The Constitutionalization of Equality within the EU Legal Order: Sexual Orientation as a Testing Ground

The principle of equal treatment has become constitutionalized within the framework of the EU legal order. However, its scope and substance remain uncertain, its impact is confined to the restricted horizons of EU law, and its normative foundations are contested. This paper explores these issues by focusing on a number of judgments by the Court of Justice of the European Union (CJEU) in cases involving claims of discrimination based on the ground of sexual orientation. These judgments illustrate both the positive impact and also the uncertain scope and substance of the principle of equal treatment as constitutionalized within EU law. It concludes by highlighting the need for the CJEU’s equality jurisprudence to engage to a greater degree with human dignity and other values, in order to give greater definition and clarity to the concept of equal treatment

Grenfell and the Limited Reach of Equality within the UK Constitutional Order

Grenfell demonstrated the existence of deep inequalities in British society. Across the UK, inequality shapes lives – and, as Grenfell shows, also often selects for death. And yet equality – or, to be more precise, the principle of equality of status – is widely acknowledged to be a fundamental value of the UK constitutional order, receiving extensive legal protection via instruments such as the Equality Act 2010 and Article 14 of the European Convention on Human Rights. This paper analyses the disjuncture between these legal and constitutional commitments and the raw inequality exposed by Grenfell. It argues that this disjuncture is generated by the obscuring of the socioeconomic dimension of inequality within UK political and legal discourse. It concludes by exploring ways of challenging the limits of the principle of equal status, as currently understood within the UK constitutional order

'What has the ECHR ever done for us?’: The particular and specific importance of the convention in protecting rights across a democratic Europe

The European Convention on Human Rights (ECHR) was recently described by Hogan J. as having ‘long been a favourite of the law and our constitutional order’. The importance and value of the Convention is generally acknowledged in Ireland, even as it comes under increasing criticism elsewhere. However, recent case-law has raised issues about the exact nature of the relationship between the Convention and Irish law. In addressing these issues, it is necessary to consider wider questions about the legitimacy of the Convention system of rights protection, and to identify the very real ‘added value’ it provides to well-established national mechanisms for upholding rights, democracy and rule of law

Steering the Ship of State: Fundamental Rights, State Power and Janus-faced Constitutionalism

This paper makes three arguments. Firstly, the rights-based constitutionalism that has emerged in the wake of cases such as Brown v Board of Education and the ‘Rights Revolution’ is formally analogous but substantially different to earlier, more ‘classical’ forms of negative constitutionalism: it can be seen as a mutated form of the earlier template. Secondly, a key element of the difference between classical negative constitutionalism and rights-based constitutionalism is the ‘Janus face’ that it adopts to state power: it combines elements of classical negative constitutionalism with the periodic positive embrace of state power where necessary to deliver on its professed ambitions. Thirdly, this form of constitutionalism aims towards the achievement of a ‘total constitution’, whereby the exercise of state power is steered in all its aspects towards rights-friendly goals. These aspirations are reined in by the inherent indeterminacy of rights review, its inevitably limited impact and ultimately by its complex and contested relationship with popular sovereignty. However, perhaps ironically, these limits ultimately serve to lend strength to rights-based constitutionalism. By steering the exercise of state power towards giving effect to human rights, it places a considerable burden of justification on those who wish to push back against this direction of travel

Concerns And Ideas About The Developing English Law Of Privacy (And How Knowledge Of Foreign Law Might Be Of Help)

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