Search result: 44 articles

x
Year 2020 x
Article

Access_open The Right to Claim Innocence in Poland

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, right to claim innocence, reopening of criminal proceedings, miscarriage of justice, revision of final judgment
Authors Wojciech Jasiński Ph.D., habilitation and Karolina Kremens Ph.D.
AbstractAuthor's information

    Wrongful convictions and miscarriages of justice, their reasons and effects, only rarely become the subject of academic debate in Poland. This article aims at filling this gap and providing a discussion on the current challenges of mechanisms available in Polish law focused on the verification of final judgments based on innocence claims. While there are two procedures designed to move such judgment: cassation and the reopening of criminal proceedings, only the latter aims at the verification of new facts and evidence, and this work remains focused exactly on that issue. The article begins with a case study of the famous Komenda case, which resulted in a successful innocence claim, serving as a good, though rare, example of reopening a case and acquitting the convict immediately and allows for discussing the reasons that commonly stand behind wrongful convictions in Poland. Furthermore, the article examines the innocence claim grounds as regulated in the Polish criminal procedure and their interpretation under the current case law. It also presents the procedure concerning the revision of the case. The work additionally provides the analysis of the use of innocence claim in practice, feeding on the statistical data and explaining tendencies in application for revision of a case. It also presents the efforts of the Polish Ombudsman and NGOs to raise public awareness in that field. The final conclusions address the main challenges that the Polish system faces concerning innocence claims and indicates the direction in which the system should go.


Wojciech Jasiński Ph.D., habilitation
Wojciech Jasiński is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-7427-1474

Karolina Kremens Ph.D.
Karolina Kremens is Assistant Professor in the Department of Criminal Procedure of the University of Wroclaw, Poland. orcid.org/0000-0002-2132-2645
Article

Beizaras and Levickas v. Lithuania

Recognizing Individual Harm Caused by Cyber Hate?

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords hate speech, verbal hate crime, cyber hate, effective investigation, homophobia
Authors Viktor Kundrák
AbstractAuthor's information

    The issue of online hatred or cyber hate is at the heart of heated debates over possible limitations of online discussions, namely in the context of social media. There is freedom of expression and the value of the internet in and of itself on the one hand, and the need to protect the rights of victims, to address intolerance and racism, as well as the overarching values of equality of all in dignity and rights, on the other. Criminalizing some (forms of) expressions seems to be problematic but, many would agree, under certain circumstances, a necessary or even unavoidable solution. However, while the Court has long ago declared as unacceptable bias-motivated violence and direct threats, which under Articles 2, 3 and 8 in combination with Article 14 of the ECHR, activate the positive obligation of states to effectively investigate hate crimes, the case of Beizaras and Levickas v. Lithuania presented the first opportunity for the Court to extend such an obligation to the phenomenon of online verbal hate crime. This article will first address the concepts of hate speech and hate crime, including their intersection and, through the lens of pre-existing case law, identify the key messages for both national courts and practitioners. On the margins, the author will also discuss the issue of harm caused by verbal hate crime and the need to understand and recognize its gravity.


Viktor Kundrák
Viktor Kundrák has worked for the OSCE Office for Democratic Institutions and Human Rights (ODIHR) as a Hate Crime Officer since 2018. He has been responsible for ODIHR’s hate crime reporting, trained police, prosecutors and judges, and provided legislative and policy support at the national level. He is also a PhD candidate at Charles University in Prague. The views in this article are his own and do not necessarily represent those of ODIHR. Some of the opinions are based on an article published in Czech earlier this year (see V. Kundrák & M. Hanych, ‘Beizaras and Levickas v. Lithuania (Verbal Hate Crime on Social Network and Discriminatory Investigation)’, The Overview of the Judgments of the European Court of Human Rights, Vol. 3, 2020.
Human Rights Practice Review

Poland

Journal East European Yearbook on Human Rights, Issue 1 2020
Authors Vita Czepek and Jakub Czepek
Author's information

Vita Czepek
Dr Vita Czepek, University of Warsaw, Faculty of Law and Administration, Department of International Public Law.

