The ECHR has been instrumental over the past few decades in terms of moving the dial forward for LGBTQ+ rights in the UK
Rishi Sunak, the British Prime Minister, is said to be actively considering withdrawing the UK from the European Convention on Human Rights (ECHR).
This would be a very bad decision. The ECHR is an international treaty that most European countries signed after the tragedies of the second world war, committing them to protect fundamental human rights. It is separate from the European Union.
The UK’s membership of the ECHR has played an important role in increasing the protection afforded to LGBTQ+ people over many years. There are three legal cases in particular that demonstrate how the ECHR has prompted Parliament and the government to respect the rights of LGBTQ+ people. LGBTQ+ people should reject calls to withdraw from the ECHR and raise awareness of the good that this treaty has done.
Homosexuality and the army: Until 2000, the UK Ministry of Defence had a blanket ban on gay men and lesbian women serving in the army. This was based on the prejudice that homosexuality was “incompatible with service in the Armed Forces”.
When the case was heard by an English court in Smith v Ministry of Defence, the judges concluded that the ban was lawful. By contrast, when the case was heard in the Strasbourg Court – the international court that interprets the ECHR – the judges concluded that the ban was a violation of the UK’s obligation to respect the private life of gay men and lesbian women and found it unlawful.
Though controversial at the time, the Strasbourg Court’s opinion is now wholly mainstream, with the Ministry of Defence issuing an apology in 2007, and the current government establishing an “LGBT Veterans Independent Review” in 2022 to explore the effects of the ban on LGBTQ+ veterans.
Transgender recognition: Until 2004, UK law did not allow trans people – including those who had had surgery – to live as their true gender for legal purposes. A trans woman could not, for example, marry as a woman and would be registered as a man for all legal purposes, such as employment and social security.
In 2002, in Goodwin v United Kingdom, the Strasbourg Court concluded that this was a disproportionate interference with trans people’s right to respect for their private life. This case did not consider exactly when legal recognition should be possible – such as through self-identification – but it did decide that the failure to provide any legal recognition, including for post-operative trans people, was unlawful.
This case was a major factor in the trend towards legal recognition of trans people.
In 2003, the British courts in Bellinger v Bellinger concluded that UK law should be brought into line with the Strasbourg Court’s decision and, through the Gender Recognition Act 2004, it eventually was.
Decriminalising gay sex: While homosexual sex was decriminalised in England, Wales, and Scotland in 1967, consensual homosexual sex remained a criminal offence for which men could be imprisoned in Northern Ireland until 1982.
This was reversed only after a Strasbourg Court case called Dudgeon v United Kingdom, which found that the criminalisation of consensual homosexual sex was a disproportionate interference with the private lives of gay men. After this case, ministers changed the law of Northern Ireland so that gay men could have sex without being imprisoned.
LGBTQ+ History Month is a good time to reflect on how we have succeeded in moving closer to equality for everyone in the UK over many years. Naturally, there are no simple answers.
The effective promotion of LGBT rights has involved a network of political, social, legislative, judicial, domestic, and international action.
The ECHR will never be the only answer, but it has been and remains part of the answer and the government is wrong to contemplate withdrawal. LGBTQ+ people in the UK should reject calls to withdraw from this important treaty.
This piece was first published on Openly and is reproduced on the ELR Blog with permission and thanks.
The piece was also cited on the floor of the House of Commons by Alison Thewliss MP here.
Upon the nomination of the United Nations High Commissioner for Refugees (UNHCR), Professor Geoff Gilbert has been accorded the title of Sérgio Vieira de Mello Professor of International Human Rights & Humanitarian Law in the Essex Law School & Human Rights Centre at the University of Essex!
Sérgio Vieira de Mello worked most of his life for the UNHCR, retired and was then asked to serve as Special Representative of the Secretary-General to Iraq. He was killed in the Baghdad bombing of 2003. He was Brazilian and the government immediately created Sérgio Vieira de Mello Chairs that were meant to be available across the whole of South and Central America to promote education on and for, research regarding, and solidarity with forcibly displaced persons.
