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Ucl Human Rights Review UCL HUMAN RIGHTS REVIEW FIRST EDITION 2008 ISBN: 978-0-9560806 Faculty of Laws University College London Bentham House Endsleigh Gardens LONDON WC1H 0EG UCL Student Human Rights Programme Published in the United Kingdom By University College London, Faculty of Laws Bentham House, Endsleigh Gardens, London WC1H 0EG On Behalf of the UCL Student Human Rights Programme http://www.uclshrp.com/humanrightsreview © University College London, Faculty of Laws, 2008-10-01 All rights reserved. No part of this publication may be reproduced, transmitted, in any form or by any means, electronic, mechanical, recording or otherwise, or stored in any retrieval system of any nature, without the prior written permission of University College London, Faculty of Laws. Within the U.K., exceptions are allowed in respect of any fair dealing for the purpose of research of private study, or criticism or review, as permitted under the Copyrights, Designs and Patents Act, 1988. Enquiries concerning reproducing outside these terms and in other countries should be sent to University College London Faculty of Laws at the address above. ISBN: 978-0-9560806 UCL HUMAN RIGHTS REVIEW 2008 Patron: The Rt. Hon. Baroness Brenda Hale of Richmond Editor-in-Chief: Sonalini de Zoysa Gunasekera Editorial team: Amal De Chickera, Alex Chakmakjikan, Hejaaz Hizbullah, Jonathan Butterworth, Siri Anne Flindall, Tony Daly, Vishal Parmar Staff Advisory Board: Professor Dawn Oliver, Dr George Letsas, Professor Stephen Guest, Colm O’Cinneide Graphic Design: Tony Daly Funding: UCL Futures – Encouraging Innovation and Opportunities PREFACE The UCL Human Rights Review is the result of a student effort by the UCL Student Human Rights Programme. This is the first edition of the Review which is the first of its kind at UCL Laws featuring both student and academic articles. In forthcoming editions we hope to expand the scope of the Review to encompass academic scholarship from staff and students of other universities as well as human rights practitioners. This edition features some wonderful articles; a contentious debate about private care homes between Dawn Oliver and Rodney Austin; a thoughtful article on the mirror principle by Tom Rainsbury; a politically conscientious analysis by Theo Rycroft; four stylistically disparate but intellectually satisfying articles about the right to equality (O’Cinneide, Letsas) and freedom of expression (Norris, Guest); a well thought out analysis of socio-economic rights (Usher); a comprehensive discussion of the broader human rights issues related to human trafficking (Yusouff) and finally, an insightful book review by Jörg Fedtke. Producing this journal has been a long journey and there are many people to thank. Firstly I thank my editorial team; Amal, Hejaaz, Siri, Jonny, Vishal and Alex whose dedication was paramount in producing the Review. I especially thank Amal who made sure the rest of the team stuck to deadlines and was generally on tap to answer any of my queries. My gratitude also goes to Tony for the wonderful graphic design and for always being available whenever Microsoft Word disagreed with me, even at 4.00 a.m. The editorial team extends its gratitude to the UCL Future’s Grant for funding the printing of the Review as well as the launch. Special thanks also to our staff advisory board - Dr George Letsas for being so enthusiastic and supportive of the Programme and the Review over the past year, Professor Dawn Oliver for reviewing the student articles, for being on hand via email and for agreeing to speak at our launch, Professor Stephen Guest who advised and warned us greatly on typography, which true to his word, proved to be a daunting task and Colm O’Cinneide for helping us source student articles. Our deep appreciation also goes to Baroness Hale of Richmond for agreeing to be our patron as well as for kindly attending and speaking at the launch of our first Review. We also thank Judge Spielmann for being so kind in accepting our invitation to speak at the launch and for having crossed borders to be with us. Chris Campbell-Holt , thank-you for always being available with advice on typography, formatting and every other possible aspect of producing the Review. Your sound advice proved invaluable. We also thank Noreen, Richard and Sarah for the helpful pointers regarding layout, and for help with proof reading. Needless to say, it is the brilliant papers which give substance to the Review; our heartfelt gratitude to the writers and particular thanks to Professor Jörg Fedtke for obliging on such short notice. Last but not least we wish to thank our families for their patience and support. We hope very much that you enjoy reading our Review and look forward to the next edition. Sonalini de Zoysa Gunasekera