Showing papers in "Modern Law Review in 1997"

Against a European Civil Code

Abstract: I propose to heed Nietzsche's advice: 'Handle deep problems like cold baths: quickly into them and quickly out of them.'2 The 'deep problem' I wish to address here concerns European legal integration. Specifically, I want to consider a propoundment which is apparently meeting with increasing favour in various political, professional and academic circles: that of a European Civil Code.3 The paradox is noteworthy: while nineteenth-century civil codes ruptured aspects of the commonality that had previously linked continental legal cultures, a civil code, it is now thought by many, will cement a legal unity across European legal cultures. The question is: should the idea of a European Civil Code be supported? My answer is, emphatically: no, it should not. I have divided my argument into three parts.

A Profession in Transition? — Lawyers, The Market and Significant Others

Abstract: There is an ever increasing literature on the changing nature of the professions' and middle class work.2 Accompanying this, is a growing interest amongst academics about the future of professionalism within law.3 This paper seeks to address certain aspects of these debates by concentrating on the emergence of two relatively independent sets of firms. It will analyse the possible transformation of the legal profession into two spheres within the area of commercial law and, by implication, the profession more generally. The paper suggests that this transformation is important as it threatens the striking degree of homogeneity which was found in the profession for much of the fifty years after 1930.4 In the past where fragmentation existed it was largely based around spatial location.5 However, it will be argued that today's transition and, possibly fragmentation, is not solely based on spatial location (although this is obviously an element within this change) but on three inter-related factors:

In the Name of the Father? Ex parte Blood: Dealing with Novelty and Anomaly

Abstract: The case of Diane Blood is likely to become a staple in discussions of English medical law and ethics.' It has the necessary ingredients to mark it out as a stigmata case; it is ethically controversial and raises legal questions which appear to be essentially contested.2 One striking feature is its relative novelty.3 Although parallels do exist in the United States and France,4 Blood is the first litigated case

Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes

Abstract: The concept of direct sex discrimination in EC and UK law has recently been invoked in three contexts which, at first glance, appear unrelated. In P v S and Cornwall County Council,' a male-to-female transsexual manager succeeded in persuading the European Court of Justice (ECJ) that her dismissal was direct sex discrimination under the Equal Treatment Directive (ETD).2 But in R v Ministry of Defence, exp Smith,3 four gay and lesbian members of the armed forces failed to convince the Court of Appeal that their dismissals were direct sex discrimination under the ETD. And in Smith v Safeway plc,4 a pony-tail-wearing male delicatessen assistant saw the Court of Appeal reject his direct sex discrimination argument in upholding his dismissal under the Sex Discrimination Act 1975 (SDA). What do these plaintiffs' cases have in common? Can each one be analysed as a case of direct sex discrimination? If not, was P correctly decided? If so, were Ministry of Defence and Safeway correctly decided? I will begin this article by outlining a proposed general concept of direct sex discrimination and by identifying eight potential kinds of direct sex discrimination that seem to fit this general concept. After a brief discussion of some of the differences among these eight kinds, I will then focus on the three kinds at issue in P, Ministry of Defence and Safeway: discrimination against (i) transsexual persons, (ii) gay, lesbian and bisexual persons, and (iii) persons who violate sex-distinct dress codes. Before turning to the proposed general concept of direct sex discrimination, I must explain the terminology I will be using. I will use 'sex' to mean 'biological sex' and, more precisely, because the indicia of biological sex (eg chromosomes, gonads, genitals) may conflict, 'chromosomal sex,' ie whether a person is chromosomally male (XY) or female (XX), or belongs to another chromosomal category. 'Sex,' 'men' and 'women' will thus mean 'chromosomal sex,' 'chromosomal males' and 'chromosomal females,' but the latter more precise terms will often not be used where those affected by a particular kind of direct sex discrimination are mainly non-transsexual. I will use 'psychological sex'5 to refer to whether a person, regardless of their chromosomal sex or physical sex characteristics (gonads, hormones, genitals, presence or absence of breasts or a uterus or a prostate, physique, body or facial hair, voice pitch, etc), considers

Judicial Training and Performance Appraisal: The Problem of Judicial Independence

