Abstract The demand for family mediation to adapt and change has risen sharply in the contemporary English and Welsh family justice system. This paper focuses on a crucial, yet overlooked, barrier to reform: the tensions felt within the family mediator profession. It first provides an important overview of the introduction of family mediation in the late twentieth century, highlighting the distinction between the traditional therapeutic mediator and the subsequent lawyer mediator. Recent anecdotal evidence suggests that friction exists amongst the two mediator sub-groups, similar to earlier tensions felt between lawyers and mediators. The remainder of this paper is based on an empirical study, comprising 17 interviews with family mediators, which confirms these tensions, as well as a lack of national identity across the profession. However, the data also reveal mediators’ desire for collaboration and community within the profession. The paper is hopeful that regulatory reform can help mediators to ‘mediate themselves’ going forward, and questions whether this transition is supported by a new hybrid mediator.
{"title":"‘Mediators mediating themselves’: tensions within the family mediator profession","authors":"R. Blakey","doi":"10.1017/lst.2022.29","DOIUrl":"https://doi.org/10.1017/lst.2022.29","url":null,"abstract":"Abstract The demand for family mediation to adapt and change has risen sharply in the contemporary English and Welsh family justice system. This paper focuses on a crucial, yet overlooked, barrier to reform: the tensions felt within the family mediator profession. It first provides an important overview of the introduction of family mediation in the late twentieth century, highlighting the distinction between the traditional therapeutic mediator and the subsequent lawyer mediator. Recent anecdotal evidence suggests that friction exists amongst the two mediator sub-groups, similar to earlier tensions felt between lawyers and mediators. The remainder of this paper is based on an empirical study, comprising 17 interviews with family mediators, which confirms these tensions, as well as a lack of national identity across the profession. However, the data also reveal mediators’ desire for collaboration and community within the profession. The paper is hopeful that regulatory reform can help mediators to ‘mediate themselves’ going forward, and questions whether this transition is supported by a new hybrid mediator.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"139 - 158"},"PeriodicalIF":0.7,"publicationDate":"2022-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44156413","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 discusses the extent to which conscientious objections to vaccination qualify for protection under the European Convention on Human Rights (ECHR). Drawing on an examination of the nature of conscience and the ethics of vaccine refusal, it argues that a narrow category of reasons for refusal to be vaccinated can be differentiated from more general ‘vaccine hesitancy’. In relation to conscience objections of this kind, it engages in a systematic analysis of the applicability of the ECHR, both in relation to compulsory vaccination, and so-called ‘vaccine passports’. It concludes that states can – and in some situations must – recognise conscientious objections under the ECHR.
{"title":"Vaccination, conscientious objection and human rights","authors":"I. Leigh","doi":"10.1017/lst.2022.27","DOIUrl":"https://doi.org/10.1017/lst.2022.27","url":null,"abstract":"Abstract This paper discusses the extent to which conscientious objections to vaccination qualify for protection under the European Convention on Human Rights (ECHR). Drawing on an examination of the nature of conscience and the ethics of vaccine refusal, it argues that a narrow category of reasons for refusal to be vaccinated can be differentiated from more general ‘vaccine hesitancy’. In relation to conscience objections of this kind, it engages in a systematic analysis of the applicability of the ECHR, both in relation to compulsory vaccination, and so-called ‘vaccine passports’. It concludes that states can – and in some situations must – recognise conscientious objections under the ECHR.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"201 - 220"},"PeriodicalIF":0.7,"publicationDate":"2022-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42637868","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 a negligence action against a defendant suffering from a mental disorder or an incapacity, a key but neglected question is what we mean by involuntariness. Although involuntariness is an accepted response, its relationship to mental or physical incapacity is poorly understood. The existing authorities offer only basic instruction about what is meant by involuntariness. Moreover, there is a suspicion that involuntariness undermines the objectivity of the standard of care. However, in this paper, it is argued that involuntariness can be better defined and a clearer understanding can be gained of how responsibility operates within tort law. By relating the case law and commentary on involuntariness to a choice theory of responsibility and arguing that this operates at a foundational level which is analytically prior to questions of breach, this paper tries to illuminate how tort law – like other areas of law – makes fundamental assumptions about the capacity of individuals to whom duties are expected to apply. None of this will necessarily increase the volume of claims or unsettle well-worn authorities but it does ensure both consistency and fairness and argues for a deeper appreciation of agency within how tort law characterises the applicability of duties.
