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  • S Theil, 'Unconstitutional prorogation of Parliament' [2020] Public Law 529
    Argues, contrary to the constitutional convention, that the monarch is empowered in certain situations to reject ministerial advice to prorogue Parliament. Reviews evidence for the convention on prorogation, including statutory powers and ministerial advice, and considers the constitutional implications. Examines criticisms of R. (on the application of Miller) v Prime Minister (SC), and potential remedies open to the monarch for executive abuses.
  • S Theil, 'Germany – a federal executive power grab?' (2020) UK Administrative Justice Blog
    The German Infectious Diseases Protection Act (Infektionsschutzgesetz – IDPA) is the primary federal statute regulating the fight against covid-19 in Germany. The Act has been recently amended to provide the federal government with a greater role in enforcement and expanded its authority to pass delegated legislation without the consent of the Bundesrat. The Bundesrat is representative body of the German states at the federal level whose consent is ordinarily required before any law can be enacted or amended that impacts on the state sphere of competence. This post provides an overview of the IDPA framework and highlight some initial preliminary rulings from German courts, most notably from the Constitutional Court, before turning to assessing the constitutionality of the newfound powers of the federal executive.
  • S Theil, 'Loremza Violini and Antonia Baraggia (eds.) The Fragmented Landscape of Fundamental Rights Protection in Europe – The Role of Judicial and Non-Judicial Actors (Edward Elgar, 2018)' (2020) Modern Law Review [Review]
    DOI: 10.1111/1468-2230.12500
    Lorenza Violini and Antonia Baraggia are the editors of a recent collection entitled The Fragmented landscape of fundamental rights protection in Europe – The role of judicial and non-judicial actors. The book has taken on a broad and ambitious topic in the notoriously complex and interdependent environment that is the European legal architecture, particularly in terms of relevant actors. The chapters are arranged along three broad themes: (a) the theoretical complexity of fundamental rights protection, (b) the role of courts and (c) the various roles of non-judicial actors. The book contains some outstanding contributions and generally offers thoughtful reflections on at times under researched subjects. A core challenge to overcome with such a broad topic is that it can be difficult to identify overarching themes and tease out deeper insights, thus offering readers something beyond the sum of the contributions. Unfortunately, the present collection has not been successful in this respect. The chapters stand primarily on their own terms and rarely offer insights beyond their at times narrow topics. Reflections on other chapters are rare, even where they seem to strongly suggest themselves and express engagement with the overarching topic of the book is largely absent, barring a few exceptions. The laudable mission of the book to ‘address the flaws and the challenging overlaps fostered by the fragmented and complex landscape of fundamental rights protection in Europe from a novel perspective’ (1) is thus not quite achieved.
  • S Theil, 'Germany - Federal Constitutional Court on the horizontal effect of equality rights between private parties' [2020] Public Law 181 [Case Note]
    On 27 August 2019 the German Federal Constitutional Court (FCC) rejected the application of a prominent German far-right politician alleging discrimination by a privately-owned wellness hotel. The hotel had initially confirmed the politician’s four day reservation, but then cancelled and directed the applicant to alternative accommodations in the area. Upon receiving a request for clarification the hotel banned him from entering the premises indefinitely, explaining that his vocal far-right political beliefs would inconvenience other patrons and damage the reputation of the establishment. The applicant challenged the decision before the FCC, claiming that the court’s finding that the hotel could exclude the applicant from future bookings amounted to a violation of his constitutional equality rights. The FCC found that the applicant’s desire to stay in a particular hotel was not significant to his societal participation and that the hotel was far from the only establishment in the resort town in question. Hence, it concluded there was no violation of constitutional equality rights in this case.
