Showing papers in "Modern Law Review in 2020"
19 citations
TL;DR: This article argued that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made, and argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with broader circumstances.
Abstract: This paper considers ‘consent‐based’ and ‘coercion‐based’ models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non‐violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non‐violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.
10 citations
TL;DR: The limits and perils of an over-reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction have been explored in this paper, for both general reasons and reasons specific to sexual and reproductive life.
Abstract: Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad. This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics. Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex. Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province. This development is justly celebrated as a breakthrough in women's rights and equality, but it carries costs. This essay develops some of the limits and perils of an over‐reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction. Consent is not always a trustworthy guide to wellbeing, for both general reasons, and reasons specific to sexual and reproductive life.
9 citations
TL;DR: In this paper, the evolution of the enforcement practice of the European Commission in the area of EU antitrust law is discussed, and the authors consider all formal decisions adopted in the period between 1966 when the European Court of Justice delivered the two seminal rulings that marked the discipline and the end of 2017.
Abstract: This article describes, and puts in context, the evolution of the enforcement practice of the European Commission in the area of EU antitrust law (Articles 101 and 102 TFEU). It considers all formal decisions adopted in the period between 1966 – when the European Court of Justice delivered the two seminal rulings that marked the discipline – and the end of 2017. The article classifies Commission decisions in accordance with four enforcement paradigms. The descriptive statistics show that the cases that the Commission chooses to prioritise have changed over the years. First, enforcement has progressively moved towards the core and the outer boundaries of the system. Second, it has become policy-driven rather than law-driven. Third, the nature of the cases chosen by the Commission is consistent with its commitment to a ‘more economics-based approach’ to enforcement. Finally, these cases signal a move towards a more ambitious stage in the process of the integration of Member States’ economies.
7 citations
TL;DR: In this paper, a metaphor of "border problems" in financial regulation, exploring a "third border" between the real world and "cyberspace" is proposed, a virtual domain of human interaction facilitated and conditioned by digital communications systems.
Abstract: The Internet has become the site of economically relevant objects, events and actions, as well as the source of potential risks to the financial systems. This article builds on a metaphor of ‘border problems’ in financial regulation, exploring a ‘third border’ between the ‘real world’ and ‘cyberspace’—a virtual domain of human interaction facilitated and conditioned by digital communications systems. Reviewing the ‘cyber-sovereignty’ debate and surveying the divergent approaches now emerging along geo-political faultlines, we argue that sovereign states still have a unique and irreplaceable role in guarding financial stability which must be reflected in the law of Internet jurisdiction: an emerging lex cryptographica financiera. We conclude with a few observations on how this could affect the design of financial regulation in the coming decade.
7 citations
TL;DR: The case against the permissibility of crippling compensation in modern international law can still be made, both on a case-by-case basis and at the level of customary secondary rules of State responsibility as mentioned in this paper.
Abstract: The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case-by-case basis and at the level of customary secondary rules of State responsibility
7 citations
TL;DR: The Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit as mentioned in this paper, which creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body.
Abstract: The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.
6 citations
TL;DR: In this article, the UK Parliament voted by an overwhelming majority for fundamental reform of Northern Ireland's archaic abortion laws, and the authors explore the factors that blocked the possibility of reform in either Westminster or Stormont for over five decades, and consider what had changed in 2019 to render it possible.
Abstract: In July 2019, the UK Parliament voted by an overwhelming majority for fundamental reform of Northern Ireland’s archaic abortion laws. Drawing on extensive archival resources and a small number of interviews, we locate this extraordinary political moment in a broader historical context. We explore the factors that blocked the possibility of reform in either Westminster or Stormont for over five decades, and consider what it was that had changed in 2019 to render it possible. While the measure passed in Westminster represents a radical rupture with the past, we suggest that it was anything other than sudden, rather representing the culmination of decades of sustained campaigning. We conclude by briefly discussing what this change is likely to mean for the future.
6 citations
TL;DR: In this paper, the authors focus on the Northern Ireland Policing Board as an arena to examine the contemporary political attitudes and agendas that animate the Board's statutory duty to monitor policing on the basis of human rights.
Abstract: Policing in Northern Ireland has undergone one of the world's most extensive human rights reform programmes. The challenge has been whether the human rights paradigm can serve as a mutual basis for the region's sparring ethno-national communities to deliberate over long-contested issues of policing, accountability and justice. This article focuses on the Northern Ireland Policing Board as an arena to examine the contemporary political attitudes and agendas that animate the Board's statutory duty to monitor policing on the basis of human rights. Marshalling qualitative data and drawing on legal anthropology, this article offers an account of the ‘social life’ of human rights and policing in the context of Northern Ireland's imperfect peace. It argues that, irrespective of legal standards, human rights oversight harbours deep sentiments and concerns, at the heart of which are communities’ own historical engagements with rights, competing legacies of the conflict and divergent understandings of contemporary policing.
