Showing papers in "Modern Law Review in 2016"

Law as Information in the Era of Data-Driven Agency

Abstract: This contribution introduces the mathematical theory of information that ‘informs’ computer systems, the internet and all that has been built upon it. The aim of the author is to invite lawyers to reconsider the grammar and alphabet of modern positive law and of the Rule of Law, in the face of the alternative grammar and alphabet of a data-driven society. Instead of either embracing or rejecting the technological transitions that reconfigure the operations of the law, this article argues that lawyers should collaborate with the computer scientists that engineer and design the affordances of our new onlife world. This is crucial if we want to sustain democratic participation in law-making, contestability of legal effect and transparency of how citizens may be manipulated by the invisible computational backbone of our rapidly and radically changing world.

Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice

Abstract: The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches). We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence. The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.

British Abortion Law: Speaking from the Past to Govern the Future

Abstract: This paper analyses the poor alignment of the aging statutory framework and modern understandings of medical best practice in the context of abortion services. With a particular focus on medical abortion, it assesses the significant challenges that the gulf between the two poses for clinicians, service providers, regulators and the courts. Law is said to be at its most effective where there is a shared regulatory community that accepts and endorses the values that underpin it. It is suggested that the example of abortion law provides a marked example of what happens when legal norms once justified by broadly shared moral understandings, concerns for patient safety and requirements of best practice are now either unsupported by or, indeed, sit in opposition to such concerns.

Sex, Statistics, Peacekeepers and Power: UN Data on Sexual Exploitation and Abuse and the Quest For Legal Reform

Abstract: The UN Secretariat provides annual statistics on allegations of sexual exploitation and abuse made against peacekeeping personnel, with reduced numbers of allegations leading to claims of success for the UN’s ‘zero tolerance’ policy. This article explores the use of data as ‘technologies’ of global governance, to examine the function that these annual statistics serve for the UN and the impact that they have on calls for legal reform. Thus far, the statistics have attracted little academic appraisal. Yet, they have been used to establish the UN’s authority to resolve the ‘problem’ of sexual exploitation and abuse, diminishing the space for critique of UN policy and undermining the quest for improved legal arrangements.

Interdiction and indoctrination: The Counter-Terrorism and Security Act 2015

Abstract: Lying behind the recent Counter-Terrorism and Security Act 2015 is the phenomenon of foreign terrorist fighters which has sparked international and national attention. The 2015 Act deals with many facets of counter terrorism legislation, but its two principal measures are singled out for analysis and critique in this paper. Thus, Part I seeks to interdict foreign terrorist fighters by preventing suspects from travelling and dealing decisively with those already here who pose a risk. The second, broader aspect, of legislative policy, reflecting the UN emphasis on ‘Countering Violent Extremism’, is implemented through the statutory elaboration and enforcement in Part V of the ‘Prevent’ element of the long-established Countering International Terrorism strategy, which aims to stop people becoming terrorists or supporting violent extremism. These measures are explained in their policy contexts and set against criteria of effectiveness, personal freedom, and accountability.

Towards a Transformative Conceptualisation of Violence Against Women ‐ A Critical Frame Analysis of Council of Europe Discourse on Violence Against Women

Abstract: Much academic attention has been devoted to violence against women (VAW) in Europe and research has focused on the mounting policy reform initiatives and capacity building strategies in the EU. Council of Europe initiatives in this area have, surprisingly, by contrast, remained under-researched. This paper seeks to fill the gap in the literature by engaging in an examination and critique of the ways in which the Council of Europe has incorporated and framed VAW within various legal and policy initiatives. It will employ a methodology of critical frame analysis as theorised by the literature on social movements, and anti-essentialist critiques within feminist literature to ask: how VAW is problematised; what solutions are offered; where they are located; to what extent they are gendered; and who has a voice in these policy and legal texts. Language: en

Corporate Mobility and Company Law

Abstract: Globalisation has given commercial parties more freedom to choose the company law system that best suits their private needs. The growing range of techniques to facilitate choice between systems of company law reshapes the mandatory/enabling debate in countries where corporate mobility is a relatively new business phenomenon and where the past focus has mostly been on degrees of flexibility within domestic law. This article examines relocations, both out of and into the UK, as a source of learning on market preferences with respect to company law and on vulnerabilities. It considers the wider policy implications for the development of company law of more freedom of choice between company law systems. It concludes with a call to explore the potential for more optionality within company law to counter the rise of choice between systems of company law.

