Abstract The UK enacted its first legal measure to address gender pay inequity, the Equal Pay Act 1970, more than 50 years ago. Yet, in 2021, the gender pay gap (GPG) still stood at 15.4%. Departing from the remedial and individual approach that characterises equal pay legislation, the 2017 Gender Pay Gap Information Regulations (the Regulations) require private and voluntary sector organisations with 250+ employees to annually publish pay data broken down by gender. The long-term aspiration of the Regulations is to contribute to closing the GPG within a generation. It is also hoped that they will encourage the public disclosure of pay data and changes in workplace policies to reduce organisational GPGs (immediate aims) and improve employers’ accountability (underlying aim). This paper considers whether the Regulations have what it takes to meet those immediate and underlying aims. Our assessment framework is built on the premise that for public disclosure to be useful and for employers to tackle the causes of the GPG, the information reported must be of sufficient quality, meaningful and relevant. The paper draws on both doctrinal analysis and empirical data reported by FTSE 100 Index companies to assess the Regulations and determine whether they hold the potential to meet those aims.
{"title":"The UK Pay Transparency Regulations: <i>apparent</i> transparency without accountability?","authors":"Sara Benedi Lahuerta, Peter Rejchrt, Alex Patrick","doi":"10.1017/lst.2023.12","DOIUrl":"https://doi.org/10.1017/lst.2023.12","url":null,"abstract":"Abstract The UK enacted its first legal measure to address gender pay inequity, the Equal Pay Act 1970, more than 50 years ago. Yet, in 2021, the gender pay gap (GPG) still stood at 15.4%. Departing from the remedial and individual approach that characterises equal pay legislation, the 2017 Gender Pay Gap Information Regulations (the Regulations) require private and voluntary sector organisations with 250+ employees to annually publish pay data broken down by gender. The long-term aspiration of the Regulations is to contribute to closing the GPG within a generation. It is also hoped that they will encourage the public disclosure of pay data and changes in workplace policies to reduce organisational GPGs (immediate aims) and improve employers’ accountability (underlying aim). This paper considers whether the Regulations have what it takes to meet those immediate and underlying aims. Our assessment framework is built on the premise that for public disclosure to be useful and for employers to tackle the causes of the GPG, the information reported must be of sufficient quality, meaningful and relevant. The paper draws on both doctrinal analysis and empirical data reported by FTSE 100 Index companies to assess the Regulations and determine whether they hold the potential to meet those aims.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136041114","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}
Every so often, a book can jolt us out of the way in which we have been used to thinking about our own discipline. As Or Brook herself recognises, an ‘impressive array of legal scholarship’ has debated the objectives of EU competition policy, the impact of the so-called ‘more economic approach’, and the role of sustainability and other non-market related factors, in the application of competition law generally and Article 101 TFEU specifically. However, starting from a relatively narrow (if ambitious) set of research questions, Brook prompts the reader to consider the very essence of administrative action. Especially after Regulation 1/2003 (the Modernisation Regulation), and the adoption of the so-called ‘more economic approach’ to competition law enforcement, competition enforcers have opted for administrative discretion (to set their priorities, or to open and close cases) over the transparent enforcement of the rules. This has serious consequences for predictability and legal certainty. As the title makes clear, the focus of the investigation is Article 101 TFEU (specifically Article 101 (1) and Article 101(3)). Chapter 1 sets the scene, laying out the research questions, the methodology and the definitions used. The research questions aim to assess the evolution of ‘the rationale, method and limits for balancing competition and non-competition interests in the enforcement of Article 101 TFEU’. Brook takes a narrow approach to the term ‘competition interests’, defined as the ‘core value protected by Article 101 TFEU, namely the promotion of competition process and structure’. This definition is in line with previous academic works, as well as the European Commission (the
