Showing papers in "Modern Law Review in 1998"

The Inscription of Life in Law: Genes, Patents, and Bio‐politics

Abstract: In 1989, Carol Jenkins, an American medical anthropologist attached to the Institute of Medical Research in Papua New Guinea, extracted a set of blood samples from some members of the Hagahai, a small group of hunter-gatherers living in an inaccessible mountain range: 'I told them we wanted to see a 'binitang' an insect in their blood'.' The suspicion that this peculiar 'insect' existed had arisen from research carried out by scientists from the US National Institutes of Health (NIH), who were conducting a survey of the distribution of variants of the HTLV-I virus in Melanesia." In her own (retrospective) accounts of the transaction that was taking shape, Jenkins identified herself as a disinterested intermediary, whose primary concern was to ensure that the Hagahai received the proper commercial or therapeutic return for their participation. Her original research interests had little to do with the genetic properties of their blood. In a paper describing the methods and objectives of her medical-anthropological survey, written before these particular blood samples had been extracted, Jenkins heralded 'a rare opportunity to document the effects of contact on a previously isolated population in Papua New Guinea'.3 Apparently, the Hagahai had avoided direct contact with 'globalised' society until 1983, when the effects of various illnesses became so severe that they came to a missionary outpost in search of assistance. The missionaries had their own ambitions for the Hagahai, which were not necessarily in the best interests of the health of the group,4 and the first effective measures of medical assistance arrived only when Jenkins and her colleagues began their study. Indeed, Jenkins' published account states that 'the ethical obligation to intervene with medical aid was immediately obvious to the researchers'.5 However, although the protocols of research and publication did not exclude an active concern for the health of the Hagahai,6 it remains the case that the governing objective of Jenkins' programme was 'to investigate the causes

Human dignity, human rights, and human genetics.

Abstract: According to an emerging international consensus, the practice of human genetics should respect both human dignity and human rights.' In the Preamble to the Council of Europe's Convention on Human Rights and Biomedicine,2 for example, the signatories resolve 'to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine'; and, similarly, in the Preamble to UNESCO's recently adopted Universal Declaration on the Human Genome and Human Rights3 an instrument peppered with references to human dignity and human rights it is emphasised that research on the human genome 'should fully respect human dignity, freedom and human rights'. Yet, how should we interpret this commitment, particularly the commitment to respect for human dignity? Even if we do not dismiss '[a]ppeals to human dignity ... [as] comprehensively vague',4 we can scarcely deny that they need some unpacking. As Mohammed Bedjaoui has remarked:

Development Risks: Unanswered Questions

Abstract: the more acute as attendance allowance was designed to assist those who were so severely disabled that they were 'wholly or largely dependent on help from other people in coping with the ordinary functions of daily living'.70 Moreover, the most likely beneficiaries of the scheme were envisaged to be elderly women whose daughters were sacrificing their own earnings potential in order to care for them.71 The apparent injustice involved in contrasting the decisions in Cockburn and Fairey immediately attracted hostile press comment.72 The analysis above, however, suggests that on closer examination the respective decisions are explicable at least in terms of the somewhat haphazard development of precedent. Ultimately the present state of the case law can be directly attributed to the failure of successive governments to address what should be the underlying principles for disability benefits.73 Cockburn and Fairey have a wider significance in terms of social constructions of disability. In the last three decades perceptions of disability have begun to undergo a fundamental transformation. In particular, the decision in Fairey reflects a shift away from a purely medical model of disability. In this respect the change in nomenclature from the more passive attendance allowance to disability living allowance in 1992, implying a more integrationist model of disability, might be seen as significant. Yet this change in terminology was largely presentational; at heart the 1992 reforms simply involved repackaging two old benefits, catering solely for the care and mobility costs associated with disability, as one new benefit. The reality is that many disability costs are not met by attendance allowance and DLA, and the level of the benefits is such that they are usually spent not on care but on general living expenses.74 In the starkest possible terms, Cockburn and Fairey demonstrate that an integrated disability benefit remains an elusive goal.

Insurance and genetics: the current state of play.

