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Aaron Baker

Bio: Aaron Baker is an academic researcher from Durham University. The author has contributed to research in topics: Proportionality (law) & Human rights. The author has an hindex of 6, co-authored 12 publications receiving 68 citations.

Papers
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Journal ArticleDOI
Aaron Baker1
TL;DR: In this article, the authors argue that judges have inappropriately narrowed the scope of the 'ambit' of other Convention articles, and thus limited the number of claims to which Article 14 can apply, by defining it according to considerations more properly weighed in a justification analysis incorporating proportionality.
Abstract: Article 14 of the European Convention on Human Rights, as applied by the UK judiciary under the Human Rights Act 1998, is in danger of becoming as 'parasitic' as it is often described. Judges have inappropriately narrowed the scope of the 'ambit' of other Convention articles, and thus limited the number of claims to which Article 14 can apply, by defining it according to considerations more properly weighed in a justification analysis incorporating proportionality. The emerging approach departs from Strasbourg jurisprudence, and fails to give full effect to the language and intent of Article 14. This trend need not continue. This article begins the process of fashioning a new conception of the ambit of Convention articles: one that could change the fortunes of Article 14 cases in the UK, but that flows naturally from the precedents of the European Court of Human Rights, and gives effect to the spirit of the HRA.

12 citations

Journal ArticleDOI
Aaron Baker1
TL;DR: In this paper, the justification defence in UK statutory indirect discrimination cases should incorporate proportionality as applied by the European Court of Human Rights (ECtHR) and the UK judiciary was already adopting an approach to proportionality at odds with that of the ECJ and more resonant with the ECtHR.
Abstract: This paper argues that the justification defence in UK statutory indirect discrimination cases should incorporate proportionality as applied by the European Court of Human Rights (ECtHR). It first analyses the evolution of the UK approach to proportionality before the enactment of the Human Rights Act 1998 (HRA), when its primary influence was the jurisprudence of the European Court of Justice (ECJ) applying EC equal treatment directives. This assessment shows that the UK judiciary was already adopting an approach to proportionality at odds with that of the ECJ and more resonant with that of the ECtHR. An evaluation of UK practice, however, including consideration of GMB v Allen, shows that UK judges do not apply the rigorous scrutiny required by either the ECJ or ECtHR approaches. The article considers the doctrine of proportionality as developed through the discrimination jurisprudence of the ECtHR and its application under the HRA. Given the increasing relevance of European Convention on Human Rights precedent under the HRA, the article evaluates how the influence of Strasbourg teaching can (and should) enhance the UK approach to the resolution of employment discrimination claims.

10 citations

Journal ArticleDOI
TL;DR: This article argued that the UK Human Rights Act has a more protective and less "prosecutorial" conception of discrimination than has the US Equal Protection Clause, meaning that judges need not find a discriminatory motive to find that discrimination has occurred.
Abstract: Counter-terrorism officials in the USA and the UK responded to the events of 11 September 2001 and 7 July 2005 with an increasing resort to the use of ‘intelligence-led policing’ methods such as racial and religious profiling. Reliance on intelligence, to the effect that most people who commit a certain crime have a certain ethnicity, can lead to less favourable treatment of an individual with that ethnicity because of his membership in that group, not because of any act he is suspected or known to have committed. This paper explains the context in which intelligence-led policing flourishes, and how this discussion contributes to the profiling debate in both the USA and the UK, and then sets out two key contentions. First, we argue that Article 14 ECHR as applied under the UK Human Rights Act has a more protective, and less ‘prosecutorial’, conception of discrimination than has the US Equal Protection Clause, meaning that judges need not find a discriminatory motive to find that discrimination has occurre...

7 citations

Journal ArticleDOI
Aaron Baker1
TL;DR: In this article, the authors argue that U.K. courts should under no circumstances emulate the U.S. Equal Protection Clause (EPC) approach to justifying state discrimination, and that to do so would fly in the face of Strasbourg precedent and common sense.
Abstract: This article maintains that U.K. courts, in applying Article 14 of the European Convention on Human Rights (ECHR), should under no circumstances emulate the U.S. Equal Protection Clause (EPC) approach to justifying state discrimination, and that to do so would fly in the face of Strasbourg precedent and common sense. To support these contentions this article first analyzes some illustrative U.K. discrimination cases to evaluate to what extent and why the United Kingdom appears to lean in the direction of a "suspect classifications" approach to justification of discriminatory treatment. It then explains how U.S. courts handle justification under the EPC, offering a critical assessment of (1) the reasons for the evolution of that approach, and (2) its coherence and success. The article then analyzes, by comparison, the approach of the European Court of Human Rights to Article 14 justification, noting the inconsistency of the Strasbourg teaching with a U.S.-style methodology. The article concludes that the U.S. model arises from a completely different jurisprudential tradition and logic than the ECHR's proportionality model. The United Kingdom should thus reject the U.S. practice of applying discrete levels of scrutiny depending on the degree to which a classification is "suspect."