每隔一段时间，一本书就能把我们从思考自己学科的习惯中惊醒。正如Or Brook自己所认识到的那样，“一系列令人印象深刻的法律学者”已经就欧盟竞争政策的目标、所谓“更经济的方法”的影响、可持续性和其他非市场相关因素的作用进行了辩论，这些都是在竞争法的一般应用中，特别是在第101条TFEU中。然而，布鲁克从一组相对狭窄(如果雄心勃勃)的研究问题开始，促使读者考虑行政行为的本质。特别是在第1/2003号条例(现代化条例)之后，以及对竞争执法采取所谓的“更经济的方法”，竞争执法者选择了行政自由裁量权(设定优先事项，或开放和关闭案件)，而不是透明地执行规则。这对可预测性和法律确定性产生了严重后果。正如标题所示，调查的重点是第101条TFEU(特别是第101(1)条和第101(3)条)。第一章是背景介绍，阐述了研究问题、方法和使用的定义。研究问题旨在评估“在执行第101条TFEU时平衡竞争和非竞争利益的理由、方法和限制”的演变。布鲁克对“竞争利益”一词的定义较为狭隘，他将其定义为“TFEU第101条所保护的核心价值，即促进竞争过程和结构”。这一定义与以前的学术著作以及欧盟委员会(the European Commission)一致
{"title":"Non-Competition Interests in EU Antitrust Law: An Empirical Study of Article 101 TFEU by Or Brook. Cambridge: Cambridge University Press, 2022, 548 pp (£120 hardback) ISBN: 978-1-108-83760-6","authors":"Emanuela Lecchi","doi":"10.1017/lst.2023.16","DOIUrl":"https://doi.org/10.1017/lst.2023.16","url":null,"abstract":"Every so often, a book can jolt us out of the way in which we have been used to thinking about our own discipline. As Or Brook herself recognises, an ‘impressive array of legal scholarship’ has debated the objectives of EU competition policy, the impact of the so-called ‘more economic approach’, and the role of sustainability and other non-market related factors, in the application of competition law generally and Article 101 TFEU specifically. However, starting from a relatively narrow (if ambitious) set of research questions, Brook prompts the reader to consider the very essence of administrative action. Especially after Regulation 1/2003 (the Modernisation Regulation), and the adoption of the so-called ‘more economic approach’ to competition law enforcement, competition enforcers have opted for administrative discretion (to set their priorities, or to open and close cases) over the transparent enforcement of the rules. This has serious consequences for predictability and legal certainty. As the title makes clear, the focus of the investigation is Article 101 TFEU (specifically Article 101 (1) and Article 101(3)). Chapter 1 sets the scene, laying out the research questions, the methodology and the definitions used. The research questions aim to assess the evolution of ‘the rationale, method and limits for balancing competition and non-competition interests in the enforcement of Article 101 TFEU’. Brook takes a narrow approach to the term ‘competition interests’, defined as the ‘core value protected by Article 101 TFEU, namely the promotion of competition process and structure’. This definition is in line with previous academic works, as well as the European Commission (the","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"562 - 566"},"PeriodicalIF":0.7,"publicationDate":"2023-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44677279","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 sets out the true ambit of section 126 of the Consumer Credit Act 1974, noting that it requires virtually all residential mortgage agreements to be enforced by court order. Despite this, numerous commentaries on the English law of mortgage omit reference to section 126. The implications of our findings are profound. Not least, many accounts of the law of mortgage will require substantial revision, including recognition of the fact that cases such as Ropaigealach v Barclays Bank plc and Horsham Properties Group Ltd v Clark were reversed as long ago as 2008. More significant is the need to ensure that accurate knowledge of section 126 is conveyed to those who advise mortgagors at risk of possession. This is particularly the case given the ‘cost of living crisis’ and the backlog of possession claims arising out of the Covid-19 pandemic. Any mortgagees tempted to expedite recovery of mortgaged property by enforcing the mortgage extra-judicially should be directed to section 126 and the requirement it imposes to obtain a court order.