Abstract: Seen in the simplest possible terms, insurance is a way of mitigating the effects of harmful events of uncertain incidence by pooling modest premiums which provide the resources to make larger payments selectively to those who suffer such events. Insurance is worthwhile for each person because the incidence of harm is uncertain: each benefits by contributing a premium in return for assurance that if misfortune strikes a claim can be made and met. If the incidence of harm could be fully known in advance there would be no context for insurance: those who knew for sure that they would not experience adverse events of a given type would not insure against them, and insurers would not offer worthwhile terms to those who were certain to experience such events. These simplicities soon vanish when one considers the variety of possible forms personal insurance can take. The most fundamental division between types of insurance is between those based on solidarity and those based on mutuality. Solidarity-based insurance takes no cognisance of the different levels of risk that different individuals bring to the pool: premiums are set at a uniform level, or based on ability to pay; entitlement to claim if the event insured against occurs is uniform. The NHS and similar health insurance schemes in other countries are

Personal Pensions Misselling: The Causes and Lessons of Regulatory Failure

Abstract: The retail financial services industry is currently undertaking the largest review of past business that has ever been experienced. The reason: the possibility that a large number of people during the period 1988-94 gave up their rights in (or right to belong to) occupational pension schemes (OPSs) in exchange for inferior entitlements in personal pension schemes. Life companies, independent financial advisers, banks, building societies, in short anyone who has sold a personal pension (PP) policy during that time, are being required by the regulators to examine over two million sales to see whether policy holders should be compensated. This is not an example of regulation seeking to punish a few rogue members of an industry; it is the industry itself which has been found wanting by its regulators. This article explores how both industry and regulators arrived at this position: what the pensions misselling episode consists of, what factors caused or contributed to it, and what lessons may be learnt.' Pensions misselling was more than just outrageous selling practices, aberrant salesmen, dubious transfer values or insistent customers, and is due to more fundamental factors than over-expansion by firms or ignorance by or of regulators. It is all of that, but it is also more. The pensions misselling episode manifests a critical failing in the regulatory structure, which cannot simply be blamed on the novelty of the regulation or the climate of the time.

Medical Evidence in Rape Cases: A Continuing Problem for Criminal Justice

Abstract: Present arrangements for providing forensic medical examinations for rape victims in two different police areas, London and Sussex - examination and evaluation of the practice and attitudes of doct...

Family law and genetics.

Abstract: Historically, family law has been constructed around a core of assumptions, for example, that the husband is the father; that upbringing shapes the destiny of the children; and that nothing is known about the health and reproductive future of the couple and their children. At the end of this century, however, given the pervasiveness of interest in genetics and knowledge about our genetic make-up, we may be moving to a culture of family law based on genetic evidence and not on behaviour/responsibility. Every week we are informed by news stories that another gene has been discovered that controls some aspect of human personality. It is expected that the entire sequence of the human genome will be mapped by 2005, identifying 100,000 separate genes.' The impact of the knowledge that this will bring is already being felt, and not only in family law. It is plain that the insurance industry is refusing to close its eyes to the genetic knowledge given by tests. Testing for cystic fibrosis (a debilitating respiratory condition affecting one in 1,000 children) carriers may already be taken 'over the counter' for around ?100. If both partners carry the gene, their offspring have a 25 per cent chance of being born with the disease. The spread of tests and the impact of their results are unlikely to be rejected. The Human Genetics Advisory Commission's suggestion in 1998 of a two-year moratorium on tests to indicate the risks of hereditary disease or illness was promptly rejected by the insurance industry.2 The insurance industry's impact on the use and spread of such testing cannot be over-estimated; one should recall that for many years AIDS testing was avoided, even for the most neutral of reasons, because it was a fact that the majority of insurers would refuse to insure a person who had taken a test, regardless of the reason and the outcome. The insurance industry's insistence on receiving the results of any genetic tests taken may well inhibit their use for a while to come. In the area of family law, genetic knowledge impacts in many ways, of which only a few can be examined here. For example, an early embryo may be examined before implantation to discover whether it has certain genetic disorders. This 'preimplantation genetic diagnosis'3 (PGD) is carried out as a part of in vitro fertilisation (IVF) treatment for those who are at risk of passing on a serious inherited disorder to their children. The egg of the woman and the sperm of the man are brought together in vitro and if the egg is successfully fertilised and becomes an embryo, it is examined when it has reached the stage of eight cells.

Human Genetics and the Law : regulating a revolution

Abstract: A commission for the 21st century, Colin Campbell regulating science, Julia Black does genetics need the law?, Julian Kinderlerer human rights, human dignity, and human genetics, Deryck Beyleveld and Roger Brownsword medical interventions in the human genome, Sheila McLean insurance and genetics - the current state of play, Onora O'Neill criminal law and criminal responsibility, Celia Wells genetics and the family, Ruth Deech genetics, property, and personality, Alain Pottage.