Jakub Czepek
Dr Jakub Czepek, Cardinal Stefan Wyszyński University in Warsaw, Faculty of Law and Administration, Department of Human Rights Protection and International Humanitarian Law.

Franklin De Vrieze
Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation for Democracy

Constantin Stefanou
Dr Constantin Stefanou, Director, Sir William Dale Centre for Legislative Studies; Institute of Advanced Legal Studies, University of London.
Article

Access_open States of Emergency

Analysing Global Use of Emergency Powers in Response to COVID-19

Journal European Journal of Law Reform, Issue 4 2020
Keywords coronavirus, emergency law, emergency powers, autocratization, democratic deconsolidation, state of emergency, rule of law, transparency, accountability, legislative scrutiny
Authors Joelle Grogan
AbstractAuthor's information

    The measures taken in response to the coronavirus pandemic have been among the most restrictive in contemporary history, and have raised concerns from the perspective of democracy, human rights, and the rule of law. Building on a study of the legal measures taken in response to pandemic in 74 countries, this article considers the central question of the use of power during an emergency: is it better or worse for democracy and the rule of law to declare an emergency or, instead, to rely on ordinary powers and legislative frameworks? The article then considers whether the use of powers (ordinary or emergency) in response to the pandemic emergency has ultimately been a cause, or catalyst of, further democratic deconsolidation. It concludes on a note of optimism: an emerging best practice of governmental response reliant on public trust bolstered by rationalized and transparent decision-making and the capacity to adapt, change and reform measures and policies.


Joelle Grogan
Dr. Joelle Grogan is Senior Lecturer in Law, Middlesex University London.
Article

Emergency Measures in Response to the Coronavirus Crisis and Parliamentary Oversight in the EU Member States

Journal European Journal of Law Reform, Issue 4 2020
Keywords states of emergency, parliamentary oversight, health crisis, Covid-19, European Union Member States
Authors Maria Diaz Crego and Silvia Kotanidis
AbstractAuthor's information

    The Covid-19 pandemic has become a true stress test for the legal systems of the worst hit countries. Faced with a health crisis situation, many national governments have become the protagonists in the adoption of difficult measures severely restricting their citizens fundamental rights to the detriment of the powers usually entrusted to the national parliaments. This article examines the normative response of the 27 European Union Member States during the “first wave” of the Covid-19 pandemic, a period that runs from the declaration of a pandemic (March 2020) to mid-June 2020. The intention of the authors was to describe the legal and constitutional mechanisms activated in order to contain the pandemic, focusing on the role of national parliaments in the management of the crisis. This article explores also the degree to which national parliaments have been involved and could exercise parliamentary oversight over the normative measures used by the executive to contain the pandemic in the EU-27.


Maria Diaz Crego
Maria Diaza Crego is a Policy Analyst, European Parliament Research Service, European Parliament.

Silvia Kotanidis
Silvia Kotanidis is a Policy Analyst, European Parliament Research Service, European Parliament. The European Parliamentary Research Service (EPRS) is the internal research service and think tank of the European Parliament. This research paper derives from a paper originally published on 4 December 2020 by the EPRS as background material to assist Members and staff of the European Parliament in their parliamentary work. The content of the document is the sole responsibility of its authors and any opinions expressed therein should not be taken to represent an official position of the European Parliament.
Article

Governments as Covid-19 Lawmakers in France, Italy and Spain

Continuity or Discontinuity

Journal European Journal of Law Reform, Issue 4 2020
Keywords Covid-19, emergency legislation, executive lawmaking, parliaments, decree-laws and ordinances
Authors Elena Griglio
AbstractAuthor's information