Abstract: The establishment of the Judicial Studies Board in 1979 was considered by the judges at the time to be a radical, and questionable, development which posed a threat to judicial independence. In the intervening period the provision of training for judges has become an accepted feature of the judicial process and in recent years the demand for training from the judges has increased significantly. To meet this growing demand the Judicial Studies Board has expanded the variety and quantity of training provided. One result of this expansion has been the growth of pressure for the introduction of performance appraisal both as a training tool and as a general method of monitoring and improving standards in the daily work of the judiciary. The response of the judiciary to these proposals has mirrored its reaction to the proposal for training at the time the Judicial Studies Board was set up. Senior judges have opposed the use of monitoring on the grounds that it would undermine judicial independence. This paper examines the relationship between judicial independence and the use of training and performance appraisal in the judiciary. To do so it analyses the principle of judicial independence, in particular distinguishing between external and internal interference in judicial functions. To date, the judges have viewed the threat to judicial independence from training and performance appraisal as one posed by external interference. However, when examined more closely this claim is difficult to maintain either in relation to the constitutional role of the judges or their individual decision-making. More plausible, though less often proposed, is the argument that training and performance appraisal may undermine the independence of individual judges through a process of internal interference from other judges. The introduction of processes to improve and monitor standards of performance can be seen as part of wider structural and cultural changes within the judiciary. The creation of a career judiciary brought about as a result of its expansion in size has led to a process of formalisation which is designed to encourage greater consistency, standardisation and collective decision-making. One effect of this development is likely to be the erosion of a culture of individualism which has been a dominant characteristic of the judiciary. These changes may, in the long term, affect the principle of judicial independence more than any outside interference.

In whose best interests

Abstract: For several decades medical ethics literature has stressed the importance of respecting the patient's right to make her own choices. The principle of autonomy or self determination is viewed as foundational in modern health care law.' More recently the pervasive influence of rights discourse has been underlined by various factors, such as the promulgation of the Patients' Charter, reforms to the structure of the NHS and the changing nature of the relationship between health care professionals and patients.2 The fundamental principle of English law that a competent patient can elect whether to receive or reject medical treatment, even if refusal of treatment may result in death, has been affirmed by the Court of Appeal.3 Self evidently the incompetent patient is in a different position, and it is debateable how meaningful the terminology of rights and autonomy is in her case. Instead, treatment decisions regarding the incompetent patient turn on an assessment of what is in her best interests. Where the incompetent patient is an adult this decision is entrusted to health care professionals, and best interests is determined by reference to the views of a responsible body of medical practice.4 In the case of the younger child patient such treatment decisions are generally vested in the persons with parental responsibility,5 although where parents have refused treatment on behalf of their children, courts have been prepared to override the parental refusal and authorise treatment in the child's best interests.6 Particularly vexed questions have arisen in relation to the treatment of adolescents who are on the borderlines of capacity.7 Although theoretically the focus is on the best interests of the patient alone, in reaching a judgment whether or not to interfere with parental decisions it is questionable whether the courts can have regard to the interests of the patient in abstraction from the interests of the decision-maker, whether they are family members or other carers.

Enabling Legislation or Dissembling Law? The Disability Discrimination Act 1995

Abstract: The surprising volte-face epitomised by the Disability Discrimination Act 1995 (DDA 1995) is the product of a curious concoction of political forces and events. A government, which in the early 1990s had been unwilling to recognise the phenomenon of disability discrimination, had come slowly to a concession of the facts of social exclusion and marginalisation of a sizeable minority.' Recognising the mischief, however, was a necessary but insufficient step towards identifying the remedy. Official policy still clung to the talisman that education and persuasion, rather than legislation, represented the appropriate means to the end of a society within which disabled persons would be fully integrated and afforded equality of opportunity. The emergence of disability rights activism, seeking to emulate the experience of the civil rights movement among disabled Americans in the previous decade, and prepared to use all forms of political and extra-political action to advance its agenda, applied the political pressure for reform. Enthused by the legal advances attained in the United States via its comprehensive civil rights law the Americans with Disabilities Act 1990 disabled Britons and their allies rallied to the Civil Rights (Disabled Persons) Bills.2 These private members' measures were a constant goad to a government unwilling to burden businesses with prescriptive regulation but mindful of the cross-party support which the disability rights agenda attracted.' When in May 1994 the then latest version of the Civil Rights (Disabled Persons) Bill was defeated by cynical means of parliamentary procedure, little could it be imagined that this damaging setback would be the catalyst for government-sponsored reform. The furore surrounding these events and the reliance upon minority parties of a government riven by Euro-scepticism led to what was proposed to be a limited initiative in law reform. That was certainly the tone of the Green Paper of July 1994, and the White Paper and draft Bill that followed it in January 1995.4 Yet

