This book is part of a series aimed at connecting international law with public law. The series discusses the important issues of health, environment, movement of people and security through the lens of connecting international law with public law. This final volume in the series concentrates on the gendered dimensions of international and public law from an interdisciplinary perspective, thereby acknowledging that law alone is too blunt a tool to address adequately the issues of gender that arise in the context of these legal spheres.
{"title":"The Public Law of Gender: From the Local to the Global","authors":"R. Sifris","doi":"10.5750/DLJ.V30I2.1765","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1765","url":null,"abstract":"This book is part of a series aimed at connecting international law with public law. The series discusses the important issues of health, environment, movement of people and security through the lens of connecting international law with public law. This final volume in the series concentrates on the gendered dimensions of international and public law from an interdisciplinary perspective, thereby acknowledging that law alone is too blunt a tool to address adequately the issues of gender that arise in the context of these legal spheres.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128406897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Auditor General plays a key role in the constitutional framework that is designed to support good governance. This article critically reviews the constitutional position of the Auditor General. It assesses the extent to which, in practice, office-holders enjoy the necessary individual and institutional independence and security of tenure to enable them to carry out their constitutional mandate, especially in the face of efforts by some political leaders and senior public officials (‘politically exposed persons’ (PEPs)) to abuse their position through acts of corruption and misuse of public office. It also explores the effectiveness of the support and accountability mechanisms for Auditors General. In doing so, the article reviews the position of the Auditor General in the constitutions of a number of Anglophone African states.
{"title":"THE ROLE, INDEPENDENCE AND ACCOUNTABILITY OF THE AUDITOR GENERAL: A COMPARATIVE CONSTITUTIONAL ANALYSIS","authors":"J. Hatchard","doi":"10.5750/DLJ.V30I2.1698","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1698","url":null,"abstract":"The Auditor General plays a key role in the constitutional framework that is designed to support good governance. This article critically reviews the constitutional position of the Auditor General. It assesses the extent to which, in practice, office-holders enjoy the necessary individual and institutional independence and security of tenure to enable them to carry out their constitutional mandate, especially in the face of efforts by some political leaders and senior public officials (‘politically exposed persons’ (PEPs)) to abuse their position through acts of corruption and misuse of public office. It also explores the effectiveness of the support and accountability mechanisms for Auditors General. In doing so, the article reviews the position of the Auditor General in the constitutions of a number of Anglophone African states.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"20 78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131014673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the United States adopted a written constitution as a consequence of the War of Independence, it is fair to say that most Western democracies with written constitutions have taken some guidance from that founding document. Inevitably, a key provision for any written constitution is ‘how can it be amended’. Even where there is an unwritten constitution (as for the United Kingdom, Aotearoa/New Zealand and Israel), the ‘rules’ established by convention or custom or some other means cannot be immutable: the passage of time or changing ideas require some means of altering or updating the rules. Changing a constitution is a matter of law, yet one inescapably imbued with politics. This article explores the way constitutional change has come, and how the rules have worked, in Australia (the 1951 referendum to ban the Australian Communist Party – unsuccessful, and the 1967 referendum to recognise rights of Indigenous Australians – successful) and the United States (the Equal Rights Amendment – situation ongoing), with a foray into the referendum process in United Kingdom (the 2017 ‘Brexit’ vote). It explores, too, the ‘change’ to a constitution where there is no change to the words of the document, but a change in interpretation – this in the context of Canada in 1929. There, consistent with judgments in Aotearoa/New Zealand, Australia, the United Kingdom and the United States, the Canadian Supreme Court interpreted ‘person’ as appearing in the North America Act as not including women, denying women any entitlement to be appointed to the Canadian Senate. As related here, women were finally acknowledged as ‘persons’ when the Privy Council pronounced this to be so, an unanticipated outcome from a judicial body considered by both Canada and Australia to be so hidebound as not to be ‘right’ as the final court of appeal for Britain’s former colonies.