本文列出了1974年消费者信贷法案第126条的真正范围，注意到它要求几乎所有的住宅抵押贷款协议都必须由法院命令执行。尽管如此，许多关于英国抵押法的评论忽略了第126条。我们的发现意义深远。尤其重要的是，抵押贷款法的许多条款将需要大幅修订，包括承认Ropaigealach诉巴克莱银行(Barclays Bank plc)和Horsham Properties Group Ltd诉Clark等案件早在2008年就被推翻了。更重要的是，必须确保向有管有风险的按揭人提供意见的人士，准确了解第126条。考虑到“生活成本危机”和Covid-19大流行引起的财产索赔积压，情况尤其如此。任何想要通过司法外强制执行抵押而加快收回抵押财产的承按人，都应参考第126条及该条所规定的取得法院命令的规定。
{"title":"Missing in action? Mortgage enforcement under section 126 of the Consumer Credit Act 1974","authors":"Lisa Whitehouse, Cecily Crampin","doi":"10.1017/lst.2023.14","DOIUrl":"https://doi.org/10.1017/lst.2023.14","url":null,"abstract":"Abstract This paper sets out the true ambit of section 126 of the Consumer Credit Act 1974, noting that it requires virtually all residential mortgage agreements to be enforced by court order. Despite this, numerous commentaries on the English law of mortgage omit reference to section 126. The implications of our findings are profound. Not least, many accounts of the law of mortgage will require substantial revision, including recognition of the fact that cases such as Ropaigealach v Barclays Bank plc and Horsham Properties Group Ltd v Clark were reversed as long ago as 2008. More significant is the need to ensure that accurate knowledge of section 126 is conveyed to those who advise mortgagors at risk of possession. This is particularly the case given the ‘cost of living crisis’ and the backlog of possession claims arising out of the Covid-19 pandemic. Any mortgagees tempted to expedite recovery of mortgaged property by enforcing the mortgage extra-judicially should be directed to section 126 and the requirement it imposes to obtain a court order.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"543 - 561"},"PeriodicalIF":0.7,"publicationDate":"2023-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41490962","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}
This paper considers whether UK corporate insolvency law and the UK Insolvency Act 1986 have extra-territorial effect post-Brexit, and whether – and to what extent – it is for the courts or the legislature to extend any extra-territorial effect. It does not deal with ‘inward recognition’, ie the recognition of foreign judgments and orders in the UK. Brexit has left something of a vacuum and provisions which might otherwise have applied extra-territorially, at least within the EU, may now have been deprived completely of extra-territorial effect. But all is not lost and Brexit here presents opportunities. There is room for clarifying that particular provisions which might otherwise have discriminated between EU application and application vis-à-vis the rest of the world can now be given a uniform global interpretation. Courts should, however, proceed incrementally in extending the extra-territorial scope of UK corporate insolvency law. A bolder reform would be to enact legislation that specifies the exact extent to which the UK Insolvency Act applies extra-territorially. Legislation obviously depends on parliamentary time and requires detailed drafting but also provides the opportunity for the UK to showcase that it remains at the forefront of international insolvency developments.
{"title":"Extra-territoriality and the UK Insolvency Act 1986","authors":"G. McCormack","doi":"10.1017/lst.2023.15","DOIUrl":"https://doi.org/10.1017/lst.2023.15","url":null,"abstract":"\u0000 This paper considers whether UK corporate insolvency law and the UK Insolvency Act 1986 have extra-territorial effect post-Brexit, and whether – and to what extent – it is for the courts or the legislature to extend any extra-territorial effect. It does not deal with ‘inward recognition’, ie the recognition of foreign judgments and orders in the UK.\u0000 Brexit has left something of a vacuum and provisions which might otherwise have applied extra-territorially, at least within the EU, may now have been deprived completely of extra-territorial effect. But all is not lost and Brexit here presents opportunities. There is room for clarifying that particular provisions which might otherwise have discriminated between EU application and application vis-à-vis the rest of the world can now be given a uniform global interpretation. Courts should, however, proceed incrementally in extending the extra-territorial scope of UK corporate insolvency law.\u0000 A bolder reform would be to enact legislation that specifies the exact extent to which the UK Insolvency Act applies extra-territorially. Legislation obviously depends on parliamentary time and requires detailed drafting but also provides the opportunity for the UK to showcase that it remains at the forefront of international insolvency developments.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46456493","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}
To address the issue of persistent unemployment, the UK Government implemented a conditional welfare scheme. Prompted by Mantouvalou's argument that the scheme forces people into exploitative work, this paper addresses the ‘pressing’ question of whether the scheme is compatible with the prohibition on ‘forced or compulsory labour’ under Article 4(2) of the European Convention on Human Rights. It is argued that, whether the scheme imposes the menace of a penalty, is involuntary, seriously exploitative or a normal civic obligation, ultimately depends on different understandings of the demands of distributive justice. Given the politically contested nature of those demands, Article 4(2) is a poor weapon to use when challenging the UK's conditional welfare scheme.