Unjust Enrichment and the Autonomy of Law: Private Law as Public Morality

Abstract: Craig Rotherham reviews: Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values

The Corporate Opportunity Doctrine: The Shifting Boundaries of the Duty and its Remedies

Abstract: A central concern for all those actively engaged in the continuing corporate governance debate is the question of how best to hold the tension between allowing company directors their entrepreneurial heads whilst ensuring appropriate safeguards for the company itself. Take one problem as an illustration. What is the potential liability of a director who personally pursues a business venture which corresponds to the line of business of the company in which he or she holds a directorship? Prominent amongst the equitable devices which it is thought can be harnessed to good effect in striking an acceptable balance between these potentially conflicting objectives is what has become known as the 'corporate opportunity doctrine'. Corporate opportunities, though not in the strict sense assets of the company, are regarded as such, with the consequence that it is not open to company directors to exploit them for their own personal gain.

The Government’s Plans on Legal Aid and Conditional Fees

Abstract: Radical proposals for the reform of legal aid were brought forward by Lord Mackay, Lord Chancellor in the then Conservative Government, in a Green Paper published in May 19951 and then a White Paper published in June 1996.2 Lord Mackay's proposals were subjected to fierce criticism by lawyers and non-lawyers alike.3 Lord Irvine of Lairg, writing as Shadow Lord Chancellor, castigated them.4 In particular, he rejected Lord Mackay's proposed cap on legal aid expenditure,5 though on the other hand, he said that there would be no more money for legal aid under a future Labour Government. He did not explain how this circle would be squared. Lord Irvine's first pronouncement as Lord Chancellor on his policy with regard to legal aid was in his speech to the Law Society's annual conference in Cardiff on 18 October 1997. It appeared from his speech that his plans for legal aid were even more radical and controversial than anything proposed by Lord Mackay. He said that conditional fee agreements (CFAs) would be extended to all money and damages actions and that legal aid for all such claims would be abolished. This proposal produced consternation and a storm of criticism. It was attacked by, inter alia, the Bar Council, the Law Society, the National Consumer Council, the Consumers' Association, Shelter,the Child Poverty Action Group, JUSTICE, the Legal Action Group, the Law Centres Federation, the National Association of Citizens' Advice Bureaux and the Advice Services Alliance.6 They were also savaged by Edward Gamier, the Conservative Front Bench spokesman, in a powerful hour-long critique in the House of Commons debate on the proposals.7 This battering had some result.8 On 5 March 1998 Lord Irvine published a Consultation Paper Access to Justice with Conditional Fees9 in which the Government outlined those of its proposals on legal aid that it thought could be

‘I Blame the Parents’: Fitting New Genes in Old Criminal Laws

Abstract: This essay seeks to contribute to our understanding of how the 'genetic revolution' might affect our thinking about criminal law. Would a developing belief that there is a genetic basis to behaviour lead to a different basis for the way we think about criminal law, and in particular about criminal responsibility? Although that is a very large question, not least because there are many, contradictory ways of approaching crime, criminal law and criminal justice, it is not an especially novel one. The nature-nurture debate has appeared in many forms in the development of criminological theories, and theories of criminal law and punishment have long been locked in a struggle between individual responsibility or free will versus social or biological determinism. To this debate we can then add the (belated) contributions of feminist theorists on the gendered nature of crime and criminal law and the important insights of social and cultural theorists in relation to the meaning of blame and responsibility. Drawing on debates about the relationship between law and science, the paper distinguishes between theories which explain abnormality and those which tell us something of 'normality', and concludes that notions of criminal responsibility are generally resistant to explanations (whether from internal or external circumstances) which seek to excuse behaviour. The thesis developed is an essentially negative one, both in its rejection of the idea that the genetic revolution poses particular questions for criminal law and in its reminder that criminal law itself reflects generally the worst things about a society. Like any other available 'knowledge',2 genetics will be a resource to be exploited as the handmaiden of the coercive and controlling tendencies of the criminal justice system. Insofar as the genetic revolution tells us something about ourselves, it will be reflected in criminal law.

A commission for the 21st century.

