UK Human Rights Research Articles

‘An Obligation of Means, Not One of Result’: A Historical Overview and Theoretical Assessment of the Whole Life Order Sentencing Regime in England and Wales

In England and Wales, a ‘whole life order’ (WLO) is a life sentence with no prospect of parole. At present, the WLO sentencing regime provides insufficient clarity about the assessment criteria for the release of prisoners, rendering these sentences unreviewable. Indeed, no WLO prisoner has ever been released. This article submits that it is the means by which the executive and courts preclude scrutiny of the WLO review mechanism, and so devalue the systemic health of our legal order by undermining rule of law principles of accountability and transparency, which form the most disquieting aspects of the regime. I set out my argument in two parts. Part One provides a historical assessment of the development of the WLO sentencing regime and its impact on wider human rights discourse. A critical evaluation of this history reveals that WLOs today are irreducible and underscored by the long-term accumulation of unaccountable executive power. Part Two considers WLOs from the position of the philosopher John Rawls’ theory of ‘political liberalism’ as applied to understandings of European human rights constitutionalism. Adapting Rawls’ emphasis on the importance of reciprocal deliberation between diverse citizens and institutions in maintaining a just and stable society, this article presents the deficiencies of the WLO regime as deriving from an inter-institutional failure to engage in meaningful deliberation about whether the WLO regime complies with the UK's human rights obligations. I propose reforms to the reviewability of WLO sentences to give prisoners the ‘means’ if not necessarily the ‘result’ of release. Rather, there remain outstanding questions about how many of the worst of the worst prisoners possess the capacity for rehabilitation, even if provided with the opportunities to do so. As such, these reforms can be justified, less on grounds of ensuring the actual release of prisoners, but more as part of restoring a broader functional human rights and rule of law framework.

Profane Pregnant Bodies Versus Sacred Organizational Systems: Exploring Pregnancy Discrimination at Work (R2)

This paper explores how pregnancy discrimination at work is perceived by both employers and pregnant employees. Using a public, qualitative dataset collected by the UK Equality and Human Rights Commission that offers perspectives from both employers and pregnant employees, we explore the unfair and unethical treatment of pregnant employees at work. Our findings show how pregnant workers are expected to conform with workplace systems that are treated as sacred. We suggest that employer valorization of the mythical figure of ‘ideal worker’ disadvantages pregnant workers. We observe how, even if this contravenes maternity protection laws, some employers self-justify discrimination against pregnant employees who they perceive to have transgressed ‘appropriate’ workplace behaviors as ethical and reasonable. To illuminate and conceptualize the notion of transgression, our analysis has led us to the ideas of philosopher Georges Bataille, specifically his reflections on how individuals who ‘transgress’ social norms are treated as taboo, as well as his metaphorical descriptions of people and practices as either sacred or profane. We theorize that pregnant workers who are treated as profane should be reclassified as sacred, opening up this idea for debate so as to disrupt long-standing patterns of discrimination.

What Future for Human Rights in the UK Post-Brexit?

This paper aims at contributing to the assessment of the consequences of Brexit on the protection of human rights in the UK. Has Brexit affected British human rights and will the UK uphold its commitment to Europe’s human rights regime post-Brexit? After a brief presentation of the legal framework that protected UK human rights before Brexit, we will highlight the possible evolutions brought by Brexit in human rights protection. Lastly, we will focus on current sources of concern about the detrimental effects of Brexit in the field of human rights.

'Conversion Therapy' As Degrading Treatment.

—This article responds to the widespread uncertainty in UK and international human rights law over the legality of ‘conversion therapy’, a set of practices that aim to eradicate LGBTIQ+ sexualities and gender identities. The article pursues two main arguments. First, it is argued that all forms of ‘conversion therapy’ are disrespectful of the equal moral value of LGBTIQ+ people and violate specific protected areas of liberty and equality that are inherent in the idea of human dignity. Secondly, the article develops a theoretical account of degrading treatment under article 3 of the European Convention on Human Rights that illuminates the relationship between the prohibition of degrading treatment, human dignity and antidiscrimination. It is then argued that ‘conversion therapy’, in all its different forms, spawns the specific kind of degradation that UK and international human rights law prohibit. The article ends by analysing the positive state obligations that arise in this context.