    Executive dominance in Covid-19 lawmaking has been a major trend worldwide. Governments have leveraged emergency prerogatives to boost their legislative powers, often sidelining the role of parliaments. The impact of executive lawmaking on fundamental liberties has been unprecedented. However, government’s capacity to exercise full legislative powers is not absolutely new to many European countries.
    This trend is analysed in the article comparing practices in the pandemic and in normal times, not specifically related to a state of emergency. To this end, three countries have been selected because of their constitutional clauses allotting lawmaking powers to the government even outside of emergency situations. This refers to the decree-laws in Italy and Spain and the ordonnances in France. The question addressed is whether there are relevant differences in the use made of these mechanisms during the pandemic.
    The results of this comparative analysis demonstrate that there is much continuity in the executive’s reliance on these mechanisms. However, discontinuity may be detected on the ground of the exceptional impact produced on constitutional rights and on the substantive values that legislation should protect. Therefore, from the perspective of the rollback of the emergency legislation, the role of parliaments, based on the core difference in the democratic status between lawmaking and legislation, turns out to be crucial.


Elena Griglio
Elena Griglio is Senior Parliamentary Official of the Italian Senate and Adjunct Professor at LUISS University, Rome.
Article

Legislative Scrutiny in Times of Emergency

A Case Study of Australian Parliaments

Journal European Journal of Law Reform, Issue 4 2020
Keywords legislative scrutiny, sunset clauses, emergency laws, virtual parliament, parliamentary committee, trust
Authors Hon Kate Doust MLC and Mr Sam Hastings
AbstractAuthor's information

    Citizens’ trust in Australian governments and parliaments has fallen in recent years, yet trust is critical for governments to do their job effectively and attack challenging issues. The coronavirus pandemic provides an opportunity for governments and parliaments to bridge the gap between citizens’ expectations and parliamentary and government performance and therefore rebuild trust. In doing so, parliaments need to balance their desire for speedy action with proportionate measures and mechanisms for review.
    This article examines the scrutiny of primary legislation by the parliaments of Western Australia the Commonwealth of Australia during the initial stages of the pandemic, through the application of principles from the House of Lords Select Committee inquiry into fast-track legislation. The data shows that both parliaments had severely abridged time to consider, debate and consult on bills during the initial stages of the emergency. The parliaments took a different approach to address this issue. The Western Australian Parliament supported the inclusion of sunset clauses into most of the bills whereas the Commonwealth Parliament did not. The Commonwealth Parliament’s scrutiny committees considered and commented on the bills post-enactment. The Western Australian Parliament does not have mechanisms for the technical scrutiny of all bills by parliamentary committees. This divergence of approach is noteworthy as the Commonwealth Parliament has information about the impact and technical quality of bills but no power to address the issues identified. The Western Australian Parliament has little information about the impact and technical quality of the Acts but will likely have the opportunity to reconsider the laws if they are sought to be extended.


Hon Kate Doust MLC
Hon Kate Doust MLC is the President of the Legislative Council of Western Australia.

Mr Sam Hastings
Mr Sam Hastings is the Clerk Assistant (House) of the Legislative Council of Western Australia. The authors acknowledge the research assistance provided by Ms. Renae Jewell and Mr. Chris Hunt.
Article

Does the Fight Against the Pandemic Risk Centralizing Power in Pakistan?

Journal European Journal of Law Reform, Issue 4 2020
Keywords PTI government, 18th amendment, 1973 Constitution, lockdown, economic impact
Authors David A. Thirlby
AbstractAuthor's information

    When the pandemic struck Pakistan, there was a high-profile divergence between how the federal government and the provincial government of Sindh responded. This points to a tension between the need for a national approach to tackle the pandemic and the prerogative of the provinces to deal with health issues under its devolved powers. These powers were the result of the 18th amendment, which restored a parliamentary federal democracy. Power has also been decentralized from executive presidents to parliamentary forms of government. However, parliamentary systems centralize power within the executive: a trend which the pandemic has reinforced. The article will explore the various interplays although it is the economic landscape which will prove most challenging. Although the emergence of a national centralized approach to combat the pandemic points to a weakening of the devolution process and therefore the reasoning behind the 18th amendment, the situation is more complex which this article seeks to explore.