Editor-in-Chief, UCL Human Rights Review ’08 iv PATRON’S FOREWORD I was delighted, if rather surprised, to be asked to become the first Patron of the UCL Human Rights Review. The delight was to be involved in such a valuable enterprise. The contents of this review are truly outstanding. The idea of bringing together contributions from students and from staff under a student Editor-in-Chief works very well. It is common in the United States, where a student Barack Obama was President of the Harvard Law Review, but rare in the United Kingdom. UCL has been a leader in the UK field, first with the Jurisprudence Review and now with the Human Rights Review. That one student body can produce two such quality publications is a great achievement and testimony to the excellence of the UCL educational experience. The surprise was to be chosen from the host of candidates much better qualified than I. I am not a UCL graduate or in any way associated with your Faculty (truth to tell, had I come to London instead of Cambridge, it would have been to King’s . where I would also have gone on the staff had I not remained at the Law Commission and eventually become a Judge). I am one of those ‘timorous souls’ whose caution in the development of human rights is so critically but constructively discussed by Tom Rainsbury. I was clearly a deep disappointment to him in both the Animal Defenders International (political advertising ban) and Countryside Alliance (hunting ban) cases. I can only hope that the much less cautious approach we showed in the Northern Ireland case of Re P (adoption by unmarried couples), which was decided after he had written his paper, will be more to his liking. And I can take comfort that Rodney Austin approves of the minority opinions in YL (private care homes performing public functions) although Dawn Oliver does not. There is much more food for thought (and not only for timorous Law Lords) in this compilation and I hope that it enjoys the wide readership that it deserves. Brenda Hale of Richmond September 2008 v INSTRUCTIONS FOR CONTRIBUTORS The UCL Human Rights Review welcomes contributions for consideration by the editors with a view to publication. Contributions should be sent to [email protected] , as should all correspondence, books for review and other communications. The Board of Editors will only consider material which complies with the following guidelines: 1. The submission should be an original, unpublished work not currently under consideration for publication elsewhere. 2. The UCL Human Rights Review publishes articles which deal with human rights issues which are jurisdiction specific and international. The Review encourages the submission of innovative articles which are relevant to the area of human rights. Articles which do no more that rehearse well known and familiar material should not be submitted. 3. Articles should be no longer than 7,500 words in length. Book Reviews and case notes should not exceed over 3,000 words. 4. Authors should state their present academic or professional affiliation and indicate any professional or personal involvement in the subject matter of the article. 5. It is preferred that submissions are sent as email attachments in recognised software to [email protected] . The submissions must conform to the Oxford Standard for Citation of Legal Authorities. Authors are asked to refer to previous editions for guidance. More detailed guidance will be sent on request. Contributions to the UCL Human Rights Review express the views of their authors and not necessarily the views of the Board of Editors. SUBSCRIPTIONS All subscription inquiries should be emailed to [email protected] CONTENTS PREFACE…………………………...………………………………………….……...iv PATRON’S FOREWORD……………………………………………………………..v D OLIVER Human Rights and the Private Sphere…………………………………………………..8 R AUSTIN Human rights, the Private Sector and New Public Management…………………..........17 T RAINSBURY Their Lordships’ Timorous Souls……………………………………………………...32 T RYCROFT The Rationality of the Conservative Party’s Proposal for a British Bill of Rights…….....53 C O’CINNEIDE The Right to Equality: A Substantive Legal Norm or Vacuous Rhetoric?..........................80 D NORRIS Are Laws Proscribing Incitement to Religious Hatred Compatible with Freedom of Speech?.........................................................................................................................................103 S GUEST Respect for Bad Thoughts…………………………………………………….............119 G LETSAS No Human Right to Adopt? ....................................................................................................135 T USHER Adjudication of Socio-Economic Rights: One Size Does Not Fit All……………...…155 G YUSSOUF Global Human Trafficking and the UN Convention
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