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Showing papers in "Modern Law Review in 2006"


Journal ArticleDOI
TL;DR: In this paper, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
Abstract: No abstract available.

195 citations


Journal ArticleDOI
TL;DR: In this paper, the fundamental rights are divided into three dimensions: institutional rights protecting the autonomy of social discourses against their subjugation by the totalising tendencies of the communicative matrix; personal rights protecting autonomy of communication, attributed not to institutions, but to the social artefacts called "persons", where the integrity of individuals' body and mind is endangered.
Abstract: Do fundamental rights obligate not only States, but also private transnational actors? Since violations of fundamental rights stem from the totalising tendencies of partial rationalities, there is no longer any point in seeing the horizontal effect as if rights of private actors have to be weighed up against each other. On one side of the human rights relation is no longer a private actor as the fundamental-rights violator, but the anonymous matrix of an autonomised communicative medium. On the other side, the fundamental rights are divided into three dimensions: first, institutional rights protecting the autonomy of social discourses – art, science, religion - against their subjugation by the totalising tendencies of the communicative matrix; secondly, personal rights protecting the autonomy of communication, attributed not to institutions, but to the social artefacts called ‘persons’; and thirdly, human rights as negative bounds on societal communication, where the integrity of individuals' body and mind is endangered.

71 citations


Journal ArticleDOI
TL;DR: In this paper, the authors examine the emergence of a new model for protecting rights (referred to as the "parliamentary rights" model) in Canada, New Zealand, the United Kingdom, and the Australian Capital Territory.
Abstract: This paper examines the emergence of a new model for protecting rights (referred to as the ‘parliamentary rights’ model) in Canada, New Zealand, the United Kingdom, and the Australian Capital Territory. This parliamentary model is distinguished from the more traditional, judicial-centric, approach to rights protection in at least two ways. The first is that this parliamentary rights model incorporates the notion of legitimate political dissent from judicial interpretations of rights. The second way it challenges the court-centred model is by incorporating the systematic evaluation of proposed legislation from a rights perspective. Both of these features allow for the possibility of a broader range of perspectives on the appropriate interpretation of rights or the resolution of disagreements involving claims of rights than those arising from more judicial-centric bills of rights. The paper assesses whether this alternative approach to rights protection satisfies those sceptics who doubt the virtue or prudence of conceiving of political disputes as legal rights claims for which the judiciary has the dominant role in their interpretation and resolution.

49 citations


Journal ArticleDOI
TL;DR: In this article, a reinterpretation of the "paramountcy principle" in the Children Act 1989 was accompanied by a radically different judicial approach to evidence relating to children's best interests and the difficulties that such an approach might produce when applied to teenagers intent on refusing life-saving medical treatment.
Abstract: This article considers why so little case law currently acknowledges that children have recognisable rights under the European Convention on Human Rights and argues that the family courts are not meeting the demands of the Human Rights Act 1998 in this regard. It suggests that a reinterpretation of the ‘paramountcy principle’ in the Children Act 1989 should be accompanied by a radically different judicial approach to evidence relating to children's best interests. The article considers the difficulties that such an approach might produce when applied to teenagers intent on refusing life-saving medical treatment. It further argues that the courts should call on the substantial body of rights jurisprudence to provide legal and moral support for this revised approach.

46 citations



Journal ArticleDOI
TL;DR: In this article, the authors discuss the definition of anti-social behaviour employed by Section 1(1)(a) of the Crime and Disorder Act 1998 for the purposes of the Anti-Social Behaviour Order.
Abstract: This article discusses the definition of anti-social behaviour employed by section 1(1)(a) of the Crime and Disorder Act 1998 for the purposes of the Anti-Social Behaviour Order. It argues that, if the ASBO is to remain at the forefront of the Government's campaign against anti-social behaviour, this section should be amended. The article begins by outlining the claimed benefits of, and critics' concerns about, the definition, arguing that the difference of opinion stems from different views of state power. It then argues that the ASBO has been employed for social control, often at the expense of more constructive forms of intervention, and that this has shown New Labour's willingness to vest enforcement agencies with the wide discretion conferred by section 1(1)(a) to have been misplaced. Finally, it proposes a refined version of section 1(1), which focuses the Order on the cases for which it was purportedly designed whilst maintaining any benefits of the broad definitional approach currently taken in section 1(1)(a).

