Commission Consultation Paper Research Articles

The role of non-genetic parents in a surrogate-born child's identity: an argument for removal of the genetic link requirement.

For the court to grant a parental order recognising intended parents as legal parents of a surrogate-born child, the gametes of at least one of the intended parents must have been used to create the embryo, under section 54(1)(b) and section 54A(1)(b) Human Fertilisation and Embryology Act 2008. In the Law Commission and Scottish Law Commission's consultation paper, there was a provisional proposal to remove the genetic link requirement in cases of medical necessity. However, this proposal was not included in the Law Commissions' Final Report, instead recommending the retention of the requirement for a genetic link in almost all circumstances. This article contends that the Law Commissions' recommendation should be reconsidered in light of the child's right to identity. By reviewing how identity has been used by the courts when determining whether to grant a parental order, as well as a developing interpretation of Article 8 of the United Nations Convention on the Rights of the Child and European Convention on Human Rights, it can be asserted that the identity of surrogate-born children necessitates recognition of the relationship between the child and intended parent(s), irrespective of a genetic link. On this basis, it is argued that there should be the possibility for intended parents to establish legal parenthood following surrogacy without the requirement for a genetic link.

Editorial: Review of the Arbitration Act 1996: Responses to the Law Commission Consultation Paper

Editorial: Review of the Arbitration Act 1996: Responses to the Law Commission Consultation Paper

Assets Represented By Computer Code: Response To “Digital Assets: Law Commission Consultation Paper 256”

Assets Represented By Computer Code: Response To “Digital Assets: Law Commission Consultation Paper 256”

Reproductive justice: A framework for abortion law reform

Australia has seen a number of efforts at reform of abortion laws in recent years. Some jurisdictions have decriminalised abortion entirely, and other states have made efforts to reform abortion law without complete decriminalisation. At the other end of the spectrum, Queensland in 2018 listed abortion as a criminal offence. This article uses the framework of questions in the Queensland Law Reform Commission consultation paper to reprise the need for abortion law reform in Queensland specifically, and Australia generally. While answering the Queensland Law Reform Commission questions, we frame our inquiry around empowering women’s self-determination to make decisions about their reproductive health as a hallmark of their equality as citizens.

Unfitness to Plead and the Trial of Facts: A Critical Review of the Law Commission's Proposals and the Decision in R v MB

The Law Commission published Consultation Paper No. 197 in October 2010 on unfitness to plead. This article will focus on the trial of facts hearing and the Law Commission's proposals in this regard. An examination will also be made of the Court of Appeal's judgment in R v MB given since the publication of the Law Commission Consultation Paper. The preferred route chosen by the Law Commission will be advocated, subject to concerns of properly balancing the need to protect both the vulnerable defendant from an unfair hearing and the public from the dangerous individual.

Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission's Proposals for a New Capacity Test

The Law Commission published Consultation Paper No. 197 in October 2010 on unfitness to plead. Among the many issues to be covered were: an examination of the test for capacity which is narrower than the test for capacity under the Mental Capacity Act 2005; the scope of the trial of facts; and whether accident, mistake or self-defence could be raised as part of the defence in the context of unfitness to plead. This article will examine some of the proposals made in the Law Commission's Consultation Paper with particular focus on the meaning of capacity, along with the scope and limitations of the current law on unfitness to plead.

From Old Patchwork to New Patchwork? The Law Commission Proposals for Reform of Adult Social Care Law

The provisional proposals in the Law Commission's consultation paper are described as an important first step towards the introduction of legislation that is clear, consistent and modern. But are the proposed reforms radical enough to achieve the policy goal of greater integration of services?

Expert evidence: difficulties and solutions in prosecutions for infant harm

This paper identifies and considers difficulties that gave rise to successful appeals from prosecutions where expert evidence was relied upon to demonstrate that defendants had killed or caused harm to infants in their care. It evaluates the extent to which these difficulties may be addressed by measures which have been introduced or proposed by way of tackling problems associated with expert evidence. Part of the paper is dedicated to an analysis of the Law Commission's consultation paper on the admissibility of expert evidence in criminal proceedings. The paper argues that trial judges may not be best placed to discharge the Law Commission's proposed gate-keeping test for screening the reliability of expert evidence. Expert evidence will often be ‘outcome determinative’ in prosecutions for infant harm, which is why we argue for the introduction of a specialist gate-keeping panel instead to determine the reliability of new theories and techniques.

A statutory framework for safeguarding adults? The Law Commission's consultation paper on adult social care

This article discusses the Law Commission's proposals for the reform of adult social care, with a particular emphasis on the specific proposals relating to adult protection. It argues that a future adult social care statute should clarify the existing legal position by placing a duty on local social services authorities to make enquiries and take appropriate action in adult protection cases. The definition of an adult at risk for the purposes of the duty to investigate is also considered and a proposal is put forward for how this might be defined in the statute. The article also proposes that the compulsory removal power under section 47 of the National Assistance Act 1948 (HM Government, 1948) should be repealed, that adult safeguarding boards should be placed on a statutory footing and that duties to co‐operate in adult protection should be introduced. Finally, concerns are raised that the current lack of statutory provision for adult protection may mean that there is confusion over the precise legal status of the guidance No Secrets (Department of Health & Home Office, 2000) and In Safe Hands (Welsh Assembly Government, 2000) and what actions this can authorise.

A Tale of Two Approaches - The NAS Report and the Law Commission Consultation Paper on Forensic Science

A Tale of Two Approaches - The NAS Report and the Law Commission Consultation Paper on Forensic Science

CFE Opinion Statement on the Review of Existing Legislation on VAT Reduced Rates

This is an Opinion Statement on the Commission Consultation Paper on Review of existing legislation on VAT reduced rates, prepared by the Fiscal Committee of the Confédération Fiscale Européenne (CFE). The CFE is the leading European association of 33 national tax advisory organisations representing over 180,000 tax advisers.

