Legal implications of smoking (bans) in English prisons

Legal Studies ◽  
2019 ◽  
Vol 39 (2) ◽  
pp. 321-338
Author(s):  
Elise Maes
Keyword(s):  
Human Rights ◽  
Tobacco Smoking ◽  
Public Spaces ◽  
Smoking Ban ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Legal Implications ◽  
High Prevalence ◽  
Uk Supreme Court ◽  
The Uk

AbstractThe high prevalence of tobacco smoking in prison, and certain aspects inherent in prison culture make smoking in that environment particularly difficult to regulate. Over the last decade, the UK government has adopted and sought to implement gradually its plan to make all prisons smoke-free nationwide. The UK Supreme Court recently ruled inBlackthat the Health Act 2006, which prohibits smoking in most enclosed public spaces, does not bind the Crown and consequently does not apply to public prisons. Both developments have implications for the human rights protection of smoking and non-smoking prisoners. This paper considers how English smoking and non-smoking prisoners’ (human) rights are currently protected, and what the legal implications are of a complete ban on smoking in English prisons. The paper reflects on whether an indoor smoking ban might strike a better balance between the competing rights and interests of smoking and non-smoking prisoners than a complete ban.

Australian Bills of Rights and the ‘New Commonwealth Model of Constitutionalism’

2013 ◽  
Author(s):  
Simon Evans ◽  
Julia Watson
Keyword(s):  
Human Rights ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Key Features ◽  
The Uk ◽  
High Court Of Australia ◽  
The Impact

This chapter examines the influence of the new Commonwealth model of human rights protection (exemplified by the UK Human Rights Act 1998) on the form of the two Australian statutory Bills of Rights, and then considers the impact of Australia's distinctive legal culture and constitutional structure on the operation of these instruments. In particular, it examines the impact of culture and structure in the decision of the High Court of Australia in R. v Momcilovic [2011] HCA 34; (2011) 280 A.L.R. As a result of that case, key features of the Australian Bills of Rights now diverge from the dominant UK approach, a divergence so striking that it may no longer be possible to identify the Australian Bills of Rights as exemplars of the new Commonwealth model.

19. Human Rights and The UK Constitution

Public Law ◽  
2020 ◽  
pp. 761-816
Author(s):  
Mark Elliott ◽  
Robert Thomas
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

This chapter examines human rights protection in the UK. It examines the reasons why the Human Rights Act 1998 (HRA) was enacted, the effects of the HRA, the principal mechanisms through which the HRA affords protection to human rights in UK law; the scope of the HRA; and the debate concerning the potential repeal, reform, or replacement of the HRA. The chapter also introduces the notion of human rights, including the practical and philosophical cases for their legal protection, and the European Convention on Human Rights, to which the HRA gives effect in UK law.

18. Human Rights and the UK Constitution

Public Law ◽  
2017 ◽  
Author(s):  
Mark Elliott ◽  
Robert Thomas
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

This chapter examines human rights protection in the UK. It examines the reasons why the Human Rights Act 1998 (HRA) was enacted, the effects of the HRA, the principal mechanisms through which the HRA affords protection to human rights in UK law, the scope of the HRA, and the debate concerning the potential repeal, reform, or replacement of the HRA. The chapter also introduces the notion of human rights, including the practical and philosophical cases for their legal protection, and the European Convention on Human Rights, to which the HRA gives effect in UK law.

scholarly journals On the Jurisprudential Significance of the Emergent State Practice concerning Foreign Nationals Merely Suspected of Involvement with Terrorist Offences

2009 ◽  
Vol 16 (3) ◽  
pp. 315-339
Author(s):  
Ben Chigara
Keyword(s):  
Human Rights ◽  
National Security ◽  
International Terrorism ◽  
International Human Rights Law ◽  
Foreign Nationals ◽  
Human Rights Protection ◽  
Rights Protection ◽  
State Practice ◽  
The One ◽  
The Uk

This article examines emergent state practice of European States concerning foreign nationals that are merely suspected but not charged with involvement with terrorist offences, including deportation to destinations where they risk torture, inhuman or degrading treatment or punishment – usually their own country of origin, contrary to the foremost rules of international human rights law. The article attempts a rule of law analysis with a view to evaluating the difficulty posed for States by the absence still of alternative mechanisms for ensuring both the national security interest on the one hand, and on the other, the human rights interest of terrorist suspects. The article argues that sustainable counter-terrorist strategies will be distinguished and characterised by their insistence on the recognition, promotion and protection of the dignity inherent in all individuals – including terrorist suspects whether or not they have been charged with terrorist offences. This calls for the urgent development of human rights steered national security policies that prioritize the recognition, promotion, protection and reinforcement of the dignity inherent in all individuals. Such policies will have at their core, strategies for the efficient resolution of the question of how best to deal with the individuals that are ‘merely suspected by States agents' of involvement in terrorist offences, particularly foreign nationals. The article examines jurisprudence arising from cases involving among others the UK, Italy, Sweden, Spain, the Netherlands and France and shows a worrying appetite by these pro-democracy States to minimize human rights protection of terrorist suspects as a means of progressing the fight against international terrorism. This approach contradicts the international paradigm of over six decades whereby the establishment and maintenance of international peace and security was premised on human rights. The article advocates the development of human rights steered policies and strategies to deal with foreign nationals suspected of involvement with international terrorism.

