Showing papers in "Modern Law Review in 2018"
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TL;DR: A theory of the material context of constitutional order is proposed in this paper, where the authors outline the basic elements of a material constitution, specifying its four ordering forces: political unity, the dominant form of which remains the modern nation-state, a set of institutions, including but not limited to formal governmental branches such as courts, parliaments, executives, administrations, a network of social relations, including class interests and social movements, and fundamental political objectives (or teloi).
Abstract: What is the material context of constitutional order? The purpose of this paper is to offer an answer to that question by sketching a theory of the material constitution. After examining the historical origins of the material turn in the interwar constitutional theories of Heller and Mortati, the paper outlines the basic elements of the material constitution, specifying its four ordering forces. These are political unity, the dominant form of which remains the modern nation-state; a set of institutions, including but not limited to formal governmental branches such as courts, parliaments, executives, administrations; a network of social relations, including class interests and social movements, and a set of fundamental political objectives (or teloi). These forces constitute the material substance and dynamic process of constitutional ordering. They are not external to the formal constitution but are in internal relation with it. Because these ordering forces are multiple, and in tension with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterizes the modern human condition might but need not be internalised by the process of constitutional ordering. The theory of the material constitution offers an account of the basic elements of this process as well as its internal dynamic.
62 citations
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TL;DR: In this paper, the authors examine three recent high profile examples of the law of withdrawal from international treaties: Brexit, South Africa's purported withdrawal from the Rome Statute, and the United States' announced departure from the Paris Agreement.
Abstract: Reading current statements of world leaders on subjects relevant to international law is liable to cause confusion, even distress to those for whom the 1945 regulatory arrangements, as completed in the post‐Cold War era, have become the norm. On occasions international law is invoked, but in what seems an increasingly antagonistic way, amounting often to a dialogue of the deaf. At other times it is apparently or even transparently ignored. This touches many of the arrangements governments spent the preceding period seeking to establish. Is there a pattern to all this, and how should we respond? How susceptible is the edifice of international law to such rhetoric? These issues are examined in the context of the law of withdrawal from treaties. Three recent high profile examples are examined: Brexit, South Africa's purported withdrawal from the Rome Statute, and the United States’ announced withdrawal from the Paris Agreement.
26 citations
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TL;DR: In this paper, a critical assessment of the UK Modern Slavery Act 2015 (MSA) three years after its enactment is presented, arguing that while criminalisation of individuals who engage in severe labour exploitation is welcome, the legislation has failed to increase prosecutions and provide adequate remedies to victims.
Abstract: This article provides a critical assessment of the UK Modern Slavery Act 2015 (MSA) three years after its enactment. It puts forward the following claims: first, that while criminalisation of individuals who engage in severe labour exploitation is welcome, the legislation has failed to increase prosecutions and provide adequate remedies to victims; second, that heavy reliance on criminal law for the regulation of severe labour exploitation is insufficient, because the broader political and legislative context suggests that there is no political will to address structural factors, including legal structures, that create vulnerability to exploitation; and third, that the MSA is too weak in tackling modern slavery by businesses in their supply chains, as existing evidence from business responses to the MSA indicates. The article concludes that despite the passing of the Act, there is much scope for improvement in measures for eliminating labour exploitation, even with regard to its most severe forms.
25 citations
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TL;DR: In this paper, a review of rapidly-developing market mechanisms suggests they may provide meaningful protection for funders, while the classical regulatory techniques of securities and consumer law provide an ineffective response.
Abstract: ‘Crowdfunding’ is a burgeoning phenomenon. Its still-evolving status is reflected in diversity of contracting practices: for example, ‘equity’ crowdfunders invest in shares, whereas ‘reward’ crowdfunders get advance units of product. These practices occupy a hinterland between existing regimes of securities law and consumer contract law. Consumer protection law in the UK (but not the US) imposes mandatory terms that impede risk-sharing in reward crowdfunding, whereas US (but not UK) securities law mandates expensive disclosures that hinder equity crowdfunding. This article suggests that while crowdfunding poses real risks for funders, the classical regulatory techniques of securities and consumer law provide an ineffective response. Yet, a review of rapidly-developing market mechanisms suggests they may provide meaningful protection for funders. An initially permissive regulatory approach, open to learning from market developments yet with a credible threat of intervention should markets fail to protect consumers, is justified.
