Judicial Review and Parliamentary Debate: Enriching the Doctrine of Due Deference

Recent cases in the European Court of Human Rights have placed greater emphasis on the quality of legislative debate when determining whether to apply the margin of appreciation to the decisions of member States. This paper explores how courts in general might go about assessing the quality of legislative debate about rights, and presents a set of criteria against which such debate can be assessed. While pushing at the boundaries of constitutional orthodoxy, this paper looks ahead to a framework of democratic dialogue where sovereignty is shared between courts, Parliament and other constitutional organs. In this context, it argues that courts ought to defer where certain criteria are met in the process of parliamentary deliberation on the rights questions which come before them

Security and Human Rights: Finding a Language of Resilience and Inclusion

This is the introduction to the second edition of Security and Human Rights (Hart Publishing 2019). When the first edition of this collection was published in 2007, many scholars were struggling with the question of whether it is possible to reconcile a commitment to human rights with the demands of security in a post-9/11 world. More than a decade later, this fundamental tension remains at the heart of many discussions about the relationship between security and human rights. But in the years that have passed since the first edition, we have also seen the re-emergence of nationalism and xenophobia, a hardening of attitudes towards migrants, and a dramatic increase in Islamophobia in populist security discourse. Combined, these trends mean that the liberal order underpinning the international human rights framework since World War II is now under threat.Two shifts may be necessary in order to reinvigorate an effective defence of rights in the face of security mandates. First, defenders of human rights must directly and critically engage with emotive claims of insecurity and unrealistic promises of security. Rather than reacting with similarly reductive narratives, we should seek to develop a discourse of sober resilience – one that provides a serious account of the risks to security while acknowledging both the inherent constraints on democratic states in achieving security and the wider security benefits to be gained from protecting rights. Ultimately, this narrative will need to build on a recognition, even a celebration, of the risk that comes with a free society.The second, related shift involves meaningful acknowledgment of the role that liberalism has played in the historical and continued oppression of vulnerable groups. By addressing the ways in which the law in supposedly liberal democracies has been co-opted in the name of security, we help to lay bare flaws in the individualistic liberal vision of rights and the disconnect between abstract claims of universality and lived experiences on the ground. This process of exposure should not be seen as a step towards the abandonment of the liberal human rights project but rather as part of an attempt to revive it and make it relevant to those who have borne the ‘costs of security’

Security and Human Rights

In the wake of the events of September 11th, the task of reconciling issues of security with a respect for fundamental human rights has emerged as one of the key challenges facing governments throughout the world. Although the issues raised by the rise of security have been the subject of considerable academic interest, to date much of the debate surrounding the impact of security on human rights has taken place within particular disciplinary confines. In contrast, this collection of essays from leading academics and practitioners in the fields of criminal justice, public law, international law, international relations and legal philosophy offers a genuinely multidisciplinary perspective on the relationship between security and human rights. In addition to exploring how the demands of security might be reconciled with the desire to protect established rights, Security and Human Rights offers a fresh perspective on the broader legal and political challenges that lie ahead as states attempt to control crime, prevent terrorism and protect their citizens. The Introduction to this collection of essays (\u27Security and Human Rights: The Search for a Language of Reconciliation\u27) is available for download

Public Protection, Proportionality, and the Search for Balance

This report examines how courts in the UK and Europe respond when human rights and security appear to conflict. It compares cases from the United Kingdom, France, Germany, Spain, and the European Court of Human Rights (ECtHR). It examines how rights are applied and how courts use the concept of proportionality to mediate conflicts between rights and security. The report concludes that British courts are less consistent in their application of proportionality than countries with constitutional rights protections which tend to be more rigorous in their protections of rights than are countries, like the UK, that rely instead on the European Convention on Human Rights (ECHR)

Prisoners' rights in Germany and England : a comparative examination

This thesis is a comparative examination of prisoners' rights in England and Germany. The thesis has three dimensions: first, it is a description of the legal status of the prisoner in Germany and England; second, it is an examination of the social, political and cultural dynamics which have shaped prisoners' rights in each jurisdiction; and third, it is in itself an exercise which seeks to address the problems of comparative law which are identified in the introduction. England and Germany have been chosen as comparators as their respective approaches to prisoners' rights present illuminating contrasts. In England, despite significant judicial activity in the development of a prisoners' rights jurisprudence, prisoners' rights protection remains partial and equivocal. Many aspects of prison life are left within the realm of executive discretion, and the present Government, much like its predecessors, is unlikely to entrench a bill of prisoners' rights. Proponents of prison reform in England argue that the system of prisoners' rights protection is inadequate, not only in terms of the rights which prisoners can claim, but in terms of the possibilities of enforcement and the independence of enforcement bodies. This equivocal commitment to rights in England is heightened when juxtaposed against Germany's highly articulated rights culture and ambitious system of prisoners' rights protection under the Prison Act 1976. The German Prison Act, which is underpinned by a considerable constitutional jurisprudence on prisoners' rights, sets out foundational principles of prison administration, affords prisoners positive rights, defines the limitations of prisoners' constitutional rights and provides prisoners recourse to a Prison Court. Moreover, the rights and principles under the German Prison Act have been developed and refined in a substantial body of prison law jurisprudence over the last thirty years. Chapters one to three of the thesis make available to an English audience an in-depth account of the conception and protection of prisoners' rights in Germany and the broader context in which this has taken place. Chapters four and five of the thesis examine the method and manner of conceiving of the prisoner's legal status in England in the light of the German conception and explore the deeper political and cultural reasons for the divergence between England and Germany.</p

Prisoners' rights in Germany and England : a comparative examination

This thesis is a comparative examination of prisoners' rights in England and Germany. The thesis has three dimensions: first, it is a description of the legal status of the prisoner in Germany and England; second, it is an examination of the social, political and cultural dynamics which have shaped prisoners' rights in each jurisdiction; and third, it is in itself an exercise which seeks to address the problems of comparative law which are identified in the introduction. England and Germany have been chosen as comparators as their respective approaches to prisoners' rights present illuminating contrasts. In England, despite significant judicial activity in the development of a prisoners' rights jurisprudence, prisoners' rights protection remains partial and equivocal. Many aspects of prison life are left within the realm of executive discretion, and the present Government, much like its predecessors, is unlikely to entrench a bill of prisoners' rights. Proponents of prison reform in England argue that the system of prisoners' rights protection is inadequate, not only in terms of the rights which prisoners can claim, but in terms of the possibilities of enforcement and the independence of enforcement bodies. This equivocal commitment to rights in England is heightened when juxtaposed against Germany's highly articulated rights culture and ambitious system of prisoners' rights protection under the Prison Act 1976. The German Prison Act, which is underpinned by a considerable constitutional jurisprudence on prisoners' rights, sets out foundational principles of prison administration, affords prisoners positive rights, defines the limitations of prisoners' constitutional rights and provides prisoners recourse to a Prison Court. Moreover, the rights and principles under the German Prison Act have been developed and refined in a substantial body of prison law jurisprudence over the last thirty years. Chapters one to three of the thesis make available to an English audience an in-depth account of the conception and protection of prisoners' rights in Germany and the broader context in which this has taken place. Chapters four and five of the thesis examine the method and manner of conceiving of the prisoner's legal status in England in the light of the German conception and explore the deeper political and cultural reasons for the divergence between England and Germany

Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before a Court: A Comparative and Analytical Review of State Practice

https://commons.allard.ubc.ca/books/1130/thumbnail.jp