David A. Thirlby
David A. Thirlby is Senior Programme Manager Asia, Westminster Foundation for Democracy
Article

Patience, Ladies

Gender-Sensitive Parliamentary Responses in a Time of Crisis

Journal European Journal of Law Reform, Issue 4 2020
Keywords gender sensitivity, parliament, responsiveness, COVID-19, democracy, women
Authors Sonia Palmieri and Sarah Childs
AbstractAuthor's information

    In early 2020, in the face of the Covid-19 pandemic, numerous parliaments played their rightful democratic role by following the advice of health and economic experts and swiftly passing emergency legislation and relief packages. This was, in many countries, an attempt to reach an equilibrium between saving lives and saving economic livelihoods, on the understanding that both were in serious jeopardy. In the face of public health measures many parliaments also found themselves having to reform their own rules, procedures and practices. In both cases – policy interventions and institutional redesign – it appears that parliamentary responses to the Covid-19 situation were less commonly based on the advice of gender experts or informed by considerations of gender inequalities. Few, if any, emergency packages were designed following a systematic consideration of existing, deeply entrenched gender inequalities, despite continuous public analysis and commentary about the disproportionate gender impacts of the pandemic and the resulting lockdowns; and no parliaments instituted (temporary) rule changes that prioritized the voices of women parliamentarians or constituents. In this article, which draws on our work drafting the UN Women Covid-19 Parliamentary Primer & Checklist, we revisit the democratic case for gender-sensitive parliaments, highlighting their particular relevance to the 2020 pandemic. We introduce our model for gender-sensitive crisis responses across four key stages of the parliamentary process presented in the Primer – representation, deliberation, legislation and scrutiny – and offer an initial assessment of what transpired in the world’s parliaments based on an IPU survey. We suggest that if parliaments are to be gender-sensitive institutions in times of crisis, they must not only change how they do politics but also develop and sustain a robust political culture that values gender equality and an ethic of caring that supports new rules, procedures and practices that better redress institutional gender deficiencies.


Sonia Palmieri
Sonia Palmieri, Australian National University.

Sarah Childs
Sarah Childs, Royal Holloway, University of London.
Article

Access_open The Challenges for England’s Post-Conviction Review Body

Deference to Juries, the Principle of Finality and the Court of Appeal

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful conviction, criminal justice, Criminal Cases Review Commission, Court of Appeal, discretion
Authors Carolyn Hoyle
AbstractAuthor's information

    Since 1997, the Criminal Cases Review Commission of England, Wales and Northern Ireland has served as a state-funded post-conviction body to consider claims of wrongful conviction for those who have exhausted their rights to appeal. A meticulous organisation that has over its lifetime referred over 700 cases back to the Court of Appeal, resulting in over 60% of those applicants having their convictions quashed, it is nonetheless restricted in its response to cases by its own legislation. This shapes its decision-making in reviewing cases, causing it to be somewhat deferential to the original jury, to the principle of finality and, most importantly, to the Court of Appeal, the only institution that can overturn a wrongful conviction. In mandating such deference, the legislation causes the Commission to have one eye on the Court’s evolving jurisprudence but leaves room for institutional and individual discretion, evidenced in some variability in responses across the Commission. While considerable variability would be difficult to defend, some inconsistency raises the prospects for a shift towards a less deferential referral culture. This article draws on original research by the author to consider the impact of institutional deference on the work of the Criminal Cases Review Commission and argues for a slightly bolder approach in its work


Carolyn Hoyle
Carolyn Hoyle is Professor of Criminology at the Faculty of Law, University of Oxford, UK.
Article

Access_open Chosen Blindness or a Revelation of the Truth?

A New Procedure for Revision in Belgium

Journal Erasmus Law Review, Issue 4 2020
Keywords final criminal conviction, revision procedure, grounds for revision, Court of Cassation, Commission for revision in criminal matters
Authors Katrien Verhesschen and Cyrille Fijnaut
AbstractAuthor's information