15 citations
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TL;DR: In this paper, the authors propose a new way of looking at property relationships that will enrich our understanding of how they operate, focusing on property rights in land which are consensual in origin, although this approach could be applied both to non-consensual property relationships and to other property types.
Abstract: This article proposes a new way of looking at property relationships that will enrich our understanding of how they operate. It focuses on property rights in land which are consensual in origin, although this approach could usefully be applied both to non-consensual property relationships and to other property types. Recognising both the temporal and spatial dimensions of land, the dynamics approach reflects the fact that most property relationships are lived relationships, affected by changing patterns and understandings of spatial use, relationship needs, economic realities, opportunities, technical innovations, and so on. Although evolving responsively to accommodate changing uses and new rights-holders, these relationships are nevertheless sustained and enduring. The dynamics lens acknowledges the diverse range of legal, regulatory, social and commercial norms that shape property relations. Our approach also explores how far the enduring, yet dynamic, nature of property relations is taken into account by a range of decision-makers.
15 citations
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TL;DR: In this paper, the authors argue that the British state depends on a central authority equipped with an unlimited power, and that this is the main barrier to thinking constructively about Britain's constitutional arrangements.
Abstract: Sovereignty is the central tenet of modern British constitutional thought but its meaning remains misunderstood. Lawyers treat it as a precise legal concept – the doctrine of parliamentary sovereignty – but commonly fail to acknowledge that that doctrine is erected on a skewed sense of what sovereignty entails. In particular, they do not see that the doctrine rests on a particular political conviction, that the British state depends on a central authority equipped with an unlimited power. These two facets of sovereignty are now so deeply intertwined in legal consciousness that they cannot easily be unravelled and this becomes the main barrier to thinking constructively about Britain’s constitutional arrangements. This article substantiates these claims by explaining how the doctrine came into being, demonstrating how it is tied to a deeper political conviction, showing that its political underpinnings have been considerably weakened over the last century, and indicating how its re-working is the precondition of constitutional renewal.
13 citations
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TL;DR: The Irish Policing Authority as discussed by the authors was proposed by the government to shield the Garda and policing from the influence of partisan political and institutional interests, while at the same time delivering transparent democratic scrutiny of the Gardai and policing on behalf of all sections of the community.
Abstract: The Republic of Ireland has been convulsed by a series of police corruption scandals over the past fifteen years and they show no sign of abating. In 2015, in an attempt to stem the drain in public confidence in the Garda and the administration of justice generally, the government established a Policing Authority which it presented as “the most important single change in the governance of the Garda Siochana in its history”. This article critically examines whether the new Irish Policing Authority can be interpreted as a successful adaptation of the traditional police authority concept to a parliamentary democracy policed by a single, national body. In particular, it considers whether it is equipped to shield the Garda and policing from the influence of partisan political and institutional interests, while at the same time deliver transparent democratic scrutiny of the Garda and policing on behalf of all sections of the community. It concludes that, contrary to the superficial impression generated by the government at the time, the Authority does not represent a fundamentally new departure in the democratic scrutiny of the policing in Ireland. While it opens up a useful channel for input from outside the central executive and parliament, it will do little to change the established democratic power relations in policing, or to deliver greater transparency in respect of policing policies, practices and accountability. Nor can it be interpreted as a successful adaptation of the police authority concept to a parliamentary democracy policed by a single national body under central government control.
13 citations
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TL;DR: In this paper, the Nuffield Council on Bioethics' report on Non-Invasive Prenatal Testing (NIPT) is reviewed and two general questions are raised concerning the nature and extent of the informational interests that are to be recognised in today's information societies and the membership of today's genetic societies.
