Showing papers in "Modern Law Review in 2009"
TL;DR: The authors argued that we do not have the conceptual tools or empirical knowledge to make the claims about "overcriminalisation" which motivate much of this scholarship. But they did not specify the conceptual issues to be resolved before we can work towards an adequate interpretive, and normative, vision of how criminal law has been and might be used.
Abstract: This paper charts a renaissance in scholarly analysis of criminalisation, and suggests that we do not have the conceptual tools or empirical knowledge to make the claims about `overcriminalisation' which motivate much of this scholarship. My argument gives further shape to projects under the umbrella of criminalisation, setting out some of the conceptual issues to be resolved before we can work towards an adequate interpretive, and normative, vision of how criminal law has been and might be used. The paper elaborates a number of projects in `criminalisation scholarship', and suggests there is a failure adequately to distinguish the different senses of `criminalisation' in the literature, or the varying methods which might be applied within historical, interpretive, analytic and normative studies of criminalisation. In conclusion, the paper argues for a certain genre of criminalisation scholarship, and for a multi-disciplinary criminalisation research agenda informed by history, sociology and political science as much as by law, criminology and philosophy.
50 citations
TL;DR: The use of referendums to settle major constitutional questions has increased dramatically in recent decades as mentioned in this paper, and this has important implications for theories of constitutional sovereignty, and the power of these constitutional referendum to reorder sovereign relations raises significant normative questions surrounding the appropriateness of their use.
Abstract: In recent decades the use of referendums to settle major constitutional questions has increased dramatically. Addressing this phenomenon as a case study in the relationship between democracy and constitutional sovereignty, this article has two aims. The first is to argue that these constitutional referendums are categorically different from ordinary, legislative referendums, and that this has important implications for theories of constitutional sovereignty. Secondly, the article suggests that the power of these constitutional referendums to re-order sovereign relations raises significant normative questions surrounding the appropriateness of their use. The article engages with these normative questions, enquiring whether the recent turn in republican political theory towards deliberative democracy may offer a model through which sufficiently democratic referendum processes can be constructed.
44 citations
TL;DR: The authors argue that forced marriage is understood almost entirely as a product of cultural difference and that attempts to prevent forced marriage focus on the control of cultural pressures at the point of marriage, and that this near-exclusive focus on culture has two consequences for women.
Abstract: The article discusses recent legal and policy initiatives aimed at preventing forced marriage, placing them in the broader context of the exclusionary governance of British Muslim cultural difference. It argues that forced marriage is understood almost entirely as a product of cultural difference. Thus, attempts to prevent forced marriage focus on the control of cultural pressures at the point of marriage. This near-exclusive focus on culture has two consequences for women. First, inadequate attention is paid to the social and economic problems which intersect with and aggravate cultural factors restricting women's marital choice. Second, this problematisation of culture has generated paternalistic legislation with the consequence that young women who wish to follow cultural practice and fully consent to an arranged marriage may be prevented from marrying as they choose.
40 citations
TL;DR: This paper developed a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority, which is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act.
Abstract: The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights.
38 citations
TL;DR: In this paper, a sociological theory of justice is presented, where justice is not an internal legal norm, nor is it an external social, moral or political program, but aims -now in contrast to the case of Luhmann - at the transcendence of law, which is unattainable to legal operations but whose demands they are continuously subject to.