6 citations
TL;DR: In this paper, the authors argue that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations, and argue that if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights.
Abstract: This article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly‐reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade‐offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.
5 citations
TL;DR: In this paper, the authors argue that welfare-to-work schemes may violate human rights law and argue that state-mediated structural injustice is the best way of explaining the wrong.
Abstract: This article discusses welfare‐to‐work schemes, places schemes with strict conditionality in the theoretical framework of structural injustice, and argues that they may violate human rights law. Welfare‐to‐work schemes impose obligations on individuals to seek and accept work on the basis that otherwise they will be sanctioned by losing access to social support. The schemes are often presented as the best route out of poverty. However, the system in the UK, characterised by strict conditionality, coerces the poor and disadvantaged into precarious work, and conditions of in‐work poverty. Forcing people to work in these conditions creates and sustains widespread and routine structures of exploitation. The article further argues that a framework of ‘state‐mediated structural injustice’ is the best way of explaining the wrong. It finally claims that this injustice violates principles that are enshrined in human rights law, which the authorities have an obligation to examine and address.
TL;DR: The use of conservation covenants over private land is extensively used in some jurisdictions to secure a wide range of public benefits: in some cases primarily to promote nature conservation, while elsewhere to foster conservation alongside greater public access to green space.
Abstract: Conservation covenants over private land are extensively used in some jurisdictions to secure a wide range of public benefits: in some cases primarily to promote nature conservation, while elsewhere to foster conservation alongside greater public access to ‘green’ space. This article considers the use of conservation covenants in New Zealand, Scotland, and England and Wales. It argues that they can play a unique role in balancing nature conservation, property rights and increased public access to private land. It reviews proposals for new legislation in England and Wales and argues that, if it is to be successful, the potential of conservation covenants to secure greater public access to private land should be more strongly emphasised. Their successful use in New Zealand shows that, while recognising the important balancing function that they can perform, this emphasis is critically important if covenants are to fulfil their potential to ‘reconnect’ people and nature.
Abstract: This contribution to the ongoing Brexit discussions addresses topical legal and regulatory issues in the post-Brexit policy debate, especially the questions surrounding the important area of financial governance and dispute resolution. Specifically, a number of future UK/EU legal disputes with respect to financial services may emerge post-Brexit. The article examines the UK's track record at the Court of Justice of the European Union, and discusses some likely future challenges. It then considers which institutional framework should be used for resolving disagreements. The article assesses the strengths and weaknesses of three potential models (the proposed Swiss/EU institutional framework; the EFTA ‘docking’ option; and the WTO system) and provides an original cross-model evaluation. It also discusses the associated design challenges that EU and UK negotiators may encounter in the attempt to devise a post-Brexit dispute settlement system.
TL;DR: In this article, the authors examine how and why the form and presentation of judicial decisions is an important aspect of children's access to justice, considering not just the potential but the duty of judges to enhance children's status and capacities as legal citizens through judgment writing.
Abstract: A handful of ‘child‐friendly’ judgments have emerged in the UK in recent years, attempting to adopt a child‐centred approach to the decision‐making stage of the legal process. Most notable is Sir Peter Jackson's judgment in Re A: Letter to a Young Person which, in taking the form of a letter to the child, has been applauded as a model of how to achieve ‘child friendly justice’. This article examines how and why the form and presentation of judicial decisions is an important aspect of children's access to justice, considering not just the potential but the duty of judges to enhance children's status and capacities as legal citizens through judgment writing. We identify four potential functions of judgments written for children (communicative, developmental, instructive and legally transformative), and call for a radical reappraisal of the way in which judgments are constructed and conveyed with a view to promoting children's access to justice.
Journal Article•
TL;DR: In this paper, the authors argue that the New Public Management practices that have transformed public administration in the last 30 years have led to a more managerial approach to the ombudsman's work.
Abstract: This article identifies a major development in the role and practice of the ombudsman. It argues that the New Public Management practices that have transformed public administration in the last 30 years have led to a more managerial approach to the ombudsman's work. The article's argument is developed through analysis of an empirical case study of the Scottish Public Services Ombudsman, which illustrates how the aims and techniques of managerialism have been deployed in the ombudsman context. The article evaluates the significance of these developments for the ombudsman institution and for the wider justice system. It examines the risks and opportunities inherent in this turn to managerialism and whether it represents a departure from the ombudsman's mission or a necessary adaptation to a changed world of public administration. In identifying the rise of the ‘managerial ombudsman’, the article provides a new framework for conceptualising developments in the modern ombudsman institution.
