Showing papers in "Modern Law Review in 2011"

Human rights and root causes

Abstract: The human rights movement has traditionally focused on documenting abuses, rather than attempting to explain them. In recent years, however, the question of the 'root causes' of violations has emerged as a key issue in human rights work. The present article examines this new (or newly insistent) discourse of root causes. While valuable, it is shown to have significant limitations. It foreshortens the investigation of causes; it treats effects as though they were causes; and it identifies causes only to put them aside. With these points in mind, the article counterposes an alternative approach in which the orienting concept is not root causes, but 'planned misery'.

Extending the Confusion About Bayes

Abstract: In R v T [2010] EWCA Crim 2439, [2011] 1 Cr App Rep 85, the Court of Appeal indicated that ‘mathematical formulae’, such as likelihood ratios, should not be used by forensic scientists to analyse data where firm statistical evidence did not exist. Unfortunately, when considering the forensic scientist's evidence, the judgment consistently commits a basic logical error, the ‘transposition of the conditional’ which indicates that the Bayesian argument has not been understood and extends the confusion surrounding it. The judgment also fails to distinguish between the validity of the relationships in a formula and the precision of the data. We explain why the Bayesian method is the correct logical method for analysing forensic scientific evidence, how it works and why ‘mathematical formulae’ can be useful even where firm statistical data is lacking.

Creative Commons Licences, the Copyright Regime and the Online Community: Is there a Fatal Disconnect?

Abstract: Creative works on the Internet (online works) present challenges to the traditional copyright model. Creative Commons licences are one response to these challenges. Despite the many positive features of Creative Commons licences, certain aspects have attracted criticism. The flaws in Creative Commons licences are a symptom of a broader failure of the copyright system itself to engage with the community. Creative Commons licences operate within the traditional copyright model, despite having some resonance with a developing copyright paradigm. Yet many concepts of copyright are not understood by the wider community; indeed, some remain a source of ongoing debate within the legal academy. Furthermore, there is evidence that community norms and expectations in relation to online works conflict with the legal environment provided by copyright law. The author argues that until these issues are addressed, an attempt to reconceptualise the legal environment by working within its constraints is unlikely to be successful.

What Did the Lawyers Do During the ‘War’? Neutrality, Conflict and the Culture of Quietism

Abstract: Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.

Does the Emperor Have Financial Crisis Clothes? Reflections on the Legal Basis of the European Banking Authority

Abstract: The European Union institutional package launched in response to the financial crisis used Article 114 TFEU as its legal basis. The author explores the legal basis for one of the European Supervisory Authorities recently established – the European Banking Authority (EBA). The use of Article 114 TFEU, the main Treaty basis used to harmonise laws in order to further the internal market, as the foundation for the EBA, is considered in detail. A paradox of contemporary EU institutional law is assessed here, considering whether on the one hand, the EBA is functionally both too narrow and too broad as a matter of law, while on the other hand, it may prove to be central to restoring confidence in EU regulatory powers, rendering it ‘too big to fail,’ despite its slender foundations in Article 114 TFEU.

Governing Climate Change: Towards a New Paradigm for Risk Regulation

Abstract: This article argues that the ascent of climate change on the EU regulatory agenda signals a new era of risk regulation and calls for the establishment of a new paradigm for risk regulation. Climate change is altering the EU's conception of environmental risks and its design of regulatory responses. In contrast to conventional risk regulation, climate change regulation must prioritise the risks of business-as-usual over the risks of change, must target systemic change instead of stability, and must favour the virtues of integration and orchestration over those of individualisation and compartmentalisation. There is an important role for risk regulation scholarship to analyse this shift and its consequences for regulation, such as the relocation of legitimacy needs and the emergence of new risks of regulatory failure. Such an enterprise would both reinvigorate risk regulation scholarship and offer a vital contribution to the European Union as it tackles the momentous challenge of climate change governance.

London 2012 and the impact of the UK’s Olympic and Paralympic legislation: protecting commerce or preserving culture?

Abstract: The general commercial rights associated with the Olympic Movement are protected in the UK by the Olympic Symbols etc (Protection) Act 1995. In addition, the UK Government, in response to a requirement of the Host City Contract with the International Olympic Committee, created the London Olympic Association Right under section 33 and Schedule 4 of the London Olympic and Paralympic Games Act 2006. These provisions enable the London Organising Committee of the Olympic Games to exploit, to the fullest extent, the commercial rights associated with the London Olympic Games. This article questions whether the IOC's requirement for legislative protection and state enforcement of the commercial rights are compatible with the Fundamental Principles of Olympism as defined in the Olympic Charter, and its stated aim of being a celebration of sporting endeavour, culture and education.