The expansion beyond Brazil did not happen until Goeff took on the role of inaugural Chair of the Secretariat of the Global Academic Interdisciplinary Network and there are now SVdM Chairs in Dominican Republic, Costa Rica, Mexico, and Ethiopia, with plans for Mozambique and Thailand. Geoff’s initial plan was for the chairs to be established in low- and middle-income countries that host the vast majority of the 103 million people within UNHCR’s mandate, but UNHCR wants to expand these globally akin to United Nations Educational, Scientific and Cultural Organization (UNESCO) Chairs.
Geoff is the first Sérgio Vieira de Mello Professor in the global North, reflecting his education, research and solidarity regarding forcibly displaced persons for the past thirty (30) years.
Dr Sabina Garahan, Lecturer at Essex Law School, has completed her AHRC-funded doctoral research on “Adjudicating the Right to Liberty: The Use and Appropriateness of Discretion at the European Court of Human Rights”. The thesis critically assesses the level of protection offered by European human rights law against arbitrary detention. Dr Garahan argues that the appropriateness of discretion granted to Contracting States in this sphere requires the Court to recognise the need for a progressive interpretation of the right to liberty (as enshrined in Article 5 of the European Convention on Human Rights). The thesis develops a new framework for determining the appropriateness of discretion by linking the Court’s use of its methods of interpretation to their underlying approaches. Dr Garahan’s development and application of this framework in the Article 5 context is rooted in thorough doctrinal and theoretical analysis as well as empirical findings on the practice of the European Court of Human Rights as gathered through interviews with serving judges.
On this basis, the thesis finds that the Court neglects an evolutive reading of Article 5, thereby stifling the progressive development of the provision. It is argued that, at the same time, an increased turn to subsidiarity has undermined the Court’s oversight role. A new framework for allocating discretion that takes consensus as a starting point in the Court’s review is suggested to address these challenges. It is argued that centring the role of consensus as part of an evolutive approach to Article 5 will not only achieve the progressive interpretation mandated by the Convention, but will also create a more consistent and thus legitimate body of Article 5 jurisprudence.
Dr Garahan makes the argument that an inappropriate level of discretion is accorded to States in determining whether the aims of detention, in particular in the fields of pre-trial detention, the detention of minors and immigration detention, have been met. The lack of progressive advancement of the right to liberty in the Convention system also results in the right being disproportionately ceded to both individual and public interests in proportionality testing. Dr Garahan therefore ultimately concludes that continued neglect of a progressive interpretation of Article 5 risks undermining not only the further realisation of the right to liberty, but indeed its continued maintenance as a vital tool of human rights protection.
Once again, I was called on to be living proof that anyone can dance. I showed off my worst moves. I told how my wife recently abandoned me on the dance floor. The facilitator confirmed that I was the tensest person he had ever encountered in his inclusive (mixed-abled) dance workshops. Once again, we put my own embodied embarrassment to some use: to begin the process of breaking down barriers, reassuring workshop participants, encouraging inclusive dance aesthetics, and thereby co-creating a safe space for bringing dance, disability, and rights together.
What was different this time is we were training Nepali dancers, lawyers, and, most importantly, war-disabled activists in a pioneering method of transformative human rights education developed by VisAbility in Sri Lanka (with support from the UK Arts and Humanities Research Council (AHRC), British Council, Goethe Institute, and Schmitz Stiftungen). What was also different is we were focusing specifically on the Right to Information (RTI) as a way for war-disabled people to demand more transparency and fairness in the provision of social protection and reparations.
This South-South training and knowledge exchange was led by Mahesh Umagiliya, a Sri Lankan choreographer/dancer and a co-founder of VisAbility, alongside Vinothine Balasubramaniam, a Sri Lankan RTI activist. The Nepali participants came from the National Network of Disabled Conflict Victims (NNDCV), the human rights NGO Advocacy Forum, and the music school NAAD Sangeet Pathshala. I was there not only as an ice-breaker, but also to provide some (much less fun) training on project evaluation, ethics, and data management in my role as Principal Investigator on our Performing/Informing Rights project.
Civil war inevitably maims and mutilates. After war, people with conflict-related, physical impairments are likely to experience extreme poverty, social exclusion, and illegal discrimination – notwithstanding the promise of the 2030 Agenda for Sustainable Development to “leave no one behind” and notwithstanding 184 states ratifying the UN Convention on the Rights of Persons with Disabilities. This is certainly the case in post-war Sri Lanka and Nepal where disabled people frequently lack the knowledge, confidence, resources, and access to claim their rights, benefits, and reparations.