40 citations


Journal ArticleDOI
TL;DR: In this article, the authors argue that subjectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of regulatory strict liability law within the terms of modern democratic citizenship as the latter were conceptualised by T. H. Marshall.
Abstract: This paper seeks to explain two problems posed by the history of criminal law doctrine by situating them in the context of the political sociology of citizenship. First, the paper outlines the logical connection between the rise to doctrinal orthodoxy of the idea of the responsible subject and the contemporaneous emergence of universal political citizenship. Secondly, it argues that subjectivist orthodoxy in doctrine may be reconciled with the apparently antithetical forms of regulatory strict liability law within the terms of ‘modern democratic citizenship’ as the latter were conceptualised by T. H. Marshall. Finally, by means of a comparison with Alan Brudner's recent philosophical rationalisation of the modern criminal law, it proposes that situating the criminal law in its environment of citizenship will help us to understand better the tensions that underlie contemporary challenges to its doctrine.

32 citations


Journal ArticleDOI
TL;DR: In this article, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
Abstract: No abstract available.

31 citations


Journal ArticleDOI
TL;DR: In this article, an interactive model of the relationship between the state and violent political actors, exploring law's role in both the repression and mobilisation of challengers, is proposed. But the model is limited to the case of Northern Ireland.
Abstract: In place of the simple modelling employed in anti-terrorist legal discourse, this article posits an interactive model of the relationship between the state and violent political actors, exploring law's role in both the repression and mobilisation of challengers. Drawing on social movement theory, it hypothesises a process of ‘legally implicated mobilisation’ which takes account both of law's presence and its partial absence in ‘legal grey zones’ during violent conflict, and it suggests how law may impact upon key elements of the mobilisation process. The hypothesis is applied to qualitative data from Northern Ireland on violent challengers. The data point to the importance of ‘messaging’ about law in the state of exception, supporting claims that law can have a ‘damping’ effect on violent conflict. The relationship between repression and violence is partly symbiotic, and in the global ‘war on terror,’ prisoner-abuse may have a mobilising effect on violent challengers.

31 citations


Journal ArticleDOI
TL;DR: Theories used to defend and oppose hate speech bans - norms and definitions governing regulation of hate speech - contrast between American and Western Europe approaches - review of objections to h... as mentioned in this paper.
Abstract: Theories used to defend and oppose hate speech bans - norms and definitions governing regulation of hate speech - contrast between American and Western Europe approaches - review of objections to h...

28 citations


Journal ArticleDOI
TL;DR: In this article, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
Abstract: No abstract available.

Journal ArticleDOI
TL;DR: The judgment in Hirst is also welcome because it downgrades the role of public opinion which has been a major influence on penal policy in the UK as mentioned in this paper, but the Court rightly concluded that these should be given a low weighting where rights issues are concerned, and the UK Government's claim that finding the ban disproportionate would be offensive to the majority met with short shrift from the Court.
Abstract: The judgment in Hirst is also welcome because it downgrades the role of public opinion which has been a major influence on penal policy in the UK. The perception of the importance of public opinion, and the fear of alienating the public have been key factors in increasing the populist punitiveness of successive Governments, but the Court rightly concluded that these should be given a low weighting where rights issues are concerned.56 The UK Government's claim that finding the ban disproportionate would be offensive to the majority met with short shrift from the Court. As Judge Caflisch noted, even if this were to offend the public, 'decisions taken by the court are not made to please.. . members of public but to uphold human rights principles'.57 However, the court in Hirst could have given more guidance on appropriate measures to restore prisoner enfranchisement. By giving some leeway to states to devise appropriate systems ofdisqualifications, the decision in Hirst means that we still could end up with a hierarchy of voting qualifications. As noted earlier, the Government is considering whether to restore voting rights to selected categories of prisoners. It is not yet clear how they might be selected but given the Government's emphasis on the punitive role of the measure it is likely that they would reserve a bar on voting for those convicted of more serious offences, but again this would be open to the objections discussed above and would not meet the requirements for a risk-based rationale.

