Pub Date : 2022-07-01DOI: 10.1017/S0008197322000290
H. Hooper
assumptions” (at [41]–[42]). One of such assumptions – derived from R. v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] EWCA Civ 1293, [1997] 1 W.L.R. 275 – was that “statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act” (at [34], [39], [41]–[42]). The court stressed that when the decision maker was empowered by the 2014 Act to set the level of the fee, there was no express “criterion of affordability”. Rather, she was allowed to set the fee in a way that (inter alia) “subsidised the wider immigration and nationality system” (at [45]– [46], [49]). The “appropriateness of imposing the [impugned] fee” was a “question of policy which is for political determination”, but not that for the court (at [51]). This reasoning seemed to have ignored the abovementioned assumption in statutory interpretation. The 2014 Act states that the impugned fee may go beyond the costs for processing the application, but the question of affordability does not seem to have been directly addressed. The 2014 Act does not expressly rule out the potential relevance of affordability, when (say) the decision maker examines the “fees charged by or on behalf of governments of other countries in respect of comparable functions”: see the 2014 Act, s. 68(9)(e). There are two ways to read this legislative silence: either the decision maker can impose any fee she wants, or she must impose it in a way that must not be entirely unaffordable, albeit exceeding the costs for processing the application. The absence of an express criterion of affordability (per Lord Hodge) is logically consistent with either reading. Critically, the abovementioned assumption would suggest that the latter reading should be taken, and this matter should not be reduced to purely one of political determination.
假设”(在100亿美元至100亿美元之间)。其中一个假设——来自R. v .国务秘书，移民福利联合委员会[1996]EWCA Civ 1293， [1997] 1 W.L.R. 275——是“法定权利不会被在不同法案的权力下通过的附属立法所削减”(见[34]，[39]，[41]-[42])。法院强调，当2014年法案授权决策者设定费用水平时，并没有明确的“负担能力标准”。相反，她被允许以一种(除其他外)“补贴更广泛的移民和国籍体系”的方式设定费用(在1亿英镑至2亿英镑，10亿英镑之间)。“征收[被质疑的]费用的适当性”是一个“政治决定的政策问题”，而不是法院的问题(b[51])。这种推理似乎忽略了法定解释中的上述假设。2014年的法案规定，被质疑的费用可能超出处理申请的成本，但负担能力的问题似乎没有得到直接解决。2014年法案没有明确排除可负担性的潜在相关性，当(例如)决策者审查“由其他国家政府或代表其他国家政府就可比功能收取的费用”时:见2014年法案第68(9)(e)条。有两种方式来解读这种立法沉默:要么决策者可以征收任何她想要的费用，要么她必须以一种不能完全负担不起的方式征收，尽管超出了处理申请的成本。没有明确的负担能力标准(根据霍奇勋爵的说法)，从逻辑上讲，这两种解读都是一致的。至关重要的是，上述假设表明，应采取后一种解读，而不应将这个问题简化为纯粹的政治决定问题。
{"title":"TRUST AS A CORE PRINCIPLE OF THE CONSTITUTION","authors":"H. Hooper","doi":"10.1017/S0008197322000290","DOIUrl":"https://doi.org/10.1017/S0008197322000290","url":null,"abstract":"assumptions” (at [41]–[42]). One of such assumptions – derived from R. v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] EWCA Civ 1293, [1997] 1 W.L.R. 275 – was that “statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act” (at [34], [39], [41]–[42]). The court stressed that when the decision maker was empowered by the 2014 Act to set the level of the fee, there was no express “criterion of affordability”. Rather, she was allowed to set the fee in a way that (inter alia) “subsidised the wider immigration and nationality system” (at [45]– [46], [49]). The “appropriateness of imposing the [impugned] fee” was a “question of policy which is for political determination”, but not that for the court (at [51]). This reasoning seemed to have ignored the abovementioned assumption in statutory interpretation. The 2014 Act states that the impugned fee may go beyond the costs for processing the application, but the question of affordability does not seem to have been directly addressed. The 2014 Act does not expressly rule out the potential relevance of affordability, when (say) the decision maker examines the “fees charged by or on behalf of governments of other countries in respect of comparable functions”: see the 2014 Act, s. 68(9)(e). There are two ways to read this legislative silence: either the decision maker can impose any fee she wants, or she must impose it in a way that must not be entirely unaffordable, albeit exceeding the costs for processing the application. The absence of an express criterion of affordability (per Lord Hodge) is logically consistent with either reading. Critically, the abovementioned assumption would suggest that the latter reading should be taken, and this matter should not be reduced to purely one of political determination.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"228 - 231"},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45736117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000356
M. Leeming
{"title":"The Intricacies of Dicta and Dissent. By Neil Duxbury. [Cambridge University Press, 2021. xxv + 260 pp. Paperback £29.99. ISBN 978-1-108-79488-6.]","authors":"M. Leeming","doi":"10.1017/S0008197322000356","DOIUrl":"https://doi.org/10.1017/S0008197322000356","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"417 - 420"},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48064888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000277
Veronika Fikfak