Abstract: This article reviews the Nuffield Council on Bioethics’ report on Non‐Invasive Prenatal Testing (NIPT); and introduces two general questions provoked by the report – concerning, respectively, the nature and extent of the informational interests that are to be recognised in today's ‘information societies’ and the membership of today's ‘genetic societies’. The article also considers the role and nature of the Nuffield Council. While the Council's report identifies a range of individual and collective interests that are relevant to determining the legitimate uses of NIPT, we argue that it should put these interests into an order of importance; we sketch how this might be done; and we suggest that, failing such a prioritisation of interests, the Council should present its reflections in a way that engages public debate around a number of options rather than making firm recommendations.
11 citations
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TL;DR: In this article, a case study of consumer bankruptcy reform in Ireland under "Troika" supervision is presented, which suggests that the failure of policymakers to enact debt relief measures may lie in the superior influence of the coordinated and concentrated financial sector over legislative processes as compared to the diffuse and disorganised interests of consumer debtors.
Abstract: A decade after the Global Financial Crisis, many developed economies continue to strain under excessive household debt. This article presents evidence suggesting that the failure of policymakers to enact debt relief measures may lie in the superior influence of the coordinated and concentrated financial sector over legislative processes as compared to the diffuse and disorganised interests of consumer debtors. Post-crisis popular interest in technical issues of personal insolvency law created only a narrow space of political opportunity. Soon these questions returned to the domain of technocratic actors and corporate influence. The article examines this situation through an inter-disciplinary case study of consumer bankruptcy reform in Ireland under ‘Troika’ supervision. Proposals initially billed as assisting over-indebted households developed into increasingly creditor-friendly legislation in ‘quieter’ stages of technocratic decision-making. The stark implications of these findings highlight obstacles to resolving household debt problems and consequent risks of economic and political instability
11 citations
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TL;DR: The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work ofVictorian legal theorist A V Dicey But for all of Dicey's influence, little attention has been paid to the imperial entanglements of his thought, including on the Rule of Law as mentioned in this paper.
Abstract: The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work ofVictorian legal theorist A V Dicey But for all of Dicey’s influence, little attention has been paid to the imperial entanglements of his thought, including on the rule of law This article seeks to bring the imperial dimensions of Dicey’s thinking about the rule of law into view On Dicey’s account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey’s preoccupations and ambivalences are in many ways our own
10 citations
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TL;DR: In this paper, the Sentencing Council's definitive guideline on what reductions in sentence can be offered for a guilty plea is examined and the authors argue that its emphasis on facilitating early guilty pleas represents more than just an incentive to those intending to plead guilty and poses significant risks for defendants with vulnerabilities.
Abstract: This article examines the recent Sentencing Council’s definitive guideline on what reductions in sentence can be offered for a guilty plea. We argue that its emphasis on facilitating early guilty pleas represents more than just an incentive to those intending to plead guilty and poses significant risks for defendants with vulnerabilities. The article questions whether the guideline can amount to an inducement to plead guilty which places uneven burdens on defendants and fails to pay due regard to the duties owed by public authorities under the Equality Act 2010. In so doing it asks questions about the integrity of the criminal justice process and argues that issues of cost-efficiency and the constructed interests of victims may have outweighed both the rights of those with vulnerabilities and the objectives of the legislative framework designed to protect them. The issues it raises are universally relevant to any system that favours defendants who offer guilty pleas.
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TL;DR: In this article, the authors argue that these three conditions are becoming increasingly difficult to satisfy as a result of dramatic shifts in social configurations of identity and the ongoing failure to include socio-economic status as a legally protected characteristic.
Abstract: UK anti‐discrimination law is founded on a grounds‐based system of protected characteristics. For this system to function as a legitimate and workable legal framework the characteristics must satisfy three conditions: they must have some definitional and categorical stability, they must broadly reflect people's understanding of social reality and lived experiences and they must align with the most significant axes of discrimination in society. This article argues that all three conditions are becoming increasingly difficult to satisfy as a result of dramatic shifts in social configurations of identity and the ongoing failure to include socio‐economic status as a legally protected characteristic. The future of the legislative framework may depend on the willingness of courts and policy‐makers to adopt a more context‐based approach to the protected characteristics. This would require them to interrogate claims of individual instances of discrimination in the context of wider, but also more particular substantive group disadvantage.