  • L Lazarus, Shreya Atrey, Stefan Theil and Elizabeth Stubbins-Bates and others, A Preliminary Human Rights Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 11 Jurisdictions (Bonavero Institute of Human Rights 2020)
    Along with the threats to life, health and the economy, one of the biggest dangers of this pandemic is the collapse of a culture of human rights and the rule of law. The Bonavero Institute of Human Rights has conducted a preliminary human rights analysis of 11 jurisdictions from the Global North and South. The report assesses the best practices and the human rights concerns of these States, and highlights trends across them. The report was compiled by Liora Lazarus, and includes contributions from Bonavero members Stefan Theil, Lisa Hsin, Shreya Atrey, Christos Kypraios, Ekaterina Aristova, Sanya Samtani, Nick Friedman and Elizabeth Stubbins Bates, as well as from Lionel Nichols (Adjunct Researcher at the University of Tasmania)
  • R Martin, 'Administrative Decision-Making on the Frontline' in Tomlinson, J., Thomas, R., Hertogh, M. and Kirkham, R. (eds), The Oxford Handbook of Administrative Justice (Oxford University Press 2020) (forthcoming)
  • Thiago Alves Pinto, 'An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights' (2020) 15 Religion & Human Rights 96
    Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.
  • C O'Regan, 'Contemporary challenges for human rights: a view from South Africa' in Simon Mount and Max Harris (eds), The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand (LexisNexis 2020)
    ISBN: 9781988546070
  • S Atrey, 'From Me to We: Locating Dalit Women in #MeToo' in A Noel and D Oppenheimer (eds), Globalization of the #MeToo Movement (Fastcase 2020)
  • L Lazarus, 'Insecurity and Human Rights' in Dapo Akande, Jaakko Kuosmanen and Dominic Roser (eds), Human Rights and 21st Century Challenges: Poverty, Conflict and the Environment (Oxford University Press 2020)
    Explores whether we can develop a notion of 'tolerable insecurity' which can be found in the courts balancing between positive rights to security, and negative rights to state limitation.
  • S Atrey, 'Intersectionality and Comparative Antidiscrimination Law: The Tale of Two Citadels' in (ed), Research Perspectives in Comparative Discrimination Law (Brill 2020)
  • S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)
  • Thiago Alves Pinto and Rodrigo Vitorino Souza Alves, 'Investigations on the Use of Limitations to Freedom of Religion or Belief in Brazil' (2020) 15 Religion & Human Rights 77
    The present article analyses cases from top Brazilian courts and has received contributions from several scholars, practitioners, and public officials to better understand the use of limitations to freedom of religion or belief in the country. The Brazilian Constitution provides for the right to freedom of religion or belief as a fundamental right, and other domestic legislation regulates the right, including those implementing international human rights treaties that Brazil has ratified. These laws are easily accessible. Nevertheless, domestic courts seldom rely on such international instruments or the case-law of international bodies in their judgments. Therefore, although these instruments are in force in Brazil, domestic courts do not expressly use or refer to the clauses of permissible limitations of the relevant international and regional human rights instruments, creating a scenario with low levels of legal certainty for those seeking the protection of the right to freedom of religion or belief.
  • Nazila Ghanea and Thiago Alves Pinto, 'Parliamentarians and Freedom of Religion or Belief' (2020) OxHRH Blog
    Parliamentary networks for human rights are not unheard of. Several networks exist which draw attention to the role of parliaments and parliamentarians in the promotion and protection of human rights, for example, the ASEAN Parliamentarians for Human Rights and the Inter-Parliamentary Union (IPU)’s Committee on the Human Rights of Parliamentarians. The UN General Assembly, the Human Rights Council and the Office of the High Commissioner for Human Rights have also drawn attention to parliaments’ engagement with human rights. The idea of a parliamentary network focused on a particular human right, however, is very novel.
  • C O'Regan, 'Prosecutions and Politics in a Constitutional State: Prosecution of Heads of State in post-apartheid South Africa' in Andras Sajo and Renata Uitz (eds), Critical Essays on Human Rights Criticism (Boomuitgevers 2020)
    ISBN: 978-94-6236-123-2
  • R Martin and K. Laird , 'Testing the Limits of the Common Law Right to Trial by Jury: A Critical Analysis of Re Hutchings' [2020] Public Law (forthcoming)
  • S Atrey, 'The Humans of Human Rights: From Universality to Intersectionality' in S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)