Brexit, Article 50 and the Contested British Constitution

Abstract: This article discusses the early stages of the Art 50 TEU process, and those aspects that relate most clearly to British constitutional law. Its overarching theme is that the Brexit process is rendered highly problematic by the lack of any coherent conception of the British Constitution. Different parties settle on interpretations of constitutional law that support their case, but often there is no determinative answer. Three broad issues are examined in order to substantiate this claim: the EU Referendum, the triggering of Article 50, and the Devolution aspect of Brexit. I argue that each of these issues reveals tensions and competing constitutional interpretations that suggest that the British Constitution is ill-equipped to deal with Brexit.

Regulatory domain and regulatory dexterity: critiquing the UK governance of 'fracking'

Abstract: This article provides a critique of the UK government's regulatory response to ‘fracking’. It shows how government has adopted two distinct schemas of regulation, which may usefully be classified under the headings ‘regulatory domain’ and ‘regulatory dexterity’. These schemas rely on very different interpretive conventions and are in many ways contradictory. Yet, government uses both ‘domain’ and ‘dexterity’ arguments simultaneously in order to advance its policy in favour of fracking. The article explains how two seemingly different regulatory approaches work together towards the same policy goal, and highlights the role of law in facilitating technological development.

The Place of Wishes and Feelings in Best Interests Decisions: Wye Valley NHS Trust v Mr B

Abstract: In Wye Valley NHS Trust v Mr B the Court of Protection decided that it was not in the best interests of Mr B to receive amputation surgery against his will, notwithstanding that he would die without the treatment. The judge met with Mr B in person and his best interests decision placed significant weight on Mr B's wishes and feelings. This case note considers this influential case in the context of ongoing debate about the place of wishes and feelings in best interests decisions under the Mental Capacity Act 2005. It considers the history of the best interests principle, its interpretation by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James, ongoing debates about its compatibility with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, and recent proposals by the Law Commission for statutory amendments to the Mental Capacity Act.

‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

Abstract: People of non-ideal-weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self-motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.

Kadi: King‐Slayer or King‐Maker? The Shifting Allocation of Decision‐Making Power between the UN Security Council and Courts

Abstract: ‘A King is not legally obliged to lay down general rules and obey them, but if he has an iota of political sense, he will do so.’ - Jean Bodin, IV, 4, 486. This note analyses the twelve-year span of the Kadi litigation in the European courts. The litigation raises the textbook question of the relationship between international and municipal legal orders, yet demonstrates that it is high time to move the description of this relationship beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the answer in less complicated times. The note examines the different approaches taken at the three key phases of the litigation: the ‘supremacy’ position adopted by the Court of First Instance in 2005, the ‘subversive’ approach of the European Court of Justice in 2008 and the ‘subsidiarity’ position of the Court of Justice of the European Union in 2013. Ultimately, the note invites attention to the ‘Solange equivalence’ approach taken by the Advocates-General and argues that this strikes the best balance in normative terms for an enduring approach to power-sharing between legal orders.