TL;DR: In this paper, it is argued that the Supreme Court correctly identified the crucial distinction between a message and a person for the purposes of discrimination law and provided an explanation for the inapplicability of a finding of discrimination on either of the two grounds.
Abstract: Providers of customised goods and services do not directly discriminate against a customer when their refusal to fulfil an order is based on their objection to the message requested by the latter and not on any protected characteristics of the person. This is the conclusion reached by the Supreme Court of the United Kingdom when faced with a claim of direct discrimination on grounds of sexual orientation and religious beliefs or political opinions contrary to two Northern Ireland Statutory Rules against a bakery which objected to incorporating the message ‘Support Gay Marriage’ into a cake. In this case comment it is argued that the Supreme Court correctly identified the crucial distinction between a message and a person for the purposes of discrimination law. Each of the two grounds of discrimination at issue is examined and an explanation for the inapplicability of a finding of discrimination on either is offered.
TL;DR: In this paper, the authors explore the different meanings of the right to housing in Europe in public and private relations with housing providers, and propose a new reading of the CJEU judgments that have hitherto been heralded as extending the social dimension of EU private law.
Abstract: This article explores the different meanings of the right to housing in Europe in public and private relations with housing providers. In light of the fundamental right to housing's meaning in the case law of the European Court of Human Rights and the Court of Justice of the European Union, we offer a new reading of the CJEU judgments that have hitherto been heralded as extending the social dimension of EU (private) law. We submit that the emphasis on economic and procedural rights risks further ‘economisation’ of housing relations in Europe. While the possibilities to grant direct horizontal effect to the right to housing in EU law currently offer limited potential to counter this trend, private law provides part of the framework for a further balancing of social and economic elements in housing cases. Accordingly, we call for a debate on the specific aspects of horizontal relationships in the complex system of housing justice.
TL;DR: The Hong Kong Government issued a stronglyworded official statement, subsequently adopted by the Chief Executive, to publicly condemn an outspoken constitutional law scholar for expressing views which the Government considered unconstitutional as mentioned in this paper.
Abstract: The Hong Kong Government issued a strongly‐worded official statement, subsequently adopted by the Chief Executive, to publicly condemn an outspoken constitutional law scholar for expressing views which the Government considered unconstitutional. Leave to judicially review the statement was refused by the Court of First Instance of the High Court of Hong Kong on the grounds, inter alia, that a statement lacking in direct legal consequences was outside the ambit of judicial review and, further, the Chief Executive was in any event entitled to comment on public affairs. This note argues that, on a proper understanding of the supervisory jurisdiction of the Court and the theory of the ‘third source’ of governmental power, neither ground should have precluded judicial review.
TL;DR: The recent Court of Appeal decision in the Heathrow case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision-making as mentioned in this paper.
Abstract: The recent Court of Appeal decision in the ‘Heathrow’ case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision‐making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts. The Court tackled directly a series of interpretive questions concerning the Planning Act 2008's obligations regarding the consideration of climate change. The Habitats and Strategic Environmental Assessment (SEA) Directive issues raised in the appeal, in contrast, were presented with the question of the intensity of review foregrounded in legal argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it to the government's decisions. This way of framing the issue unfortunately sidelined the courts’ expository role in relation to intepreting the Habitats and SEA Directives, leaving key provisions under‐analysed.
TL;DR: In 2019, Parliament enacted the Stalking Protection Act (SPO) as discussed by the authors, a civil measure the breach of which is an offence, and the role of courts in assessing whether similar behaviour orders are penalties has attracted significant scholarly attention.
Abstract: In 2019, Parliament enacted the Stalking Protection Act. The Act introduces the
stalking protection order; a civil measure the breach of which is an offence. The role of courts
in assessing whether similar behaviour orders are penalties has attracted significant scholarly
attention. In this article, I instead examine the roles of Government and Parliament in
developing the stalking protection order. My central contention is that the Home Office
undertook a problematic consultation and the issues to which it gave rise were not addressed
in later parliamentary debates. The result was the enactment of a coercive measure of unclear
purpose and questionable efficacy. Assessing the roles of the executive and legislature in
developing the SPO also allows for fresh insight into wider discussions of behaviour orders.
Specifically, I question the language of ‘prevention’ that is ever-present in such discussions
and describe an important development for debates on whether behaviour orders are penalties.
TL;DR: In this article, the Court of Appeal has set out a new framework for the application of copyright law's joint authorship test in a recent landmark case, Kogan v Martin, which embeds an inclusive pro-collaboration default standard.