Abstract: Dominated by social and legal philosophers, the present debate on justice oscillates between the poles of universality (Rawls, Habermas) and alterity (Levinas, Derrida). The article contrasts them with a third position, a sociological theory of justice in which justice appears as the 'contingency formula' of law (Luhmann). Here, the question of justice is no longer primarily a problem for philosophy but for concrete social practices in the changing self-descriptions of law. This opens perspectives for historical analyses to investigate into affinities of varieties of justice with changing social structures. More important is its potential to reformulate the concept of justice under present conditions which could give directives for legal theory and practice. The central argument confronts Luhmann's with Derrida's ideas on justice. Parallel to Luhmann's concept, justice is neither an internal legal norm, nor is it an external social, moral or political program, but aims - now in contrast to the case of Luhmann - at the transcendence of law, which is unattainable to legal operations but whose demands they are continuously subject to. Luhmann's sociology does not address this question; instead, it is solely concerned with the immanence of law, the positivity of legal acts, legal rules, and law's relation with the social environment. To the extent that Levinas and Derrida emphasise the irreconcilable difference between positive law and such a form of justice, they formulate the transcendent dimension of law. From such a confrontation of contingency and transcendence in the concept of justice a deeper understanding emerges for subversive practices of self-transcendance in law which are neglected in official legal theory and doctrine.
35 citations
TL;DR: In this paper, the qualitative difference of intersectional claims must be clarified, and the logic of immutability underlying grounds must be replaced by one which accommodates intersectionality, and a method is required which enables courts systematically to incorporate social context into judicial decision-making.
Abstract: European anti-discrimination legislation explicitly calls for member states to consider a legal response to multiple discrimination, either additive (arising from many grounds) or intersectional (a result of an interaction of grounds). In traditional Anglo-American anti-discrimination frameworks the structure of separate statutes forces complainants to choose one ground or another. In Britain, cases such as Nwoke v Government Legal Service indicate a judicial willingness to recognise additive discrimination, while cases such as Bahl highlight the difficulties of dealing with intersectionality. This article suggests that to overcome current difficulties with intersectional discrimination, first the qualitative difference of intersectional claims must be clarified; secondly, the logic of immutability underlying grounds must be replaced by one which accommodates intersectionality; and thirdly, a method is required which enables courts systematically to incorporate social context into judicial decision-making. With these three changes, the qualitative difference of intersectionality can be both understood and activated in the courts.
30 citations
TL;DR: While there is some potential for increased responsiveness in the new arrangements, the overall effect is likely to be a weakening of the foundations of democratic decision making in the governance of healthcare in England.
Abstract: Following a first wave of reform at the beginning of the decade, the system of patient and public involvement in healthcare governance is being further overhauled under the Local Government and Public Involvement in Health Act 2007 and the Health and Social Care Act 2008. The current reforms reflect a significant shift in dominant political discourse from an earlier concern with patient and public involvement towards a more exclusive focus on consumer choice and economic regulation, with collective voice and citizen participation at best playing a subordinate part in the government's NHS modernisation agenda. While there is some potential for increased responsiveness in the new arrangements, the overall effect is likely to be a weakening of the foundations of democratic decision making in the governance of healthcare in England.
25 citations
TL;DR: The UK's Climate Change Act as discussed by the authors offers a framework for civil society to achieve low carbon realignment through to 2050, with a focus on the implications of imposing mandatory duties on decision makers.
Abstract: The UK's Climate Change Act offers a framework for civil society to achieve ‘low carbon’ realignment through to 2050. The Act is reviewed for its coherence as a mechanism for directing future policy. The legislation establishes a carbon budgetary process, mandates greenhouse gas reduction targets and strategies, and imposes a novel range of duties supported by processes for ensuring transparency concerning progress. Following an overview of climate change risks and likely economic consequences, the analysis identifies selected regulatory strategies. It explores the main statutory features, with an emphasis upon the implications of imposing mandatory duties on decision makers. An evaluation of the key policy choice of emissions trading is informed by perspectives of environmental justice, in particular as to questions of equitable burden-sharing in relation to impacts of climate change and related policies. A concluding section summarises reasonable expectations and ongoing challenges.
20 citations
TL;DR: In this article, the authors use a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination.
Abstract: The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but distinct discourses of family law regulation. Yet the approaches are less radically opposed than is often thought. Discursive comparison tends to highlight dominant voices at the expense of minority ones, wrongly characterising minority views as foreign to a tradition. Discursive comparison should not confine itself to a synchronic view of present legal debates; a richer diachronic approach will also attend to views within a legal tradition's past.