Abstract: New insights into the structure, function and control of genes and how they influence our health, have produced a dramatic expansion in our understanding of what causes disease. The application of genetic technologies can be used to advance medical research and clinical care, including, for example, the discovery and development of new pharmaceuticals, vaccines and diagnostic tests. Although this technology offers much promise, some developments have also raised wider concerns. Given the huge potential of genetic advances, it is important to consider the ethical and social consequences now, and not be taken unaware. The Government has recognised the significance of these issues and the Human Genetics Advisory Commission (HGAC) has been given the task of advising Ministers.

Comment on ‘Development Risks: Unanswered Questions’

Abstract: approach of the Directive and equates it with little more than negligence liability.30 The Court of Justice has not resolved the problems with the defence itself. Indeed, the Court has increased confusion whilst trying to be helpful: the importation of an accessibility test for scientific and technical knowledge must be associated with a reasonableness test and the 'most advanced level of knowledge' test raises more questions than it answers. These attempts at clarification merely serve to illustrate the difficulties which are inherent in the defence itself. There are several ways in which the meaning of the defence remains elusive. Only further litigation will help to clarify its meaning and who is to bear the risk of unknown defects. The continuation of such arguments will do nothing to achieve acceptance of a fair balance of the apportionment of risks, but will merely destabilise the Community by failing to provide both consumers and producers with a defence whose meaning is sufficiently clear to avoid extensive litigation.

The Arms Trade and the Constitution: Beyond the Scott Report

Abstract: The Scott Report' covered an extensive range of matters, notably claims by ministers of Public Interest Immunity as the reason for withholding evidence from the defence in criminal cases, the structure and use of legal powers to control the export of military and dual-use equipment, the use of foreign intelligence by government departments, and ministerial accountability to Parliament. In addition, it gives us a picture, unrivalled in detail, of how policymaking and administration are carried out within the government of this country. But what in the long run may come to be seen as the most important contribution of the Report, over and above any of its particular recommendations,2 is that it has altered the terms of public debate. It has provided a baseline for popular judgement, a platform for critique, and by implication at least, an outline of standards for how the political and administrative elite which governs the nation ought to behave. In this sense the Scott Report and the Nolan Report,3 however different their specific subject matter and the circumstances which gave rise to them, are very much in tandem. It is the spirit, perhaps even more than the letter of the Report, which is its enduring contribution.

Interventions in the Human Genome

Abstract: dictators, the recent eugenic excesses of the twentieth century and the brave new world held out by the imminent completion of the Human Genome Project provide rich and fertile ground for speculation, debate and sometimes concern. On the other hand, genetics offers the capacity to identify disorders and hopefully in the future to cure them. As Wilkie says, 'the new genetical anatomy will transform medicine and mitigate suffering in the twenty-first century." Watson and Crick's discovery in 1953 of the structure of DNA - the key discovery on which the Human Genome Project rests - was probably one of the most remarkable scientific achievements of this century, and has led to the most ambitious scientific project since the space race. Its significance lies in the growing capacity to identify the molecular structures which make us who we are, at least physically. As Bodmer and McKie have said: 'DNA is the true chemical of life, for it is the essential component from which our genes are made. In it is encoded the genetic language that controls our destinies. And an astonishingly powerful lexicon it is. Just six million millionths of a gram of DNA carries as much information as ten volumes of the Complete Oxford English Dictionary.'2 Clearly the potential of being able to unravel and translate this lexicon in both depth and detail is of enormous fascination to science. Even if not all of the information ultimately discovered is of immediate interest or applicability (socalled 'junk DNA'3), much of what is discovered will be of theoretical and/or practical value. The capacity to identify rogue genes which cause disease or disability may lead to medical advances as yet unimagined. And the toll of genetic disorder should not be underestimated. Wexler suggests that '[i]t is now estimated that gene defects underlie 3,000 to 4,000 different diseases, and this is before one considers polygenic etiologies in which there is interaction between genes and environment.'4

The Law Commission Report on Aggravated, Exemplary and Restitutionary Damages

Abstract: The Law Commission has published its final report on aggravated, exemplary and restitutionary damages, the most important recommendation of which is an expansion of the availability of exemplary damages.' The Report was preceded by two consultation papers, and this is no doubt indicative of the range of views held on the subject and the problems of reconciling them. Aggravated and exemplary damages have been a perennial source of controversy, since before the famous case of Rookes v Barnard.2 They raise not only problems of terminology, but also more fundamental problems concerning the relation between civil and criminal procedure, and the rationale for punishment and civil remedies. One source of difficulty may be that the issues tend to span different areas of practical expertise and research. Another may be that theoretical issues are lost in what appear to be matters of practice and procedure. Restitutionary damages are no less controversial. Under this name they are not a traditional remedy; the expression has emerged from the academic development of the law of restitution. Despite the academic attention they have received, it remains controversial to what extent they are found in the common law, how they are to be justified, and when they should be available.