Abstract: The Court of Appeal has set out a new framework for the application of copyright law’s joint authorship test in a recent landmark case. Kogan v Martin brings some welcome clarity to the complex joint authorship landscape, embedding an inclusive pro-collaboration default standard. This case note contrasts the appeal court’s nuanced framing of the dispute to the first instance court’s narrower approach. Then, it examines the new joint authorship framework explaining how it allows the test to be applied with an eye to the reality of collaborative creative endeavours. Finally, the significance of this decision is highlighted, as are some questions which remain unanswered.
TL;DR: In this article, the proposed Mediation (Scotland) Bill aims to introduce a novel process of court-initiated mediation that will oblige litigating parties to attend a mandatory mediation information session.
Abstract: This article critically analyses the recent proposal to introduce a Mediation (Scotland) Bill. The proposed Bill aims to introduce a novel process of court-initiated mediation that will oblige litigating parties to attend a mandatory Mediation Information Session. Adopting a comparative approach with the English and Irish civil justice systems, this article analyses the key elements of the proposed Bill and makes proposals to improve it.
TL;DR: This paper argued that gender has no relevance to general jurisprudence, for there is no sense in which the concept of law is "gendered" and no answer to leading problems in general law depends on any thesis about gender.
Abstract: Because gender norms shape the content and application of the law, feminist scholarship has a lot to contribute to the study of law. Gender is also relevant to several problems in normative jurisprudence, and to some problems in special jurisprudence (the study of concepts in the law). But gender has no relevance to general jurisprudence, for there is no sense in which the concept of law is ‘gendered’, and no answer to leading problems in general jurisprudence depends on any thesis about gender. Yet some scholars, including Joanne Conaghan, argue that gender is pervasively relevant to jurisprudence. She says its relevance has been screened out by three errors that characterize what she calls ‘the analytical jurisprudential mind’: a belief that legal concepts are unchanging, that description is value-neutral, and that empirical evidence is irrelevant to jurisprudence. I show that none of these charges can be sustained. By way of example, I show how analytical methods handle the relationship between sex and gender and the place of sex in the law of marriage. Hostility to analytical methods is likely to be damaging to feminist legal theory, and I urge feminist scholars in law to consider the now-plentiful resources in analytic legal philosophy that treat the topics of interest to them.
TL;DR: The relationship between the United Kingdom Supreme Court and Northern Ireland over the course of a constitutionally significant period of time, namely the first decade of the Court's existence, was explored by exploring what difference the Court has made to the law of Northern Ireland.
Abstract: This article focuses on the relationship between the United Kingdom Supreme Court and Northern Ireland over the course of a constitutionally significant period of time, namely the first decade of the Court’s existence. It does this by exploring what difference the Court has made to the law of Northern Ireland, what significance the cases from Northern Ireland have had for the law in other parts of the United Kingdom, and what part has been played in the Court’s work by the sole Justice from Northern Ireland, Lord Kerr of Tonaghmore, and by the Attorney General for Northern Ireland, John Larkin QC. It concludes that the Court has established itself as an indispensable component of the legal system of Northern Ireland.
TL;DR: In this paper, the authors provide a full and coherent analysis of the rules governing service of a claim form out of the jurisdiction in claims concerning unjust enrichment, and reconcile these rules with their underlying principles and the substantive law of unjust enrichment.
Abstract: There has been little attempt to provide a full and coherent analysis of the rules governing service of a claim form out of the jurisdiction in claims concerning unjust enrichment. This lacuna has grown more noticeable since the rules were reformed in 2015, with the continuation of an excessively wide approach that had overrun the older, overly restrictive rules. This article attempts not only to provide such an analysis but also one which is able to reconcile the wording of the rules with their underlying principles and the substantive law of unjust enrichment claims – significant constraints that have received insufficient consideration in both the case law and the literature.
TL;DR: In this article, the impact of the Human Rights Act 1998 on the decision making of the House of Lords and the UK Supreme Court is explored and a robust method of answering questions of this nature is developed and applied to decisions of the UKHL/UKSC.
Abstract: This article explores the impact of the Human Rights Act 1998 on the decision making of the House of Lords (UKHL) and the UK Supreme Court (UKSC). How does Convention rights content vary across areas of law in the UKHL/UKSC? Are some judges more likely than others to engage in Convention rights discourse? Is judicial disagreement more common in cases with higher levels of Convention rights discourse? A robust method of answering questions of this nature is developed and applied to decisions of the UKHL/UKSC, showing that the Convention rights content of decisions has varied over time and over substantive areas of law. Higher levels of human rights discourse are associated with greater levels of disagreement. A benchmarked measure of human rights content is developed to show the effect of the particular judge on the human rights content, illustrating the indeterminacy in human rights discourse and how its deployment can be contingent on judicial attitudes.