A comparative analysis of the decisions of the Divisional Court and the Court of Appeal with that of the European Court of Human Rights concerning human rights cases.
Written in 2004; 1,990 words; 18 sources; APA; $ 63.95
Paper Summary:
This paper compares the decisions of the Divisional Court and the Court of Appeal in R v Ministry of Defence ex parte Smith [1996] 2 WLR 305 with that of the European Court of Human Rights in Lustig-Prean v UK (2000) 29 EHRR 548. It discusses how the different outcomes in these cases can be chiefly explained by the approaches available to the courts in terms of reviewing State policy. It looks at why the test of 'irrationality' employed by the English courts meant that the discriminatory government policy could not be overturned and then examines why the test of 'proportionality' available to the Court of Human Rights allowed a fundamentally different outcome to be reached.
From the Paper:
"Having accepted Brown LJ's assessment regarding the justiciability of the policy, both the Divisional Court and Court of Appeal considered each of the three grounds for the review application: that the policy breached Article 2 of the EC Equal Treatment Directive ; that it breached Article 8 of the European Convention of Human Rights; and that it was "irrational". Both English courts shared the view that the word "sex" in the EC Directive should not be construed as embracing sexual orientation and should, therefore, have a meaning no broader than gender . Had they accepted the applicants? argument, the policy would have been unlawful as it would amount to direct discrimination . In the Divisional Court, Brown LJ emphasised the "unambiguous" language of the Directive, which plainly refers to discrimination of gender rather than of orientation."
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