Our earlier AHRC-funded Performing Empowerment project (2016-18) brought together transformative human rights education, legal empowerment, and inclusive dance to enable war-disabled people in northern and eastern Sri Lanka to claim their rights and benefits. However, a few disabled participants became understandably frustrated and discouraged by a lack of government response to their applications for disability benefits. As a result, we saw a need to empower disabled people to chase up their claims-making to government officials using Sri Lanka’s strong RTI law. Hence, this new AHRC-funded Performing/Informing Rights project (2021-23) that not only adds RTI to VisAbility’s trainings in Sri Lanka but also tests whether VisAbility’s methods can be adapted and applied to Nepal’s post-war context.
Both projects develop a novel form of transformative human rights education for disabled and non-disabled people using dance. According to a 2011 UN Declaration, human rights education is all about “empowering persons to enjoy and exercise their rights and to respect and uphold the rights of others.” Transformative human rights education takes this further through experiential learning focused on how rights can address everyday forms of political, economic, and social exclusion. It also emphasizes playful, participatory, and embodied learning. Indeed, dance has been used to teach, perform, and campaign for human rights, perhaps most famously with the One Billion Rising Campaign.
Both of our projects also pioneer a more holistic form of legal empowerment. Legal empowerment is a form of rights-based development by which the poor are enabled to use law to make rights claims and improve their livelihoods. Despite the UN Sustainable Development Goals’ call to empower disabled persons and provide “equal access to justice for all,” there has been surprisingly little attention to how legal empowerment might help war-disabled people. VisAbility has started filling that gap while also using inclusive dance to combine somatic and psycho-social empowerment with legal empowerment.
Mixing Rights and Dance
It’s not easy to combine rights and dance. For one thing, law privileges words, whereas dance relies on embodied expression. For another, there is a risk of instrumentalizing dance and thus losing some of its creative potential. Furthermore, the most visible examples tend to be professional performances, such as William Forsythe’s “Human Writes” and Pichet Klunchun’s “7 Decades of Human Rights,” rather than grassroots, education projects.
VisAbility is still experimenting with how best to mix dance and rights – something that Mahesh has likened to “putting sweet buns with chilli sambal”. Initially, its workshops had separate sessions on each. With the Performing Empowerment project, VisAbility started explicating dance movements through rights language and teaching rights using those movements (partly as mnemonic devices or body memories).
With this new project, VisAbility is aiming for a more ambitious synthesis of dance and rights. That first meant Vinothine training Mahesh on RTI and him leading an RTI training himself. It also meant Mahesh training Vinothine on dance and VisAbility’s methods. They then worked closely with Helena-Ulrike Marambio, the project’s Post-Doctoral Research Associate, to develop a draft training resource. However, Sri Lanka’s economic and political crisis meant Mahesh and Vinothine had to do this all online in the face of electricity outages. It wasn’t until they got to their Kathmandu guesthouse that they could actually start working through the resource together in the same physical space.
For Mahesh, one of the biggest challenges is that RTI training involves “a lot of information you have to deliver” which is “really hard to put into a dance task” because it needs to be learned “as information, not as something else, not as something realized in a symbolic way.” Another challenge was to “create a methodology that was not only suitable for Sri Lanka but can be used in another country also.”
Training and Knowledge Exchange
Even though the Nepali participants knew they would be learning dance and RTI, they were wrong-footed from the get-go. As Amisha Adhikari, one of Advocacy Forum’s lawyers, told us afterwards: “When they first entered the workshop venue, they were stunned because they did not see any chairs, any writing materials, projector, all that stuff. So, they kept coming to me asking … How are you going to talk about RTI [without that]?” What Mahesh and Vinothine quickly demonstrated is that moving bodies are a whole lot more fun than PowerPoints. As Vinothine put it, “without boring [them], we can deliver our knowledge and participants are engaged with the dance.”