Journal ArticleDOI
TL;DR: In this article, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
Abstract: No abstract available.

Journal ArticleDOI
TL;DR: In this paper, a theoretical and comparative perspective on the prisoner's legal status in England and Wales is adopted, based on the principles of human rights, legality, and proportionality.
Abstract: This article adopts a theoretical and comparative perspective on the prisoner's legal status in England and Wales. Applying the principles of human rights, legality and proportionality, it argues that the prisoner's legal status must rest on a divisible conception of liberty. Such a conception must distinguish clearly between the liberty lost, and the rights restricted, by the imposition of the custodial sentence as opposed to the administration of prisons (the key distinction). In order for this to be achieved, the conception of the prisoner's legal status must also establish the purpose or purposes of the custodial sanction as distinct from the purpose of prison administration. Through comparison with Germany, the article demonstrates that the common law concept of the prisoner's legal status is unstable. Vacillating between a divisible and indivisible conception of the prisoner's liberty, the English conception of the prisoner's legal status lacks a foundation firm enough to satisfy the principles of human rights, legality and proportionality.

Journal ArticleDOI
TL;DR: In this article, the authors consider some unresolved policy choices associated with the implementation of proportionate dispute resolution, one of the most interesting ideas in the Department of Constitutional Affairs' White Paper Transforming Public Services: Complaints, Redress and Tribunals, published in 2004.
Abstract: The article considers some unresolved policy choices associated with the implementation of ‘proportionate dispute resolution’, one of the most interesting ideas in the Department of Constitutional Affairs' White Paper Transforming Public Services: Complaints, Redress and Tribunals, published in 2004. It attempts to put the White Paper into context by tracing the Government's concern with tribunal reform over the last 50 years. It briefly compares the Franks Report, published in 1957, with the Leggatt Report, published in 2001, and outlines the steps that led to the publication, three years later, of the White Paper. It then analyses the similarities and differences in the approaches to reform taken by the Leggatt Report and the White Paper. The article focuses on the principle of ‘proportionate dispute resolution’, the idea that the ways in which cases are dealt with should reflect the nature of the dispute and what the person in dispute with a public body wishes to achieve. Seven policy options are considered, all of which hold out the prospect of enhancing administrative justice, either by reducing the incidence of disputes or by handling them more effectively. They are then assessed in terms of how well they are likely to do so.

Journal ArticleDOI
Jeff King1
TL;DR: Chaoulli v Quebec (AG) may be the most controversial Supreme Court of Canada decision to date The Court used social science evidence of foreign health care systems to justify its finding that a provincial ban on private health care insurance unjustifiably violated the right to security of the person as discussed by the authors.
Abstract: Chaoulli v Quebec (AG) may be the most controversial Supreme Court of Canada decision to date The Court used social science evidence of foreign health care systems to justify its finding that a provincial ban on private health care insurance unjustifiably violated the right to security of the person The decision could lead to fundamental structural changes in the way Canadian provinces deliver health care services Given the importance of Charter jurisprudence in the United Kingdom, and recent debate about the wisdom of incorporating social rights, the case raises a number of pertinent issues for British lawyers This comment advances two general arguments First, that the case was wrongly decided because of its poor characterisation of the legislative objective of the ban, unprincipled approach to judicial deference, and poor treatment of expert and social science evidence Second, far from justifying suspicion of constitutional social rights, the case illustrates precisely why such rights can make a positive difference