Youth representations of environmental protest

A necessary condition for a functioning democracy is the participation of its citizens, including its youth. This is particularly true for political participation in environmental decisions, because these decisions can have intergenerational consequences. In this article we examine young people’s beliefs about one form of political participation—protest—in the context of communities affected by fracking and associated anti‐fracking protest, and discuss the implications of these representations for education. Drawing on focus groups with 121 young people (aged 15–19) in five schools and colleges near sites which have experienced anti‐fracking protest in England and Northern Ireland, we find young people well‐informed about avenues for formal and non‐formal political participation against a background of disillusionment with formal political processes and varying levels of support for protest. We find representations of protest as disruptive, divisive, extreme, less desirable than other forms of participation and ineffective in bringing about change but effective in awareness‐raising. These representations are challenging, not least because the way protest is interpreted is critical to the way people think and act in the world. These representations of environmental protest must be challenged through formal education in order to safeguard the UN Convention on the Rights of the Child and ensure that the spirit of Article 11 of the UK Human Rights Act is protected.

Female Victims of Gendered Violence, Their Human Rights and the Innovative Use of Data Technology to Predict, Prevent and Pursue Harms

This short paper has the objective of making the case for more investment to explore the use of data-driven technology to predict, prevent and pursue criminal harms against women. The paper begins with an overview of the contemporary scale of the issues, and the current problem of recording data on serious violent and sexual offending against women, before moving on to consider the current status and strength of positive obligations under UK human rights law to protect victims of intimate partner violence. The paper then looks at some examples of how data tech can augment policing of serious criminal harms against women, before turning to consider some of the legal problems concerning potential bias, inaccuracies and transparency that can dog 'predictive policing' in particular. Finally, a conclusion is offered up which explores the degree to which investment and exploration of the predictive policing of intimate partner violence must be pursued at the same time as better oversight mechanisms are also developed for the use of machine learning technology in public protection roles, since the two emphases go hand in hand.

WHY CIVIL CLAIMS ARE A NECESSARY PART OF THE ARSENAL TO ADDRESS MILITARY EXCESSES : Assessing the UK Overseas Operations (Service Personnel and Veterans) Bill

This paper focuses on civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations. The Bill sets out several rationales for the introduction of the reforms to civil and human rights claims, and we saw value in scrutinising these justifications in some depth, given the significance of the proposed reforms and the limited attention they have received to date. As we will explain, the civil claim longstop would have the effect of shielding the Ministry of Defence from public scrutiny and legal accountability and would take away crucial means by which to ensure transparency and to promote institutional lessons learned. To make this assessment, we have carried out a review of civil and human rights judgments pertaining to overseas operations, issued within the last twenty years. These have mainly concerned claims against the Ministry of Defence, though our sample has also included claims involving overseas engagements by the security services and other parts of government to the extent relevant. Some might assume that that introducing time limits and related restrictions to civil claims or claims under the Human Rights Act in relation to overseas operations is a relatively minor access to justice intrusion. There is somewhat more acceptability of limitation periods in respect of civil claims for damages than with criminal investigations and prosecutions. Our research has led us to see these issues differently. We argue that: i) Considering the checks and balances within the UK legal system and how it operates as a whole, impeding access to civil and human rights claims ignores the vital role such claims play in ensuring that criminal investigations and prosecutions and related accountability processes are not shut down prematurely. A crucial means of oversight will be lost; ii) Victims’ access to reparation is an important value worthy of protection and a fundamental and obligatory aspect of UK human rights obligations. This is especially the case for claims involving wrongful death, torture, and ill-treatment; and iii) The introduction of limitation periods for civil and human rights claims without a possibility for judges to be able to use their discretion to extend them where the exigencies of the circumstances so require, is a significant and unjustifiable limitation of claimants’ access to reparation.

Prisoner Transfer Within the Irish-UK Common Travel Area (CTA) After Brexit: Human Rights Between Politics and Penal Reform

The UK Government proposed in February 2020 that sentenced prisoner transfers with EU member states should continue after Brexit, but using a more ‘effective’ process than the existing CoE convention. The article analyses, with a particular focus on the Irish-UK CTA, the significance of continued UK human rights compliance for the achievement of this objective and the interrelationship of this issue with extradition/surrender (including the surrender of fugitive prisoners). It is concluded that Brexit has most probably raised the level of formal and institutional human rights compliance (including legal aid/assistance and the direct enforcement of prisoners’ rights in domestic courts) required from the UK for criminal justice cooperation with EU member states. Entering into such undertakings would not assist criminal impunity or the evasion of lawfully imposed penalties. Such undertakings, however, cannot help to resolve many problems inherent in prisoner transfer within the EU. The creation of a truly effective and rehabilitative transfer system would require (a) constructive UK Government participation in inter-governmental (including the UK devolved governments)/EU arrangements capable of incrementally resolving or effectively mitigating criminal justice cooperation problems and (b) acceptance at Westminster that this aspect of post-Brexit readjustment is likely to be intermittent and of long-duration.