Mahesh and Vinothine didn’t hesitate to deviate from the training resource as they read both the mood and bodies in the room. Still, some of the RTI exercises proved too complicated, which prompted me to suggest we “simplify and exaggerate” – simplify the RTI content and exaggerate the movements to make things more memorable. So, we focused on five key stages of the RTI process rather than trying to teach all 13 stages. Participants proposed movements to represent each RTI stage and we voted as a group for the ones we liked the best. Mahesh then helped us simplify and exaggerate the five chosen movements and had us rehearse the sequence over and over, so the RTI process became muscle memory. As Amisha later said: “The law is very complicated, right … but once they perform it by themselves through movements, through gestures, they will be able to remember those gestures and movements even if they don’t remember the legal provisions.” Earlier, though, she had had some doubts: “As a law student and as a lawyer, I always felt like law requires seriousness. … Dance is more like entertainment. So, I was confused how the two of them will work [together].”
Mandira Sharma, a prominent human rights lawyer and founder of Advocacy Forum, told me that she too had initially been “very puzzled” and “a little bit sceptical” about how dance and rights could be combined. But she explained that the training had “really opened our minds” as they saw how dance made it “easier for a non-legal person to really understand what the RTI process is about.” She added that dance is “really an empowering tool – even for us [as human rights activists].”
Moving from Dance Performances towards Street Theatre
On the last afternoon of the workshop, Mahesh choreographed a short work of “street theatre” (often a mix of theatre, dance, and music performed outdoors) that depicted a war-disabled woman using the RTI process to gain the government-issued disability card that entitles her to interim reparations. After just three, rather free-wheeling rehearsals, we performed for staff of the Taragaon Museum that had so generously hosted us. Afterwards, one audience member encouraged us to perform in more venues, including hospitals and rehabilitation centres.
VisAbility usually caps its workshops with dance performances at parks, outdoor markets, and street junctions. The performances serve three important purposes. First, they build cohesion and solidarity among the workshop participants. Second, they help empower participants: once they have danced in public spaces, they are less shy about performing their rights to government officials. Finally, they challenge the stigmatizing, shaming, and invisibilizing of disabled people in everyday life. As Gerda König, the German choreographer and VisAbility co-founder, has said: “Yeah, [people] are staring at them, or they look away, or they don’t even see them, but [for the workshop participants] to be as a crowd there [gives] so much power.”
Until now, VisAbility’s dance performances have been mostly abstract or non-representational. There was some resistance to using dance didactically to tell stories about challenging discrimination and claiming rights. But with this new project, VisAbility is moving towards more representational movements (partly due to more co-creation with workshop participants) and then integrating that with verbal storytelling about RTI. This may prove more resonant for participants and audiences. After all, there is a rich tradition of using street theatre to challenge injustices in Nepal and Sri Lanka. And street theatre has been used to promote RTI awareness in places like Bangladesh, India, and Sri Lanka.
While all of us were energized by our three days together, the real test comes when our Nepali colleagues start conducting their own dance and RTI workshops, as well as performances, with war-disabled and non-disabled people at the grassroots level.
Dr Jaime Lindsey of Essex Law School has recently published a book titled Reimagining the Court of Protection: Access to Justice in Mental Capacity Law with Cambridge University Press. Dr Lindsey provides an original account of the workings of the Court of Protection as one of the first researchers authorized to observe hearings and access the court’s files. Using original empirical data, the book takes a socio-legal approach to understanding how the Mental Capacity Act operates in practice to achieve access to justice.
Dr Lindsey contributes to the call for the reform of this important court from a procedural justice perspective, to ensure a better experience for those who use it, and to meet the requirements of access to justice.
A piece detailing further information about this book was published on Cambridge Blog and can be found here.
In collaboration with the Oxford Centre for Competition Law and Policy & Journal of Antitrust Enforcement, the Swedish Network for European Legal Studies (SNELS) invites the public to a workshop in honour of emeritus Professor Steven Anderman at Essex Law School.
Björn Lundqvist (SNELS/Stockholm University) and Hedvig Schmidt (Southampton Law School) will host the workshop which seeks to capture the common theme oriented towards the “big ideas” which kept Professor Steven Anderman’s attention throughout his academic career: ‘competition’ as a means to secure the very basis of the EU’s legal order. Steven has an outstanding talent to place legal problems into a broader context and framework. This is what the workshop would like to retrace in his work, and what the workshop will seek to portray.