{"title":"Involuntariness in negligence actions","authors":"S. Bogle","doi":"10.1017/lst.2022.28","DOIUrl":"https://doi.org/10.1017/lst.2022.28","url":null,"abstract":"Abstract In a negligence action against a defendant suffering from a mental disorder or an incapacity, a key but neglected question is what we mean by involuntariness. Although involuntariness is an accepted response, its relationship to mental or physical incapacity is poorly understood. The existing authorities offer only basic instruction about what is meant by involuntariness. Moreover, there is a suspicion that involuntariness undermines the objectivity of the standard of care. However, in this paper, it is argued that involuntariness can be better defined and a clearer understanding can be gained of how responsibility operates within tort law. By relating the case law and commentary on involuntariness to a choice theory of responsibility and arguing that this operates at a foundational level which is analytically prior to questions of breach, this paper tries to illuminate how tort law – like other areas of law – makes fundamental assumptions about the capacity of individuals to whom duties are expected to apply. None of this will necessarily increase the volume of claims or unsettle well-worn authorities but it does ensure both consistency and fairness and argues for a deeper appreciation of agency within how tort law characterises the applicability of duties.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"122 - 138"},"PeriodicalIF":0.7,"publicationDate":"2022-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43083690","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 A significant issue in combatting the Covid-19 pandemic is the need to enhance developing states’ access to Covid-19 vaccines. The present paper considers the request for a temporary waiver of intellectual property rights in relation to Covid-19 technologies and treatments submitted to the World Trade Organization and analyses a key argument against the proposed waiver: that the compulsory licensing provisions set out in the TRIPS Agreement are sufficiently flexible to help states get access to vaccines. The compulsory licensing flexibilities set out in TRIPS, including the amendment to TRIPS in Article 31bis, are evaluated, to explore whether compulsory licensing could be an effective tool in helping developing states to access Covid-19 vaccines. Key issues are explored from a human rights perspective to examine whether a rights-based approach to the compulsory licensing provisions could offer further insights as to how the provisions could be more workable, to enhance access to medicines and vaccines for developing states.
{"title":"Compulsory licensing: an effective tool for securing access to Covid-19 vaccines for developing states?","authors":"Lowri Davies","doi":"10.1017/lst.2022.24","DOIUrl":"https://doi.org/10.1017/lst.2022.24","url":null,"abstract":"Abstract A significant issue in combatting the Covid-19 pandemic is the need to enhance developing states’ access to Covid-19 vaccines. The present paper considers the request for a temporary waiver of intellectual property rights in relation to Covid-19 technologies and treatments submitted to the World Trade Organization and analyses a key argument against the proposed waiver: that the compulsory licensing provisions set out in the TRIPS Agreement are sufficiently flexible to help states get access to vaccines. The compulsory licensing flexibilities set out in TRIPS, including the amendment to TRIPS in Article 31bis, are evaluated, to explore whether compulsory licensing could be an effective tool in helping developing states to access Covid-19 vaccines. Key issues are explored from a human rights perspective to examine whether a rights-based approach to the compulsory licensing provisions could offer further insights as to how the provisions could be more workable, to enhance access to medicines and vaccines for developing states.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"86 - 103"},"PeriodicalIF":0.7,"publicationDate":"2022-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42345348","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 Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct concern from exclusion of evidence of little probative value) prior to the enactment of the Civil Procedure Rules 1998. This paper seeks to demonstrate that this is wrong, arguing that a number of sources of power to exclude evidence on the basis of how that evidence was obtained have arisen in England and Wales, and that these are not attributable to the Civil Procedure Rules. There is a discretion which enables exclusion of evidence where this is ‘in the interests of justice’, and a discretion to do with the administration of justice. It may be possible to break these down further, to concerns over abuse of the court's own procedures, and executive illegality. Analysing the decisions leading to these developments reveals the importance of human rights concerns to recognition of exclusionary discretion in civil proceedings, and for informing the content of the discretion/s.