Application of Islamic Law in the UK and Universal Human Rights

Should Islamic Law be introduced into Western legal system? At the heart of the issue is a debate on legal pluralism, which envisions a society where different laws apply to different religious groups. This paper explores question using the British case of Sharia Councils. Building on the author’s knowledge of the situation of women in Middle Eastern and Islamic countries, she undertook firsthand analysis of the Islamic Sharia councils and Muslim arbitration tribunals in various British cities. She offers a pointed critique of legal pluralism, highlighting the type of Islamic law being used and its human rights ramifications.

Lessons from the COVID-19 Pandemic for the UK Human Rights Law Framework

The COVID-19 pandemic continues to lay bare the state’s weaknesses and the gross inequalities in our society which have been allowed to flourish. It has also set in motion demands for a whole variety of ‘rethinks’ once the crisis is over. In that vein the purpose of this paper is to consider what lessons the pandemic might hold for the UK human rights law framework. The paper is in four parts. In the first part a short description of the UK’s comparatively bad pandemic is set out, including the disproportionate negative impact for some groups. In the second part, the various acts and failures to act where human rights guarantees might have some influence are considered and in the third, the impact and potential impact of UK human rights law on these events. In the fourth and final part the lessons for human rights protection through law are set out.

Out of sync: The failed translation of international human rights in the creation of the UK Human Rights Act

One of the key challenges in the domestic implementation of international human rights norms and standards is to adapt and translate them in such a way that they become locally accepted while retaining their transformative potential. Contrary to the common assumption that such translation is necessary especially in the Global South, this article seeks to demonstrate the usefulness of applying the lens of norm translation also to Western liberal democracies through a case study of the United Kingdom. It examines the creation of the highly controversial UK Human Rights Act 1998 (HRA), which gave domestic effect to the European Convention on Human Rights (ECHR) in British law, in order to illuminate the reasons for the HRA’s persistent contestation. Based on the reconstruction of the postwar history of British bill of rights campaigns, the article argues that the continuing criticisms of the HRA and its lack of public support are the results of a failed translation process of the ECHR into the British context. The increasing mismatch in the development of the HRA between the far-reaching structural adaptation of European Convention rights to the peculiarities of the British constitution and the absence of their adequate rhetorical translation created a perceived gap in the HRA’s legitimacy and left the Act in a precarious constitutional position.

UK Human Rights Cases in the Time of COVID-19

Judicial review claims throughout the 2020 pandemic phase have highlighted both the social justice and the civil liberties issues with the UK government response to the impact and seriousness of COVID-19. These legal claims have been based around Human Rights Act grounds, and sometimes on wider international human rights law instruments, and also on traditional common law grounds of review; such as irrationality, failure to consult, and other types of illegality ground. The COVID-19 pandemic has been an exercise in exploring the multitude of ways in which drastic public health policy can affect human rights even as it entails those legislative measures that are taken to protect us from a virulent disease, with all-too-often fatal consequences for those who are infected. As shown in the important Court of Appeal judgment in the 'lockdown' case of Dolan, discussed in this paper, rights under the European Convention on Human Rights (1950), in taking effect through the Human Rights Act 1998, work on the basis of a variety of structures and degrees of importance and protection, depending on the rights concerned - and the range of rights at stake under the ECHR, through the coronavirus pandemic, has been very great indeed. However, judicial consideration of key cases to date, such as Dolan, has highlighted the latitude given to executive discretion used in dealing with the public health crisis of the pandemic, as it has affected the UK.

The Individual in the Reformation of the UK's Bureaucratic StateeAdministrative Justice, Brexit, and Human Rights

This paper highlights the importance of attending to the necessary reforms that will take place within the UK’s administrative justice system (i.e. within the executive branch) in the wake of Brexit. Whatever results from the UK’s negotiations with the EU, Brexit will necessitate wide-ranging and fast-paced administrative reform. This reform will likely create an environment where there is a higher risk of individual rights violations (or general unfairness to the individual). Consideration must therefore be given to maintaining, and perhaps creating, mechanisms which will provide effective safeguards during this reformation. In this respect, it is suggested that—whatever one’s view about the UK’s present system of rights protection—the long-proposed reform of the UK’s human rights system ought to be parked. More generally, Brexit ought to be understood by administrative lawyers as not only a possible shift in the judicial principles of administrative law but also as a design problem facing the administrative justice system.