{"title":"The prohibition of forced or compulsory labour and conditional welfare under the United Kingdom's Universal Credit Scheme","authors":"A. Almutawa, Bashayer Almajed","doi":"10.1017/lst.2023.11","DOIUrl":"https://doi.org/10.1017/lst.2023.11","url":null,"abstract":"\u0000 To address the issue of persistent unemployment, the UK Government implemented a conditional welfare scheme. Prompted by Mantouvalou's argument that the scheme forces people into exploitative work, this paper addresses the ‘pressing’ question of whether the scheme is compatible with the prohibition on ‘forced or compulsory labour’ under Article 4(2) of the European Convention on Human Rights. It is argued that, whether the scheme imposes the menace of a penalty, is involuntary, seriously exploitative or a normal civic obligation, ultimately depends on different understandings of the demands of distributive justice. Given the politically contested nature of those demands, Article 4(2) is a poor weapon to use when challenging the UK's conditional welfare scheme.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47487750","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}
It is recognised that civil litigation has a place within the police accountability infrastructure. However, the role of actions against the police for wrongful arrest, false imprisonment, assault, and malicious prosecution (hereafter police actions) is underexplored. Taking citizenship as its analytical frame, this paper probes the relationship between police actions and the police complaints and discipline system over the last 60 years. Its primary focus is the Court of Appeal decision Thompson v Commissioner of Police of the Metropolis, Hsu v Same [1998] QB 498 (Thompson). Here the potential for police actions to expose questionable police responses to officer misconduct, and failings in external oversight mechanisms, came into conflict with the drive towards proportionate civil justice. In prioritising the latter, Thompson increased police autonomy over settlement of police actions, thereby deprioritising the role of the courts in demarcating the limits of state interference with citizens’ rights. It is not suggested that Thompson should be overruled. Instead, it is contended that recognising the impact of the decision on subsequent reforms to police accountability processes and contemporary conceptions of the police-citizen relationship is crucial to understanding the roots of current disquiet concerning police accountability (and therefore to the development of meaningful reforms).
{"title":"Policing, citizenship and the civil courts: how increased settlement of civil claims has impacted police accountability","authors":"Clare Torrible","doi":"10.1017/lst.2022.55","DOIUrl":"https://doi.org/10.1017/lst.2022.55","url":null,"abstract":"\u0000 It is recognised that civil litigation has a place within the police accountability infrastructure. However, the role of actions against the police for wrongful arrest, false imprisonment, assault, and malicious prosecution (hereafter police actions) is underexplored. Taking citizenship as its analytical frame, this paper probes the relationship between police actions and the police complaints and discipline system over the last 60 years. Its primary focus is the Court of Appeal decision Thompson v Commissioner of Police of the Metropolis, Hsu v Same [1998] QB 498 (Thompson). Here the potential for police actions to expose questionable police responses to officer misconduct, and failings in external oversight mechanisms, came into conflict with the drive towards proportionate civil justice. In prioritising the latter, Thompson increased police autonomy over settlement of police actions, thereby deprioritising the role of the courts in demarcating the limits of state interference with citizens’ rights. It is not suggested that Thompson should be overruled. Instead, it is contended that recognising the impact of the decision on subsequent reforms to police accountability processes and contemporary conceptions of the police-citizen relationship is crucial to understanding the roots of current disquiet concerning police accountability (and therefore to the development of meaningful reforms).","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47324415","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 Death by neurological criteria (DNC) has remained controversial since its introduction over 50 years ago. Objections to the diagnosis of DNC have been coming before the courts in various jurisdictions, including at least seven recent challenges before the UK courts. In responding to these challenges, the UK courts have expressed no doubts as to the status of DNC and have affirmed that following a diagnosis of DNC, the matter of best interests is no longer relevant. Yet, the courts have also, tacitly, acknowledged that DNC is not quite the same as cardio-pulmonary death. This paper begins by setting out the origins of DNC as a medico-legal construction, and its ongoing controversies. It then analyses the treatment of DNC, including authorisation of DNC testing, by the UK courts. It shows that the courts have been operating a form of ad hoc reasonable accommodation of different views of DNC but have done so without normative engagement. The paper argues that the courts should recognise that DNC disputes are not simply concerned with whether, as a matter of fact, DNC has been correctly diagnosed, but also raise profound questions about rights and interests, both of families and of the DNC dead.