{"title":"Discretion to exclude improperly obtained evidence in civil proceedings in England and Wales","authors":"Alexandra Allen-Franks","doi":"10.1017/lst.2022.23","DOIUrl":"https://doi.org/10.1017/lst.2022.23","url":null,"abstract":"Abstract Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct concern from exclusion of evidence of little probative value) prior to the enactment of the Civil Procedure Rules 1998. This paper seeks to demonstrate that this is wrong, arguing that a number of sources of power to exclude evidence on the basis of how that evidence was obtained have arisen in England and Wales, and that these are not attributable to the Civil Procedure Rules. There is a discretion which enables exclusion of evidence where this is ‘in the interests of justice’, and a discretion to do with the administration of justice. It may be possible to break these down further, to concerns over abuse of the court's own procedures, and executive illegality. Analysing the decisions leading to these developments reveals the importance of human rights concerns to recognition of exclusionary discretion in civil proceedings, and for informing the content of the discretion/s.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"66 - 85"},"PeriodicalIF":0.7,"publicationDate":"2022-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48341774","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 It is May 2030 and Stormont heads into its fourth Assembly election in eight years. Voters walk past election posters loudly praising and denouncing the Northern Ireland Protocol. As with the other Assembly elections since Brexit, the Protocol occupies centre-stage. Voters are under no delusion: the new Assembly will be as polarised as ever, no matter its party-political make-up. The legal backdrop to this (not entirely unfeasible) future is complex: the UK's Withdrawal Agreement has meant the emergence of a regulatory border between Great Britain and Northern Ireland. The consequences which flow from this have been swift and myriad: trade barriers and social unrest, barely a year after withdrawal. The focus of this paper, however, is the impact of these changes on the UK constitution. I will examine two landmark judgments of the UK Supreme Court, applying the themes arising in these cases to the legislation which incorporated the Protocol into UK domestic law. In so doing, I will argue that, far from ‘taking back control’, the UK Parliament has instead erected significant new barriers to its ability to ‘make or unmake any law whatever’ for the whole of the UK.
{"title":"Parliamentary sovereignty and the protocol pincer","authors":"Anurag Deb","doi":"10.1017/lst.2022.22","DOIUrl":"https://doi.org/10.1017/lst.2022.22","url":null,"abstract":"Abstract It is May 2030 and Stormont heads into its fourth Assembly election in eight years. Voters walk past election posters loudly praising and denouncing the Northern Ireland Protocol. As with the other Assembly elections since Brexit, the Protocol occupies centre-stage. Voters are under no delusion: the new Assembly will be as polarised as ever, no matter its party-political make-up. The legal backdrop to this (not entirely unfeasible) future is complex: the UK's Withdrawal Agreement has meant the emergence of a regulatory border between Great Britain and Northern Ireland. The consequences which flow from this have been swift and myriad: trade barriers and social unrest, barely a year after withdrawal. The focus of this paper, however, is the impact of these changes on the UK constitution. I will examine two landmark judgments of the UK Supreme Court, applying the themes arising in these cases to the legislation which incorporated the Protocol into UK domestic law. In so doing, I will argue that, far from ‘taking back control’, the UK Parliament has instead erected significant new barriers to its ability to ‘make or unmake any law whatever’ for the whole of the UK.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"47 - 65"},"PeriodicalIF":0.7,"publicationDate":"2022-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48416416","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 explores the relationship between the concept of the ‘identity of the child’ and legal parenthood. It examines the role of identity in the determination of legal parenthood in three contexts: (a) parental orders after surrogacy arrangements; (b) disputed paternity cases; and (c) the statutory rules in cases involving gamete donation. This paper argues that the concept of ‘identity’ plays an inconsistent role in the attribution of legal parenthood, because the concept lacks substantive content within judicial reasoning and the statutory framework. The understanding of identity, and the role it plays, appears to change in these different contexts to serve the different purposes that the law is trying to achieve. The reason for this inconsistency is that, despite the utilisation of the language of the ‘child's identity’, legal parenthood remains adult-centric and premised upon replicating the binary, two-parent model of the nuclear family. We argue that instead of appealing to this incoherent concept of ‘identity’, the courts should explicitly engage with different types of parenthood and acknowledge the importance of each for both children and parents. Such an approach would result in more truly child-centred reasoning and serve to diminish the predominance of the binary, two-parent model.