The Canadian Charter of Rights: Lessons and Laments

Abstract: systems of government around a written Bill of Rights, it is natural to look to Canada and to reflect on its experience with its Charter of Rights and Freedoms. The common colonial connections, legal traditions and political cultures make the Canadian approach to judicial review particularly pertinent. Moreover, it is now 15 years since the Charter was entrenched, so a significant body of jurisprudence has been built up that gives a very clear picture of what judicial review has meant to ordinary Canadians and how it has altered the relationship between the courts and the other two elected branches of government. Two features of the Canadian account of constitutional rights stand out from all the rest. In the first place, the nine judges in Ottawa have come to rely on the same set of principles and analytical framework to test the constitutional validity of the various rules and regulations they are asked to review as are used by their brethren in Washington, Tokyo, New Delhi, Strasbourg, Rome, Karlsruhe, etc.' The Supreme Court of Canada has read the Charter in the same way Bills of Rights have been interpreted all over the world, to include two broad principles of rationality (also known as necessity or avoidability) and proportionality (also known as consistency or equality) which politicians and public officials are obliged to respect. For those (sceptics, cynics, etc) who need it, the jurisprudence of the Supreme Court of Canada provides yet another body of hard, empirical evidence that there is a set of neutral (viz formal) principles (of distributive justice), which lie at the core of the concept of constitutional rights, that allow judges to act out their role as 'guardians of the constitution' in an objective, determinate and ultimately very democratic way. If rights, defined as principles and duties, is the theoretical story which runs through the first 15 years of Canadian constitutional law, deference and caution two other characteristically Canadian attributes describe the way it has actually been practised on the Bench. At the same time that Canadian constitutional law teaches that there are universal principles and common ideas that are embedded in all constitutional Bills of Rights, it also makes it very clear that, as a practical matter, it is up to each individual judge to decide how much these principles will actually protect people's basic human rights.2 Chief Justice Hughes' much-cited aphorism that, in the United States, 'The constitution is what the judges say it is,' applies as much above as it does below the 49th parallel.

Habermas' Discourse Theory of Law: Bridging Anglo-American and Continental Legal Traditions?

Abstract: The English-speaking intellectual world has eagerly awaited the translation of Jiirgen Habermas' magnum opus on legal and state theory, Faktizitdit und Geltung, since its German publication in 1992.1 The impressive way in which Habermas absorbs Anglo-American constitutional theory into his primarily European theoretical framework has been commented upon repeatedly in the early review literature on the translation. In what follows, I trace out several of the successes of Habermas' attempt to bring together Anglo-American considerations on law with more continental traditions: (A) focusing specifically on his notion of communicative constitutional democracy; (B) defending it against certain crude interpretations of the theory; (C) explicating his discourse theory of legal interpretation; and, finally, (D) assessing the extent of Habermas' success in appropriating Anglo-American legal traditions. Despite the many legal-theoretical advances offered by Habermas' endeavour, there are, I conclude, German ghosts that haunt Habermas' project that keep him from taking full advantage of the possibilities afforded by Anglo-American sources. (A) Habermas' mammoth tome purports to mediate the opposition between empirical facticity [Faktizitdit] and abstract validity [Geltung] expressed in its title. Habermas discusses contemporary expressions of each of these aspects of legal studies from both sides of the Atlantic, as well as from the past and the present in Germany. It is not terribly difficult to detect that hiding behind the normdismissing, factually-fixated systems theory of Niklas Luhmann frequently criticised in the work looms the spectre of Weimar antiliberal jurist extraordinaire, and eventual National Socialist, Carl Schmitt. Likewise, behind what Habermas identifies as the contemporary representation of an empirically blind normativity, John Rawls, stands Hans Kelsen. According to Habermas, the former, 'sociological theories of law,' convey a 'false realism that underestimates the empirical impact of the normative presuppositions of existing legal practice'; while the latter, 'philosophical theories of justice,' are problematically formulated 'in vacuo' socially, that is, to a great extent oblivious to social reality and the politically marginalising effects of purely abstract categories.2 Habermas can be understood to propose a solution to the insufficiencies of either