Journal ArticleDOI
TL;DR: In this article, Copsey confirmed that the Human Rights Act 1998 has indirect horizontal effect in employment law, and the courts must interpret those rights in a way that adjusts their meaning to fit the context of disputes between employers and employees.
Abstract: How great an impact has the Human Rights Act 1998 (HRA 1998) had on employment law? Has it proved the damp squib that some predicted?' Have the courts in the United Kingdom continued to marginalise those rights when assessing employment law issues?2 Or has the HRA 1998 given further impetus to the movement towards a reconfiguration of employment law around the idea ofindividual rights.3 After little more than five years of the HRA 1998 being in force, it is too early to answer these questions with confidence, but we can obtain a sense of the direction in which the wind is blowing from recent decisions of the Court of Appeal, particularly that in Copsey v WBB Devon Clays Ltd.4 For the HRA 1998 to have a strong impact on employment law, three crucial legal developments are necessary. First, the courts need to accept that Convention rights have indirect horizontal effect in employment law. Second, the courts must interpret those rights in a way that adjusts their meaning to fit the context of disputes between employers and employees. A final essential development is that, in the assessment of justifications for restrictions on the enjoyment of Convention rights by employees in the workplace, the courts need to recognise that an employer's legitimate business interests should not necessarily prove sufficient to curtail a worker's enjoyment of rights. In relation to these three crucial developments, Copsey confirms that the HRA 1998 has indirect horizontal effect, takes some tentative steps in the direction of a more contextual interpretation of Convention rights in an employment context, but provides only little encouragement with respect to the third essential development of establishing a test ofjustification that requires more than the presentation of a legitimate business purpose. These three hurdles for the HRA 1998 to have a significant impact in employment law will be considered in turn.

Journal ArticleDOI
TL;DR: In many common law liberal democracies today, news gatherers are resisting efforts to use the powers of the courts to compel them to identify their confidential sources as mentioned in this paper, and often the struggles are epic.
Abstract: In many common law liberal democracies today, news gatherers are resisting efforts to use the powers of the courts to compel them to identify their confidential sources. Often the struggles are epic. Often the public interest in effective news gathering fuelling the vitality of a modern liberal democracy is insufficiently recognised. The article uses recent cases to spotlight the shortfalls in the approach and legacy of the common law in dealing with news gatherer/confidential source relationships. Post Human Rights Act English decisions, especially that of Tugendhat J in Ackroyd, combining European style commitment to the public interest in vigorous newsgathering with common law style analysis of evidence, point the way to a more effective approach. US and Hong Kong cases remind news gatherers of their public interest responsibilities.

Journal ArticleDOI
TL;DR: This article critically interrogates the assessment of NICE as deliberative in character and considers the relationship between legitimacy and deliberation in this policy context, in light of the claim that thickening proceduralisation by establishing and enhancing deliberative structures and processes is a useful strategy for addressing regulatory problems.
Abstract: Appraisals of medical technologies undertaken by the National Institute for Health and Clinical Excellence (NICE) have significant implications for the setting of priorities for health care expenditure in the NHS in England and Wales. NICE has been characterised as a deliberative body, an evaluation which reflects the recent attention paid by those working within the health policy community to the establishment of mechanisms which deliver procedural justice, in the absence of societal consensus upon the substantive values which should underpin distributive choices in health care. This article critically interrogates the assessment of NICE as deliberative in character. It also considers the relationship between legitimacy and deliberation in this policy context, in light of the claim that ‘thickening proceduralisation’ by establishing and enhancing deliberative structures and processes is a useful strategy for addressing regulatory problems.

Journal ArticleDOI


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.

Journal ArticleDOI
TL;DR: In this paper, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
Abstract: No abstract available.

Journal ArticleDOI
TL;DR: In this paper, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
Abstract: No abstract available.

Journal ArticleDOI
TL;DR: The authors examines the impact of online expression on theories of media freedom and shows how a small number of speakers will still command a much wider audience and have greater influence over political debate. But the approach to media freedom devised in the mass media era will remain applicable.
Abstract: This article examines the impact of online expression on theories of media freedom. While media freedom has generally been justified instrumentally, the opportunities for expression via the Internet may require greater emphasis on the interests of the individual speaker. Despite this development, this article shows how a small number of speakers will still command a much wider audience and have greater influence over political debate. For such speakers the approach to media freedom devised in the mass media era will remain applicable.

