UK Legal System Research Articles

Uncertainty and Legal Disintegration: Evidence From Brexit

When does uncertainty about continued membership in a highly integrated polity like the European Union (EU) start impacting the behavior of judges and litigants? The Brexit referendum has created uncertainty over the terms of the UK's future relationship with the EU and, in so doing, over the application of EU law and the authority of the European Court of Justice (ECJ) in the UK legal system. While the UK is still formally part of the EU, we argue that this uncertainty is already discouraging British litigants and judges to invoke EU law and to refer cases to the ECJ. Using data on referral activity from the UK's accession in 1973 up to mid-2018, we apply a difference-in-difference design to evaluate the effect of the Brexit vote on the referral propensity of British courts. We find strong evidence that the Brexit vote is adversely affecting the use of EU law. UK judges are referring 22 per cent fewer references after the vote than did prior to it. With the future relationship between the EU and the UK still in limbo, our analysis suggests that the uncertainty arising from the political process has already begun to unravel the fabric of legal integration.

How to Resolve Disputes Arising from Brexit

The question of how disputes arising from Brexit are to be resolved, and by which body, is one of the most sensitive issues in the negotiations on the uk’s withdrawal from the European Union and the envisaged future relationship between the uk and the eu. The legal issues related to withdrawal are further magnified in complexity due to the nature of the eu itself, which does not neatly fit into the category of a traditional international organization. The uk has repeatedly stated that it will not accept the continued role of the eu Court of Justice in the uk legal system after withdrawal. Any dispute settlement system must also respect the constitutional requirements of the eu legal order, most notably, by not infringing on the autonomy of eu law. This article discusses some of the various models from international dispute settlement that could be used to inspire a dispute settlement system in the Brexit context. It discusses dispute settlement in the withdrawal agreement and the role of the Court of Justice during and after a transition period. It then discusses the challenges of designing a dispute settlement system for the future relationship agreement. While aspects of these various models could be replicated, there is no dispute settlement system that is fully appropriate to deal with the various complexities and challenges of Brexit. The paper proposes the establishment of a standing international tribunal to resolve disputes arising from Brexit.

How to Resolve Disputes Arising from Brexit: Comparing International Models

The question of how disputes arising from Brexit are to be resolved, and by which body, is one of the most sensitive issues in the negotiations on the UK’s withdrawal from the European Union and the envisaged future relationship between the UK and the EU. The legal issues related to withdrawal are further magnified in complexity due to the nature of the EU itself, which does not neatly fit into the category of a traditional international organization. The UK has repeatedly stated that it will not accept the continued role of the EU Court of Justice in the UK legal system after withdrawal. Any dispute settlement system must also respect the constitutional requirements of the EU legal order, most notably, by not infringing on the autonomy of EU law. This paper discusses some of the various models from international dispute settlement that could be used to inspire a dispute settlement system in the Brexit context. It discusses dispute settlement in the withdrawal agreement and the role of the Court of Justice during and after a transition period. It then discusses the challenges of designing a dispute settlement system for the future relationship agreement. While aspects of these various models could be replicated, there is no dispute settlement system that is fully appropriate to deal with the various complexities and challenges of Brexit. The paper discusses the possibility of setting up a standing international tribunal to resolve disputes arising from Brexit.

Environmental Right and the UK Legal System to Promote Low-Carbon Thermal Power Plant

Environmental Right and the UK Legal System to Promote Low-Carbon Thermal Power Plant

Joint Venture Under the 1960 Commercial Code of Ethiopia: A Comparative Analysis with the UK and German Legal Systems

The Ethiopian joint venture law is comparable with both German and English laws in respect of confidentiality. In relation to nature, transfer of shares, liability of partners, and profits and losses distribution policy, the Ethiopian joint venture law is more related with the English one. Whereas, with regard to the requirement of written agreement, the Ethiopian law is more parallel with that of the German silent partnership since in both countries such requirement is waived by their respective laws. Additionally, concerning the who manages issue, it can be said that at least interms of composition and structure, the Ethiopian law is more comparable with the German silent partnership. This article comes up with some best experiences to Ethiopia drawn from the comparative analysis. It urges some prudent legal frameworks to be espoused for the proper practice of joint ventures, i.e. in the way it addresses the ever more pressing needs for joint venture engagements in Ethiopia. Accordingly, some legal improvements will be suggested, mainly, on the issues of confidentiality, dissolution, and the need for written agreement.