{"title":"The incoherent role of the child's identity in the construction and allocation of legal parenthood","authors":"Alan Brown, Katherine Wade","doi":"10.1017/lst.2022.21","DOIUrl":"https://doi.org/10.1017/lst.2022.21","url":null,"abstract":"Abstract This paper explores the relationship between the concept of the ‘identity of the child’ and legal parenthood. It examines the role of identity in the determination of legal parenthood in three contexts: (a) parental orders after surrogacy arrangements; (b) disputed paternity cases; and (c) the statutory rules in cases involving gamete donation. This paper argues that the concept of ‘identity’ plays an inconsistent role in the attribution of legal parenthood, because the concept lacks substantive content within judicial reasoning and the statutory framework. The understanding of identity, and the role it plays, appears to change in these different contexts to serve the different purposes that the law is trying to achieve. The reason for this inconsistency is that, despite the utilisation of the language of the ‘child's identity’, legal parenthood remains adult-centric and premised upon replicating the binary, two-parent model of the nuclear family. We argue that instead of appealing to this incoherent concept of ‘identity’, the courts should explicitly engage with different types of parenthood and acknowledge the importance of each for both children and parents. Such an approach would result in more truly child-centred reasoning and serve to diminish the predominance of the binary, two-parent model.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"29 - 46"},"PeriodicalIF":0.7,"publicationDate":"2022-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42707710","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 his 1935 judgment in Woolmington v DPP, Viscount Sankey declared the prosecution's burden of proving the accused's guilt was a ‘golden thread’, running ‘throughout the whole web of English criminal law’. This paper explores what Woolmington can tell us about the appeals process – and about the criminal law itself – less than 30 years after the first automatic right to appeal was created in English criminal law. It argues that the decision helps us understand the political pressures that could help to form – and make possible – legal decisions during this period. And it finds that the Woolmington decision itself – both in the text of the decision and in its immediate reception – was more universal than it was fundamental. Woolmington, I argue, has always been more about the high-level principles of English criminal law than about securing any kind of minimal procedural rights for a defendant.
桑基子爵(Viscount Sankey)在1935年伍尔明顿诉民进党案(Woolmington v DPP)的判决中宣称，控方证明被告有罪的责任是一条“金线”，贯穿“英国刑法的整个网络”。本文探讨了伍明顿可以告诉我们的关于上诉程序——以及刑法本身——在英国刑法中首次设立自动上诉权不到30年的时间里。它认为，这一决定有助于我们理解在这一时期可能有助于形成(并使之成为可能)法律决定的政治压力。它还发现，伍明顿判决本身——无论是在判决书的文本中还是在它的直接接受中——都是普遍的，而不是根本的。我认为，伍明顿一直更多地关注的是英国刑法的高级原则，而不是确保被告的最低限度的程序权利。
{"title":"‘Well, the burden never shifts, but it does’: celebrity, property offences and judicial innovation in Woolmington v DPP","authors":"K. Crosby","doi":"10.1017/lst.2022.25","DOIUrl":"https://doi.org/10.1017/lst.2022.25","url":null,"abstract":"Abstract In his 1935 judgment in Woolmington v DPP, Viscount Sankey declared the prosecution's burden of proving the accused's guilt was a ‘golden thread’, running ‘throughout the whole web of English criminal law’. This paper explores what Woolmington can tell us about the appeals process – and about the criminal law itself – less than 30 years after the first automatic right to appeal was created in English criminal law. It argues that the decision helps us understand the political pressures that could help to form – and make possible – legal decisions during this period. And it finds that the Woolmington decision itself – both in the text of the decision and in its immediate reception – was more universal than it was fundamental. Woolmington, I argue, has always been more about the high-level principles of English criminal law than about securing any kind of minimal procedural rights for a defendant.","PeriodicalId":46121,"journal":{"name":"Legal Studies","volume":"43 1","pages":"104 - 121"},"PeriodicalIF":0.7,"publicationDate":"2022-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43921932","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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