{"title":"Education, Law and Diversity: Schooling for One and All? – ERRATUM","authors":"A. Alghrani, Seamus Byrne, Deborah Tyfield","doi":"10.1017/lst.2022.26","DOIUrl":"https://doi.org/10.1017/lst.2022.26","url":null,"abstract":"","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"554 - 554"},"PeriodicalIF":0.7,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46644162","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This paper analyses the EU proposal for a carbon border adjustment mechanism (CBAM) and a recent US proposal for the establishment of a border carbon adjustment (BCA) as examples of ‘defensive’ policies, broadly informed by an economic level playing field and an environmental level playing field rationale. From an environmental law perspective, the CBAM's narrow focus on price-based policies, distortions of competition and trade intensity is unsatisfactory; however, the EU CBAM is more feasible in practical terms and overall more likely to be WTO law compatible than the US proposal for a BCA. An environmental level playing field perspective is associated with several practical problems: these relate to the determination of environmental equivalence, the identification of appropriate remedies, and the demarcation of the scope of application of the relevant regulatory arrangements. Further, measures informed by an economic level playing field rationale can be easier to justify under WTO law. Taking stock of these findings, the paper concludes that practical obstacles and structural legal constraints push towards a narrower focus on an economic level playing field, as a matter of regulatory design.
{"title":"Practical obstacles and structural legal constraints in the adoption of ‘defensive’ policies: comparing the EU Carbon Border Adjustment Mechanism and the US Proposal for a Border Carbon Adjustment","authors":"Giulia Claudia Leonelli","doi":"10.1017/lst.2022.20","DOIUrl":"https://doi.org/10.1017/lst.2022.20","url":null,"abstract":"Abstract This paper analyses the EU proposal for a carbon border adjustment mechanism (CBAM) and a recent US proposal for the establishment of a border carbon adjustment (BCA) as examples of ‘defensive’ policies, broadly informed by an economic level playing field and an environmental level playing field rationale. From an environmental law perspective, the CBAM's narrow focus on price-based policies, distortions of competition and trade intensity is unsatisfactory; however, the EU CBAM is more feasible in practical terms and overall more likely to be WTO law compatible than the US proposal for a BCA. An environmental level playing field perspective is associated with several practical problems: these relate to the determination of environmental equivalence, the identification of appropriate remedies, and the demarcation of the scope of application of the relevant regulatory arrangements. Further, measures informed by an economic level playing field rationale can be easier to justify under WTO law. Taking stock of these findings, the paper concludes that practical obstacles and structural legal constraints push towards a narrower focus on an economic level playing field, as a matter of regulatory design.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"696 - 714"},"PeriodicalIF":0.7,"publicationDate":"2022-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46376415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Prosecutors play a decisive role in contemporary criminal justice. Their decisions greatly influence the output of the system, as well as the behaviour of other criminal justice institutions. By harnessing the power to filter, select and segment the work of criminal justice, prosecutors provide structure to an otherwise unbalanced field. They thus play a key structuring role. However, the prosecutors’ position and the problems that emanate from it have mostly been studied in terms of their power and discretion. We contend that this approach neglects the core problems and challenges connected to the prosecutorial function in contemporary criminal justice and offer a reconstruction of the formal and informal influences that shape the behaviour of prosecutors in providing for structure.
{"title":"Structuring prosecutorial power","authors":"Carla Sepulveda, Javier Wilenmann","doi":"10.1017/lst.2022.14","DOIUrl":"https://doi.org/10.1017/lst.2022.14","url":null,"abstract":"Abstract Prosecutors play a decisive role in contemporary criminal justice. Their decisions greatly influence the output of the system, as well as the behaviour of other criminal justice institutions. By harnessing the power to filter, select and segment the work of criminal justice, prosecutors provide structure to an otherwise unbalanced field. They thus play a key structuring role. However, the prosecutors’ position and the problems that emanate from it have mostly been studied in terms of their power and discretion. We contend that this approach neglects the core problems and challenges connected to the prosecutorial function in contemporary criminal justice and offer a reconstruction of the formal and informal influences that shape the behaviour of prosecutors in providing for structure.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"680 - 695"},"PeriodicalIF":0.7,"publicationDate":"2022-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41663912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In this paper we outline and critique legal approaches to poor mental health at work in the UK. We argue that the current legal framework is not ‘fit for purpose’. Overall, the existing framework promotes a problematic model that is ineffective because each element, individually and as part of the whole, fails to adequately engage with the nuanced realities of the relationship between undertaking paid work and suffering poor mental health. It is, we suggest, disjointed because it has evolved from a patchwork of provisions, each with different foundations, motivations, ambitions and flaws. The need for a re-focus, and what this might entail, is considered, and the capacity of a model centred on addressing workplace mental health as a manifestation of broader notions of vulnerability is explored.