The Implications of the Good Friday Agreement for UK Human-Rights Reform

Speculation is rife as to the impact of the Good Friday/Belfast Agreement upon the Conservative Government’s plans to repeal the Human Rights Act 1998. In the face of this speculation, the UK’s Conservative Government has provided little detail as to how UK human-rights reform will address the requirement for incorporation of the European Convention on Human Rights in the Northern Ireland settlement. We therefore analyse the Agreement as both an international treaty and peace agreement and evaluate its interrelationship with the Human Rights Act and the Northern Ireland Act. Once the hyperbole surrounding the Agreement and its attendant domestic legislation is stripped away, the effects of the 1998 settlement are in some regards more extensive than has to date been recognised, but in other respects are less far-reaching than some of the Human Rights Act’s supporters claim. The picture that emerges from our analysis is of an intricately woven constitution dependent on devolution arrangements, peace agreements, and international relationships.

Can International Human Rights Law Help Restore Access to Justice for Disabled Workers?

The research literature indicates that legislative changes in recent years, including the introduction of tribunal fees, have made it harder for workers in general to enforce their rights under UK employment laws. Drawing on the author’s qualitative study, conducted in 2015 and with information from 265 participants, this paper finds that these legislative changes could be having disproportionate adverse impacts on disabled workers. Of particular note, fees had deterred substantial numbers from submitting discrimination claims; and it appeared that this reluctance to take legal action had in turn emboldened some employers to commit what might have been found to constitute unlawful acts if taken to tribunal. The paper goes onto consider whether these adverse impacts on disabled workers could render fees unlawful under UK and European equality and human rights law and/or could entail violations of rights under the United Nations Convention on the Rights of Persons with Disabilities. The paper concludes that the intent behind UK laws might (in relation to the lawfulness of fees) have been frustrated in the domestic courts and that the impact of any future successes in the domestic courts, or under international law, might be dependent upon public opinion and political expediency. The paper also briefly compares developments in Britain with developments in neighbouring and other comparable jurisdictions.

The catalytic potential of equality and human rights commissions

When equality commissions were first established in the UK and certain other European and North American states in the 1960s and 1970s, they were expected to play an important role in promoting equality of opportunity and enforcing compliance with the newly enacted anti-discrimination laws of that era. Fifty years on, the UK Equality and Human Rights Commission (EHRC) and equivalent bodies in other states continue to perform these functions – and are increasingly also supposed to promote compliance with a wide range of international human rights standards. However, the capacity of such bodies to act as drivers of legal, political and social change is subject to severe limitations, irrespective of whether they are ‘pure’ equality bodies focused on non-discrimination or ‘merged’ bodies performing a wider range of functions across the human rights field at large. Some of these constraints are ‘external’ in nature, that is, they relate to their resources, independence, powers and general functioning. Others are more ‘internal’ and existential in nature, that is, they relate to their purpose, functioning, role and relationship with socially disadvantaged groups. Taken together, these constraints hobble the ability of equality and human rights commissions to give effect to a radical agenda of social transformation. However, such bodies can nevertheless still function as effective ‘change agents’ by enforcing anti-discrimination law and promoting respect for fundamental rights – even if the impact of their work will often be incremental and accumulative rather than immediate and dramatic, as explored in this paper by reference to experience from the UK and other states. In this respect, the trend towards establishing merged equality and human rights commissions represents an affirmation of faith in the modest yet still tangible potential of such bodies to make a positive contribution to the progressive development of society at large.

The lure and the limits of dialogue

Over the last two decades, the metaphor of ‘dialogue’ has become a common way of characterizing the relationship between courts and legislatures under bills of rights. Following an examination of the role of ‘dialogue’ in debates about the Canadian Charter and the UK Human Rights Act, this article will argue that dialogue is a misleading metaphor, which we should abandon in our constitutional discourse. While it may have contributed some potential insights, its overall effect has been to distort our understanding of the relationship between courts and legislatures under bills of rights. In the scholarly debates surrounding dialogue, the lure of the metaphor obscured its limits. This article examines some of the pathologies which afflicted the debate about dialogue in comparative constitutional discourse, detailing some of the many distortions of dialogue.

PROTOCOL: Police Training Interventions to improve the democratic policing of protests

PROTOCOL: Police Training Interventions to improve the democratic policing of protests

Book Review

Book Review

Can the proposed British Bill of Rights and Responsibilities command greater respect than the UK Human Rights Act 1998?

This article discusses the UK Government’s proposals to reform human rights legislation in England and Wales, Scotland and Northern Ireland by repealing the Human Rights Act 1998 and introducing a British Bill of Rights and Responsibilities. It discusses the reasons behind the perceived unpopularity of the Human Rights Act 1998 and concludes that an alternative British Bill of Rights and Responsibilities would be no more popular or effective and that therefore proposals for reform are misconceived. This article by Natalie Kyneswood is an edited version of the essay that won the Middle Temple Lechmere Prize, September 2015