{"title":"Disputing death: brain death in the courts","authors":"M. Donnelly, B. Lyons","doi":"10.1017/lst.2022.45","DOIUrl":"https://doi.org/10.1017/lst.2022.45","url":null,"abstract":"Abstract Death by neurological criteria (DNC) has remained controversial since its introduction over 50 years ago. Objections to the diagnosis of DNC have been coming before the courts in various jurisdictions, including at least seven recent challenges before the UK courts. In responding to these challenges, the UK courts have expressed no doubts as to the status of DNC and have affirmed that following a diagnosis of DNC, the matter of best interests is no longer relevant. Yet, the courts have also, tacitly, acknowledged that DNC is not quite the same as cardio-pulmonary death. This paper begins by setting out the origins of DNC as a medico-legal construction, and its ongoing controversies. It then analyses the treatment of DNC, including authorisation of DNC testing, by the UK courts. It shows that the courts have been operating a form of ad hoc reasonable accommodation of different views of DNC but have done so without normative engagement. The paper argues that the courts should recognise that DNC disputes are not simply concerned with whether, as a matter of fact, DNC has been correctly diagnosed, but also raise profound questions about rights and interests, both of families and of the DNC dead.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"351 - 369"},"PeriodicalIF":0.7,"publicationDate":"2023-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41703593","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}
The principle of self-determination has gained significant judicial support over the last three decades, and the choice to procreate using assisted reproductive technology is a clear example of our right to choose a treatment that enhances our personal lives. The Human Fertilisation and Embryology Act 1990 (as amended in 2008) stipulates that each party must give written, informed consent to ensure that our reproductive materials are used within strict parameters. However, the growing number of posthumous conception cases in several jurisdictions has raised concerns, particularly in situations where gametes are extracted from incapacitous patients without their consent, leading to posthumous parenthood. The landmark case of Y v A Healthcare NHS Trust [2018] EWCOP 18 caused significant concern when it authorised the retrieval, storage and use of sperm from a suspected brain stem dead man for procreative purposes under the Mental Capacity Act 2005. It has never been known to be in the ‘best interests’ of a patient who lacks capacity to procreate in English law, and the consequences of this decision could be highly significant, raising questions about the exploitation of incapacitous patients and the misuse of genetic material. The decision has since been confirmed as the correct approach by the Court of Protection in Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, and a public consultation has now been opened by the Human Fertilisation and Embryology Authority. This paper examines the rigorous consent regime of the 1990 Act and the ethical complexities of retrieving gametes from incapacitous patients for procreative purposes. It will be determined that the 1990 Act's preference for a rigorous consent regime for public policy reasons is appropriate, and any alternative forms of consent could open a slippery slope to the unethical use of vulnerable individuals for their reproductive materials.