The workshop will be held on 26 January 2023 in the Harold Lee Room at Pembroke College, Oxford from 1.20pm-7pm GMT.
For registration and any further questions regarding this invitation, please email the network coordinator Palle Söderberg at firstname.lastname@example.org.
Policing in England and Wales is under more scrutiny than ever, following high-profile criminal and disciplinary cases involving police officers, low charging and detection rates (not least for rape and sexual offences cases), and lingering concerns about how forces deal with women and people from minority communities.
On 21 July 2022, the Home Affairs Committee launched an inquiry into the priorities of policing at a time when public confidence in the police is low and six of the nation’s forces have been hit with special measures. The Committee will publish its final report in early 2023. Dr. Simon Cooper responded to the Committee’s call for evidence.
Dr Cooper’s research, previously reported exclusively in The Times and published in Policing: A Journal of Policy and Practice, found that Police and Crime Panels (PCPs), introduced as part of flagship Conservative reforms in 2011 are ‘toothless’, leaving police accountability, for the first time in history, largely dependent on the one-to-one relationships between Chief Constables and elected Police and Crime Commissioners (PCCs).
His submission to the Home Affairs Committee argues that the relational accountabilities of Chief Constables, PCCs and PCPs are unbalanced, untested, and risky.
In addition to recommending that the role and powers of PCPs be strengthened, a key conclusion of his submission is that the Home Secretary must exercise their statutory power and consult with the parties bound by the Policing Protocol to examine if the Policing Protocol should be varied or possibly replaced.
Notably, Dr. Cooper’s submission also calls on the Home Secretary to introduce a Memorandum of Understanding to bind PCCs and Chief Constables to ensure ‘effective, constructive working relationships’ are not just a quixotic pursuit but a practical reality that helps safeguard the accountability and governance of policing.
Protests have quickly spread across Iran calling for a change in the law after the death of a 22-year-old woman, Mahsa Amini, in the custody of the morality police.
The young woman was accused of violating rules on wearing hijab in public. The term hijab is an Arabic word meaning cover. However, it has been used to refer to different types of covering since 1970, from a long-sleeved coat, pants and scarf to the Islamic government’s preferred form of dress, chador, which is a loose-fitting black cloth covering the entire body.
Two quite different forms of law, from opposite ideologies, have been used to try to control women and the covering of their hair and body in the last 90 years.
The first attempt to use hijab as the subject of legislation was in 1936 by a new monarch, Reza Shah (1925-1941), who wanted to force women to remove the veil in public under his “unveiling” order. The shah’s vision of modernity, influenced by Turkish leader Mustafa Kemal Ataturk, included changing what Iranian women wore.
From 1941 to 1979 there was no law that instructed women what to wear, but many women still wore headscarves either as a statement against the monarchy or because their choices were restricted by patriarchal values such as namus (honour) and the strict control of male members of the family.
The 1979 Islamic revolution introduced the idea of hijab law. On March 8 1979, thousands of Iranian women marched in the street, protesting the idea of imposing hijab with slogans such as “freedom of choice in clothes”. Wearing hijab became obligatory for all Iranian women from April 1983. Since then, all women have been legally obliged to wear hijab in public, even non-Muslims and foreigners visiting Iran.
Over the years, the Islamic government has introduced even more legal measures and social restrictions to enforce mandatory hijab laws. Criminal punishment for those violating the law was introduced in the 1990s and ranged from imprisonment to fines.
However, there was a different shift in policing the way women in Tehran dressed, starting in January 2018. According to this new decree, women who did not observe the Islamic dress code no longer faced fines or imprisonment but rather had to attend Islam educational classes. “Women will no longer be taken to detention centres, nor will judicial cases be filed against them,” said local media reports citing Tehran police chief General Hossein Rahimi.
In such cases the morality police, Gasht-e Ershad, usually escort women to a police van and then to a class. The women are then required to sign a form saying they will not commit the “bad hijabi” offence again, and forced to take part in police-organised “guidance” to learn how they should observe Islamic values. This new order only applies in the capital Tehran – but even there, women who broke the dress code repeatedly could still be subject to legal action.