'Delegated legislation' in the (new) European Union : a constitutional analysis.

Abstract: This article brings classic constitutionalism to an analysis of delegated legislation in the European Union. To facilitate such a constitutional analysis, it starts with a comparative excursion introducing the judicial and political safeguards on executive legislation in American constitutionalism. In the European legal order, similar constitutional safeguards emerged in the last fifty years. First, the Court of Justice developed judicial safeguards in the form of a European non-delegation doctrine. Second, the European legislator has also insisted on political safeguards within delegated legislation. Under the Rome Treaty, ‘comitology’ was the defining characteristic of executive legislation. The Lisbon Treaty represents a revolutionary restructuring of the regulatory process. The (old) Community regime for delegated legislation is split into two halves. Article 290 of the Treaty on the Functioning of the European Union (TFEU) henceforth governs delegations of legislative power, while Article 291 TFEU establishes the constitutional regime for delegations of executive power.

Truancy and the Prosecution of Parents: An Unfair Burden on Mothers?

Abstract: This article considers the development and use of the law regulating the prosecution of parents under section 444 of the Education Act 1996, in the broader context of legislation and policy initiatives concerned with the governance of parental responsibility. It explores the ways in which the power to prosecute parents has been used by local educational authorities (LEAs) and interpreted by the courts. The article critically analyses the manner in which the powers emphasise punishment and retribution in the context of the social moralisation of ‘flawed’ parents; pay insufficient regard to the effects of parental responsibility laws on low-income, single parent families; represent an attempt to impose a simple solution on to a complex socio-economic problem; and amplify the scope for mothers to be made the subject of criminal justice interventions. It is argued that the prosecution of parents imposes an unfair burden on mothers and, in particular, single parent mothers.

Unfair Contract Terms, Unfair Prices and Bank Charges

Abstract: This note considers how the Unfair Terms in Consumer Contracts Directive 1993 draws the line between the review of unfair contract terms and the review of unfair contracts (and, in particular, unfair prices) in the context of two cases concerning bank charges: Abbey Life plc v The Office of Fair Trading (2009) (the Bank Charges case) in the UK Supreme Court and Case 484/08 Caja de Madrid (2010) in the European Court of Justice. The note explains the proper question to be addressed by a court for this purpose under article 4(2) of the Directive and criticises the Supreme Court's approach to the interpretation of article 4(2) and its application of the UK regulation implementing this article to the circumstances in the Bank Charges case.

Ignorance of the Criminal Law, and Duties to Avoid it

Abstract: 'Ignorance of the law is no defence,' so we are told from an early stage in our legal studies. Or, to be more accurate, 'ignorance of the criminal law is no defence to a criminal charge.' That appears to be the rule in this country, apart from a couple of well-established exceptions and another possible one. I will argue that it is a preposterous doctrine, resting on insecure foundations within the criminal law and on questionable propositions about the political obligations of individuals and of the State. In developing these arguments, I will draw attention to the differing problems of ignorance of the criminal law in three broad areas - regulatory offences, serious crime, and offences of omission - with a view to suggesting that there is a great deal more that the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately and fairly. I begin by scrutinising the relevant rule of English criminal law and the justifications offered for it. I then go on to situate the 'ignorance-of-law' doctrine in the context of the principle of legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores the three broad areas of the criminal law, and parts four and five carry the debate into the political obligations of individuals and of the State in these matters. © 2011 The Author. The Modern Law Review © 2011 The Modern Law Review Limited.

Horizontal effect and the constitutional constraint.

Abstract: This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the Human Rights Act imposes on the courts to give horizontal effect to European Convention rights through the common law. The model requires courts to develop the common law compatibly with the Convention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA; and that by virtue of section 2 of the HRA, Convention rights function as principles rather than hard-edged rights in this context. This further undermines the idea that the courts must strictly apply Convention rights and cannot allow them to be overridden by non-Convention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.

Civic Integration, Migrant Women and the Veil: at the Limits of Rights?

Abstract: Controversies surrounding the wearing of the veil by Muslim women in Europe have coincided with a resurgence of interest in ‘pathways to citizenship’ and integration testing. This article argues that the historical vestiges of discrimination in immigration and citizenship laws persist today in the scrutiny of the cultural affiliations and practices of aspiring immigrants and citizens. Muslim women have been placed at the center of such scrutiny, increasingly defined by the arbiters of belonging as les anormeaux. This article explores recent legislative developments on the wearing of the veil in France and examines these developments in the light of the expansion of integration testing and human rights law's normative commitments to more just multicultural arrangements.