{"title":"‘CHANGE THE CONSTITUTION? INTERPRETATION, (MIS)CALCULATION, WRONGS RIGHTED OR REACTION & REITERATION’","authors":"J. Scutt","doi":"10.5750/DLJ.V30I2.1701","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1701","url":null,"abstract":"Since the United States adopted a written constitution as a consequence of the War of Independence, it is fair to say that most Western democracies with written constitutions have taken some guidance from that founding document. Inevitably, a key provision for any written constitution is ‘how can it be amended’. Even where there is an unwritten constitution (as for the United Kingdom, Aotearoa/New Zealand and Israel), the ‘rules’ established by convention or custom or some other means cannot be immutable: the passage of time or changing ideas require some means of altering or updating the rules. Changing a constitution is a matter of law, yet one inescapably imbued with politics. This article explores the way constitutional change has come, and how the rules have worked, in Australia (the 1951 referendum to ban the Australian Communist Party – unsuccessful, and the 1967 referendum to recognise rights of Indigenous Australians – successful) and the United States (the Equal Rights Amendment – situation ongoing), with a foray into the referendum process in United Kingdom (the 2017 ‘Brexit’ vote). It explores, too, the ‘change’ to a constitution where there is no change to the words of the document, but a change in interpretation – this in the context of Canada in 1929. There, consistent with judgments in Aotearoa/New Zealand, Australia, the United Kingdom and the United States, the Canadian Supreme Court interpreted ‘person’ as appearing in the North America Act as not including women, denying women any entitlement to be appointed to the Canadian Senate. As related here, women were finally acknowledged as ‘persons’ when the Privy Council pronounced this to be so, an unanticipated outcome from a judicial body considered by both Canada and Australia to be so hidebound as not to be ‘right’ as the final court of appeal for Britain’s former colonies.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131798921","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Oxford University Press began its very short introduction series in 1995 and now, two decades into the 2000s, comprises some 500 volumes translated into more than forty-five different languages, covering ‘everything from Psychology and Philosophy of Science to American History and Relativity’. The aim of the series, says Oxford University Press, is to provide ‘a stimulating and accessible way into a new subject’ for readers unfamiliar with the topic. David Bodenhamer’s The US Constitution – A Very Short Introduction fulfils this aim, yet does far more than this and its title may imply.
{"title":"The US Constitution – A Very Short Introduction","authors":"J. Scutt","doi":"10.5750/DLJ.V30I2.1764","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1764","url":null,"abstract":"The Oxford University Press began its very short introduction series in 1995 and now, two decades into the 2000s, comprises some 500 volumes translated into more than forty-five different languages, covering ‘everything from Psychology and Philosophy of Science to American History and Relativity’. The aim of the series, says Oxford University Press, is to provide ‘a stimulating and accessible way into a new subject’ for readers unfamiliar with the topic. David Bodenhamer’s The US Constitution – A Very Short Introduction fulfils this aim, yet does far more than this and its title may imply.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129395036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The most recent Australian Census, conducted by the Australian Bureau of Statistics (ABS) in 2016 (with a 95.1 per cent response rate), confirms that Australia is ‘increasingly a story of religious diversity, with Hinduism, Sikhism, Islam, and Buddhism all increasingly common religious beliefs’.1 Of these, between 2006 and 2016 Hinduism shows the ‘most significant growth’, attributed to immigration from South East Asia, whilst Islam (2.6 per cent of the population) and Buddhism (2.4 per cent) were the most common religions reported next to Christianity, the latter ‘remaining the most common religion’ (52 per cent stating this as their belief). Nevertheless, Christianity is declining, dropping from 88 per cent in 1966 to 74 per cent in 1991, and thence to the 2016 figure. At the same time, nearly one-third of Australians (30 per cent) state they have no religion, this group reflecting ‘a trend for decades’ which, says the ABS, is ‘accelerating’