Beyond the discriminatory aspects of the mandatory dress code, one important legal issue is that the crime of “bad hijabi” or “improper hijab” is not defined by the law. Because the law is very loosely drawn, enforcers such as the morality police can choose to interpret it differently and crack down on women in various ways.
Path to law reform
Iran’s existing laws and legal practices draw from different sources, ranging from constitutional law, legislation and government bylaws to customs and Islamic principles.
Article 146 of the constitution binds the judge who “endeavours to judge each case on the basis of the written law. In case of the absence of any such law, s/he has to deliver his judgment on the basis of authoritative Islamic sources”.
The way Iranian women dress differs across different parts of the country and according to cultures, socioeconomic backgrounds, political views and religious beliefs. The mandatory hijab law is not only about taking away women’s control of their bodies in public. It affects every aspect of everyday life in Iran. For example, it forces the segregation of the sexes and promotes censorship (women are not allowed to appear without hijab on TV or in movies).
During the last few decades, Iranian women’s groups have fought to change this law. Every day, they have fought the state’s notion of “proper dress” by choosing what they wear, their fashion, their make-up, the way they walk out of their houses. In every step they take in public, they have challenged the discriminatory law that can stop and tell them that their personal choices are “improper”. In doing so, they put themselves at risk of criminal punishment ranging from imprisonment to fines.
Even though compulsory hijab has been instituted, criminalised and promoted as the main Islamic state gender policy, women’s efforts to negotiate their rights have been brave and remarkable. This continuing quest for justice, gender equality and freedom of choice has been embodied in the “women, life, freedom” slogan.
In these protests, both in the streets and on social media, Iranian women (and men) are calling for the obligatory hijab law to be abolished. Surveys suggest public opinion is widely behind a change in the law. Opposition has grown over the last few weeks, driven by social media and hashtag activism. There is hope that public demands to reform the obligatory dress code in Iran will create change.
This article was first published on The Conversation and is reproduced on the ELR Blog under a Creative Commons Licence. View the original article here.
Dr Simon Cooper of Essex Law School, has found that PCPs, introduced as part of flagship Conservative reforms in 2011 are “toothless”, leaving police accountability, for the first time in history, largely dependent on the one-to-one relationships between Chief Constables and elected Police and Crime Commissioners (PCCs).
As part of the study, Dr Cooper gained unprecedented access to senior policing figures including someone directly involved in introducing the current accountability model.
In his report, which will be published in Policing: A Journal of Policy and Practice, Dr Cooper urges Home Secretary Suella Braverman to launch an urgent review to “safeguard the accountability and governance of policing.”
He also recommends the introduction of binding contracts between PCCs and Chief Constables after finding the current structure is “unbalanced, untested and risky.”
Anonymous 90-minute interviews reveal an overwhelming view that PCPs, which are meant to support, scrutinise and maintain a regular ‘check and balance’ on PCCs, are “entirely impotent and ineffective” according to the report.
One PCC stated that “PCCs aren’t concerned or fearful of their PCP” with another saying “my mandate is from the people who elected me so sod the PCP.” Even PCP Chairs, whose only sanctioning power is to publicly shame a PCC, said “we are toothless” and “PCPs can’t do anything, there are no checks and balances at all.”
“The result is that for the first time in the history of modern policing, the accountability and governance of policing is rendered subject to the one-to-one relationship between a PCC and their Chief Constable. A relationship that could be fractious, dysfunctional, volatile or overly cosy,” explained Dr Cooper.
That risk is backed up by the interviews with one Chief Constable saying “I know some of my colleagues have awful relationships with their PCCs”. One of the most senior people in policing at a national level said that accountability rests “not just on the relationship but also on the calibre, experience and wisdom of the person elected as PCC and believe you me that varies enormously.”
Dr Cooper said: “The case of Cressida Dick, who one report has found was ‘constructively dismissed’ by her PCC, London Mayor Sadiq Khan, demonstrates what can happen when the relationship between a Chief Constable and their PCC breaks down, and reported wider problems in The Met Police show why an effective structure of police accountability is so vital.
“As laid out by one of the Chief Constables I interviewed, the current model for police accountability rests too heavily on a series of ‘ifs’: if the PCP is effective, if the PCC has principles and experience, if the Chief Constable is of the right character then it can be effective but this is not an effective or sustainable model for holding a modern police force to account.”