The Legal Profession as Gatekeeper to the Judiciary: Design Faults in Measures to Enhance Diversity

Abstract: The gate-keeping role played by the legal profession in the judicial appointments process gives rise to the translation of entrenched group-based identity hierarchies from legal practice into the judiciary. The relationship between the composition of the legal profession and the judiciary has been almost completely unaffected by recent reforms designed to increase diversity in the composition of the judiciary. This article identifies legal and institutional defects which help to explain the failure to disrupt the reproduction of these patterns of appointment. We identify two particular defects which we call ‘soft target radicalism’ and ‘regulatory bind’ as important factors inhibiting change. We conclude that if the legal profession is to retain its gate-keeping role, equality law which directly regulates legal practice should be strengthened and the regulatory binds in which the Judicial Appointments Commission and other public entities are caught should be loosened.

Litigation Costs and Before-the-Event Insurance: The Key to Access to Justice?

Abstract: The cost of civil litigation is a key factor in determining the extent of access to justice. Following cuts in legal aid attention has focused upon finding alternative methods of assisting litigants without producing costs which are out of proportion to the damages obtained. The recent report by Lord Justice Jackson attempts to deal with concerns about increasing and disproportionate costs said to arise in part because of the encouragement of conditional fee agreements. This article considers the proposals made in the report, and argues that too little attention has been paid to before-the-event insurance as a means of securing access to justice for the great majority of claimants who suffer personal injury.

Incapacity, the Labour Market and Social Security: Coercion into ‘Positive’ Citizenship

Abstract: The article examines the likely evolution of the social security system in the United Kingdom in the aftermath of the Welfare Reform Act 2007. This recent legislation is paradigmatic of the new ideology and modes of thought which currently form the foundation of the modern welfare state, an institution increasingly viewed as a facilitator for individual self-su⁄ciency, as opposed to its traditional role of providing temporary ¢nancial support in periods of need. In addition, it is likely that the Act has promoted at least some changes in the concept of citizenship, in particular the contemporary emphasis on responsibilities as much as on rights. The article considers whether the Act itself has succeeded in meeting the rhetorical claims made for it by legislators during the passage of the Welfare Reform Bill through Parliament. The question of whether the Act contains a punitive or even coercive element is also examined.

Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination

Abstract: In cases concerning indirect religious discrimination the claimant must demonstrate that an otherwise neutral measure has caused her to suffer a particular disadvantage because of her religion. In Eweida v British Airways the Court of Appeal held that personal religious beliefs which are not part of official religious dogma cannot be relied upon as the basis for a claim of indirect discrimination. I discuss, first, the reasoning of the Court of Appeal in Eweida; then I examine the way personal religious beliefs have been treated in other cases in Britain and in the United States; finally, I place the issue in a wider human rights framework.

How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment

Abstract: This article first assesses the success and distinctiveness of the Human Rights Act 1998 from the perspective of its status as an exemplar of ‘the new Commonwealth model of constitutionalism.’ This new, intermediate model attempts to straddle the dichotomy of parliamentary sovereignty and judicial supremacy by protecting rights through a reallocation of powers between courts and legislatures that brings them into better balance than under either of these two traditional, more lopsided models. As part of its assessment, the article critically examines an influential strand of commentary claiming that in practice the HRA has proven to be less distinctive from US-style constitutionalism than initially claimed or hoped. The second part of the article seeks to contribute to current debates about reform of the HRA by proposing ways to address its main structural weaknesses, especially the problem of remedial distortion.

Libel: Its Purpose and Reform

Abstract: Discussion of libel often fails to define defamation law's purpose and thus properly to assess its value. This article argues that defamation's purpose relates to fundamental human interests in sociality, directly linked to important aspects of human health and well-being. Protecting such interests is arguably required by the right to private life under ECHR article 8 and should not count as a violation of the right to freedom of speech. Some current reform proposals are criticised as failing to appreciate the importance of protecting sociality. ‘Business’ libel, however, often protects not sociality but purely economic interests. The article therefore argues that the protection of libel law, as opposed to that offered by malicious falsehood and the economic torts, should be withdrawn from purely economic reputation, starting with removing the rights of corporations to sue in defamation, a position compatible with the ECtHR's decision in Karako v Hungary.

Are Children's Best Interests Really Best? ZH (Tanzania) (FC) v Secretary of State for the Home Department

Abstract: Although the Supreme Court's decision in ZH (Tanzania) is an important one, as this note explains, it is less novel than many suppose – and is in some ways disappointing. By stressing the importance of immigrant children's best interests, it fails to use this opportunity to promote their Convention rights effectively.