The International Development (Official Development Assistance Target) Act 2015: legislative spending targets, poverty alleviation and aid scrutiny

Abstract: With the enactment of the International Development (Official Development Assistance Target) Act 2015, the United Kingdom became the first member of the Organisation for Economic Cooperation and Development (OECD) to enshrine an aid target in law. It is now under a legal duty to spend 0.7% of Gross National Income (GNI) on aid every year. This paper has two aims. Firstly, it assesses the implications of enshrining a spending target for development assistance in law. It connects this to recent moves to set targets for specific areas of spending more generally. The UK’s decision to adopt a legal spending target for aid is important because other donors are likely to follow its lead. Secondly, this paper argues that commentators have focused their analyses too narrowly on the legal target (section 1) and that it is in fact the mechanisms for scrutinising development assistance contained in section 5 of the new Act that will be important in future. This is because judicial scrutiny of aid spending is a remote possibility as a result of the International Development Act 2002, introduced in response to the Pergau Dam case. The paper provides an analysis of the new legislation in the context of the UK’s now detailed legislative framework for international development aid and concludes that this framework is far from satisfactory.

Responses to Salduz: Procedural Tradition, Change and the Need for Effective Defence

Abstract: This article examines the responses of national courts to the ECtHR's decision in Salduz v Turkey that suspects be provided with access to a lawyer before they are first interrogated by the police. It argues that harmonious application of human rights standards in criminal proceedings should build upon common values underpinning the procedural traditions of member states. ECtHR success in gaining acceptance for the principle of access to a lawyer during police interrogation, anchoring it in the privilege against incrimination, is contrasted with resistance towards giving the defence any active role during criminal investigations. It is argued that this resistance can be overcome by an appeal to safeguards that have long dominated the trial process. As the investigation phase increasingly determines the outcome of criminal proceedings, standards of fairness traditionally reserved for the trial process should be applied also to this phase in order to provide suspects with an effective defence.

Badges of Modern Slavery

Abstract: Notwithstanding the 19th century formal abolition of slavery as legal ownership of people, modern slavery and forced labour have not been consigned to the past. In fact, their existence is more widespread, and made more difficult to tackle due to the lack of formal, legal criteria. This article suggests that reference to the past, historical institutions reveals seven ‘badges of slavery’ that are helpful in identifying occurrences of modern slavery and forced labour. These are: humiliation, ownership of people, exploitation of the vulnerable, lack of consent, terms and conditions of employment, limits on the power to end the employment relationship, and denial of rights outside the work relationship. These aspects constitute modern slavery as such, and thus distinguishes it from other instances of exploitative employment relations, however problematic. In addition, even where the label of modern slavery is misplaced, the identification of particular badges of slavery in contemporary employment relations may assist in highlighting their troubling facets.

No (,) More Bolam Please: Montgomery v Lanarkshire Health Board

Abstract: Montgomery v Lanarkshire Health Board concerned a negligent non-disclose of certain risks involved in natural birth. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware a particular patient is likely to attach significance to that risk. The Court emphasised risk disclosure practices must focus on what the patient wants to know. Yet the Court's portrayal of this change as a development of Sidaway is questionable. The decision is problematic in its engagement with precedent, the new test's future implications and statements regarding therapeutic privilege. Despite rejecting Bolam v Friern Hospital Management Committee's relevance to risk disclosure, this case is likely to remain relevant.

A dive into deep constitutional waters: Article 50, the prerogative and parliament

Abstract: This article analyses the Article 50 TEU debate and the argument that for the UK Government to trigger the formal withdrawal process without explicit parliamentary authorisation would be unlawful, because it would inevitably result in the removal of rights enjoyed under EU law and the frustration of the purpose of the statutes giving those rights domestic effect. After a brief survey of Article 50, this article argues first of all that the power to trigger Article 50 remains within the prerogative, contesting Robert Craig's argument in this issue that it is now a statutory power. It then suggests a number of arguments as to why the frustration principle may be of only doubtful application in this case, and in doing so it re-examines one of the key authorities prayed in aid of it - the Fire Brigades Union case.