Variation of Trusts: Settlors' Intentions and the Consent Principle in Saunders v Vautier

Abstract: 'For a jurisdiction invoked thousands of times over almost forty years', commented Mummery LJ in Goulding v James,' referring to the Variation of Trusts Act 1958, 'there are remarkably few reported cases on its construction.' Since the early 1970s, very few judgments in such cases have been given in open court,2 the vast majority of applications being both heard and judged in chambers. As a result, although there is an accumulated body of judicial practice among judges and counsel in the Chancery Division, very little of this has filtered down to the law reports. It is therefore not perhaps surprising that the point at issue in Goulding v James has taken so long to reach the courts. The case raised the question whether the court should, on behalf of unborn beneficiaries, approve an arrangement varying the trusts, which arrangement was accepted as being undoubtedly for their benefit, where there was cogent extrinsic evidence that the variation would flout the testatrix's intentions in effectively destroying a carefully planned arrangement that she believed was in the best interests of the sui juris beneficiaries.

Performance, Punishment and the Nature of Contractual Obligation

Abstract: According to the theory of efficient breach, the reason the common law does not order specific performance presumptively for breach of contract,' nor punish deliberate breach,2 is that sometimes it is economically efficient for contracts to be broken.3 By limiting itself to awarding damages, the law allows indeed encourages contracting parties to breach whenever the cost of performance is greater than the value of performance. The theory of efficient breach has been subject to a variety of criticisms. Some critics, including some economists, argue that the rules regarding specific performance and punishing breach are not in fact efficient.4 Other critics argue that the notion of efficient breach is inconsistent with other features of the law, such as the awarding of nominal damages, the tort of inducing breach of contract or an executor's duty to perform contracts made by the deceased.5 Yet other critics emphasise the inconsistency between the theory of efficient breach and judicial statements about the 'wrongfulness' of breach or judicial statements to the effect that 'the purpose of a contract is performance and

The Conflict of Laws and Statutes: The International Operational of Legislation Dealing With Matters of Civil Law in the United Kingdom and Australia

Abstract: Methods that courts have employed in determining whether legislation applies internationally - determination of territorial scope of legislation dealing with matters of civil law - determination of...

Dust on the Streets and Liability for Environmental Cancers

Abstract: In Margereson v J. W. Roberts Ltd and Hancock v J. W. Roberts Ltd,' the Court of Appeal was faced for the first time with the task of delineating the liability of a manufacturing company for environmental cancers caused by emissions from their plant. Both plaintiffs2 had lived near the former J.W. Roberts asbestos factory in Armley, Leeds, and had contracted the fatal cancer mesothelioma, the only known cause of which is exposure to asbestos. The J.W. Roberts factory, which closed in 1958, was part of the manufacturing empire of Turner & Newall Ltd (now T&N plc, the effective defendants). The incidence of asbestos-related disease was originally confined to the asbestos textile industry,3 the so-called first wave4 of asbestos-related disease, but as asbestos found more and more industrial applications, so other occupational groups5 (the second wave) began to experience the toll of death and disease. Such cases have generated a substantial number of compensation claims in tort by injured workers and their dependants.6 The Margereson and Hancock cases are unique in that they are the first examples of the third wave of environmental asbestos cases to reach the English courts.7 In the event, the Court of Appeal dismissed the defendant company's appeals from a finding of liability. In doing so, the Court interpreted Holland J's decision at