Sacrificing the Effectiveness of the European Convention on Human Rights on the Altar of the Effective Functioning of Peace Support Operations: A Critique of Behrami & Saramati and Al Jedda

2009 ◽  
Vol 11 (2) ◽  
pp. 155-183 ◽  
Author(s):  
Alexander Breitegger
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Human Rights Violations ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Effective Functioning ◽  
European Court ◽  
House Of Lords ◽  
Effective Remedy ◽  
The Uk

AbstractThe European Convention of Human Rights is unlikely to be an effective remedy for local individuals alleging human rights violations by European states participating in peace support operations abroad in the future. This conclusion is substantiated by analysing the restrictive and legally flawed stance taken by the European Court of Human Rights in the joint cases of Behrami and Saramati which had not only a precedential effect on this court's own jurisprudence but also on the case of Al Jedda v. UK Secretary of Defence before the UK House of Lords. Ultimately, the decisions in these cases may be understood by the choice to let the rationale of effective functioning of peace support operations prevail over the effectiveness of human rights protection of local individuals.

scholarly journals Too attentive to our duty: the fundamental conflict underlying human rights protection in the UK

Legal Studies ◽  
2018 ◽  
Vol 38 (3) ◽  
pp. 360-378
Author(s):  
Benedict Douglas
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Fundamental Conception ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Individual ◽  
The Uk

AbstractAre we defined by the choices we make or the duties we owe? This paper argues that there is a conflict between the fundamental conception of the individual as possessing the capacity to choose how to live, which has been held to be the foundation of the European Convention on Human Rights, and the understanding of the individual as a bearer of duties which has long underpinned the UK Constitution. Through case law analysis, it is shown that the tension between these two understandings of the individual underlies the troubled acceptance of the Human Rights Act 1998, and influences the UK judiciary's substantive interpretations of the Convention rights. It is ultimately argued that for the Convention rights to be fully accepted in the UK, the evolution from a duty to a choice-based understanding of the individual, which was artificially accelerated by the Human Rights Act, must be more widely accepted by society and the courts.

Privatization and Welfare: A Comparative Perspective

2011 ◽  
Vol 5 (2) ◽  
Author(s):  
Catherine Donnelly
Keyword(s):  
Human Rights ◽  
Residential Care ◽  
Comparative Perspective ◽  
Welfare To Work ◽  
Human Rights Protection ◽  
Rights Protection ◽  
House Of Lords ◽  
The Us ◽  
The Uk

This Article adopts a comparative perspective on the use of privatization by governments in the welfare context. It begins by reviewing the extent of welfare privatization in the US, the UK, and Ireland, considering notable examples such as privatized welfare-to-work schemes and residential care. For example, the question of privatized welfare accommodation in the UK has resulted in significant litigation and a major judgment on privatization handed down by the House of Lords in 2007. The Article turns to a consideration of the challenges that arise from using privatization in the welfare context from the perspective of i) accountability and ii) human rights. The ways in which the different jurisdictions respond to the challenges of welfare privatization—and the lessons to be learned from those responses—are then assessed. Overall, it is argued that judicial or doctrinal responses to privatization are often inadequate and the extent to which there exist alternative mechanisms to ensure accountability and human rights protection in the context of welfare privatization are explored.

scholarly journals From dynamic to static: the evolution of the relationship between the UK and the European Court of Human Rights

2019 ◽  
pp. 161
Author(s):  
Merris Amos
Keyword(s):  
Human Rights ◽  
National Level ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Derechos Humanos ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Uk ◽  
The Relationship

In this article the evolution of the relationship between the UK and the European Court of Human Rights is examined. With strong human rights protection through law now present at the national level, it is concluded that the relationship has moved from a dynamic to static. The implications of this for the protection of human rights in the UK are considered and evaluated.En este artículo se examina la evolución de la relación entre el Reino Unido y el Tribunal Europeo de Derechos Humanos. Teniendo en cuenta que ya existe a nivel nacional una importante garantía y protección de los derechos fundamentales, se observa que la relación ha cambiado de dinámica a estática. Las implicaciones que este paradigma tiene para el caso particular del Reino Unido será objeto de examen y discusión.

The United Kingdom's Statutory Bill of Rights

2013 ◽  
Keyword(s):  
Human Rights ◽  
Political Elite ◽  
Bill Of Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Constitutional Principle ◽  
The Status ◽  
Human Rights Act ◽  
The Uk ◽  
The Impact

More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.

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