D’un droit défensif à un droit coopératif : la nécessaire réforme de notre justice pénale des affaires

L’année 2014 a été marquée par deux affaires dans lesquelles de grandes entreprises françaises ont eu à verser des sommes conséquentes au ministère américain de la Justice (DOJ) au titre d’amendes transactionnelles. Les deux grandes entreprises françaises ont peut-être payé pour leurs fautes mais aussi ‒ voire surtout ‒ pour leur mauvaise compréhension d’une nouvelle règle du jeu du « business mondial ». Ces deux affaires illustrent l’apparition d’un nouveau paradigme en droit des affaires, largement inspiré par la culture du droit américain, qu’il est urgent de saisir pour adapter notre droit. Cet enjeu est devenu crucial pour la protection de nos entreprises à l’heure du droit global. Il l’est d’autant plus que le nouveau modèle en construction est en perpétuelle mutation et qu’il est nécessaire de s’adapter rapidement. À cette fin, il convient de détailler les enseignements de ces affaires, non seulement en vue de transformer notre système de justice mais, plus profondément encore, notre culture, et de la mettre ainsi au diapason de notre temps.

Re-Defining Copyright Originality Test

Viewing copyright works more from the “literary work” perspective. This article answers the question whether a test as one requiring creativity (on the author’s part) strictly, and one requiring mere labour is sufficient to advance copyright policies. The article criticizes the creativity test (the renowned US Feist decision especially) for “shutting out” the sweat of the brow test. The need for criticizing “sweat of the brow” was unnecessary as it is a low standard – and does not agitate the applicability of the “creativity” test. In contrast, it is the “creativity” test that suggests a departure and sanction of the “sweat of the brow” test. It became clear from the research this article focused on that both tests partially foster copyright policies. This partial effectiveness and ineffectiveness of the two tests led the writer to propose a new copyright “originality” test. A test that could be reviewed by the legislature in drafting the originality test for copyright (futuristically) and “ought” to be employed by jurists in determining copyright subsistence in works. This, in fact is the addition/contribution to knowledge made by the article. The article presents these issues as highlighted by examining the laws in the EU (examining the EU parliament’s legislation on copyrights), UK, US, Canada, Australia and other continental legal systems.

The perils of taking written consent for operative delivery during labour.

Operative vaginal delivery and emergency caesarean are common obstetric interventions. To give valid consent to these procedures, a person must have the mental capacity to make the decision, be provided with relevant information and be free from coercion. Obtaining proper consent during labour can be problematic. Emergencies can arise requiring urgent intervention, with little time for discussion. The woman may be in pain, exhausted, or afraid. These factors can temporarily impair a woman's capacity to give consent, and exhaustion/fear may be unavoidable even with good pain relief. Family members are often present and untangling their wishes from those of the woman herself can be difficult. It can sometimes be impossible to obtain truly valid consent during labour; in these circumstances it might be better described as ‘assent’ to a recommended course of action. Clinicians are responsible for providing information. The patient's right to self-determination is enshrined in both professional guidance and law. Information must be comprehensible, with the onus on the clinician to ensure their patient has sufficient knowledge to make the best possible decision for herself. The Royal College of Obstetricians and Gynaecologists has published guidance for clinicians on taking consent both for caesarean section and operative vaginal delivery. These provide comprehensive information and serve as a useful guide to discussions between a woman and her clinician. However, although obtaining written consent for urgent operative intervention is considered good practice, it is not a legal requirement. In an attempt to make things easier, many hospitals provide preprinted consent forms containing information replicated from professional guidance, but asking the woman to read and sign the form does not of itself constitute consent. Without appropriate dialogue, the consent form is meaningless, and may even be a distraction. Furthermore, requesting a signature in some circumstances could be perceived as defensive practice, serving to protect the hospital if anything goes wrong. This risks erosion of trust between the woman and her clinician, given that in many situations women have no realistic alternative than to acquiesce to their doctor's recommendation. Even worse, it can delay urgently required intervention. A signature on a preprinted form is not by itself proof of consent. Taking proper consent from women during labour requires skill and judgement and cannot be standardised. Where there is insufficient time to provide detailed information to women, or for them to read and sign preprinted consent forms, it is essential to record the dialogue and decision-making process in the written record in as much detail as possible, either at the time, or very soon afterwards. Official guidelines are a tool to inform the consent process, and cannot replace proper dialogue. In the USA it is common practice to meet with women during pregnancy to discuss their delivery, and to take written consent for operative intervention before the onset of labour. Although this practice may appear defensive, it fits in with the model of informed consent that the UK legal system also now demands, giving women greater autonomy over their birth choices. None declared. Completed disclosure of interests form available to view online as supporting information. Please note: The publisher is not responsible for the content or functionality of any supporting information supplied by the authors. Any queries (other than missing content) should be directed to the corresponding author for the article.