Moral Agendas? Pro Bono Publico in Large Law Firms in the United Kingdom

Abstract: The tension between the conception of professionalism as a device for maintaining control over the market for legal services' and as an ethical commitment2 is a theme pervading analysis of the legal profession. In recent years the integration of these strands of the professional ideal has been threatened by encroachment on professional privileges, such as monopoly and self regulation, and by the economic pressures unleashed by deregulation and competition in the market for legal services. It has been suggested that the relationship of the legal profession to society is undergoing a renegotiation,3 part of which inevitably concerns the profession's commitment to public service. This article analyses the results of a survey of the legal services provided pro bono publico by members of large firms of solicitors in England and Wales and through the data explores the relationship between the economic and the normative dimension of professionalism. We argue that some large firms are attempting to reinvigorate the ethos of professionalism in the practice of law and are exploring new ways in which their public service responsibility can be conceived and met. We have not addressed here the issue of whether or not the legal profession should provide voluntary legal services, nor do we consider which kinds of provision would be in the interests of the public, the profession or society generally.4 Our thesis in this

Process Gains and Process Values: The Criminal Procedure and Investigations Act 1996

Abstract: In March last year, Lord Taylor delivered a speech criticising recent criminal justice policy.' While the main target of his attack was the sentencing reforms that had recently been proposed by Michael Howard,2 two other issues also drew the then Lord Chief Justice's ire. First was the sheer volume of criminal justice legislation unleashed in recent years. As yet another piece of such legislation finds its way onto the statute books, many would doubtless agree that it is time to sit back and take stock of recent changes rather than to press ahead with yet more. As Lord Taylor noted, some of the provisions in recent statutes have been illconsidered, and it is not surprising that the Criminal Procedure and Investigations Act 1996 (hereafter, the Act) contains measures to deal with some of the mistakes and oversights of previous legislation. The government has now accepted that its proposal to replace committal proceedings with transfer for trial arrangements was a mistake, and the Act contains measures to this effect.3 The Act also contains a provision to clarify police powers to conduct speculative searches of DNA databases after recent statutes left these in some doubt.4 At the same time, the Act itself contains provisions the effects of which are so uncertain that they may never be fully implemented.5 Lord Taylor's second criticism of recent criminal justice policy focused on the extent to which considerations of efficiency have become pre-eminent in the courts: '[i]f you walk into a Crown Court you are as likely to meet a management consultant as a judge.'6 The Act certainly confirms this trend. In this note I concentrate on three main areas of the Act: the provisions on disclosure, pre-trial hearings and mode of trial. All these are designed to streamline the criminal process (though, as we will see, there is some doubt as to whether they will actually achieve this end).

The Jersey Limited Liability Partnership: A New Legal Vehicle for Professional Practice

Abstract: The Limited Liability Partnerships (Jersey) Law 1997' is, at least in terms of the jurisdictions of the British Isles, a unique legislative experiment which, despite being legislation enacted by a small offshore jurisdiction, could well have a profound impact on the future legal framework of major United Kingdom professional practices, particularly those operating in the accountancy and legal services sectors. In a nutshell, the legislation creates an innovative legal vehicle the Jersey Limited Liability Partnership (LLP) which combines the traditional partnership structure with the twin fundamental principles of separate legal personality and limited liability characteristically found in company law codes. Perhaps more importantly from a professional practices perspective, the Jersey structure contains no restrictions on the participation of partners in a firm's management and thus does not reproduce the fundamental flaw of existing United Kingdom limited partnership legislation, the Limited Partnerships Act 1907, which confers limited personal liability (to the extent of their capital contributions) on limited partners but prohibits them from participating in partnership management. This prohibition has always made the United Kingdom limited partnership an unattractive choice of legal vehicle for professional practices. While the LLP concept has, until Jersey's bold and highly controversial initiative, been an unknown concept in British commercial law, it is well entrenched in America where some 40 State legislatures have enacted LLP legislation in recent years.2 Moreover, it seems probable that Jersey's move will act as a catalyst for a similar rapid proliferation of LLP legislation in both small and large jurisdictions of the British Isles: evidently, Jersey's 'micro' offshore jurisdiction counterparts (and competitors), Guernsey3 and the Isle of Man,4 are seriously contemplating the

Finding that a Child is at Risk from Sexual Abuse: Re H (Minors) (Sexual Abuse: Standard of Proof)