Liability for Psychiatric Illness: Advancing Cautiously

Abstract: On being told of the collapse of the building where his son was a demolition worker, Mr Tranmore immediately went to the site. He arrived some two hours after the incident, which was caused by the negligence of the contractors. He had to wait for another two hours, knowing that his son was trapped in the building and that it was too dangerous to get him out. He was then informed that his son was dead. Dismissing the claim that his subsequent psychiatric illness derived from his presence at the 'immediate aftermath,' Brooke LJ observed:

Statements of Fact and Statements of Belief in Insurance Contract Law and General Contract Law

Abstract: The basis of many insurance policies is a proposal form consisting of a series of questions followed by a signed declaration that the answers are true and complete to the best of the proposer's knowledge and belief. In Economides v Commercial Union Assurance Co plc' insurers sought to avoid liability on a household contents policy on the basis of a misrepresentation as to the replacement cost of the insured property. At renewal of the policy, the assured had completed a proposal form in which he stated that the replacement cost was ?16,000 and signed a 'best knowledge and belief' declaration. The replacement cost was in fact approximately ?40,000. The case raised the distinction at common law between statements of fact and statements of belief or opinion, an issue that is complicated in insurance law by statutory intervention. The law of misrepresentation in insurance contract law is codified in section 20 of the Marine Insurance Act 1906, a provision which applies equally to marine and non-marine insurance. Section 20 stipulates that all material representations made by the assured in negotiating the contract must be true and then proceeds to define truth for these purposes. Section 20(4) provides that statements of fact are true if 'substantially correct, that is to say, if the difference between what is represented and what is actually correct would not be considered material by a prudent insurer.' Section 20(5) provides that '[a] representation as to a matter of expectation or belief is true if it be made in good faith.' In Economides, it was accepted that the inaccurate statement of replacement cost was not fraudulent. The insurers argued, however, that the statement of the cost had to be interpreted as representing the existence of reasonable grounds justifying the belief expressed as to cost. The Court of Appeal rejected this argument. Simon Brown and Peter Gibson LJJ held that section 20(5) precluded any such interpretation. In addition, Peter Gibson LJ and Sir lain Glidewell held that, even if such a representation could be implied, the assured possessed the requisite reasonable grounds. It is suggested that the conclusion that section 20(5) in all circumstances excludes an implied representation of reasonable grounds justifying a belief is regrettable in undesirably and unnecessarily compelling insurance contract law and general contract law to diverge.

Negligent False Imprisonment – Scope for Re‐emergence?

Abstract: One can only agree that further litigation is required since there appears to be no other means to clarify these uncertainties. As the Court said, Article 7(e) raises difficulties of interpretation and these difficulties were not resolved in the abstract context of Infringement Proceedings. The future appears confused: on the one hand the Commission produced an extraordinarily low key Report on the Directive'4 suggesting for the most part that all was well, the Directive (and indeed the defence) have produced very little litigation and almost no authority and most Member States have incorporated the defence. On the other hand France's appears likely to omit the defence and thus follow Finland and Luxembourg and (in relation to certain sectors) Spain and there are advanced proposals to abolish the exemption from liability for primary agricultural products and game.'6 The radical (and logical, if the preceding arguments are accepted) solution to redress the failure of the Directive to achieve the simplification which was a major part of its purpose would be to remove the development risk defence as well.

Human Genetics: The New Panacea?

Abstract: Considerable advances have been made in human genetics in recent years, often outstripping the knowledge and understanding of the medical professions as well as the general public and taking regulators by surprise. In this paper, we seek to give a realistic indication of the many developments in human genetics and of what might or might not be scientifically possible in time, without the clutter and sensationalism of media hype. This, we feel, is an essential exercise to enable certain key elements and concerns to be taken on board, putting developments in context prior to any fresh consideration of the need for and potential effectiveness of regulation of human genetics. The elucidation of the structure of DNA during the 1950si provided a model for understanding the process for the transfer of genetic information between generations of the same organism. In bacteria and fungi identification of a variety of enzymes capable of modifying this group of large molecules has made possible the science termed 'modem biotechnology', and opened up our understanding of the mechanisms which lead from information molecule to function. Until the