{"title":"Religious Freedom and the Australian Constitution – Origins and Future","authors":"J. Scutt","doi":"10.5750/DLJ.V30I2.1766","DOIUrl":"https://doi.org/10.5750/DLJ.V30I2.1766","url":null,"abstract":"The most recent Australian Census, conducted by the Australian Bureau of Statistics (ABS) in 2016 (with a 95.1 per cent response rate), confirms that Australia is ‘increasingly a story of religious diversity, with Hinduism, Sikhism, Islam, and Buddhism all increasingly common religious beliefs’.1 Of these, between 2006 and 2016 Hinduism shows the ‘most significant growth’, attributed to immigration from South East Asia, whilst Islam (2.6 per cent of the population) and Buddhism (2.4 per cent) were the most common religions reported next to Christianity, the latter ‘remaining the most common religion’ (52 per cent stating this as their belief). Nevertheless, Christianity is declining, dropping from 88 per cent in 1966 to 74 per cent in 1991, and thence to the 2016 figure. At the same time, nearly one-third of Australians (30 per cent) state they have no religion, this group reflecting ‘a trend for decades’ which, says the ABS, is ‘accelerating’","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122148661","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the House of Lords’ decision in the Gorringe case, there can be no reason for imposing a duty of care in negligence on a public authority that would not also count as a reason for imposing a duty of care on a private person. In this context assumption of responsibility, as the primary concept used to explain the imposition of a duty of care in novel situations, acquires great importance. This article explores whether the concept’s application to public authorities produces satisfactory results and, finding that it does not, concludes that this underlines the folly of insisting that public authorities must be treated in the same way as private persons.
{"title":"Assumption of Responsibility by Public Authorities","authors":"T. Cornford","doi":"10.5750/DLJ.V30I1.1565","DOIUrl":"https://doi.org/10.5750/DLJ.V30I1.1565","url":null,"abstract":"Since the House of Lords’ decision in the Gorringe case, there can be no reason for imposing a duty of care in negligence on a public authority that would not also count as a reason for imposing a duty of care on a private person. In this context assumption of responsibility, as the primary concept used to explain the imposition of a duty of care in novel situations, acquires great importance. This article explores whether the concept’s application to public authorities produces satisfactory results and, finding that it does not, concludes that this underlines the folly of insisting that public authorities must be treated in the same way as private persons.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114312570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The revelations from the Panama Papers have highlighted the potential use of off-shore shell and shelf companies based in the British Overseas Territories and Crown Dependencies to facilitate money laundering, tax evasion, the financing of terrorism and other serious and organised crime. The use of such companies has enabled the natural person(s) who ultimately owned or controlled the company to remain concealed behind a nominee director(s) and nominee shareholder(s). This has led to international interest and pressure to increase the transparency in the beneficial ownership of such companies.
{"title":"MONEY LAUNDERING, PUBLIC BENEFICIAL OWNERSHIP REGISTERS AND THE BRITISH OVERSEAS TERRITORIES: THE IMPACT OF THE SANCTIONS AND MONEY LAUNDERING ACT 2018 (UK)","authors":"J. Hatchard","doi":"10.5750/DLJ.V30I1.1652","DOIUrl":"https://doi.org/10.5750/DLJ.V30I1.1652","url":null,"abstract":"The revelations from the Panama Papers have highlighted the potential use of off-shore shell and shelf companies based in the British Overseas Territories and Crown Dependencies to facilitate money laundering, tax evasion, the financing of terrorism and other serious and organised crime. The use of such companies has enabled the natural person(s) who ultimately owned or controlled the company to remain concealed behind a nominee director(s) and nominee shareholder(s). This has led to international interest and pressure to increase the transparency in the beneficial ownership of such companies.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"109 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134532656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. The interrelationship between unconscionable bargains and undue influence under English law is considered in some detail, as well as developments in other Commonwealth jurisdictions, notably, in Canada, Australia and New Zealand. After examining the views of several academic commentators, the conclusion is that such an assimilation would do much to rationalise and simplify current English law. If, however, the English courts are reluctant to undertake what is perceived to be essentially a function of Parliament in developing the law, serious thought should be given to rationalising this area of law by means of legislative intervention.