Tłumaczenie nazw zastępców procesowych w Zjednoczonym Królestwie i Polsce

The paper deals with the problem of translating the names of such legal professions as solicitor and barrister into Polish, and radca prawny and adwokat into English. The author lists most typical translations of the above terms and divides them into groups according to the translation technique they represent. Next, he assesses the translations from the point of view of their accuracy and suggests the best equivalents. To achieve that, he compares routes of entry to the profession of solicitor and barrister in England and Wales, Scotland and Northern Ireland and to the profession of radca prawny and adwokat in Poland as well as confronts the powers held by those legal practitioners. He concludes that significant differences in the UK and Polish legal systems make it impossible to find fully equivalent words for the names of the legal professions in question. Consequently, if the translation requires high accuracy, the translator has at her or his disposal two translation techniques: either to describe the term (on condition that this can be done in a concise and precise manner) or to retain the original word and provide it with an appropriate explanation.

A proposed method for retrospective eye dose assessments for the purposes of resolving cataract compensation claims

The 2011 International Commission on Radiological Protection (ICRP) statement on tissue reactions suggested a significant reduction in the threshold dose for radiation induced cataracts. This, combined with the potential for a long delay between exposure and cataract diagnosis, may result in an increased requirement to evaluate eye dose from past exposures in order to settle current compensation claims. This article highlights how compensation claims relating to radiation exposure are assessed within the UK legal system and suggests that in vivo Electro Paramagnetic Resonance (EPR) dosimetry of teeth has utility for the retrospective quantification of radiation doses to the eye. It was identified that in vivo EPR in its current form may be sufficiently sensitive to support cataract compensation claims, although further work is required to enable appropriate dose conversion coefficients to be quantified.

Admitting scientific expert evidence in the UK: reliability challenges and the need for revised criteria – proposing an Abridged Daubert

Purpose – Expert evidence is a contentious area with a number of high profile cases highlighting unreliable “scientific” expert evidence, leading to appeals and acquittals. The purpose of this paper is to argue for improvement in the assessment of expert evidence reliability to avoid such difficulties. Design/methodology/approach – A review of the area focused on the history of developing legal criteria for admitting “scientific” evidence. It examined the benefits and difficulties of approaches, and proposes an amendment to criteria for increased transparency and evidenced decision making. Findings – The review indicated a range of difficulties with “expert” evidence admissibility, including inconsistency, an over-focus on narrow elements of evidence, difficulties in interpretation, and the potential to unfairly restrict evidence. An alternative to current approaches is proposed. This takes the form of a two-stage approach to consider whether or not to admit expert evidence. It comprises a preparation and an examination stage. The former seeks to critically review the evidence and define its nature. The latter applies two sets of criteria; a Daubert application for generally accepted physical sciences, and proposes an Abridged-Daubert for novel and social/behavioural sciences. Also proposed is increased involvement by experts in critically reviewing their own evidence and in providing statements of limitations. Practical implications – The paper concludes by outlining the importance of developing such an approach for the UK legal system. It focuses on the application of specific criterion which could assist both Courts and witnesses to evaluate the quality of evidence prior to submission by accounting for the nature of the opinion evidence provided. Originality/value – The paper outlines a practical approach to examining evidence which has benefit to practitioners and advocates when opinion evidence is outlined.

근린재생 거버넌스 유형별 중간지원조직 운영특징 연구 - 도쿄, 버밍험, 보스턴 사례를 중심으로 -

The purpose of this study is to explore the intermediary agency's operating characteristics in the three typologies of neighborhood regeneration governance. Case study is focused on Japan, UK, and US's related legal system, planning system, and intermediary agencies activities. Case Study is composed of regeneration type with public-led, semi-public-led, and neighborhood-led. Individual case shows distinguishing roles of intermediary agency governing neighborhood regeneration governance; government-affiliated organizations for Setagaya Machizukuri in Tokyo, non-departmental public body for Castle Vale project in Birmingham, and strong partnership of community organization with local foundation for Dudley Street Neighborhood Initiative in Boston. Policy implications are as follows; first, intermediary agency has an important role for structuring governance, which is vertically engaging public sector with community organizations and horizontally engaging various local agencies. Second, in the early stage of neighborhood regeneration, public-led intermediary agencies are reliable but need to develop the governance framework for more neighborhood-led governance. Third, it is critical to set up community business belong to neighborhood-led governance for sustainable regeneration.