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TL;DR: The European Court of Human Rights allows the margin of appreciation and consensus doctrines significantly to limit the scope of reproductive rights under the right to respect for private and family life under Article 8.
Abstract: Reproductive interventions and technologies have the capacity to generate profound societal unease and to provoke hostile reactions underpinned by various moral concerns. This paper shows that this position currently goes relatively unchecked by the European Court of Human Rights, which allows the margin of appreciation and consensus doctrines significantly to limit the scope of reproductive rights under the right to respect for private and family life under Article 8. This occurs both in relation to the interest in avoiding reproduction at stake in abortion, and that in achieving it at stake in medically assisted reproduction. The paper demonstrates significant flaws in the Court's framing and deployment of these doctrines in its reproductive jurisprudence. It argues that, as regards existing and upcoming reproductive interventions and technologies, the Court should attend to the concept of reproductive health, long recognised in international conventions and policy materials.
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TL;DR: In this paper, the authors argue that the real significance of the Opinion 1/15 can only be understood in a broader historical context of an increasing securitization on international level between 09/11 attacks and Snowden revelations.
Abstract: In Opinion 1/15 Court of Justice of the European Union (CJEU) held that the proposed EU-Canada agreement on the transfer of Passenger Name Record data (PNR agreement) must be revised before its final adoption because parts of the agreement are incompatible with EU fundamental rights framework. This note argues that the real significance of the Opinion 1/15 can only be understood in a broader historical context of an increasing securitization on international level between 09/11 attacks and Snowden revelations. In particular, Opinion 1/15 emerges as a powerful addition to the existing data privacy trilogy established by the CJEU in the post-Snowden era in an attempt to re-balance the terms of international cooperation in data-sharing by the EU and other countries. These terms were largely modelled around national security interests that have gained significant prominence in the aftermath of the 9/11 events. While the pro-securitization policies have indeed been very successful in gaining support among different private and public actors, e.g., in handling passenger name records (PNR) or personal data in financial transfers (SWIFT), it is however questionable whether CJEU’s pushback – without the political support of EU Commission and Member States – will receive similar success on international level any time soon.
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TL;DR: In this article, the authors consider the radical significance of the judgment in R (on the Application of UNISON) v Lord Chancellor (UNISON) on the unlawfulness of tribunal fees.
Abstract: This note considers the radical significance of Supreme Court's judgment in R (on the Application of UNISON) v Lord Chancellor (UNISON) on the unlawfulness of tribunal fees. It argues that the decision marks the coming of age of the ‘common law constitution at work’. The radical potential of UNISON lies in its generation of horizontal legal effects in disputes between private parties. Recent litigation on employment status in the ‘gig economy’ is analysed through the lens of UNISON and common law fundamental rights. The note identifies the various ways in which the common law tests of employment status might be ‘constitutionalised’ in the light of UNISON.
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TL;DR: The role of the Court of Justice of the European Union (CJEU) in the European value discourse, using copyright law as a case study, is discussed in this article.
Abstract: The Court of Justice of the European Union (CJEU) increasingly faces societal value‐conflicts in EU law disputes. For example, in EU copyright law, in the digital age, diverse fundamental values, as well as cultural and societal developments, are at stake. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study. The methodological approach used, critical discourse analysis, is seldom applied in jurisprudential studies, but is well suited for teasing out value‐related aspects of case law. Exploratory research of seminal copyright cases suggests that the CJEU's discourse of the various values seems unnecessarily one‐sided and shallow. A lack of discursiveness in the jurisprudence would diminish the legitimacy of the Court's decisions, and would not offer adequate guidance to national courts or private decision‐makers, to whom the Court at the same time may be leaving more of the task of value reconciliation.