20 citations
TL;DR: In this paper, the authors examine the Government's attempt to control the availability of such material through s.63 of the Criminal Justice and Immigration Act 2008, which criminalises possession of such images, concluding that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy.
Abstract: Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Government's attempt to control the availability of such material through s.63 of the Criminal Justice and Immigration Act 2008, which criminalises possession of such images. It begins by examining the consultation process and concludes that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy. The article then examines whether this weakness in the foundations for the proposed new offence caused the proposal to be substantially amended during the Committee Stage of the Criminal Justice and Immigration Bill: to the extent that the final version of s.63 substantially fails to meet the original public policy objective. The article concludes by asking whether s.63 may have unintended consequences in that it fails to criminalise some of the more extreme examples of violent pornography while criminalising consensual BDSM images, and questions whether s.63 will be enforceable in any meaningful way.
19 citations
TL;DR: In this paper, the authors describe how men, for the atteyning of peace, and conservation of themselves thereby, have made an Artificiall Man, which we call a Common-Wealth; so also have they made ArtificIall Chains, called Civil Lawes, which they themselves, by mutuall covenants, have fastned at one end, to the lips of that Man, or Assembly, to whom they have given the Soveraigne Power; and at the other end to their own Ears.'
Abstract: 'But as men, for the atteyning of peace, and conservation of themselves thereby, have made an Artificiall Man, which we call a Common-Wealth; so also have they made Artificiall Chains, called Civil Lawes, which they themselves, by mutuall covenants, have fastned at one end, to the lips of that Man, or Assembly, to whom they have given the Soveraigne Power; and at the other end to their own Ears.'1
TL;DR: In this paper, the authors argue that the unfairness of the current law is best understood as stemming from a failure to recognise the situation that arises as one of unjust enrichment and suggest that the need for reform goes beyond the introduction of a discretionary regime, such as that proposed by the Law Commission, to reform of conveyancing and property law and practice to facilitate initial, as well as post-separation private ordering.
Abstract: With cohabitation outside marriage becoming increasingly common, the law's response to the problems that arise on separation has become a key issue for public and family policy. This article draws upon the findings of a qualitative empirical study of how property disputes are handled when cohabitants separate. It argues that the unfairness of the current law is best understood as stemming from a failure to recognise the situation that arises as one of unjust enrichment. It shows that the complexity and unpredictability of the law make it difficult to bargain effectively in the shadow of the law. It suggests that the need for reform goes beyond the introduction of a discretionary regime, such as that proposed by the Law Commission, to reform of conveyancing and property law and practice to facilitate initial, as well as post-separation private ordering.
TL;DR: In this article, the authors describe Kahn-Freund's advocacy of the British "collective laissez-faire" system of regulation of industrial relations, in which regulation proceeded autonomously of the state.
Abstract: This paper describes Otto Kahn-Freund's advocacy of the British ‘collective laissez-faire’ system of regulation of industrial relations, in which regulation proceeded autonomously of the state. It suggests that a weakness of collective laissez-faire as a normative principle was its failure to make adequate provision for the furtherance of the public interest. It links this failure to a more general reluctance, on the part of Kahn-Freund, to conceive of the state as representative of the public interest. And it seeks to explain this reluctance with reference to Kahn-Freund's experiences of living and working as a labour court judge in the Weimar Republic, and of moving to the UK as a refugee from Nazism.
TL;DR: In this article, the Enlarged Board of Appeal's justification for that interpretation in Novartis with reference to the exclusion's legislative history is challenged, and an alternative theory of that history proposed, based on a thorough analysis of the unpublished travaux preparatoires for the Strasbourg and European Patent Conventions.