{"title":"Mental health and wellbeing at work in the UK: current legal approaches","authors":"P. Almond, Rachel H Horton, Grace James","doi":"10.1017/lst.2022.16","DOIUrl":"https://doi.org/10.1017/lst.2022.16","url":null,"abstract":"Abstract In this paper we outline and critique legal approaches to poor mental health at work in the UK. We argue that the current legal framework is not ‘fit for purpose’. Overall, the existing framework promotes a problematic model that is ineffective because each element, individually and as part of the whole, fails to adequately engage with the nuanced realities of the relationship between undertaking paid work and suffering poor mental health. It is, we suggest, disjointed because it has evolved from a patchwork of provisions, each with different foundations, motivations, ambitions and flaws. The need for a re-focus, and what this might entail, is considered, and the capacity of a model centred on addressing workplace mental health as a manifestation of broader notions of vulnerability is explored.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"663 - 679"},"PeriodicalIF":0.7,"publicationDate":"2022-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47433860","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract An injunction is typically characterised as the primary remedy to prevent a continuing interference with a claimant's property rights. It can be easier to obtain such a remedy against a cynical defendant who knowingly interfered with those rights, as opposed to a naïve or unwitting party who was unaware of them. It is not obvious, however, why the defendant's state of mind should affect what remedy the claimant is afforded in vindicating their property rights. This paper examines the role played by the defendant's state of mind when considering whether to grant an injunction. It argues that a defendant who knowingly infringes a property right in respect of land for material gain assumes the risk that an injunction will be granted to stop that infringement. As a consequence, the question of whether such an order will create hardship or oppression is either diminished or eliminated as a factor. This approach also vindicates the proprietary nature of such rights, which may be difficult to assess in financial terms.
{"title":"Injunctions, land and the cynical breach","authors":"David Sawtell","doi":"10.1017/lst.2022.15","DOIUrl":"https://doi.org/10.1017/lst.2022.15","url":null,"abstract":"Abstract An injunction is typically characterised as the primary remedy to prevent a continuing interference with a claimant's property rights. It can be easier to obtain such a remedy against a cynical defendant who knowingly interfered with those rights, as opposed to a naïve or unwitting party who was unaware of them. It is not obvious, however, why the defendant's state of mind should affect what remedy the claimant is afforded in vindicating their property rights. This paper examines the role played by the defendant's state of mind when considering whether to grant an injunction. It argues that a defendant who knowingly infringes a property right in respect of land for material gain assumes the risk that an injunction will be granted to stop that infringement. As a consequence, the question of whether such an order will create hardship or oppression is either diminished or eliminated as a factor. This approach also vindicates the proprietary nature of such rights, which may be difficult to assess in financial terms.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"649 - 662"},"PeriodicalIF":0.7,"publicationDate":"2022-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49184868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Permeating all major international and regional human rights treaties, the right to education has been described as ‘one of the most important of children's moral and legal rights;without it they may be unable to develop their personality, talents, and mental and physical abilities to their fullest potential’.1 However, the legal enforcement of the right to education is a much more multifaceted exercise in practice, reflecting not only the overlap between the right itself and the provision of resources necessary for its implementation, but also the inseparable connection between the child's right to education and the rights of parents to select the form and manner of that education.2 Against this backdrop, Harris's Education, Law and Diversity: Schooling for One and All? is an important contribution to our collective understanding of the domestic enforcement of the right to education for two principal reasons. From a national standpoint, Covid-19 led to the closure of schools and globally the pandemic impacted 1.6 billion learners or 94% of the world's student population.4 One of the most impacted groups of learners was children with special educational needs and disabilities (SEND), who from a domestic perspective experienced a pronounced, disproportionate and retrogressive impact on their right to education.5 Harris's discussion on equality, inclusion and the rights of children with SEND assumes increased import in view of the overwhelmingly negative affect which Covid-19 has had on these children. Harris notes that the proportion of primary school pupils in England whose first language is reported to be other than English was 21.2% in 2019, with the equivalent figure for secondary