自决原则在过去三十年中获得了重要的司法支持，选择使用辅助生殖技术生育是我们有权选择一种改善我们个人生活的治疗方法的一个明显例子。《1990年人类受精与胚胎法》(2008年修订)规定，每一方都必须给予书面的知情同意，以确保我们的生殖材料在严格的参数范围内使用。然而，在一些司法管辖区，越来越多的死后受孕案例引起了人们的关注，特别是在未经其同意从无行为能力的患者身上提取配子的情况下，导致了死后生育。具有里程碑意义的Y v A医疗保健NHS信托案件[2018]EWCOP 18引起了极大的关注，因为它授权根据《2005年精神能力法》从一名疑似脑干死亡男子的精子中提取、储存和使用精子用于生殖目的。在英国法律中，从来没有人知道这符合缺乏生育能力的病人的“最佳利益”，这一决定的后果可能非常重要，提出了对无能力病人的剥削和滥用遗传物质的问题。这一决定已经被保护法院在Re X(灾难性伤害:精子的收集和储存)[2022]EWCOP 48中确认为正确的方法，现在人类受精和胚胎学管理局已经开放了公众咨询。本文考察了1990年法案的严格同意制度，以及从无行为能力的患者中提取配子用于生育目的的伦理复杂性。将确定1990年法案出于公共政策原因对严格的同意制度的偏好是适当的，任何其他形式的同意都可能导致不道德地使用脆弱个体的生殖材料。
{"title":"Incapacitous patients, assisted reproductive technology, and the importance of informed consent","authors":"Lisa Cherkassky","doi":"10.1017/lst.2023.10","DOIUrl":"https://doi.org/10.1017/lst.2023.10","url":null,"abstract":"\u0000 The principle of self-determination has gained significant judicial support over the last three decades, and the choice to procreate using assisted reproductive technology is a clear example of our right to choose a treatment that enhances our personal lives. The Human Fertilisation and Embryology Act 1990 (as amended in 2008) stipulates that each party must give written, informed consent to ensure that our reproductive materials are used within strict parameters. However, the growing number of posthumous conception cases in several jurisdictions has raised concerns, particularly in situations where gametes are extracted from incapacitous patients without their consent, leading to posthumous parenthood. The landmark case of Y v A Healthcare NHS Trust [2018] EWCOP 18 caused significant concern when it authorised the retrieval, storage and use of sperm from a suspected brain stem dead man for procreative purposes under the Mental Capacity Act 2005. It has never been known to be in the ‘best interests’ of a patient who lacks capacity to procreate in English law, and the consequences of this decision could be highly significant, raising questions about the exploitation of incapacitous patients and the misuse of genetic material. The decision has since been confirmed as the correct approach by the Court of Protection in Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, and a public consultation has now been opened by the Human Fertilisation and Embryology Authority. This paper examines the rigorous consent regime of the 1990 Act and the ethical complexities of retrieving gametes from incapacitous patients for procreative purposes. It will be determined that the 1990 Act's preference for a rigorous consent regime for public policy reasons is appropriate, and any alternative forms of consent could open a slippery slope to the unethical use of vulnerable individuals for their reproductive materials.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47473146","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}
This paper connects two trends in contemporary legal scholarship that do not often intersect, namely commentary on the increasingly diverse nature of family law advice and support services, and calls for a refresh of the regulatory environment in which legal services in general are provided. Focusing on the law and landscape in England and Wales, we argue that regulatory challenges are particularly acute in the field of family law, where the range and reach of services provided by non-lawyers is extraordinary. We illustrate how particular aspects of debates over regulating and diversifying legal services apply to the family law context, noting that such concerns as there are have not always been well targeted. Finally, we identify a sub-set of innovative ‘extra-legal’ services that set private family law even further apart from other sub-fields of law when it comes to regulatory and professional challenge. These services clearly sit inside the landscape of family dispute resolution but equally clearly fall outside the boundaries of what is usually considered ‘legal’. This, we suggest, highlights the need for a concerted effort to define the contours of family law and family legal services so that a holistic approach might be taken to understanding and managing the standards and effectiveness of different service and support types.
{"title":"Where the wild things are: the challenges and opportunities of the unregulated legal services landscape in family law","authors":"Leanne Smith, E. Hitchings","doi":"10.1017/lst.2023.9","DOIUrl":"https://doi.org/10.1017/lst.2023.9","url":null,"abstract":"\u0000 This paper connects two trends in contemporary legal scholarship that do not often intersect, namely commentary on the increasingly diverse nature of family law advice and support services, and calls for a refresh of the regulatory environment in which legal services in general are provided. Focusing on the law and landscape in England and Wales, we argue that regulatory challenges are particularly acute in the field of family law, where the range and reach of services provided by non-lawyers is extraordinary. We illustrate how particular aspects of debates over regulating and diversifying legal services apply to the family law context, noting that such concerns as there are have not always been well targeted. Finally, we identify a sub-set of innovative ‘extra-legal’ services that set private family law even further apart from other sub-fields of law when it comes to regulatory and professional challenge. These services clearly sit inside the landscape of family dispute resolution but equally clearly fall outside the boundaries of what is usually considered ‘legal’. This, we suggest, highlights the need for a concerted effort to define the contours of family law and family legal services so that a holistic approach might be taken to understanding and managing the standards and effectiveness of different service and support types.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48322305","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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