Abstract: The authoritative (Novartis/transgenic plant systems) interpretation of the Article 53(b) EPC exclusion from European patentability of plant and animal varieties, and essentially biological processes for the creation of plants and animals, is considered, and its significance for the trend of EPO jurisprudence and legitimacy of the EC Biotechnology Patenting Directive noted. The Enlarged Board of Appeal's justification for that interpretation in Novartis with reference to the exclusion's legislative history is challenged, and an alternative theory of that history proposed, based on a thorough analysis of the unpublished travaux preparatoires for the Strasbourg and European Patent Conventions. In addition to elucidating the framers' (actual and presumed) intent with respect to the Article 53(b) exclusion, that analysis offers an insight into post-war legal unification methodology and its continued impact on one of the most contentious and technical areas of intellectual property law.
TL;DR: In this article, the argument for legal recognition of caste discrimination in the UK, the capacity of race and religion to subsume caste as a ground of discrimination, and the role and limitations of law in addressing new forms of discrimination such as casteism are considered.
Abstract: Discrimination based on caste affects at least 270 million people worldwide, mostly in South Asia. Caste as a system of social organisation has been exported from its regions of origin to diaspora communities such as the UK, yet despite the prohibition of caste-based discrimination in international human rights law caste is not recognised as a ground of discrimination in English law. The overhaul of its equality framework and the proposed new single equality act present the UK with an opportunity to align national legislation with international law obligations. The Government's decision not to include protection against caste discrimination in the new legislation leaves race and religion as the only possible legal ‘homes’ for caste. This article considers the argument for legal recognition of caste discrimination in the UK, the capacity of race and religion to subsume caste as a ground of discrimination, and the role and limitations of law in addressing ‘new’ forms of discrimination such as casteism.
TL;DR: In this article, the authors argue that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach.
Abstract: This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach.
TL;DR: The Human Rights Act 1998 (HRA) as mentioned in this paper has been criticised for not providing effective legal protection for human rights, and the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms.
Abstract: Recently there has been much discussion of the prospect of replacing, or supplementing, the Human Rights Act 1998 (HRA) with a British bill of rights. The Government, opposition Conservative Party and others have published detailed plans and research reports. Whilst there has been some limited examination of the alleged failures of the HRA in providing effective legal protection for human rights, the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms. Drawing on research concerning aspects of the HRA carried out over the past ten years, it is possible to identify concrete problems which have prevented the HRA from meeting the objectives originally set for it. But given the limitations of the present debate, future plans do not adequately address many of these problems making it uncertain how effective any new bill of rights will actually be.
TL;DR: In this paper, the authors draw upon the system theory approach to miscarriages of justice to reflect upon their experience as a member of the Scottish Criminal Cases Review Commission, and demonstrate how the Commission manages the tensions between the rather different "legal" and "lay" worlds which it inhabits.
Abstract: In this paper, I draw upon the ‘systems theory’ approach to miscarriages of justice (adopted by Nobles and Schiff) to reflect upon my experience as a member of the Scottish Criminal Cases Review Commission. I demonstrate how the Commission manages the tensions between the rather different ‘legal’ and ‘lay’ worlds which it inhabits. More particularly, I argue that the Commission, while heavily constrained by the law and a legal world view, is more independent of the legal ‘system’ than some commentators would suggest. I substantiate my arguments through describing some of the debates that took place within the Scottish Commission and analysing in depth the judgements of the Scottish appeal court in some of the cases referred to it by the Commission. Much of what I say is applicable in varying degrees to the English Commission and to the current debate in England as to what constitutes a ‘miscarriage of justice’.
TL;DR: In the light of the House of Lords decisions in Van Colle and Smith, the authors considers whether victims can truly be said to have "rights" without effective remedies for police inaction.
Abstract: In the light of the House of Lords decisions in Van Colle and Smith this commentary considers whether victims can truly be said to have ‘rights’ without effective remedies for police inaction. It also considers the implications for ineffective police responses to domestic violence, especially cases culminating in domestic homicide.
TL;DR: The case of R.R. v. G. as mentioned in this paper concerns the controversial offence of collecting or recording information likely to be useful to a person committing or preparing an act of terrorism.
Abstract: R. v. G. concerns the controversial offence of collecting or recording information likely to be useful to a person committing or preparing an act of terrorism. We comment on a number of deficiencies in that judgment and investigate the proper approach that ought to be taken to that offence under the Human Rights Act 1998.
