Brewing Up Reasons

IT is trite law that good reasons must be given to justify infringements of fundamental rights protected by the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998. But what reasons can one count as good reasons? In Re Brewster's Application [2017] UKSC 8; [2017] 1 W.L.R. 519, the United Kingdom Supreme Court addressed the question of how much deference courts should afford to post hoc rationalisations of decisions challenged for non-compliance with the Convention. The answer given by Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed, is interesting in its own terms and may have implications outside the confines of the Convention.

The 21st century saw the rapid development of the administration of the nations of the world. With the development, it is essential to ensure that administrator entrusted with the administration of the country perform its duties in accordance with the rule of law. It must not act arbitrarily. Discretionary power if given to the administrator, it is limited. This is to guarantee that administrator in performing its duties would not infringe rights of an individual or community, especially fundamental rights. To make certain that this is achieved, an effective mechanism for the protection of rights, especially human or fundamental rights in state administration is needed. Judicial review is one of the effective mechanism to supervise and control action of the administrator. This mechanism is available in Administrative Law. Under the instrument, grounds of judicial review is made available to review action of the administrator. Currently, there are two streams of judicial review: Administrative Review and Constitutional Review. The former is a non-right based review of administrator’s power founded on the traditional common law using Wednesbury objective test or CCSU grounds not involving violation of fundamental and human right and the procedures. Meanwhile, the latter is a right-based review involving the exercise of administrative powers that violate the constitutional right of an individual or community, particularly, fundamental rights. The traditional common law, nevertheless, are inadequate in addressing review of administrative action involving violation of fundamental rights. For that reasons constitutional review as another stream in judicial review was developed. This was illustrated looking into the development in United Kingdom, India, Malaysia, South Africa and Hong Kong. With the expansion, mentioned the common law countries are capable of providing a more comprehensive and meaningful protection to an individual or community against unlawful act of the administrator that violates rights, especially human and fundamental rights. Consequently, state integrity is strengthen and be more accountable to the community. Hence, state can develop administration that is sound, and efficient in human, natural, economic and financial management. The proper enforcement of human rights will promote political and socio-economic stability, provide legal certainty and it encourages investors to invest in the country.

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

In This Issue

This comparative article explores the interrelationship of domestic and international human rights law in the Netherlands and the United Kingdom, with reference to the European Convention on Human Rights (ECHR). The two jurisdictions offer a valuable comparison, in that the UK’s dualist approach to international law has meant that it is only very recently that the ECHR has been directly enforceable in UK domestic law. The Netherlands, meanwhile, appears to the English lawyer to present a completely different approach to international law, being based as it is upon a form of monism. Whilst the two systems appear opposed in logic because of their dualist and monist bases, they in fact have much to learn from each other.

The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights

Much mainstream legal comment on human rights law presents an unhelpfully crude picture of disagreement concerning the significance that should be attached to human rights in particular cultural co...

The Human Rights Act 1998 came into force in October 2000, its purpose to allow victims of alleged violations of rights contained in the European Convention on Human Rights (1950) to pursue a remedy in the domestic courts. Thus, central to the Act’s purpose is to enable the access of the rights and remedies already provided by the machinery of the European Convention, subject only to those provisions of the Act which seek to retain the principle of parliamentary sovereignty. The purpose of this article is to study the case law of the European Court of Human Rights in relation to cases brought against the United Kingdom in order to examine the United Kingdom’s record under the Convention and, hopefully, of identifying common themes of human rights violations for which the United Kingdom has consistently been held responsible, and for which they may remain vulnerable to challenge in the future. At this stage it will be submitted that the European Convention has exposed the limitations of human rights protection in domestic law, and that on many occasions both the courts and Parliament have failed to adopt the necessary jurisprudence of the European Court in their respective roles. Finally, in the light of that evidence the article will examine the provisions of the Human Rights Act 1998 in order to assess the likely impact of that Act on the protection of rights and liberties in the United Kingdom.