Law Commission Consultation Paper No. 183 on Conspiracy and Attempt - Comments on Conspiracy

In October 2007 the Law Commission published Consultation Paper No 183 on Conspiracy and Attempt. This working paper addresses some of the questions and concerns raised by the conspiracy section of that consultation paper. In particular it argues that, contrary to the Law Commission's proposals, a mens rea of recklessness should not be adopted with regard to conspiracies to commit crimes involving an actus reus element of circumstances, for the simple reason that this has the potential to turn agreements not to commit offences into conspiracies to commit them. The concept of conditional intent should be adopted instead on the basis that it can achieve all of the same objectives as recklessness with none of the same drawbacks. In addition, the paper argues for restraint in the creation of double inchoate liability and for a more uniform approach to exempt conspirators.

Coke v. Bumble – comments on some aspects of unlawful killing and its disposal

The publication of the Law Commission's Consultation Paper and final proposals for the reform of homicide legislation has prompted the author to review some clinical and legal aspects of homicidal behaviour. It is suggested that the complexities of this behaviour are not well served under current legal provisions.

Advance Care Directives and the Position in Ireland: What lessons can Ireland learn from the United Kingdom, the United States and Europe?

An Advance care directive entitles a person to request in advance either the refusal of or consent to certain medical treatment if that person is not competent to consent or refuse at the time such refusal or consent is required. The 2003 Law Reform Commission’s Consultation Paper on Law and the Elderly briefly mentioned advance directives. However, the Paper decided to leave the issue to a future Paper that would give a more comprehensive analysis. There is no Irish legislation on the matter and consequently the legal position is unclear. The English Mental Capacity Act 2005 has given recognition to advance directives under section 24. It is interesting to note that only refusal is covered by the Act. The 2005 Law Reform Commission Consultation Paper on Vulnerable Adults discusses the issue of advance directives in more detail. This Paper will examine the Irish position of advance directives. The British Mental Capacity Act and recent case law will provide a comparative analysis. The UN Convention on the Protection of the Rights and Dignity of Persons with Disabilities will also be examined.

What’s wrong with murder?

In a rational system defences should interlock with the elements of the offence to ensure that conviction labels are differentiated according to the defendant’s degree of wrongdoing and culpability. The overall grading structure of criminal homicide, as represented in contemporary doctrine, goes some way to reflect this ethic. But the substance lacks precision and, in some key details, moral coherence. The recent Law Commission Consultation Paper, in a pragmatic and sensible attempt to rid the law and procedure of murder of the malign influence of the mandatory sentence, has unnecessarily compromised such structural coherence as it currently enjoys and which could properly form a satisfactory basis for reform already precise and morally coherent. This is evident both in relation to the abandonment of the attack based template for the fault element in murder, and also in the unwillingness to view the partial defences as affecting the wrong in homicide as opposed to the grade.

The liner shipping industry and EU competition rules

The literature has always looked at co-operation in the shipping industry with some benevolence. While co-operation benefits the transport industry as it reduces operators, guarantees higher profits and regulates supply, does it also increase the consumers’ surplus, or does it cause lower benefits and eventually inefficiency? In fact, liner shipping is the sole industry that is heavily exempted from antitrust regulations, both in Europe and North America. The paper, moving from the recent decision of the EU regarding the maritime liner sector, and from the EU Commission's Consultation Paper on the review of Regulation 4056/86, aims at investigating in what ways antitrust rules can “monitor and control” the market in a proper way according to the emerging trends of integration in the maritime logistics sector.

What Future for Voluntary Manslaughter?

This article examines the Law Commission's Consultation Paper, Partial Defences to Murder, which was published in June 2003. There are fundamental problems with the defence of provocation. The author suggests that this partial defence should therefore be abolished and replaced by a new partial defence of self-preservation. This could provide a defence where the offender, or another person with whom he or she is closely associated, has been repeatedly subjected to serious violence or tormenting behaviour. This conduct must have caused the offender to be in a state of severe emotional disturbance at the time of the killing.

The debate over trustee exemption clauses. Law Commission Consultation Paper 171: a response

A personal response to the Law Commission of England and Wales Consultation Paper 171, Trustee Exemption Clauses, by Mr Gregory Hill (Barrister who appeared in the leading case of Armitage v Nurse). Article published in Amicus Curiae - Journal of the Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London. A brief summary of the proposals in the Law Commission's consultation paper on trustee exemption clauses is included in preliminary matter.

The Company Director’s Duty of Care and Skill: The Case for an Onerous but Subjective Standard

Recent years have witnessed an intense interest in questions of corporate governance' the mechanisms by which companies are managed and regulated. Much of this interest has concentrated on issues of efficiency and competitiveness, and on ensuring that those charged with corporate management display appropriate levels of effort and expertise.2 As the breadth of the governance debate amply testifies, there are very many strategies which might be employed to secure these managerial qualities. Lawyers, however, have unsurprisingly tended to focus upon the various legal duties, and in particular the duty of care and skill, to which directors are subject,3 a focus that seems set fair to continue following the recent publication of the Law Commission's Consultation Paper on company directors.4 That duty, however, seems to be held in remarkably low esteem, with many critics but few friends. Those critics point out how little the duty has, at least in its

The Director's Duty of Skill and Care: Has the Law Commission Got It Right?

Discusses whether the director's duty of skill and care should be subjective, objective or a combination of the two, with regard to Law Commission Consultation Paper No.153 Company Directors: Regulating Conflicts of Interests and Formulating a Statement of Duties.