school pupils recorded as 16.9%.7 In alluding to religious diversity Harris notes that religiously affiliated schools now account for around one third of schools in England, which ‘enables parents to have the choice of a denominational education for their child or a secular one’.8 The theme of diversity and inclusion is carried through to the discussion of those children who are educated outside of the formal state education system, with Harris noting that this cohort of children comprise a ‘significant minority of children’,9 equating to around 6.5% of the entire school population. Noting gradual change (with the exception of children and young people with special educational needs), Harris argues that the current two-page guidance accompanying the general duty on ‘pupil voice’ as set out in s 176 of the Education Act 2002 (which emphasises the relevance of Article 12 CRC and strongly encourages schools to pay due regard to the Convention), is ‘an exhortation which surely falls short of what is required to ensure that the pupil's voice is properly engaged with in school practice’.16 One of the most significant contributions which this book makes is to the ongoing debates surrounding the rights of children and young people with SEND.
{"title":"Education, Law and Diversity: Schooling for One and All? by Neville Harris. Oxford: Hart Publishing, 2020, 616 pp (£90, hardback) ISBN: 978-1-50-990670-3","authors":"A. Alghrani, Seamus Byrne, Deborah Tyfield","doi":"10.1017/lst.2022.11","DOIUrl":"https://doi.org/10.1017/lst.2022.11","url":null,"abstract":"Permeating all major international and regional human rights treaties, the right to education has been described as ‘one of the most important of children's moral and legal rights;without it they may be unable to develop their personality, talents, and mental and physical abilities to their fullest potential’.1 However, the legal enforcement of the right to education is a much more multifaceted exercise in practice, reflecting not only the overlap between the right itself and the provision of resources necessary for its implementation, but also the inseparable connection between the child's right to education and the rights of parents to select the form and manner of that education.2 Against this backdrop, Harris's Education, Law and Diversity: Schooling for One and All? is an important contribution to our collective understanding of the domestic enforcement of the right to education for two principal reasons. From a national standpoint, Covid-19 led to the closure of schools and globally the pandemic impacted 1.6 billion learners or 94% of the world's student population.4 One of the most impacted groups of learners was children with special educational needs and disabilities (SEND), who from a domestic perspective experienced a pronounced, disproportionate and retrogressive impact on their right to education.5 Harris's discussion on equality, inclusion and the rights of children with SEND assumes increased import in view of the overwhelmingly negative affect which Covid-19 has had on these children. Harris notes that the proportion of primary school pupils in England whose first language is reported to be other than English was 21.2% in 2019, with the equivalent figure for secondary school pupils recorded as 16.9%.7 In alluding to religious diversity Harris notes that religiously affiliated schools now account for around one third of schools in England, which ‘enables parents to have the choice of a denominational education for their child or a secular one’.8 The theme of diversity and inclusion is carried through to the discussion of those children who are educated outside of the formal state education system, with Harris noting that this cohort of children comprise a ‘significant minority of children’,9 equating to around 6.5% of the entire school population. Noting gradual change (with the exception of children and young people with special educational needs), Harris argues that the current two-page guidance accompanying the general duty on ‘pupil voice’ as set out in s 176 of the Education Act 2002 (which emphasises the relevance of Article 12 CRC and strongly encourages schools to pay due regard to the Convention), is ‘an exhortation which surely falls short of what is required to ensure that the pupil's voice is properly engaged with in school practice’.16 One of the most significant contributions which this book makes is to the ongoing debates surrounding the rights of children and young people with SEND.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"550 - 553"},"PeriodicalIF":0.7,"publicationDate":"2022-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42630739","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In the light of the High Court's decision in R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932 this paper contends that a revised approach to the interpretation of Articles 5 and 7 of the European Convention on Human Rights is needed. The paper argues that the Article 5 ECHR right to liberty and security plays a developing, though overlooked, role in the context of regulating determinate prison sentences. English law's conclusion that Article 5 of the ECHR has little to offer in this context is wrong and needs to be reconsidered. Equally, a more generous interpretation of Article 7 of the ECHR is now required: an approach which reflects the reality of determinate sentences.