For centuries, the protection of fundamental human rights has been part of the historical conceptual and constitutional legacy of the peoples on both sides of the Atlantic. Great thinkers from all nations have contributed towards the generation of human and fundamental rights. Nowadays these rights (or at least their substance) are universally recognised, beyond the continents of Europe and America. Virtually all the UN nations recognise them at least verbally. The fact that they are not put into effect, let alone observed, everywhere, does not alter their claim to validity. Practice and theory operate at different speeds, and politics carries the duty to change this.^ The academic world is only able to send out reminders and to encourage progress. The General Assembly of the UN adopted a "Universal Declaration of Human Rights" on 10 December 1948. Following on from the origin of their spiritual forefathers, it was rooted in the European and American declarations of human rights, and embodied human dignity, protection of personality, individual rights to freedom, equality under the law, basic judicial rights and rights to political codetermination. However, these traditional rights were extended to include more recent legal rights, which had become manifestly threatened through experiences in the Thirties and Forties, namely bans on torture and deportation, the right of asylum and the right to citizenship. Certain social, economic and cultural rights were also added. However, it must be noted that the Declaration has not acquired the status of a binding international legal rule, despite the fact that a minimum standard (irrespective of how this may be circumscribed), has by now become a constituent of customary international law. Further markers en route to an international Charter of Human Rights have included numerous special declarations and conventions, and in particular the International Covenants on Civil and Political Rights and on Economic and Social and

Economic Sanctions Against Human Rights Violations

This article examines the state of implementation and compliance with generally recognized legal principles and norms of international law in the field of fundamental human rights © Корж І.Ф., 2023 and freedoms in Ukraine. It is noted that human rights should be understood as the defining principles of a person’s legal status, which belong to them from birth, are natural and inalienable, without which a person cannot exist as a full-fledged social being, and therefore they are a necessary element of citizens, society and the rule of law. The concept of human rights is based on two basic values – human dignity and equality. Human rights are defined and formalized primarily by international law, which includes a number of basic international legal acts, such as: Universal Declaration of Human Rights; European Convention on the Protection of Human Rights and Fundamental Freedoms and its protocols; Charter of Fundamental Rights of the European Union. Ukraine, which noted its further development in the direction of integration into the EU, formalized the rights of its citizens in the Constitution adopted in 1996, which enshrines a whole series of both traditional and new guarantees of human and citizen rights and freedoms, which allow each citizen to choose the type of his behavior, to use economic and socio-political freedoms and social benefits both in personal and public interests. It is emphasized that the establishment of human rights in Ukraine as the highest social value is complicated by a number of factors, which is mainly determined by the low legal culture of both the general public and civil servants and is confirmed by the fact that for many years Ukraine occupied one of the first places among the member states of the Council of Europe by the number of cases of violation of citizens’ rights that were pending in the European Court. This indicates the existing problems in the state regarding legal education, legal awareness, legal culture, etc. of citizens who are primarily in public authorities, and which manifests itself in the manifestation of corruption, as legal nihilism of citizens. This becomes particularly cynical during the period of fighting against Russian aggression, as evidenced by numerous reports in the mass media. Such manifestations of corruption scandals in the Ministry of Defense of Ukraine, in civil-military administrations, in local self-government bodies, in other state bodies of the country testify to the presence of a deep political and legal crisis in the state administration bodies of the country, as a result of the lack of program documents on the implementation of state personnel policy, inactivity legal mechanisms to fight corruption. Even the Law of Ukraine “On De-Oligarchization” was subjected to devastating criticism not only from the Ukrainian public, but also from the “Western” community. Confirmation of the relevance and importance of the need to solve the problem of corruption in Ukraine is evidenced by the fact that our ally the USA put forward clear conditions for further support of Ukraine in its fight against aggression and aspiration to join the European Union. The future success of Ukraine depends on accelerating the pace of reforms that remain unimplemented and the immediate implementation of identified priority transformations in Ukraine.

