Substantive Equality in the Human Rights Acts - Essay Example

?Donna Purcell Order# 542460 08 May Law: The Promotion of Substantive Equality in the Human Rights Act of 1998 and the Equality Act of The European Convention on Human Rights (ECHR), previously known as the Convention for the Protection of Human Rights and Fundamental Freedoms is in essence an international treaty to protect all human rights and basic freedoms in Europe. In the aftermath of World War II Europe was left with two concerns in relation to human rights. First, the convention became an advocate for human rights believing that the most serious human rights violations had occurred during the Second World War, the Holocaust. Second, the convention responded to the growth of Communism in Eastern Europe by protecting the member states from communist subversion. The constant reference to values and principles became norm within the Convention as it was deemed “necessary in a democratic society.” The Convention was drafted in 1950 by the Council of Europe, however, did not go into force until September 1953. This Convention established the European Court of Human Rights (ECHR). The court hears cases from persons who feel their rights have been violated under the Convention by a state party. Any state party judgements are binding on the states concerned and they are obligated to execute them. Executions of judgements are overseen by the Committee of Ministers of the Council of Europe. Particular discretion is used to ensure that payment amounts awarded by the Court to the applicants are received in compensation for damages sustained. The establishment of an international Court to protect individuals from human rights violations is a very innovative feature. This innovative feature gives the individual a very active role on the international field. Tradition will show that only states or members are considered participants in international law. However, the European Convention remains the only international human rights agreement that provides this high degree of individual protection. Parties of the state can take cases against another state party to this Court, but this power is seldom used. Ten members originally joined as members in 1949. After the fall of the communist regimes in 1989, several states from Central and Eastern Europe became members. There are currently 33 members. Several other countries or States have been granted observer status including the United States, Canada, Mexico and Japan. The ECHR consists of Eighteen Articles covering fundamental rights with respect to respecting rights, life, torture, servitude, liberty and security, fair trial, retrospect, privacy, conscience and religion, expression, association, marriage, effective remedy, discrimination, derogations, aliens, abuse of rights, and permitted restrictions. The Court also must abide by its five established protocols. The European Court of Human Rights historically has a distinguished track record. The Court judges thousands of cases every year and its opinions are internationally cited. Historically the Court’s jurisprudence on equality was based on a formal concept of equality. However, in recent years the ECHR has started to give equality more of a substantive content. Its “weak equality jurisprudence resulted from the limitations of ECHR, judicial procedure, and a formal concept of equality.” Article 14 of ECHR applies only specifically to the enjoyment of conventional rights. “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground……” As far as procedure, only alleged victims can apply for complaints (excluded from states), and they first have to exhaust all other domestic remedies in their perspective states. The Convention furthermore was reluctant to draw inferences of discrimination from statistics. However, the most limiting factor was the ECHR’s formal concept of discrimination, which focused on direct discrimination. Recently the court has had some difficulty with cases involving covert discrimination or disparate or indirect discrimination. It has become more evident during the last decade that the ECHR has begun to develop a substantive concept of equality. Substantive equality concept takes into account how victims experience the reality of discrimination, in contrast to formal equality. The localized question deals with not whether the law makes distinctions, nor if the state is motivated by prejudice but whether the effect of the law is to perpetuate disadvantage, discrimination, exclusion or oppression. In essence “the substantive equality doctrine responds to the effects of structural inequality where it is not possible to identify a specific “wrongdoer” who causes the discrimination.” As an example, some of the most important developments of substantive equality jurisprudence have been in cases dealing with education discrimination, which falls under Article 2 of the First Protocol to the ECHR. Europe has many nomadic communities such as Roma, Travellers, and Sinti that have experienced educational discrimination and disadvantage. According to the Council of Europe Commissioner for Human Rights, Alvaro Gil-Robles, “segregation in education…..is a common feature in many Council of Europe member states.” In the case DH vs. Czech Republic, the ECHR addressed “special schools” in the Czech Republic for students with mental “deficiencies.” The children in these schools were disproportionately of Roma origin and were twenty seven times more likely to be sent to a special school than a non-Roma pupil. Also, in Orsus vs. Croatia, the court ruled on Croatian schools that had established classes exclusively for Roma students due to their problems with the Croat language. And in Sampanis vs. Greece, the court ruled on segregated preparatory classes resulting from protests from non-Roma parents. In both cases DH and Sampanis, the ECHR decisions demonstrate a more substantive concept of equality. This is especially true in the case of DH, which created a precedent decision. The Court stressed a pragmatic attitude by requiring that an applicant exhaust domestic remedies. The Court also stressed that the obligation must be flexible in their interpretation, taking into account both the general contexts in the state and the facts surrounding the applicant. Therefore, “the Court required the state to prove that the domestic remedies were in practice, available and effective.” The role played by the representative organizations in both of these cases were represented by non-governmental organizations, but being more so prominent in the DH case. The flexibility of these non-governmental organizations gives the applicants more resources to build a complex legal challenge without subject to pressure. Furthermore, these human rights cases sometimes raise issues that go beyond isolated facts of the specific complaint, and hearing from other groups allows a broader consideration of the facts. The European Union, the United Nations and the US Supreme Court in Griggs vs. Duke Power along with other national courts have adopted an approach of systematic indirect discrimination. The Griggs vs. Duke Power interpretation set a precedent for both European and international law. In the 1950s Duke Power’s Dan River plant incorporated a policy that African-Americans were allowed to work only in its Labor Department. This stipulated the lowest paying jobs in the company; however, in 1955 the company added the requirement of a high school diploma to higher paying jobs. The court ruled “that the company’s’ employment requirements did not pertain to the applicants’ ability to perform the job, and was discriminating against African-American employees, even though the company did not intend to do so.” Once an applicant demonstrates a discriminatory effect, the burden switches to the State to justify actions under the Court’s justification test. This was contrary to the ruling in DH where the ruling held that it was not necessary to prove intention to discriminate in indirect cases. In the Sampanis case the ECHR concluded that the applicant had presented enough evidence to justify a strong case that there was discrimination. The evidence showed that local officials had called for informal meetings to oppose the registration of Roma students. Also, Greek law had tolerated the evidence of separate education for Roma pupils. Most evident was the fact that there was racist opposition from non-Roma locals to include Roma students. These facts showed justification that covert racial discrimination was present in the case. Of the three cases, the Government only justified successfully the discriminatory treatment in Orsus. The ECHR ruled that the applicant children did have difficulties with the Croat language. The Court also ruled that the classes were preparatory in nature, present in mainstream schools and that the students could transfer to regular classes when ready. This case is now being referred to the ECHR again. Other notable cases of recent are complaints made against France by four Muslim girls and two Sikh boys who came to school their first day in 2005 with head coverings. School administrators saw such attire to be in violation of the French law, which forbids the wearing of dress or other symbols of religious affiliation. In the case of Opuz vs. Turkey 2009, the applicant brought the case against Turkey alleging failure to protect her and her mother from domestic violence, which resulted in her mothers’ death and her mistreatment. The ECHR ruled that Turkey violated Articles 2, 3, and 14 to protect the human rights and fundamental freedoms. The Human Rights Act of 1998 was an Act of Parliament of the United Kingdom, which did not actually go into effect until October of 2000. The sole purpose of the Act is to “give further effect” to the UK law to the rights within the European Convention on Human Rights. The Act also makes it possible for a remedy for the breach of a Convention right without going to the European Court of Human Rights in Strasbourg. It totally abolished the death penalty in UK law, however, Section 36 of the Crime and Disorder Act of 1998 had already abolished the death penalty. Being specific, the Act makes it unlawful for any public organization to act in a way contrary to the Convention, unless by an Act of Parliament, there is no other choice. It also requires UK judges to consider decisions of the Strasbourg court and to interpret laws as closely as possible and compatible with the Convention. However, the judges are not allowed to override it, they can only issue a declaration of incompatibility. In this way the Human Rights Act maintains the principle of parliamentary sovereignty. This allows the individual to still take his case to the Strasbourg court as a last resort. The pre-act white paper “Rights Brought Home” Act stated: “It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of 30,000 pounds. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.” Looking at a few notable human rights cases after the enactment of the Human Rights Act of 1998; Lee Clegg’s murder conviction was the first case invoking the Act. The case was brought on by The Times in October 2000 to overturn a libel ruling against the newspaper. In March 2006 the High Court in London ruled against a hospital who wanted to turn off the ventilator that kept the child, know as Baby MB, alive. The baby has the genetic condition of spinal muscular atrophy, which ends in almost total paralysis. The parents of the child fought for his right in spite of claims that the ventilation would cause an “intolerable life.” Afghan hijackers case 2006, presented a politically controversial decision as to the treatment of 9 Afghan men who hijacked a plane to flee from the Taliban. Both the Labour Party and the Conservative Party voiced condemnation in the tabloid newspapers. The ruling under the Human Rights Act gave the hijackers power to remain in the United Kingdom. Furthermore, the Court ruled that the government had abused its power in restricting the hijackers’ right to work. The Equality Act of 2010 fulfills a commitment of the Labour Party in the 2005 general election. The primary purpose of the Act is to incorporate the complicated and large array of Acts and Regulations, which form the basis of anti-discrimination laws in Great Britain. These primarily covered the Equal Pay Act of 1970, the Sex Discrimination Act of 1975, the Race Relations Act of 1976, the Disability Discrimination Act of 1995, and three other statutes of discrimination in employment regarding religion, sexual orientation and age. The Act “extends until 2030 the exemption from sex discrimination law allowing political parties to select all women or all men candidate short-lists.” The 2015 existing exemption was created by the Sex Discrimination Act of 2002. An attempt was made in 2008 to reform the ever-debated Reform of the Monarchy. This was an attempt to change the inheritance of the monarchy from cognatic primogeniture to absolute promogeniture or the first-born heir would inherit the throne regardless of his or her gender or religion. The Attorney General, the Baroness Scotland of Asthal ruled there would be no change in the law of succession in 2009, quoting, “To bring about changes to the law of succession would be a complex undertaking involving amendment or repeal of a number of items of related legislation, as well as requiring the consent of legislatures of member nations of the Commonwealth.” Therefore, published draft bills do not contain any plans to alter succession laws. The Act has been challenged by a small number of Bishops of the Roman Catholic Church of England and Wales in regard to refusing to allow married men, women, transsexual people and gay people into the priesthood. The case R. (Amicus) vs. Secretary of State for Trade and Industry covers existing binding law for many more Catholics than in the UK and was explicitly spelled out in the high court. Local Anglican clergy have also challenged the legislation. Considering the Human Rights Act of 1998 and the Equality Act of 2010, it is evident that substantive equality has been promoted through these Acts along with the historical formation of the European Court of Human Rights. Article 14 jurisprudence has developed from a formal to a more substantive model of equality in spite of worries about delay, implementation and capacity of the courts to deal with wider structural problems. The Court is now more open to adopting substantive equality values that stress the protection of vulnerable and disadvantaged minorities. Works Cited: What is the Human Rights Acts For? “Human Rights Act 1998.” 2nd Edition. Web. 08 June 2011. http://jerseyhumanrights.com/. Employment Law Briefing. “The UK Equality Act 2010: Key issues.” October 2010. Web. 08 June 2011. http://cov.com/files/publication/. O’Connell, Rory Dr. “Substantive Equality in the European Court of Human Rights?” Web. 08 June 2011. http://michiganlawreview.org/. Equality Act 2010. Web. 08 June 2011. http://en.wikipedia.org/. Human Rights Act 1998. Web. 08 May 2011. http://wikipedia.org/. Global Center for Women and Justice at Cornell University Law School. “European Court of Human Rights.” Web. 07 June 2011. http://cornell.edu/. European Court of Human Rights. “Religious Expression.” Web. 07 June 2011. http://ecohr.wordpress.com/. Griggs vs. Duke Power Company. Web. 08 June 2011. http://wikipedia.org/. UK Human Rights Blog. “Article 14/ Anti-discrimination.” Web. 07 2011. http://ukhumanrightsblog.com/. Council of Europe. “The European Convention on Human Rights and its Five Protocols.” Web. 08 June 2011. http://hri.org/docs/ECHR50.html/. Alliance Defense Fund. “European Court of Human Rights: Crosses can stay in Italy’s Classrooms.” Web. 08 June 2011. http://adfmedia.org/News/PRDetail/. European Convention on Human Rights. Web. 07 June 2011. http://wikipedia.org/. European Court of Human Rights. Web. 08 June 2011. http://wikipedia.org/. Historical Context of the Human Rights Act 1998. Web. 08 June 2011. http://youtub.be/BdDqW5vComA/. Read More