Journal ArticleDOI
TL;DR: In this article, the issue of prisoner disenfranchisement is examined in the light of the recent decision of the European Court of Human Rights in Hirst v UK and it is argued that the arguments in favour of denying prisoners the right to vote lack plausibility.
Abstract: The issue of prisoner disenfranchisement is examined in the light of the recent decision of the European Court of Human Rights in Hirst v UK. It is argued that the arguments in favour of denying prisoners the right to vote lack plausibility. Prisoner disenfranchisement cannot be coherently defended on the justifications of punishment or on the grounds of risk. On the contrary, matters of principle and policy considerations favour the re-enfranchisement of convicted prisoners.

Journal ArticleDOI
TL;DR: The idea of a structured settlement for personal injury was introduced in the Damages Act 1996 as discussed by the authors and has been widely used in the UK since then, with the exception of the periodical payments order (PPO).
Abstract: Lump sum damages for personal injury are again under attack. Almost twenty years ago the concept of a structured settlement was imported into this country from the USA in order to provide continuing lifetime payments for seriously injured claimants.' However, the idea was slow to develop. Proposals for a structure were easily defeated if either of the parties objected. Now, after lengthy consultation,2 that veto has been removed by amendment of the Damages Act 1996.3 Taking into account the needs of the claimant, ajudge can make a periodical payments order (PPO) even if it is against the wishes of both parties. The increasing judicial direction of the course of litigation has thus been accentuated. The tradition in tort damages is for there to be a clean break, with the defendant giving the claimant a once-and-for-all payment to end matters. In contrast, a PPO will produce an uncertain continuing relationship that may vary over time. This is because the periodical payments must be indexed against inflation no

Journal ArticleDOI
TL;DR: In this paper, the authors argue that English courts should explicitly recognise and develop a framework for a tort of privacy, and outline one possible version, comprising both privacy interests and the elements of the potential tort.
Abstract: In Douglas v Hello! Ltd (No 3), the Court of Appeal noted that one ramification of ‘shoehorning’ invasions of privacy into the cause of action of breach of confidence is that ‘it does not fall to be treated as a tort under English law’. In contrast, this article contends that English courts should explicitly recognise and develop a framework for a tort of privacy, and outlines one possible version—comprising both privacy interests and the elements of the potential tort. The framework draws upon longstanding Canadian and United States jurisprudence, as well as recent fascinating Australasian decisions that have grappled with privacy claims. In reality, breach of confidence is becoming an unrecognizable cousin of the creature which Megarry J described in Coco v AN Clark (Engineers) Ltd in 1969. If, however, it is to be buttressed by a judicially-created tort of privacy, then that tort's elements must be capable of being feasibly articulated and applied.

Journal ArticleDOI
TL;DR: In this article, the authors discuss the different judgments in the House of Lords and the Court of Appeal in terms of their implications for the respective roles of legal and political systems in determining guilt and innocence.
Abstract: The House of Lords upheld the Secretary of State's right to deny compensation under section 133 of the Criminal Justice Act 1988 and the ex gratia scheme to Mullen, whose conviction for conspiracy to cause explosions had been quashed by the Court of Appeal solely by reference to actions by the authorities (securing his illegal deportation to the UK) that constituted an abuse of process, without impugning the fairness of his trial or the accuracy of the verdict The note discusses the different judgments in the House of Lords and the Court of Appeal in terms of their implications for the respective roles of legal and political systems in determining guilt and innocence. In particular, the note explores the nature of the legal principle of the presumption of innocence as it operates in the context of successful appeals.

Journal ArticleDOI
TL;DR: In this paper, the authors propose a method to solve the problem of homonymity of homophily in the context of homomorphic data, and no abstracts are available.
Abstract: No abstract available.