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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.

This Textbook, designed for postgraduates andsenior undergraduates, will provide an accessible but intellectually rigorous text book which addresses how human rights issues are configured and adjudicated in the specific British context, exploring the multiple dimensions of the European Convention on Human Rights, the European Union, international law, and national legislation and common law, and an introduction to human rights theory , integrating this into the legal analysis.

“Shared ownership” is used to provide an affordable route into home ownership. Yet there is a significant problem with the shared ownership scheme; as Richardson v Midland Heart [2008] L & TR 31 shows, in the event of the home “owner” falling into rent arrears, he or she may lose not simply his or her home, but also the equity in the property. This chapter examines whether there is some way of using existing legal principles to avoid this unjust outcome by either; first, protecting the use value of the home by relying on Convention rights under the Human Rights Act 1998 to prevent termination of the “shared ownership” lease; or, secondly, recouping the investment value of the home by using human rights law to enable the home “owner” to retain the equity even if the home is lost.

ISBN: 1849463212

This book will present and analyse key results of the Religion and Society programme (Arts and Humanities Research Council/Economic and Social Research Council) research project “Religion and Belief, Discrimination and Equality: Theory, Policy and Practice, 2000-2010” research project. Reflecting on a decade of change, the book will compare these results with those of a 1999-2001 Home Office commissioned research on “Religious Discrimination in England and Wales”. These findings will include data from a national questionnaire survey; the reported experiences of individuals interviewed during the project’s fieldwork; and the perspectives of those who understand themselves not be to be of any religion and who took part in project focus groups. The book will set these findings within the context of a broader consideration of the impact of legal and policy developments on religion and human rights in which, over the last decade, the category of religious discrimination has become more widely accepted, while modified by reference to belief, and also in relation to a shifting policy focus around shared values and social cohesion. The proposed book will therefore be a groundbreaking, benchmark, seminal and interdisciplinary contribution to both public and academic debate about these issues.

DOI: 10.2838/82208

The aim of this study is to compare and contrast anti-discrimination and equality laws in the US, Canada, South Africa and India, with a view to inform future development of EU anti-discrimination laws. Comparative law is of great value, particularly in the equality field, where there is increasing cross-pollination across different jurisdictions. At the same time, comparative law carries with it important challenges, as the harmonising project of the EU has itself demonstrated. The four jurisdictions to be examined here share English as a common language as well as, in varying degrees, a common law heritage. However, there are significant differences in historical, socio-economic and political contexts as well as in legal institutions. The challenge is therefore to illuminate universalisableconceptions while at the same time recognising context specificity.

ISBN: ISBN 978-92-79-23769

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

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/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.

Human rights advocates internationally, and supporters of socio-economic rights, have battled for many years to get States and courts to accept that human rights give rise to positive obligations upon States and that such obligations ought to be justiciable in principle. Much of the rhetoric deployed in this campaign has focused on the importance of protecting and respecting basic human needs and capabilities, and ensuring that individuals enjoy a basic level of subsistence in order to secure the enjoyment of all rights. In the context of criminal justice and criminal law: positive obligations are very often cast as duties on the State to protect individuals from the criminal acts of others (protective duties). Very little attention is paid however to the potential for such positive obligations to give rise to what I term ‘coercive duties’. In other words, duties upon the State to coerce individuals through the criminal law, or criminal justice mechanisms, in the name of protecting others from their criminal acts. The coercive aspect of positive obligations comes more sharply into focus when we look at the rhetoric around, and judicial enforcement of ,the right to security. But the development of coercive duties are evident in the positive aspect of other rights too. This chapter explores the ambiguity involved in the growing development of positive rights in the field of criminal law and criminal justice. It dwells briefly on the emerging right to security case law and rhetoric internationally, and goes on to examine cases within the UK and ECHR. The thesis of the chapter is that while some protective duties arising from human rights may be a positive development, the extension of coercive duties on the State to coerce others in the name of another individual’s rights is an overseen and more pernicious part of this development of human rights. The chapter will end by exploring how we reconcile coercive duties arising out of human rights with opposing negative rights protections, or even other protective duties.

An examination of freedom of religion or belief as upheld in the constitutions of Commonwealth Member States and why the Commonwealth should hitherto acknowledge freedom of religion or belief more fully as part of the spectrum of Commonwealth concerns.

Response to Jeremy Waldron's Amnesty Lecture on Hate Speech.

This paper examines the rise of the right to security within human rights discourse and its potential to erode human rights more generally. It argues that political discourse around the apparent conflict between security and rights since 9/11 has been complicated by an emerging notion of the 'right to security' as the meta-right (the right of rights). This claim (and the inherent ambiguity of what the right to security requires) has the potential to lead to a 'securitization' of human rights, a process that threatens to erode the traditional foundations of human rights, and human rights themselves. Operating in tandem with this 'securitization' process, the discourse of the right to security has been used to sanitize, or at least to legitimate, coercive security measures. This is a process I refer to as 'righting' security. These two processes combine in complex ways to give security an effective trump claim over other rights.

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.

This memorandum was prepared for the Legal Resources Centre, South Africa to assist in the preparation of submissions in two hate speech cases to be heard by the Supreme Court of Appeal: Herselman v Geleba and Afriforum v Malema

Equality is an ideal to which we all aspire. Yet the more closely we examineit, the more its meaning shifts. This book examines the differing conceptions of equality in discrimination law, in the accessible yet challenging format of the Clarendon series. It uses a thematic approach to elucidate the major conceptual issues, while at the same time imparting a detailed understanding of the legal provisions, including the Equality Act 2010, human rights law, and EU law. Particularly illuminating is the comparative approach. By examining comparable law in the US, India, Canada, and South Africa, as well as the UK, the book exposes common problems and canvasses differing solutions.

ISBN: 978-0-19-958443-7

The Office of the High Commissioner for Human Rights (OHCHR) has organised, in 2011, a series of expert workshops on the prohibition of incitement to national, racial or religious hatred, as reflected in international human rights law. The objectives of the expert workshops are: •To gain a better understanding of legislative patterns, judicial practices and different types of policies, in countries of the various regions of the world, with regard to prohibiting incitement to national, racial, or religious hatred, while ensuring full respect for freedom of expression as outlined in articles 19 and 20 of the International Covenant on Civil and Political Rights; •to arrive at a comprehensive assessment of the state of implementation of this prohibition of incitement in conformity with international human rights law and; •to identify possible actions at all levels.

DOI: www.minorityrights.org/download.php?id=939

Violations of minority rights in Iran take place within a wider, well-documented context of human rights violations, and intolerance of dissent and difference. Against this background, this briefing reflects on the historical and current situation of Iran’s ethnic, religious and linguistic minority groups, which are typified in Iran by their lack of political power and influence. It also considers the new popular and political consciousness that is emerging in Iran in regard to human rights in general, and minority rights in particular, following the political debates leading up to the disputed 2009 elections, and the popular protests that came afterwards. This shift may represent an opportunity for members of minority groups in Iran at long last to enjoy equal citizenship rights, educational and economic opportunities, and the right to maintain their cultural identity.

This was a follow-up to the 2011 comparative report on secret evidence, requested by the JCHR. It focused on the operation of security-cleared counsel in US habeas corpus proceedings as well as the US doctrine of State secrets privilege in order to help the JCHR whether those aspects of US practice should be adopted in the UK.