Something Old, Something New: Recasting the European Insolvency Regulation

Abstract: This paper critically evaluates the recasting of the European Insolvency Regulation - Regulation (EU) 2015/848 - in the context of the EU Europe 2020 growth strategy. According to the Council of Ministers, through the protection of creditors and the survival of business, the new legislation should contribute to the preservation of employment in these challenging times. The paper argues that worthwhile improvements have been made by extending the scope of the regulation; clarifying and confirming contentious areas of interpretation; smoothening the inter-relationship between main and secondary insolvency proceedings and improving information flows. But the overall effect is to enhance complexity. The recast Regulation carries the whiff of political compromise and, at times, seems to point in different directions at the same time.

Uses of Macro Social Theory: A Social Housing Case Study

Abstract: This article reflects on the use of macro social theoretical perspectives to explain micro social issues. It uses social housing allocations as a case study of the issues that arise in such explanations. There has been a number of important social theoretical examinations of social housing allocation schemes in recent years, spanning socio-legal studies. In contrast to those other studies, we argue that “cookie-cutter” theory is insufficient because they can overlook other positions and counter-factual scenarios. We draw on a sample of local authority allocation schemes to reflect on the increasing category of excluded households which we term “unhouseables” (an expression which is commonly used by housing officers) – those households which are excluded from appearing on such schemes because of their former housing deviance or some other disqualification. We offer a set of reflections grounded in our data, which focus on sustainability. Thus, rather than point to particular rationalities or the like, we point to particular housing issues as explanatory factors – including the declining stock and financial “competitiveness” of social housing management – as well as a rise in punitiveness.

Regulatory Analysis in Corporate Law

Abstract: Drawing from recent experiences in the US, UK, and EU, this article examines regulatory analysis of corporate law policies. It suggests that regulatory analysis, as currently understood and applied in this area, suffers from severe weaknesses. The effects of proposed corporate law policies are often particularly difficult to predict and even more difficult to quantify, which negatively impacts analytical reliability. Moreover, given its nature and interconnections with politics, corporate law is less amenable to purely technocratic assessments than other areas of law. Based on three case studies, the article explores these problems. It outlines a revised ‘procedural’ view, suggesting that regulatory analysis in corporate law should be understood primarily as a process for enhancing information, transparency, and monitoring, independently from specific normative criteria. This leads to several implications. In short, regulatory analysis should combine quantified analysis with leeway for regulatory judgment and focus on increased consultation, critical engagement, review, and transparency as the dominant guiding factors.

Driving with the Handbrake On: Competition Class Actions under the Consumer Rights Act 2015

Abstract: This paper examines the new class action procedure for competition cases established by the Consumer Rights Act 2015. It examines whether the legislation and the procedural rules for the Competition Appeal Tribunal address the failures of previous procedures, focusing on three issues in particular i) the treatment of conflicting interests amongst class members ii) the rules on certifying collective proceedings; and iii) rules on funding. It argues that while the Act is a considerable improvement on what preceded it, the safeguards adopted will act as a drag on meritorious and unmeritorious claims alike, and as such there is likely to be continued under-enforcement of competition law.

Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights

Abstract: The justification for the restrictions on religion inherent in secularism is the subject of lively debate in constitutional and political theory. In Ebrahimian v France the Strasbourg Court was required to assess whether the European Convention on Human Rights can accommodate a secularism whose aims and justifications go beyond the protection of the rights of others and include abstract goals such as upholding the religious neutrality of the state. The resulting judgment highlights both the inability of rights to provide an adequate account of the relationship between religion and the state and how the text of the Convention struggles to give adequate weight to constitutional principles whose justification arises from sources other than the protection of fundamental rights. I suggest that the Court was correct to reaffirm its stance that secularism and strict neutrality can be in harmony with the values of the Convention. However, it needs to be more clear about the reasons for this stance and to be vigilant in its protection of private autonomy so that the use of abstract principles to restrict religious expression does not give excessive latitude to states to restrict individual autonomy and minority rights