Abstract: In Re H (Minors) (Sexual Abuse: Standard of Proof)' the House of Lords was faced with a case which raised fundamental questions about the standard of proof to be applied by the court to allegations of sexual abuse Such allegations could form the basis for granting a care or supervision order on the grounds that the child is, in the words of the Children Act 1989, likely to suffer significant harm if the order is not made2 In the criminal courts, any alleged abuse would, of course, require the criminal standard of proof However, in civil care or supervision proceedings, should only the ordinary civil standard be required, or should civil courts adopt a standard which reflects the enormity of the allegation and therefore requires more convincing evidence? Furthermore, should the same standard of proof apply to allegations which raise the possibility that abuse would happen in the future as to allegations that abuse had happened in the past? What if, as happened in this case, the trial judge, whilst holding that there was a 'real possibility' that the allegations were true, nevertheless decided that the evidence was not sufficient to satisfy the required standard of proof for past sexual abuse? Could he nevertheless find, on the basis of his strong suspicions, that there was the requisite likelihood of future harm? These were not simply nice points of law but were central to decisions about the lives of children and their families There is a

A Constitutional Bill of Rights — The Canadian Experience

Abstract: In 1982, Canada undertook a package of constitutional changes, including a 'Charter of Rights and Freedoms.' The package was enacted by Parliament at Westminster in its last gasp as the Imperial Parliament in relation to Canada. The Charter is similar to the American Bill of Rights, but since it is more recent, some of us have in our memories a benchmark, albeit a fading one, against which we can try to assess the changes that the Charter has brought. The position of Britain in the European Community must have implications that are unfamiliar to me, so I will try to describe the Canadian experience, leaving to the judgment of the reader the extent to which it may be relevant in Britain. Nobody knows the overall impact of the Charter. Reading the judgments and doctrinal analysis of the developments so consumes our constitutional experts that they have little time left for research on the real significance of it all. Political and other pressures also militate against empirical research. Probably the best that anyone can do in trying to explain the significance of the Charter is to provide glimpses, drawn from one's own research, reading and experience. The Charter is in skeleton form, leaving the judges to develop the substantive law. A Charter challenge can be made in any area of law, inviting the court or other tribunal to invalidate legislation, regulations or executive action. In criminal proceedings, Charter challenges are usually aimed at an acquittal, and many relate to the processes of the court or the preceding investigation. The content of the Charter is typical. For example: 'Everyone has the right to life, liberty and security of the person.' But, as explained below, the Charter does more to undermine than to promote the values that it purports to embody. The Charter is counter-productive primarily because it rests upon a conception of the state that is out of accord with contemporary reality. It perceives of a people whose liberties may be threatened by the power of elected governments. It does not reflect, or even accommodate, the perception of elected governments as the only hope that most people have of protection from those who really wield power.

Public or Private? Duty of Care in a Statutory Framework: Stovin v Wise in the House of Lords

Abstract: A perennial problem in negligence actions involving public authorities is the balance to be struck between the ordinary principles of negligence liability and public law considerations which are regarded as militating against the imposition of a duty of care. The issue was comprehensively addressed by the House of Lords in X v Bedfordshire CC,l a decision which in general terms contained little to encourage litigation against public authorities. If anything, the emphasis on public law constraints is even more marked in the majority decision of the House (Lord Hoffmann, Lords Goff and Jauncey concurring) in Stovin v Wise.2 But the vigorous dissenting speech of Lord Nicholls (with whom Lord Slynn agreed) indicates that the problem of balance is not going to go away. Nor is it obvious that it should, if one agrees with Lord Nicholls' intuition that 'the damnified individual was entitled to expect better from a public body [and] leaving the loss to lie where it falls is not always an acceptable outcome.'3 There are, however, flaws in Lord Nicholls' analysis of the public law element in the case. At the same time, Lord Hoffmann's speech for the majority may not be free of difficulty. The net result is a majority decision containing a certain rigorous logic but which may restrict still further the prospects of a successful action in negligence against a public authority, and a minority decision with which one can sympathise but which may command only limited support in so far as it fails adequately even correctly to address the public law constraints on the scope of public tortious liability.