The European Convention on Human Rights, the EU and the UK: Confronting a Heresy: A Reply to Andrew Williams

This reaction piece responds to the article by Andrew Williams entitled ‘The European Convention on Human Rights, the EU and the UK: Confronting a Heresy’. In his article, Williams contends that we should not further support the ‘orthodox’ view that the Convention (ECHR) has been very successful in protecting and promoting human rights across Europe, offering four submissions to that end. It will be argued that Dr Williams’ submissions regarding the ECHR’s success and the European Court of Human Rights (ECtHR)’s role are not well supported and justified. The relationship between the ECHR and a future UK Bill of Rights will also be explored in the piece, as there is no sufficient link between the author’s arguments about the ECHR regime and the UK legal system, making it rather artificial to refer to the UK as a possible model for human rights.

‘My Friends are my Family’: an argument about the limitations of contemporary law's recognition of relationships in later life

Current law and social policy in the various UK legal systems privilege the conjugal couple, biological and filial relationships. Friendship remains on the margins of regulatory recognition. Yet friendship is of growing significance in contemporary social relationships. This is particularly so for older people, especially older lesbian, gay and bisexual people. This paper explores the place of friendship in key areas of law and social policy relating to older age: pensions, benefits and inheritance; medical decision making; mental health and mental capacity legislation; and social care policy. The extent to which contemporary law is keeping up with changing relationship forms will be considered, together with its implications for equality in later life.

This Side of Silence: Human Rights, Torture and the Recognition of Cruelty (review)

Reviewed by: This Side of Silence: Human Rights, Torture and the Recognition of Cruelty Tom Southerden (bio) Tobias Kelly , This Side of Silence: Human Rights, Torture and the Recognition of Cruelty (University of Pennsylvania Press 2012), 232 pages, ISBN 978-0-8122-4373-4. For some writers, the problem with torture is its inexpressibility. For John Conroy, torture is a set of "unspeakable acts" carried out by and on "ordinary people,"1 while Elaine Scarry has stated that "[p]hysical pain does not simply resist language but actively destroys it, bringing about an immediate reversion to a state anterior to language."2 In This Side of Silence, however, Tobias Kelly identifies the central problem of torture as "not one of the failure of language but of the failure of recognition. It is not the survivor's inability to speak; rather it is our inability to listen."3 While his book is designed as an exploration of the contemporary ethical and political categorization of certain forms of violence as "torture," Kelly, a social anthropologist, argues that the debate around torture has become dominated by issues of legality and judicial interpretation. Thus, he examines how the concept and reality of torture is mediated through the legal process, particularly in relation to human rights laws. In doing so, his primary focus is on the UK legal system and the UK government's interaction with various international anti-torture legal institutions. He justifies this focus by arguing that "[t] orture, as a category, is often used to draw a line between the civilized and the uncivilized, the compassionate and the barbarous. Focusing on the United Kingdom, rather than, say, Iraq, might help us rethink where those boundaries lie."4 The result is a well-reasoned and intricately sourced empirical study that demonstrates how claims relating to torture face institutionalized disbelief, are undermined by an assumption that torture can only be committed by "others," and are rendered virtually impossible to substantiate through ever increasing evidential requirements. The book opens with a discussion of the development of the paradigm of torture as an anti-Modern taboo and as especially anathema to the British common law legal system. Particularly illuminating in this discussion is Kelly's assertion that, far from being based on the humanist principles of Voltaire and Beccaria so frequently cited in the debate around torture, [O]ur particular understanding of torture has a much more recent genealogy in the 1970s and early 1980s, as law, medicine, the Cold War, international refugee flows and international human rights organisations, came together to make the image of the suffering body a key currency in international politics, and torture an archetypal international crime.5 Kelly goes on to demonstrate that these factors combined to transform notions of torture from ideas of "cruelty," "brutality," and "totalitarian politics" into a codified human rights paradigm resulting in "what is and what is not torture [becoming] a matter of precise legal argument rather than broad ethical injunction."6 This [End Page 259] anti-torture legal paradigm stems from a connection between law and brutality7 which modern society can no longer contemplate openly. The self-image of the modern legal system, therefore, demands a severing of any such connections, a notion that has received vocal support from the Judiciary themselves in recent years.8 Kelly's project goes on to explore how the legal rejection of the notion of torture leads to a refusal to recognize concrete examples of torture when they arise. His starting point in the practical field of torture is the legal determination of asylum claims. This, he explains, is principally because the asylum system is the primary source of legal claims relating to torture in the UK. In the British system, an initial claim for recognition as a refugee is assessed and frequently refused by the Home Office, usually followed by an appeal to an independent immigration and asylum tribunal and potentially further appeals to the higher courts. Kelly has regularly participated in this process as an expert witness, using his anthropological knowledge of the Occupied Palestinian Territories. However, the data upon which he draws for his study is derived from a much broader range of sources, including...