7 citations


Cited by
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TL;DR: GARLAND, 2001, p. 2, the authors argues that a modernidade tardia, esse distintivo padrão de relações sociais, econômicas e culturais, trouxe consigo um conjunto de riscos, inseguranças, and problemas de controle social that deram uma configuração específica às nossas respostas ao crime, ao garantir os altos custos das
Abstract: Nos últimos trinta trinta anos, houve profundas mudanças na forma como compreendemos o crime e a justiça criminal. O crime tornou-se um evento simbólico, um verdadeiro teste para a ordem social e para as políticas governamentais, um desafio para a sociedade civil, para a democracia e para os direitos humanos. Segundo David Garland, professor da Faculdade de Direito da New York University, um dos principais autores no campo da Sociologia da Punição e com artigo publicado na Revista de Sociologia e Política , número 13, na modernidade tardia houve uma verdadeira obsessão securitária, direcionando as políticas criminais para um maior rigor em relação às penas e maior intolerância com o criminoso. Há trinta anos, nos EUA e na Inglaterra essa tendência era insuspeita. O livro mostra que os dois países compartilham intrigantes similaridades em suas práticas criminais, a despeito da divisão racial, das desigualdades econômicas e da letalidade violenta que marcam fortemente o cenário americano. Segundo David Garland, encontram-se nos dois países os “mesmos tipos de riscos e inseguranças, a mesma percepção a respeito dos problemas de um controle social não-efetivo, as mesmas críticas da justiça criminal tradicional, e as mesmas ansiedades recorrentes sobre mudança e ordem sociais”1 (GARLAND, 2001, p. 2). O argumento principal da obra é o seguinte: a modernidade tardia, esse distintivo padrão de relações sociais, econômicas e culturais, trouxe consigo um conjunto de riscos, inseguranças e problemas de controle social que deram uma configuração específica às nossas respostas ao crime, ao garantir os altos custos das políticas criminais, o grau máximo de duração das penas e a excessivas taxas de encarceramento.

2,183 citations

Journal ArticleDOI
TL;DR: In this paper, a judge in some representative American jurisdiction is assumed to accept the main uncontroversial constitutive and regulative rules of the law in his jurisdiction and to follow earlier decisions of their court or higher courts whose rationale, as l
Abstract: 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

2,050 citations

Journal ArticleDOI
TL;DR: In this paper, a comparative institutionalist approach combined with a power/interests perspective is used to examine the processes whereby diversity policy is "internationalised" by US multinational companies and argue that the process of policy transfer to UK subsidiaries is complicated by incomplete and contested "institutionalisation" of diversity within the US itself, and by differing conceptions of diversity between the US and the UK.
Abstract: This paper uses a comparative institutionalist approach combined with a power/interests perspective to examine the processes whereby diversity policy is ‘internationalised’ by US multinational companies. It argues that the process of policy transfer to UK subsidiaries is complicated by incomplete and contested ‘institutionalisation’ of diversity within the US itself, and by differing conceptions of diversity between the US and the UK. The ability of actors within the UK subsidiaries to mobilise and deploy specific power resources allows them to resist the full implementation of corporate diversity policy, leading to a range of compromise accommodations. It is argued that the findings have more general implications for analysing the transfer of HR practices between national business systems.

352 citations

Journal ArticleDOI
TL;DR: This survey is to provide a guidance and a glue for researchers and anti-discrimination data analysts on concepts, problems, application areas, datasets, methods, and approaches from a multidisciplinary perspective.
Abstract: The collection and analysis of observational and experimental data represent the main tools for assessing the presence, the extent, the nature, and the trend of discrimination phenomena. Data analysis techniques have been proposed in the last 50 years in the economic, legal, statistical, and, recently, in the data mining literature. This is not surprising, since discrimination analysis is a multidisciplinary problem, involving sociological causes, legal argumentations, economic models, statistical techniques, and computational issues. The objective of this survey is to provide a guidance and a glue for researchers and anti-discrimination data analysts on concepts, problems, application areas, datasets, methods, and approaches from a multidisciplinary perspective. We organize the approaches according to their method of data collection as observational, quasi-experimental, and experimental studies. A fourth line of recently blooming research on knowledge discovery based methods is also covered. Observational methods are further categorized on the basis of their application context: labor economics, social profiling, consumer markets, and others.

286 citations