{"title":"UNDUE INFLUENCE: TOWARDS A UNIFYING CONCEPT OF UNCONSCIONABLITY?","authors":"M. Pawlowski","doi":"10.5750/DLJ.V30I1.1655","DOIUrl":"https://doi.org/10.5750/DLJ.V30I1.1655","url":null,"abstract":"The article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. The interrelationship between unconscionable bargains and undue influence under English law is considered in some detail, as well as developments in other Commonwealth jurisdictions, notably, in Canada, Australia and New Zealand. After examining the views of several academic commentators, the conclusion is that such an assimilation would do much to rationalise and simplify current English law. If, however, the English courts are reluctant to undertake what is perceived to be essentially a function of Parliament in developing the law, serious thought should be given to rationalising this area of law by means of legislative intervention.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"692 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121990697","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article undertakes a critical comparison and analysis of two environmental regimes – the UN Framework Convention on Climate Change and the UN Convention to Combat Desertification, Particularly in Africa – to explore their transformative potential. Drawing on Karen Warren’s ecofeminist ethics, the author compares and contrasts the ways in which these two regimes engage with the underlying institutional, structural, social and conceptual frameworks which ecofeminists argue contribute to the environmental degradation and the exploitation suffered by marginalised groups. She examines how marginalised communities have been involved in the evolution of the two regimes, the differing approaches towards science and technology, as well as the integration of differentiation within the two regimes. The author concludes that while both regimes have transformative potential, they both continue to affirm an ideological perspective that disembeds humanity from the environment, while at the same time commodifying nature in order to protect it.
{"title":"Comparing the transformative potentials of the FCCC and the CCD: An ecofeminist exploration","authors":"Kate Wilkinson Cross","doi":"10.5750/dlj.v30i1.1583","DOIUrl":"https://doi.org/10.5750/dlj.v30i1.1583","url":null,"abstract":"This article undertakes a critical comparison and analysis of two environmental regimes – the UN Framework Convention on Climate Change and the UN Convention to Combat Desertification, Particularly in Africa – to explore their transformative potential. Drawing on Karen Warren’s ecofeminist ethics, the author compares and contrasts the ways in which these two regimes engage with the underlying institutional, structural, social and conceptual frameworks which ecofeminists argue contribute to the environmental degradation and the exploitation suffered by marginalised groups. She examines how marginalised communities have been involved in the evolution of the two regimes, the differing approaches towards science and technology, as well as the integration of differentiation within the two regimes. The author concludes that while both regimes have transformative potential, they both continue to affirm an ideological perspective that disembeds humanity from the environment, while at the same time commodifying nature in order to protect it.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117344946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As late as the 1960s there was an old gentleman in once smart, but now shabby, clothes who paraded outside the Royal Courts of Justice in the Strand, carrying a placard which read ‘ARBITRATE DON’T LITIGATE’. He was a famous character who had been around since the 1930s and he endeared himself to the judges who referred to him in several judgments. It is fair to say, however, that the old gentleman was usually referred to in order to make the point that, in the case before the court, his advice had been misleading because the arbitration had proved far more difficult and costly than proceeding by way of litigation in the courts.
{"title":"COMMERCIAL ARBITRATION AND INFORMATION TECHNOLOGY DISPUTES","authors":"Richard B. Mawrey","doi":"10.5750/DLJ.V30I1.1653","DOIUrl":"https://doi.org/10.5750/DLJ.V30I1.1653","url":null,"abstract":"As late as the 1960s there was an old gentleman in once smart, but now shabby, clothes who paraded outside the Royal Courts of Justice in the Strand, carrying a placard which read ‘ARBITRATE DON’T LITIGATE’. He was a famous character who had been around since the 1930s and he endeared himself to the judges who referred to him in several judgments. It is fair to say, however, that the old gentleman was usually referred to in order to make the point that, in the case before the court, his advice had been misleading because the arbitration had proved far more difficult and costly than proceeding by way of litigation in the courts. ","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122062353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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