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TL;DR: In this article, the Court of Appeal of Hong Kong affirmed the right of same-sex couples married or in a civil partnership overseas to be treated on an equal basis with married heterosexual couples.
Abstract: QT v Director of Immigration is the most important decision on gay rights in Hong Kong since the unequal ages of consent between heterosexuals and homosexuals were held to be unconstitutional 10 years ago. The Court of Appeal of Hong Kong affirmed the right of same‐sex couples married or in a civil partnership overseas to be treated on an equal basis with married heterosexual couples. This note considers the strengths and shortcomings of the Court of Appeal's reasoning, in terms of its potential significance both to the rights of sexual minorities and to the wider protection of human rights by means of the common law.
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TL;DR: In contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as elements of Kantian right, the liability to return the value of mistaken payments is, it is argued, an example of the law's enforcing a duty of virtue, the legalisation of the duty of beneficence in a way similar (though not identical) to how the law might instantiate a duty for easy rescue.
Abstract: In contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as elements of Kantian ‘right’, the liability to return the value of mistaken payments is, it is argued, an example of the law's enforcing a duty of virtue, the legalisation of the duty of beneficence in a way similar (though not identical) to how the law might instantiate a duty of easy rescue. Accordingly, one of Birks's most cherished theses – that the law of unjust enrichment represents a distinctive element of private law – can be made out: it is distinctive in having an entirely different normative source: in virtue, not in right. But this result comes at a cost: (1) a legal system could function more or less justly without such a liability; (2) Birks's thesis that liability for mistaken payment is the archetype or paradigmatic case of liability for unjust enrichment would have to be abandoned; and (3) we would have to recognise that the ground of this liability is policy-motivated.
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TL;DR: In this paper, the potential effects of the Welfare Reform Act 2012 on the United Kingdom social security system, and on claimants are examined, and the ideological and historical underpinnings of Universal Credit are examined.
Abstract: This article examines the potential effects of the Welfare Reform Act 2012 on the United Kingdom social security system, and on claimants. This legislation illustrates new modes of thought and ideology underlying the British welfare state. The introduction of the ‘Universal Credit’ has the potential to solve the ‘poverty trap’, where claimants are better off in receipt of welfare benefits rather than engaging with employment, and may assist low‐paid individuals into ‘positive’ citizenship. However, the practicalities of implementing Universal Credit might undermine legislators’ ambitions. It may be that the Act attempts too much reform to the social security system, trying to impose legislative uniformity on a highly complex set of socio‐economic circumstances which may be impervious to such rationalisation. This could result in the scheme requiring further reform, or even abolition. The ideological and historical underpinnings of Universal Credit are also examined to understand more clearly its nature and structure.
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TL;DR: The European Court of Human Rights has been deciding cases concerning LGBT rights since the early 1980s as discussed by the authors, and its case law on trans rights has changed drastically through time, imposing upon the States of the Council of Europe certain minimum standards regarding the legal recognition of gender identity.
Abstract: The European Court of Human Rights has been deciding cases concerning LGBT rights since
the early 1980s. Its case law on trans rights has changed drastically through time, imposing
upon the States of the Council of Europe certain minimum standards regarding the legal
recognition of gender identity. In its recent judgment from April 2017 the Court laid down a
new rule to be adopted by domestic legislation; namely, that the legal recognition of gender
transition cannot be made conditional upon pursuing medical or surgical procedures which
have (or are likely to have) sterilising effects. This article analyses the judgment from a
critical perspective grounded on queer theory, weighting both the positive and the negative
elements of the Court’s decision.
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TL;DR: In this paper, the European Court of Human Rights clarified the application of the Article 8 right to private life in the workplace, and the extent of the state's positive obligations to protect the right against workplace monitoring.
Abstract: In Barbulescu v Romania, the European Court of Human Rights clarified the application of the Article 8 right to private life in the workplace, and the extent of the state's positive obligations to protect the right against workplace monitoring. The decision establishes that there is an irreducible core to the right to private life at work that does not depend on an employee's reasonable expectations of privacy, and sets out clear principles for striking a fair balance between Article 8 and the employer's interests in the context of workplace monitoring. This article considers the nature of states’ positive obligation to protect human rights at work, the scope of the right to private life, and the impact of the decision on domestic law of unfair dismissal.