Counter-Terrorism and the Culture of Legality: The Case of Special Advocates

The pre-emptive shift that marks the reaction to the September 11, 2001 attacks has had a profound effect on the operation of both security services and law enforcement agencies. States identify threats based on intelligence and subject them to restrictive measures that seek to protect the public not just from terrorism but also from the risk of terrorism. Administrative and judicial tribunals have developed rules of procedure for the use of evidence that the state is unwilling, or sometimes unable, to disclose to the subject of the proceedings. The key component of the UK solution to secret evidence is the use of special advocates: lawyers with high security clearance given access to secret evidence that cannot be disclosed to those for whom the advocates act. These special advocates act in closed material proceedings. In such proceedings the individual subject to state action and his legal representatives are excluded but the special advocate acts on the subject’s behalf. The first part of this paper charts the rise of special advocates and closed material proceedings in the UK legal system after the decision of the European Court of Human Rights in Chahal v United Kingdom. It examines the extension of use of closed material proceedings beyond the confines of immigration law into counter-terrorism including in preventive detention and proscription and into other areas of civil law. The second and third parts of the paper highlight the flaws of closed material proceedings. The second part considers the special advocate’s ability to ensure that rule of law principles are upheld in closed material proceedings. It notes several limitations on the special advocate’s role and concludes that the system as it currently works does not comply with the rule of law and is corrosive of the culture of legality. The third part takes a critical turn, examining the special advocate and closed material proceedings as part of a legal grey hole. As the UK tends to be a model for other counter-terrorism systems the final part of the paper examines the potential for these problems to manifest in a new legal setting: the European Union. When Advocate General Sharpston sought to develop ideas on the use of secret evidence before the European Court of Justice it was the UK system to which she turned. This paper advocates the elimination of legal grey holes in UK law and cautions against an erosion of the strong culture of legality in proceedings before the European Court of Justice.

Law and child development in the UK and the US

Purpose – This paper seeks to consider the inter‐connections between law and child development, particularly in the areas of child custody and child protection, in both the USA and the UK.Design/methodology/approach – The paper is based on analysis of US and UK legal systems and child developmental research.Findings – Although the two legal systems have much in common in their approach to safeguarding children's welfare, there are also notable differences between them in terminology and in concept. Whereas the USA places a greater emphasis on the rights, particularly autonomy rights, of both parents and children, the UK justifies its laws affecting children largely in terms of parental responsibility and child need.Originality/value – The paper argues that each of these legal regimes has something to learn from the other and a reader interested in thinking about the relationship between child welfare and law will profit from considering the distinctions, as well as the commonalities, between the two regimes.

Revictimizing the Victim? How Rape Victims Experience the UK Legal System

The conviction rate for rape has dropped in the UK from one in three in 1977 to one in thirteen in 1999 and statistics show that only one in five cases ever reach trial (Home Office, 2002a). This study explored experiences of rape with respect to the UK legal system through semistructured interviews with victims, police officers, and experts in the provision of victim support. Interviews were thematically analyzed; emergent themes suggest that the legal system and society continue to revictimize victims of rape through mythology and faulty social perceptions that surround rape. Findings discuss improvement by way of specialist police teams, prosecutors, and greater support to improve postexperiences of rape victims.

Dig for legal victory

As the legal profession braces itself for a torrent of credit-crunch inspired fraud cases, pressure is mounting for an end to the conspiracy of silence over electronically-stored information. Be counselled: when the tide of 'credit-crunch' lawsuits washes up on the shores of the UK's legal system, it will shake the profession to its pink- ribboned foundations. The evidence abounds, and the jury is very definitely in: in the UK, former Lord Chancellor Lord Falconer predicts that there is going to be litigation on a scale that we have not seen before. Already, a helpline set up by the UK's Serious Fraud Office (SFO) reports hundreds of instances of City of London fraud coming in by phone and by email.

Human tissue legislation: listening to the professionals

The controversies in Bristol, Alder Hey and elsewhere in the UK surrounding the removal and retention of human tissue and organs have led to extensive law reform in all three...