TL;DR: In this article, the importance of trust, distrust and betrayal in the context of relational contracts in the modern welfare state is discussed in a specific case study of the allocation of social housing, where the local authority has statutory obligations towards households in housing need but limited ability to fulfil those obligations without reliance on other social housing providers.
Abstract: This paper discusses the importance of trust, distrust and betrayal in the context of relational contracts in the modern welfare state. We use a specific case study of the allocation of social housing. That context is one in which the local authority has statutory obligations towards households in housing need but limited ability to fulfil those obligations without reliance on other social housing providers, specifically registered social landlords. Relationships between providers are, in theory, negotiated through nominations agreements. In this paper, we draw on data from a research project concerned with ‘problematic nominations’ to illustrate the production of trust, distrust and betrayal. Our analysis is structured by reference to three frameworks for the production of trust: characteristic-based, process-based and institutional based trust.
TL;DR: In this article, the authors use a purposive method of interpretation to suggest solutions to various questions raised in the application of the National Minimum Wage Act (NMWA) and consider which group of workers are included within the scope of the NMWA (interpreting terms such as ‘worker, ‘voluntary workers, apprentices and trainees), what are considered working hours for the purpose of the Act, and what constitutes part of the wage (focusing on tips, attendance allowances and deductions for accommodations).
Abstract: This article uses a purposive method of interpretation to suggest solutions to various questions raised in the application of the National Minimum Wage Act (NMWA). The article first considers the goals of minimum wage laws (and the NMWA in particular) by putting forward the justifications for such laws and addressing critiques. It is argued that the minimum wage is best understood as a mechanism for redistribution of resources and ensuring respect for the human dignity of workers. Building on this articulation of goals, the article then proceeds to consider which group of workers are included within the scope of the NMWA (interpreting terms such as ‘worker’, ‘voluntary workers’, apprentices and trainees); what are considered working hours for the purpose of the Act (focusing on cases of work/sleep combinations); and what constitutes part of the wage (focusing on tips, attendance allowances and deductions for accommodations).
TL;DR: The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property attempts no alteration of the parties' existing rights and obligations and seeks merely to encourage rather than compel lenders to view repossession as a last resort as mentioned in this paper.
Abstract: In February 2008, the Civil Justice Council circulated for consultation a mortgage arrears pre-action protocol that proposed some of the most radical and significant reforms of the repossession process for a century. Hinting at a return to the equitable tradition, the draft protocol required a minimum level of equitable dealing within the mortgage relationship coupled with the restriction and, at times, exclusion of the lender's inherent right to possession. The version which emerged following the period of consultation, however, bore little if any resemblance to its predecessor. The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property attempts no alteration of the parties' existing rights and obligations and seeks merely to encourage rather than compel lenders to view repossession as a last resort. To this extent, therefore, it represents an opportunity lost to afford borrowers greater protection within the repossession process.
TL;DR: A revised conceptual basis for the economic torts which is true to their historical role of regulating the competitive process is proposed in this paper, where protection of economic interests -interference which t...
Abstract: A revised conceptual basis for the economic torts which is true to their historical role of regulating the competitive process is proposed - protection of economic interests - interferences which t...
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TL;DR: In the course of this sometimes bravura display, Gardner knocks over all sorts of straw men, and even some made of brick as discussed by the authors. But not all of them are shown up, as his 'Reply to Critics' demonstrates, the risk of misinterpretation abounds.