    The Belgian Code of criminal procedure provides the possibility to revise final criminal convictions. This procedure had remained more or less untouched for 124 years, but was finally reformed by the Act of 2018, after criticism was voiced in legal doctrine concerning its narrow scope and possible appearances of partiality and prejudice. The Act of 2018 therefore broadened the third ground for revision, the so-called novum, and defined it as an element that was unknown to the judge during the initial proceedings and impossible for the convicted person to demonstrate at that time and that, alone or combined with evidence that was gathered earlier, seems incompatible with the conviction, thus creating a strong suspicion that, if it had been known, it would have led to a more favourable outcome. Thereby, this ground for revision is no longer limited to factual circumstances, but also includes changed appreciations by experts. To counter appearances of partiality and prejudice, the Act of 2018 created the Commission for revision in criminal matters, a multidisciplinary body that has to give non-binding advice to the Court of Cassation on the presence of a novum. However, the legislature also introduced new hurdles on the path to revision, such as the requirement for the applicant to add pieces that demonstrate the ground for revision in order for his or her request to be admissible. For that reason, the application in practice will have to demonstrate whether the Act of 2018 made the revision procedure more accessible in reality.


Katrien Verhesschen
Katrien Verhesschen is a PhD candidate and teaching assistant at the Institute of Criminal Law KU Leuven.

Cyrille Fijnaut
Cyrille Fijnaut is Emeritus Professor of Criminal Law & Criminology at Erasmus University Rotterdam, KU Leuven and Tilburg University.
Article

Access_open Exoneration in Sweden

Is It Not about Time to Reform the Swedish Model?

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, extraordinary legal remedy, exoneration, exoneration in Sweden
Authors Dennis Martinsson
AbstractAuthor's information

    This article reviews exoneration in Sweden, with a focus on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Secondly, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of a convicted person and to the disadvantage of a previously acquitted defendant. Thirdly, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourthly, it argues that the current system should be reformed by introducing into Swedish law a review committee that administers applications for exoneration.


Dennis Martinsson
Dennis Martinsson is Assistant Professor in the Department of Law of Stockholm University in Sweden.
Article

Access_open Alternative Dispute Resolution in the Digital Sector

A Dejurisdictionalization Process?

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords European legislation, Alternative Dispute Resolution, civil procedure
Authors Rebecca Berto
AbstractAuthor's information

    Alternative Dispute Resolution (=ADR) is a generic reference to consensus-based processes that provide an alternative to litigation and to binding arbitration procedures. Analysing European provisions, the European legislator pushes Alternative Dispute Resolution methods as a means of resolving not only consumer-to-business disputes but also business-to-business. This may determine over the long term a sort of ‘dejurisdictionalization’ process, moving disputes from tribunals to Alternative Dispute Resolution methods. Procedural rights, however, such as raising interpretative questions to the European Court of Justice, may only be exercised before a court.
    Therefore, Alternative Dispute Resolution and national civil procedure are separated by a sort of procedural ‘Chinese wall’: this legislator’s forma mentis, repeated also in more recent directives, hinders the development of cross-border procedural provisions capable of tackling the legal and procedural questions posed by communication services and new technologies, such as blockchain, whose technical features are not limited by geographical boundaries.
    This article argues that, in the light of technological advancements, the European internal market needs new common procedural legislation fit for the cross-border economic and legal relationships carried out within it.


Rebecca Berto
Rebecca Berto is a lawyer with ECC-Italy: d.jur. University of Padua, Pg. Dipl. International Dispute Resolution (Arbitration) Queen Mary University – London, admitted to the Italian Bar. The views expressed herein are solely the author’s and represent neither that of ECC Italy nor of its host structures or any other of its public financiers. All opinions and errors are of the author. The author did not receive private or public funds for this article.
Article

Towards Online Dispute Resolution-Led Justice in China

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords Online Dispute Resolution, smart court, internet court, access to justice, China
Authors Carrie Shu Shang and Wenli Guo
AbstractAuthor's information

    The use of online dispute resolution (ODR) in courts is a growing topic of interest. By focusing on the recent development of ODR-connected smart courts in China, this article explores ODR’s potential impact on Chinese legal systems from three aspects: role of courts and the legal profession, due process rights, and information safety. By focusing on changing dispute resolution theories – from emphasizing on conflict resolution to dispute prevention – the article argues that ODR-led court reforms rose to the centre because the reform caters to specific purposes of the recent series of reforms conducted under the auspices of the Rule of Law campaign, by prioritizing efficiency goals and attempting to enhance individualist justice experiences. In this article, we define the meaning of ODR in China and describe and categorize ODR technologies that are currently in use in China. Based on these general findings and promising technological options of ODR, we also recommend ways to better implement ODR in Chinese courts to take full advantage of technological advancements.