Deference on Questions of Law

Abstract: Contrary to the modern English position, it may be appropriate for reviewing courts to accord deference to interpretations of law rendered by administrators. There is no basis for the current strong presumption against according such deference. It is possible that the legislature intended to delegate the resolution of many questions of law to administrators, rather than to courts. Moreover, relative to administrators, courts may lack institutional competence to resolve questions of law. Courts must always police the boundaries of interpretation, in order to keep administrators in check and safeguard the rule of law, but the general presumption that the resolution of questions of law is a matter for courts should be jettisoned.

Safety, Regulation and Tort: Fault in Context

Abstract: The relationship between tort and regulation is dense and complicated. This paper examines diverse approaches to one small element of this relationship: the relationship between regulatory norms and the standard of care in personal injury cases. The lack of clear rules governing that interaction is not surprising: we would never expect the courts to give up the authority (or abdicate the responsibility) to generate private law norms; on the other hand, nor would we expect them to ignore the potential authority and legitimacy of external norms. The strength of external standards is best identified by close scrutiny of the regulation itself. The varying authority of external norms in a private law forum requires engagement with the process by which the external norms were reached. Who and what determined the 'ought' of regulation will provide greater insight into the ways in which it should inform the 'ought' of tort.

Sienkiewicz v Greif (UK) Ltd and Willmore v Knowsley Metropolitan Borough Council: A Material Contribution to Uncertainty?

Abstract: In the conjoined cases of Sienkiewicz and Willmore, the Supreme Court decided that the exceptional Fairchild approach to the proof of causation in negligence applied where a mesothelioma victim had been negligently exposed to asbestos by one defendant at a level well below unavoidable environmental asbestos exposure. The negligent exposures in both cases materially increased the risk of mesothelioma thereby satisfying the Fairchild test. Whilst reasserting the primacy of the common law as governing the rules of causation in mesothelioma cases, the Supreme Court failed to clarify the scope of the Fairchild exception. Moreover, in an extensive obiter discussion of epidemiological evidence, the Supreme Court has raised more questions than it has answered relating to the role, if any, of scientific evidence in the law of toxic torts.

The Law Lords and Human Rights

Abstract: This article presents an empirical analysis of the impact of the Human Rights Act on the House of Lords. Drawing on a database of judgments from 1994 to 2007, changes in judgment-giving behaviour are identified by charting patterns of agreement and dissent across different categories of case. Voting records are also examined in order to identify whether significant differences exist between individual Law Lords in their approach to human rights cases.

Distorting Vicarious Liability

Abstract: The note considers the decision of the Court of Appeal in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church and analyses the application of the status based risk approach to vicarious liability in that case. It considers its application outside of the area of clerical sexual abuse, and also the role in vicarious liability of job conferred status which materially increases the risk of the commission of a tort, or helps to facilitate a tort.

Complicating Complicity: Aiding and Abetting Causing Death by Dangerous Driving in R v Martin

Abstract: The law of complicity, particularly relating to joint enterprise liability, appears to becoming more and more complicated. Cases on secondary liability for murder in the Court of Appeal demonstrate that this area of law is difficult to interpret and to apply. Even more complex is the question of how to apply these cases to offences other than murder. This case note attempts to address the Court of Appeal's questions in the case of R v Martin as to how the jury ought to be directed in a case of aiding and abetting causing death by dangerous driving.

The Scope of Conversion: Property and Contract

Abstract: The article asks whether the tort of conversion should be expanded so as to protect contractual rights. The suggestion, found in recent case law and academic texts, that conversion should protect contractual rights because such rights belong to the law of property is rejected. It is argued that this approach is purely semantic and ignores the fact that contractual rights have different characteristics to other kinds of rights that we typically class as ‘property rights’. The better approach, it is argued, is to ask whether it is actually possible to protect contractual rights through the tort of conversion. The article attempts to show that the absence of certain features from contractual rights, in particular the fact that such rights do not relate to a physical object and are not exigible against the world, makes the expansion of conversion extremely difficult.

The White & Carter Principle: A Restatement

Abstract: This article reviews the English courts' approach to the controversial decision in White & Carter (Councils) Ltd v McGregor and suggests a systematic reformulation of the principle to be derived from that case It argues that the notion of 'legitimate interest', at the core of that principle, suffers from severe obscurity as it stands The critical issue in White & Carter is whether the wastefulness of a party's continuing performance outweighs its performance interest in earning the contract price Three tests currently employed to determine the existence of a 'legitimate interest', namely, the adequacy of damages, the duty to mitigate and the concept of wholly unreasonable, are assessed and dismissed as either misdirecting or unsatisfactory in other ways Finally, it articulates a new test based on a reappraisal of existing case law and summarises the key reasons for the courts to exercise their equitable jurisdiction against wasteful performance © 2011 The Author The Modern Law Review