Tracing, value and transactions

Abstract: Tracing is generally understood to be the process of following value through one or more substitutions, by which a claimant ‘transmits’ his claim from the right substituted into its exchange product. Understood thus, the exercise of tracing has been made increasingly difficult to conduct and predict by the development of complex payment mechanisms involving multiple payment instructions and interceding periods of indebtedness. This article argues that concepts of value are conceptually and practically misleading. Identifying and determining the content of transactions are normative processes that depend, not upon identifying the precise mechanisms by which a particular change in legal relations is sought and executed, but rather upon the manifested intentions of the transacting parties. This allows us to deal straightforwardly with complex payment structures, clearing and credit, and to focus instead upon the role of transactions in the justification for a resulting claim.

The Mutation of International Law in Contemporary Constitutions: Thinking Sociologically about Political Constitutionalism

Abstract: This article proposes a sociological critique of theories of political constitutionalism, which distinguish sharply between political and judicial constitutionalism and express hostility towards constitutions allowing extensive judicial control of legislation. It argues that such theories are usually undermined by a sociologically deficient account of politics. As an alternative, this article proposes a theory of politics based in a model of systemic inclusion. Using this perspective, it claims that constitutions with a strong judicial emphasis, especially where judicial functions are supported by international norms, have served, in many societies, as an effective precondition for the emergence and persistence of a relatively secure, differentiated political domain. These claims are exemplified through analysis of recent constitution-making experiments in Russia, Kenya and Bolivia.

Beyond the Real and the Paper Deal: The Quest for Contextual Coherence in Contractual Interpretation

Abstract: Contract lawyers are often divided between two schools of thought: formalism and contextualism. In the realm of contractual interpretation, this division illuminates various debates surrounding the modern contextual approach. Ultimately, however, the divide between the ‘real and the paper deal’ does not fully reflect the relevant fault lines. The real contest is between rival interpretations attempting to make the most coherent sense of the available text and context surrounding the document. In characterising the true nature of the exercise, I draw upon theories of coherence to articulate a framework of ‘contextual coherence’ that involves concepts of competing narratives, the rational motivations of the parties, and the need for a holistic assessment of the best hypothesis, in accordance with the English courts’ ‘iterative approach’ to interpretation. I demonstrate that this framework enables us to explain and evaluate recent cases such as the UK Supreme Court decision of Arnold v Britton.

Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions

Abstract: In this article we report the results of an empirical study of 368 first instance decisions on the contributory negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions at which we looked were: how often a defendant's plea of contributory negligence was successful; and by how much a claimant's damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimant's age; the claimant's gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine's operation.

Vicarious liability and non-delegable duty for child abuse in foster care: a step too far?

Abstract: In NA v Nottinghamshire County Council the Court of Appeal held that a local authority is not liable under vicarious liability or for breach of a non-delegable duty when foster parents sexually or physically abuse a child that it has placed in their care. The note discusses the decision in the light of recent developments in the law. It is argued that the result is unsatisfactory in terms of doctrine and policy. It is further suggested that non-delegable duty, rather than vicarious liability, offers the most appropriate route for establishing liability. Language: en

Anti-suit Injunctions and the Doctrine of Comity

Abstract: Hin-Pro International Logistics Limited v CSAV is an important case in the areas of anti-suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti-suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.

Judges and politics: the parliamentary contributions of the Law Lords 1876-2009

Abstract: There is a common perception that, prior to the exclusion of serving judges from the House of Lords in 2009, a ‘politics convention’ operated which required judges to avoid party-political controversy and ensured that they contributed to debate only rarely. On this view, the presence of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of powers problem in theory only. An examination of the contributions of serving Law Lords and other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from 1876–2015) reveals that the convention either did not exist or was frequently ignored. While most judges were infrequent participants in parliamentary debate, some were enthusiastic – a small number among the most active parliamentarians in the Lords. The most active judicial peers were conservative in their politics and the best predictor that a judge would be active in the House was an association with conservative politics or causes.