most pressing of human rights concerns in these states. Whilst the need to enhance the protection of freedom of religion or belief and religious minority rights (ForbRM rights) within Muslim states has been much written about, few publications have extended their focus to Muslim minorities in Muslim states. This article seeks to establish that enhanced respect for the legal rights of non-Muslim minorities would, by default, also benefit ‘Muslim minorities’ within Muslim states. The contention of this article is that if sufficient progress were made regarding the respect of ForbRM rights for non-Muslims, Muslim religious minorities would see their own situations improved and claims addressed. The article will take one of the most entrenched of such cases – snapshots of the case of the Bahá’ís of Iran over the past 30 years – as its main illustration of this point.

Despite 33 years of equal pay legislation, the gender pay gap remains stubbornly high. Multiple equal pay claims in the public sector have forcefully exposed the weaknesses, both of the Equal Pay Act and of the complaints-led model of enforcement on which it is based. This article argues that the equal pay apparatus is in need of radical reform. Single Equality legislation, due to be introduced in the autumn, is the ideal forum to do so. Substantively, it is essential to move beyond the current narrow range of comparison, the limited definition of equality and the lack of a collective dimension. So far as enforcement is concerned, the way forward lies in a positive duty to eliminate pay discrimination, which builds on and strengthens the current gender duty. Women's right to equal pay for equal work is often represented as an unreasonable demand on resources, carrying with it an unsustainable cost. In fact, it is a fundamental right recognised by major human rights instruments and the International Labour Organization (ILO). It is to be hoped that the Single Equality Bill will give equal pay reform the serious attention so urgently needed.

DOI: 10.1080/09637490802260385

The Middle East region has had a long, and periodically impressive, record of religious diversity, yet there is much concern regarding the contemporary standing of its religious minorities. Rather than assessing the chequered historical record of religious minorities in the Middle East, the purpose of this article is to provide an assessment of how international human rights standards may best be utilised to advance their rights. The contention of this article is that the human rights of religious minorities in the Middle East have primarily been considered under the lens of freedom of religion or belief. Relevant though this framework is to their concerns, it will be suggested that promoting the rights of the Middle East's religious minorities through the framework of minority rights may provide a more promising avenue for their protection. The purpose of the article is therefore to provide a reassessment of how best to negotiate the rights of religious minorities in the Middle East. The focus will be on formal legal and political obstacles to the enjoyment of their rights entitlements. Though a broader contextual analysis also assessing economic, cultural and sociological factors would be highly informative, it lies beyond the scope of this article. Despite the fact that minority rights provisions apply to members of minorities alongside all other human rights – among them freedom of religion or belief – the two lenses of minority rights and freedom of religion or belief highlight somewhat different provisions and protections. The two are certainly not mutually exclusive or in contradiction with one another, but a state that prioritises one set of legal and policy options over the other will arrive in different places.

ISBN: ISSN 0963-7494

This paper examines the traditional dichotomy between measures addressing socio-economic inequalities and those aimed at inequality based on status, such as race, gender, disability or sexual orientation. Using the conceptual framework of recognition and redistribution developed by Nancy Fraser and others, I argue that it is no longer tenable to keep the two spheres separate. Constructing a concept of socio-economic equality without considering the implications for status-based inequality can be damaging and ineffective. Conversely, status-based measures are limited by their inability to mobilise the redistributive measures necessary to make real equality of opportunity and genuine choice possible. The paper begins by examining the interaction between socio-economic and status-based equality. I then sketch out a multi-dimensional notion of substantive equality which attempts to create a synthesis between the aims of both spheres. In the final part, I make some very tentative suggestions as to how the interpenetration can be more meaningfully captured in legal frameworks.