Abstract: Editions of an authors unrevised collected essays frequently have value only for the sake of their convenience, all the more so when eccentric selection criteria1 result in the omission of arguably the best of them.2 Still, Offences and Defences is significant as a tapestry, or perhaps a kaleidoscope, of Gardners theory of wrongs, reasons, and the criminal law. Each essay is superbly written. Reading them is the opposite of everyday academic experience. Instead of a struggle to finish, suc ceeded mercifully by instant amnesia, they can be read quickly ? yet one mulls the details for days. In the course of this sometimes bravura display, Gardner knocks over all sorts of straw men, and even some made of brick. The false Kan tians and, occasionally, Kant himself. All are shown up. The essays are packed with valuable insights and boast an impressive range of reference. Because it is a collec tion, however, it is frequently a challenge. Quite apart from whether one agrees with him, it is an exercise to construct Gardners view, to get clear precisely what he does think about wrongs and reasons. As his 'Reply to Critics' demonstrates, the risk of misinterpretation abounds. Once those misunderstandings are cleared up, much of Gardner s analysis is persuasive. But not all.
TL;DR: In this paper, two Court of Appeal cases relating to the employment status of temporary agency workers, James v London Borough of Greenwich and Consistent Group v Kalwak, were discussed, and the authors examined whether the commercial approach adopted towards trilateral employment relationships in these cases is justified.
Abstract: This note discusses two Court of Appeal cases relating to the employment status of temporary agency workers, James v London Borough of Greenwich and Consistent Group v Kalwak. In James the Court considered the test for implying a contract of service between temp and end user, and in Kalwak the Court examined the use of ‘sham’ to set aside contractual documents between the parties. The authors examine whether the commercial approach adopted towards trilateral employment relationships in these cases is justified.
TL;DR: In this paper, judicial responses to the use of "bright line" rules in social security law are examined within the framework of judicial deference, and the receptiveness of the judiciary to an argument by the executive that a rule is justified as being administratively convenient to operate is examined.
Abstract: This article considers judicial responses to the use of 'bright line' rules in social security law. It analyses, within the framework of judicial deference, the receptiveness of the judiciary to an argument by the executive that a rule is justified as being administratively convenient to operate. The article questions the proposition that the judiciary is at its most deferential when complex issues of socio-economic policy or resource allocation are raised in the context of social security law. A contrast is drawn between cases involving an issue of statutory interpretation and those applying a proportionality test. The article tests the presumption that a difference in approach should be discernable in these two situations. It concludes by criticising the courts for failing to articulate clearly the values at stake and by arguing for the need for greater transparency and a broader public debate concerning the use of bright line rules.
TL;DR: In this article, the judgment of the House of Lords in the case Norris v USA is analyzed and the potential negative impact of the judgment on the future viability of the UK Cartel Offence is highlighted.
Abstract: This note analyses the judgment of the House of Lords in the case Norris v USA, and argues that its ruling on whether mere price-fixing can amount to a common law conspiracy to defraud will have a significant effect on both US and UK criminal anti-cartel enforcement. In particular, the potential negative impact of the judgment on the future viability of the UK Cartel Offence is highlighted.
TL;DR: In this article, the authors discuss the deportation of a seriously ill foreign national to her country of origin, where she would face a high risk of extreme deterioration of her health due to the inadequate medical treatment.
Abstract: This article discusses the deportation of a seriously ill foreign national to her country of origin, where she would face a high risk of extreme deterioration of her health due to the inadequate medical treatment. It criticises the reasoning of the judgment N v UK of the European Court of Human Rights, and explores the circumstances under which removal of a severely ill non-national constitutes a breach of the prohibition against inhuman and degrading treatment under the European Convention on Human Rights.
TL;DR: In this article, the authors discuss the recent Bradley litigation before the High Court and Court of Appeal, in which applicants sought judicial review of a Government Minister's decision to reject findings made by the Parliamentary Commissioner for Administration in her report, ‘Trusting in the Pensions Promise’.
Abstract: This article discusses the recent Bradley litigation before the High Court and Court of Appeal, in which applicants sought judicial review of a Government Minister's decision to reject findings made by the Parliamentary Commissioner for Administration in her report, ‘Trusting in the Pensions Promise’. The article critically analyses the Court of Appeal's approach to reviewing the Minister's decision, focusing on the standard of review applied and placing the Court's approach in the wider context of the Ombudsman process, which is inherently political.