Carrie Shu Shang
Carrie Shu Shang, Assistant Professor, Coordinator, Business Law program, California State Polytechnic University, Pomona,

Wenli Guo
Wenli Guo, Ph.D., Assistant President, Beiming Software Co. Ltd., President, Internet Nomocracy Institute of Beiming Software Co. Ltd.,

    The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.


Andrea Broderick
Andrea Broderick is Assistant Professor at the Universiteit Maastricht, the Netherlands.
Article

Access_open State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM

Journal Erasmus Law Review, Issue 3 2020
Keywords Human rights, positive state obligations, islamophobia, international supervisory mechanisms
Authors Kristin Henrard
AbstractAuthor's information

    Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations.


Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.

Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Article

Access_open The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Proposals for Legislative Reform to Promote Equality through Schools and the Education System

Journal Erasmus Law Review, Issue 3 2020
Keywords Transformative pedagogy, equality legislation, promotion of equality, law reform, using law to change hearts and minds
Authors Anton Kok, Lwando Xaso, Annalize Steenekamp e.a.
AbstractAuthor's information

    In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.


Anton Kok
Anton Kok is Professor of Jurisprudence at the Faculty of Law of the University of Pretoria.

Lwando Xaso
Lwando Xaso is an independent lawyer, writer and historian.

Annalize Steenekamp
Annalize Steenekamp, LLM, is a Multidisciplinary Human Rights graduate from the University of Pretoria.

Michelle Oelofse
Michelle Oelofse is an Academic associate and LLM candidate at the University of Pretoria.
Article

The Windrush Scandal

A Review of Citizenship, Belonging and Justice in the United Kingdom

Journal European Journal of Law Reform, Issue 3 2020
Keywords Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble
Authors Namitasha Goring, Beverley Beckford and Simone Bowman
AbstractAuthor's information

    This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971.
    The kindling for this debacle was the ‘hostile environment policy’, later the ‘compliant environment policy’ that operated to formally strip British citizens of their right to a nationality in flagrant violation of international and domestic law. This article argues that the Human Rights Act, 1998 must be amended to include a very clear provision that guarantees in the UK a person’s right to a nationality as a portal to a person’s inalienable right to life. This balances the wide discretion of the Secretary of State under Section 4 of the Nationality, Immigration and Asylum Act, 2002 to deprive a person of their right to a nationality if they are deemed to have done something seriously prejudicial to the interests of the UK.
    This article also strongly recommends that the Preamble to the UK Human Rights Act, 1998 as a de facto bill of rights, be amended to put into statutory language Independent Advisor Wendy Williams’ ‘unqualified apology’ recommendation in the Windrush Lessons Learned Report for the deaths, serious bodily and mental harm inflicted on the Windrush Generation. This type of statutory contrition is in line with those of countries that have carried out similar grievous institutional abuses and their pledge to prevent similar atrocities in the future. This article’s contribution to the scholarship on the Human Rights Act, 1998 is that the Windrush Generation Scandal, like African slavery and British colonization, has long-term intergenerational effects. As such, it is fundamentally important that there is a sharp, comprehensive and enforceable legal mechanism for safeguarding the rights and interests of citizens as well as settled migrants of ethnically non-British ancestry who are clearly vulnerable to bureaucratic impulses.


Namitasha Goring
Namitasha Goring, Law and Criminology Lecturer Haringey Sixth Form College, LLM, PhD.

Beverley Beckford
Beverly Beckford, Barrister (Unregistered) (LLM).

Simone Bowman
Simone Bowman, Barrister (LLM Candidate DeMontford University).
Showing 1 - 20 of 44 results
« 1 3
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.