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Alex Powell

In the case of HJ and HT v Secretary of State for the Home Department, the Supreme Court of the United Kingdom ruled that the previous position which held that asylum claims would not be granted in situations where discretion or concealment of an individual’s LGBT identity could remove ‘well-founded fear of persecution’ was illegal. In passing this judgment, the court has refocused the attention of decision makers, from proving that there is a ‘well-founded fear of persecution’ to proving that the individual is a member of the ‘particular social group’ under which they make their claim. Since 1999, the UK has upheld the possibility of LGBT individuals making successful claims under the ‘Particular Social Group’ of the Refugee Convention (1951). However, this raises as many questions as it answers – most pressingly, who represents a member of particular social groups, such as ‘gay’ and ‘lesbian’. Hathaway and Pobjoy have argued that, in the HJ and HT decision, the ‘all embracing’ decision of Lord Roger expanded the scope of the convention too far, distorting the common relationship between refugee law and international human rights practice. This article argues that, on the contrary, the judges in HJ and HT did not go far enough. Indeed, in their haste to find a decision which avoided the deeply problematic ‘discretion’ criterion, it is argued that the judges reified problematic and limiting ideas of what it means to be a gay man. This is primarily because their understanding of terms such as gay is rooted within normative, western stereotypes. This article argues for a ‘queer’ understanding of how LGBT people fit within the ‘particular social group’ framework, demonstrating that the present situation undermines the aims of the convention.

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Alex Powell

‘The Will of the People’ has become a key refrain of government ministers since the United Kingdom voted to leave the European Union in June 2016. This chapter draws on the theoretical contributions of Carl Schmitt to suggest that the Brexit referendum was a manifestation of constituent power, the legitimacy of which undermines accepted norms of the UK’s unwritten constitution. Given the peculiarity of referendums within standard UK constitutional practice, the chapter focuses on the underappreciated power of rhetoric surrounding Brexit to justify executive actions contrary to established norms. Going on to examine the possibility of Parliament being stripped of its role as the final decision-maker within the UK’s constitutional setup, the chapter concludes by warning of the potential for new discourses around public sovereignty to make fundamental changes to the constitutional practice of the UK.