Declaration, Legality centred on an allegation that states engaging in the use of force were committing genocide through their use of force. In contrast, the claim in Ukraine is whether actions taken purportedly to prevent and punish genocide were lawful under the GC. Robinson explicitly linked this to the question of false claims of international law, pointing out that Ukraine has not asked the court a general question about Russia’s force; rather, it is arguing that Russia cannot lawfully rely on a false claim to act to prevent genocide under the Convention. The court’s Order is a clear win for Ukraine, even though Russia is highly unlikely to comply. The way in which Ukraine relies on the idea of falsity to characterise its rights – the right “not to be subject to a false claim of genocide” (at [52]) and for military action not to be “launched on a pretext of genocide” (at [68]) – is perhaps the most remarkable aspect of the case. Although the court stops short of directly embracing the idea of a right not to be subject to false claims of international law, it does conclude that Ukraine has “a plausible right not to be subject to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine” (at [60]). While jurisdiction is clearly based on the existence of a dispute as to whether genocide is taking place and what actions Russia may lawfully take in response, the court nevertheless signalled that Article I GC must be carried out in good faith and in a way that is compatible with general international law. At the merits stage, it may have to grapple with what this means in practice, including what it means to make “bad faith” and pre-textual claims about law and fact as opposed to making claims that are plausible but wrong. Drawing these distinctions and characterising the impact that deception has on the validity of international legal arguments is a perennial challenge for international law, as too many past examples of unilateral force have shown.
{"title":"ESTABLISHING DAMAGES FOR MASS HUMAN RIGHTS VIOLATIONS","authors":"Veronika Fikfak","doi":"10.1017/S0008197322000277","DOIUrl":"https://doi.org/10.1017/S0008197322000277","url":null,"abstract":"Declaration, Legality centred on an allegation that states engaging in the use of force were committing genocide through their use of force. In contrast, the claim in Ukraine is whether actions taken purportedly to prevent and punish genocide were lawful under the GC. Robinson explicitly linked this to the question of false claims of international law, pointing out that Ukraine has not asked the court a general question about Russia’s force; rather, it is arguing that Russia cannot lawfully rely on a false claim to act to prevent genocide under the Convention. The court’s Order is a clear win for Ukraine, even though Russia is highly unlikely to comply. The way in which Ukraine relies on the idea of falsity to characterise its rights – the right “not to be subject to a false claim of genocide” (at [52]) and for military action not to be “launched on a pretext of genocide” (at [68]) – is perhaps the most remarkable aspect of the case. Although the court stops short of directly embracing the idea of a right not to be subject to false claims of international law, it does conclude that Ukraine has “a plausible right not to be subject to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine” (at [60]). While jurisdiction is clearly based on the existence of a dispute as to whether genocide is taking place and what actions Russia may lawfully take in response, the court nevertheless signalled that Article I GC must be carried out in good faith and in a way that is compatible with general international law. At the merits stage, it may have to grapple with what this means in practice, including what it means to make “bad faith” and pre-textual claims about law and fact as opposed to making claims that are plausible but wrong. Drawing these distinctions and characterising the impact that deception has on the validity of international legal arguments is a perennial challenge for international law, as too many past examples of unilateral force have shown.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"221 - 225"},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43371669","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000319
J. Grower
by the parties – lower courts would do well to heed the warning. While the judgment in ZXC could be described as a “win” for privacy interests, a “general principle” or “starting point” of a reasonable expectation of privacy in respect of information relating to pre-charge criminal investigations does not preclude journalists from conducting their own inquiries into a person’s alleged misconduct and reporting the outcome of those inquiries. As the trial judge, Court of Appeal and Supreme Court emphasised, the article at the centre of the proceedings in ZXC merely repeated the content of the LoR. If, instead, the article concerned ZXC’s alleged wrongdoing based on Bloomberg’s own investigations, this would have been a “distinct and separate situation” (at [78]). Given that law enforcement authorities have themselves adopted a uniform policy of not disclosing information regarding pre-charge investigations, the approach espoused by the lower courts and endorsed by the Supreme Court in ZXC is an eminently reasonable compromise between the conflicting Article 8 and 10 interests in such cases. Any contention that the decision unjustifiably curtails expression that is in the public interest ignores the very clear message from the Supreme Court that each case turns on its own facts and independent investigations by journalists may well fall outside the remit of the general rule.