Coroners have existed since the 12th century when they were created to support itinerant judges and, thus, facilitate the levying of fines on people living in England and (following the Edwardian Conquest) those in Wales. Over the centuries, the medieval coroner lost this function and his descendants have, in spite of a long-standing lack of central guidance, been forced to reinvent the coronial identity and to discover a modern purpose. The coroner operates in the space between law and medicine. Consequently, the coroner has been forced to adapt to the development of medical science, the normalisation and codification of human rights, and the development of the theory and practice of public health. Recent scandals - most notably the inquiry into the crimes of Harold Shipman - have highlighted the shortcomings of the office and have resulted in calls for reform. Though there is clearly a case for change, and many have made specific suggestions as to how the office should be modernised, few have considered that what underlies many of the problems of the coroner system/office, and its anachronistic and atavistic nature is a fundamental lack of a responsible and logical purpose. The study attempts to describe the problems encountered by the coroner in recent years, to provide a background to outline the coroner’s evolution from the 12th century, and to pose the question: what, ultimately, is the purpose of the coroner? This study is based on a) qualitative interviews with coroners in England and Wales, b) qualitative interviews with professionals who encounter coroners through their work, c) observation of coroners during inquests, and d) a written submission to coroners requesting inquest data. Coroners were asked to state and describe their purpose - there was no consensus. Coroners described their purpose in one of six ways: to ‘give families closure’, to protect public health and safety, to discover homicide, to enforce Article 2 of the European Convention on Human Rights, to provide public reassurance, and to investigate the military. One coroner believed the question of purpose not to be germane. This study considers each response and attempts to come to an evidence-based, normative conclusion as to the purpose of the coroner. Some have suggested that the coroner’s role is both complex and multifarious and should necessarily include several distinct purposes; however, in practice, these purposes often undermine and contradict each other. This study argues for a single, overriding purpose for the coroner. In addition, the work considers changes which might render the office capable of pursing the normative purpose in a contemporary context in which our understanding of public health is more developed.

The role of regional international human rights instruments in the protection and promotion of human rights is remarkable in the sense that the treaties have significantly and immensely contributed to important changes in the laws of many countries. This chapter looks into three regional human rights instruments, namely the European Convention on Human Rights and Fundamental Freedoms, 1950; the Inter American Convention on Human Rights, 1969 and the African Charter on Human and People's Rights, 1981 and examines (a) the circumstances leading to the establishment of the regional human rights enforcement mechanisms; (b) the nature and scope of rights & guarantees and (c) safeguarding procedures under these instruments. It examines whether the enforcement mechanisms are, consistent with State sovereignty, and whether they are gradually enhancing the promotion of fundamental human rights and freedoms. Keywords: African Charter on Human and People's Rights; enforcement mechanisms; European Convention on Human Rights and Fundamental Freedoms; Inter American Convention on Human Rights; promotion of human rights; protection of human rights; regional human rights instruments; state sovereignty

The aim of this chapter is to assess the consequences of the United Kingdom’s withdrawal from the European Union (Brexit) for the ongoing value of competing EU-derived economic freedoms and fundamental social rights within that country’s domestic legal order. It will be shown that Union fundamental rights concepts have an ongoing—albeit indirect—influence both within domestic law but also through those legal arrangements governing the United Kingdom’s departure from—and new relationship with—the European Union. Brexit also provides an avenue for exploring the ‘deconstitutionalization’ of Union fundamental rights, including the potentially differing consequences for the embedding of economic freedoms and fundamental social rights within domestic employment law. It is further suggested that the European Union’s reaction to Brexit included a recommitment to the protection of social rights within the Union legal order.

This Article analyses the relationships between the human rights of transnational/transcultural marriage migrants and immigrant policies through an interdisciplinary analysis. It examines the legal and social policy aspects of the relevant issues. First of all, this Article considers the controversy relating to various forms of marriage in Western societies and Islamic immigrant communities in the United Kingdom and North America. Western societies have long endorsed a monogamous marriage model and ignored other marriage models and cultures. To enhance the protection of human rights and realise global social and gender justice, this study analyses the ways to protect the human rights of transnational/transcultural marriage migrant women and their children. Second, it focuses on the complicated relationships between the human rights of marriage migrants and the immigrant policies on, inter alia, the right of residence, acquisition of nationality, and obtainment of employment rights. It must be noted that international laws have offered the protection of human rights to transnational/transcultural marriage migrants, but various domestic immigrant policies and laws weaken their rights. Third, it is often seen that the governmental support for caring work has been reduced, and thus, caregiving responsibilities have been turned back to the home. Migrant women are particularly vulnerable to being placed in the situations of harm owing to their multiple disadvantages. In its conclusion, this Article suggests that any consideration in the future must address the three dimensions of state policy and practice, the role of activism, and agency of migrant spouses in order to strengthen the protection of human rights for marriage migrants.