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TL;DR: The authors examined the impact of student-led efforts at "no-platforming" and Part 5 of the Counterterrorism and Security Act 2015 on free speech and academic freedom in universities.
Abstract: This article interrogates restrictions on speaking events in universities created both by recent student-led efforts at ‘no-platforming’ and by Part 5 of the Counter-terrorism and Security Act 2015 which placed aspects of the government’s existing Prevent strategy on a statutory basis for the first time. The statutory Prevent duty as it applies in universities includes, under the accompanying Guidance, curbing or monitoring such events on the basis that they could have an impact in drawing persons into terrorism. This article will place the combined impact of Part 5 and student-led curbs on campus speech in context by juxtaposing a range of pre-existing restrictions with the various free speech duties of universities. Focusing on speaking events, it sets out to evaluate the results of this chequered situation in terms of the current state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre-emptive strikes against some campus-linked speech articulating non-mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.
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TL;DR: This article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points, in order to help makers navigate both taking seriously the wishes of people who lack capacity and not abandoning patients who need help and support.
Abstract: In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. The Mental Capacity Act 2005 sets out a non‐exhaustive checklist of relevant considerations, but it gives no particular priority to the patient's wishes. There is also no formal expectation that the patient will participate directly in any court proceedings in which her best interests are to be determined. This article will consider the advantages and disadvantages of providing additional guidance to decision‐makers in order to help them navigate both taking seriously the wishes of people who lack capacity and, at the same time, not abandoning patients who need help and support. More specifically, this article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points.
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TL;DR: In this paper, the authors evaluate interview data on decision-making under public procurement law using Halliday's analytical model on compliance with administrative law, and find that, although public bodies are generally predisposed to comply, legal uncertainty means the relevance of commercial pressures and challenge risk impact heavily on approaches to compliance, even shaping understanding of what compliant behaviour actually is.
Abstract: The article evaluates interview data on decision‐making under public procurement law using Halliday's analytical model on compliance with administrative law. In this study, unlike other studies on administrative compliance, the decisions faced by public bodies are not routine; they relate to the award of complex, high‐value contracts. Two contrasting decisions in the procurement process are discussed: the decision over the choice of procedure at the outset of the process, and the decision over the extent to which the public body should negotiate with the winning bidder towards the end of the process. The article considers the rationales behind decisions, and finds that, although public bodies are generally predisposed to comply, legal uncertainty means the relevance of commercial pressures and challenge risk impact heavily on approaches to compliance, even shaping understanding of what compliant behaviour actually is.
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TL;DR: In this article, the authors argue for an institutional turn in contract interpretation, arguing that legal doctrine should focus on the development of sector-specific standards of interpretation and on support for private legal regimes that ensure socially reflexive constructions of contracts.
Abstract: Freedom of contract requires the integrity of social institutions that ensure the preconditions for private autonomy. This has been largely ignored by a private law doctrine that works on the assumption of the state being the supplier of background justice. The article argues for an institutional turn in contract interpretation. Depending on whether contracts can link up to existing conventions or have to create their institutional context in the first place, courts may apply either an ‘institution‐preserving interpretation’ or an ‘institution‐creating interpretation’. This implies the need to refrain from following universal rules of contractual interpretation. Rather, legal doctrine should focus on the development of sector‐specific standards of interpretation and on support for private legal regimes that ensure socially reflexive constructions of contracts.
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TL;DR: In this paper, the authors explore the paths not taken by the court, and highlight the pitfalls of a narrow, autochthonous approach to problems of common law doctrine.