{"title":"A GAIN IS AS GOOD AS A LOSS … TO A BOUND FIDUCIARY","authors":"J. Grower","doi":"10.1017/S0008197322000319","DOIUrl":"https://doi.org/10.1017/S0008197322000319","url":null,"abstract":"by the parties – lower courts would do well to heed the warning. While the judgment in ZXC could be described as a “win” for privacy interests, a “general principle” or “starting point” of a reasonable expectation of privacy in respect of information relating to pre-charge criminal investigations does not preclude journalists from conducting their own inquiries into a person’s alleged misconduct and reporting the outcome of those inquiries. As the trial judge, Court of Appeal and Supreme Court emphasised, the article at the centre of the proceedings in ZXC merely repeated the content of the LoR. If, instead, the article concerned ZXC’s alleged wrongdoing based on Bloomberg’s own investigations, this would have been a “distinct and separate situation” (at [78]). Given that law enforcement authorities have themselves adopted a uniform policy of not disclosing information regarding pre-charge investigations, the approach espoused by the lower courts and endorsed by the Supreme Court in ZXC is an eminently reasonable compromise between the conflicting Article 8 and 10 interests in such cases. Any contention that the decision unjustifiably curtails expression that is in the public interest ignores the very clear message from the Supreme Court that each case turns on its own facts and independent investigations by journalists may well fall outside the remit of the general rule.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"235 - 238"},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48013943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/S000819732200037X
Birke Häcker
{"title":"EU Private Law: Anatomy of a Growing Legal Order. By Jürgen Basedow. [Cambridge: Intersentia, 2021. cxxviii + 788 pp. Hardback €149.00. ISBN 978-1-839-70121-4.]","authors":"Birke Häcker","doi":"10.1017/S000819732200037X","DOIUrl":"https://doi.org/10.1017/S000819732200037X","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"423 - 427"},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47632144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000344
Jonathan Morgan
{"title":"MAINTAINING THE ELEGANT FAÇADE OF THE ACTS–OMISSIONS DISTINCTION","authors":"Jonathan Morgan","doi":"10.1017/S0008197322000344","DOIUrl":"https://doi.org/10.1017/S0008197322000344","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"245 - 248"},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48256446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-01DOI: 10.1017/S0008197322000289
Kelly Chong Yan Chan, Edward Lui
{"title":"CITIZENSHIP, CHARGES AND COMMON LAW CONSTITUTIONAL RIGHTS","authors":"Kelly Chong Yan Chan, Edward Lui","doi":"10.1017/S0008197322000289","DOIUrl":"https://doi.org/10.1017/S0008197322000289","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"225 - 228"},"PeriodicalIF":1.5,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41907684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-16DOI: 10.1017/S0008197322000241
S. Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, G. Dutfield
Abstract This article examines global vaccine inequity during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1994 WTO TRIPS Agreement, and specifically, the role that IP has played in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal should be viewed as offering a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by existing TRIPS flexibilities. Finally, we reflect on the waiver debate in the wider context of TRIPS and the need to boost global pandemic preparedness.
{"title":"ADDRESSING VACCINE INEQUITY DURING THE COVID-19 PANDEMIC: THE TRIPS INTELLECTUAL PROPERTY WAIVER PROPOSAL AND BEYOND","authors":"S. Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, G. Dutfield","doi":"10.1017/S0008197322000241","DOIUrl":"https://doi.org/10.1017/S0008197322000241","url":null,"abstract":"Abstract This article examines global vaccine inequity during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1994 WTO TRIPS Agreement, and specifically, the role that IP has played in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal should be viewed as offering a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by existing TRIPS flexibilities. Finally, we reflect on the waiver debate in the wider context of TRIPS and the need to boost global pandemic preparedness.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"1 1","pages":"1 - 33"},"PeriodicalIF":1.5,"publicationDate":"2022-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43487793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-01DOI: 10.1017/S0008197322000022
J. Goldsworthy
Abstract Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional conventions are essentially political not legal requirements. Therefore, a constitutional convention requiring popular approval of constitutional change, if it ever existed, would not have violated parliamentary sovereignty. But if it did exist, it was displaced by the Parliament Act 1911 and has not been revived since. Moreover, there is no evidence that courts today have legal authority to enforce any requirement, conventional or legal, requiring such approval.
{"title":"PARLIAMENTARY SOVEREIGNTY AND POPULAR SOVEREIGNTY IN THE UK CONSTITUTION","authors":"J. Goldsworthy","doi":"10.1017/S0008197322000022","DOIUrl":"https://doi.org/10.1017/S0008197322000022","url":null,"abstract":"Abstract Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional conventions are essentially political not legal requirements. Therefore, a constitutional convention requiring popular approval of constitutional change, if it ever existed, would not have violated parliamentary sovereignty. But if it did exist, it was displaced by the Parliament Act 1911 and has not been revived since. Moreover, there is no evidence that courts today have legal authority to enforce any requirement, conventional or legal, requiring such approval.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"273 - 293"},"PeriodicalIF":1.5,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41463773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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