摘要根据高等法院在R（Khan）v Secretary for Justice[2020]1 WLR 3932一案中的裁决，本文认为，需要对《欧洲人权公约》第5条和第7条的解释采取修订的方法。本文认为，《欧洲人权公约》第5条的自由和安全权在规范确定刑期方面发挥着发展中的作用，尽管被忽视了。英国法律认为《欧洲人权公约》第5条在这方面几乎没有什么可提供的结论是错误的，需要重新考虑。同样，现在需要对《欧洲人权公约》第7条作出更慷慨的解释：一种反映确定刑期现实的方法。
{"title":"Justice for the blackest malefactors? Determinate prison sentences, early release, and the ECHR","authors":"R. Edwards","doi":"10.1017/lst.2022.1","DOIUrl":"https://doi.org/10.1017/lst.2022.1","url":null,"abstract":"Abstract In the light of the High Court's decision in R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932 this paper contends that a revised approach to the interpretation of Articles 5 and 7 of the European Convention on Human Rights is needed. The paper argues that the Article 5 ECHR right to liberty and security plays a developing, though overlooked, role in the context of regulating determinate prison sentences. English law's conclusion that Article 5 of the ECHR has little to offer in this context is wrong and needs to be reconsidered. Equally, a more generous interpretation of Article 7 of the ECHR is now required: an approach which reflects the reality of determinate sentences.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"600 - 619"},"PeriodicalIF":0.7,"publicationDate":"2022-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43485830","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Vaccines have continued to play a crucial global role in preventing infectious diseases in the twenty-first century. The Covid-19 pandemic has underlined their importance, with vaccines seen as the best way to protect the public from coronavirus. A longstanding problem of governments has been the extent to which they should assume responsibility for the compensation of those injured by vaccines. This paper reappraises the vaccine damage schemes currently available in the US and UK in the light of the Covid-19 pandemic. It argues that any improvements to both US and UK schemes should be included in a revised national vaccine policy which takes into consideration their respective long-term national vaccine strategies to prepare for future pandemics. It supports the adoption of a UK-wide National Vaccine Injury Compensation Programme, similar to the one in the US, to be administered by the Secretary of State for Health and Social Care. To balance the need for rigorous criteria to determine causation with the need for fairness, the programme should adopt the US practice of allowing negotiated settlements between parties in circumstances where review of the evidence has not concluded that the vaccine(s) caused the alleged injury but there are close calls concerning causation.
{"title":"Vaccine damage schemes in the US and UK reappraised: making them fit for purpose in the light of Covid-19","authors":"R. Goldberg","doi":"10.1017/lst.2022.9","DOIUrl":"https://doi.org/10.1017/lst.2022.9","url":null,"abstract":"Abstract Vaccines have continued to play a crucial global role in preventing infectious diseases in the twenty-first century. The Covid-19 pandemic has underlined their importance, with vaccines seen as the best way to protect the public from coronavirus. A longstanding problem of governments has been the extent to which they should assume responsibility for the compensation of those injured by vaccines. This paper reappraises the vaccine damage schemes currently available in the US and UK in the light of the Covid-19 pandemic. It argues that any improvements to both US and UK schemes should be included in a revised national vaccine policy which takes into consideration their respective long-term national vaccine strategies to prepare for future pandemics. It supports the adoption of a UK-wide National Vaccine Injury Compensation Programme, similar to the one in the US, to be administered by the Secretary of State for Health and Social Care. To balance the need for rigorous criteria to determine causation with the need for fairness, the programme should adopt the US practice of allowing negotiated settlements between parties in circumstances where review of the evidence has not concluded that the vaccine(s) caused the alleged injury but there are close calls concerning causation.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"42 1","pages":"576 - 599"},"PeriodicalIF":0.7,"publicationDate":"2022-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42331853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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