Abstract: Corporate groups, a ubiquitous feature of modern business, pose formidable challenges for common law courts relying on traditional corporate law doctrine. Arising out of a corporate group's recent bid to recover millions of dollars in lost profits from a former director and CEO who had diverted a core business, Goh Chan Peng v Beyonics Technology Ltd raised thorny issues of separate legal entity doctrine, single economic unit theory, and reflective loss shared by common law legal systems. Despite finding that the defendant had breached his duties to the ultimate holding company, the Singapore Court of Appeal absolved the faithless director from most of his liabilities, relying on limited domestic precedent to the exclusion of a rich body of Commonwealth jurisprudence – including the House of Lords’ landmark Johnson v Gore Wood decision. This note explores the paths not taken by the court, and highlights the pitfalls of a narrow, autochthonous approach to problems of common law doctrine.
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TL;DR: In this article, both the Fixed-term Parliaments Act 2011 (FTPA) and the political constitution are considered and the impact and potential practical legal consequences if the FTPA is repealed without any replacement are discussed.
Abstract: This article considers both the Fixed‐term Parliaments Act 2011 (FTPA) and the political constitution, to place the former in its political and constitutional context. It begins by setting out the background to the FTPA – which was a part of a Coalition agreement – and considers difficulties with the most commonly‐made arguments in favour of fixed‐term parliaments. The second part of the article considers the impact and potential practical legal consequences if the FTPA is repealed without any replacement, arguing that it will only be possible to revive the ‘dissolution’ prerogative by express words in a new Act. The final part of the article addresses the question of whether the prerogative should be revived, before arguing both that it should not and that a statutory power to call an election should be conferred on the Prime Minister subject to a vote by simple majority in the House of Commons.
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TL;DR: The use of franchises to deliver rail services has raised major problems as discussed by the authors which restrict competition in the market, whilst competitive bidding for franchises has met with difficulties, notably in relation to risk transfer and the recent use of short-term contracts that have not been awarded competitively.
Abstract: The use of franchises to deliver rail services has raised major problems Franchises restrict competition in the market, whilst competitive bidding for franchises has met with difficulties, notably in relation to risk transfer and the recent use of short‐term contracts that have not been awarded competitively Further, franchise agreements are detailed and highly stipulative and do not achieve the flexibility and opportunities for innovation originally intended This reflects an underlying lack of trust resulting from the arrangements adopted on privatisation By contrast, in Sweden regional services have been procured through contracts with limited risk transfer, and in Italy provision of services has been entrusted to a dominant operator with comparatively limited detailed service specifications; both seem to have been more successful For the future in the UK, possibilities include greater use of competition, a return to public ownership, regionalisation, and the use of concessions with limited risk transfer to secure stability
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TL;DR: The decision of the Singapore Court of Appeal in ACB v Thomson as discussed by the authors, in which the plaintiff sought damages for the upkeep costs of a child conceived using sperm from someone other than her husband as a result of negligence by a fertility clinic.
Abstract: This note considers the decision of the Singapore Court of Appeal in ACB v Thomson
Medical [2017] SGCA 20, in which the plaintiff sought damages for the upkeep costs of a
child conceived using sperm from someone other than her husband as a result of
negligence by a fertility clinic. The Court held that upkeep costs could not be recovered
as a matter of public policy, but recognised a new head of loss, namely damages for loss
of genetic affinity. In a controversial ruling, the Court quantified these damages at thirty
percent of the upkeep costs of the child. While holding that punitive damages could be
recovered outside the categories recognised in Rookes v Barnard, the Court rejected such
an award on the facts of the case.
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TL;DR: In this paper, the authors examine the role of the child in European human rights law and argue that a full account of legal selfhood is constructed through the notion of "the child" in this jurisprudence, and assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European Human Rights law more broadly.
Abstract: This article examines the category of ‘the child’ in European human rights law, based on an analysis of the child‐related jurisprudence of the European Court of Human Rights. It argues that a full account of legal selfhood is constructed through the notion of ‘the child’ in this jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an account of the self as originating in another and childhood is cast as enabling self‐understanding by making possible the formation of a narrative about the self. The vision of ‘the self’ that emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of childhood in which this narrative originates and for the vision of the human condition that is expressed in European human rights law more broadly.