Pub Date : 2022-11-01DOI: 10.1017/S0008197322000599
A. L. Young
The UK constitution is going through a period of rapid change, some would even argue constant crises. Constitutional scholarship has become more reactive than proactive; illuminating and evaluating change rather than turning its gaze to longstanding principles. Sir Jack Beatson’s book provides a welcome reflection on two such principles, the rule of law and the separation of powers. In doing so, it not only manages to achieve its aim of providing a clear introductory exegesis, but also provides ample food for thought for constitutional scholars. The book begins with an overview of the UK constitution. Chapter 1 draws attention to its uncodified nature, its array of sources and the importance of parliamentary sovereignty. Having established this context, the book focuses first on an exegesis of the rule of law before turning to the separation of powers. After first providing an account, and an evaluation, of formal and substantive conceptions of the rule of law (Chapter 2), a further critical evaluation is made of Dicey’s theory, culminating in an assessment of Tom Bingham’s magisterial account (Chapter 3). These characteristics are used as a lens through which to assess the UK constitution, with chapters evaluating the accessibility of the law (Chapter 4), the extent to which the UK constitution checks arbitrary executive decision-making (Chapter 5), access to justice (Chapter 6), and the independence and impartiality of the judiciary (Chapter 7). The book then turns to the separation of powers. Beatson recognises the difficulty of applying this principle to the UK constitution, particularly given the fusion between the executive and the legislature. Consequently, he prefers to refer to and assess the balance of powers in the UK constitution (Chapter 8). The final chapter turns to provisions that enable majorities and protect minorities, examining the right to vote and parliamentary sovereignty, before assessing the extent to which the Human Rights Act 1998, the principle of legality, dicta regarding the exceptional circumstances where courts may refuse to recognise or enforce Acts of Parliament and the role of ouster clauses (Chapter 9). All of these are examined in order to evaluate the extent to which the UK constitution balances the protection of minorities against the protection of democracy through enabling majority rule. As part of the key ideas series, the book is designed to give a short overview. The book is a model of percipience. To produce a book that is so clear, detailed and current is an outstanding achievement. There is no dumbing-down for the constitutional novice and no obfuscatory short cuts in order to avoid contestable issues. Any newcomer to the UK constitution is richly rewarded with a broad knowledge and understanding of these key constitutional concepts. The book also has much to offer those who are more well-versed in the UK constitution and constitutional theory. This review will focus on four such examples, three of w
{"title":"Key Ideas in Law: The Rule of Law and the Separation of Powers. By Jack Beatson. [Oxford: Hart Publishing, 2021. 192 pp. Paperback £12.99. ISBN 978-1-50993-877-3.]","authors":"A. L. Young","doi":"10.1017/S0008197322000599","DOIUrl":"https://doi.org/10.1017/S0008197322000599","url":null,"abstract":"The UK constitution is going through a period of rapid change, some would even argue constant crises. Constitutional scholarship has become more reactive than proactive; illuminating and evaluating change rather than turning its gaze to longstanding principles. Sir Jack Beatson’s book provides a welcome reflection on two such principles, the rule of law and the separation of powers. In doing so, it not only manages to achieve its aim of providing a clear introductory exegesis, but also provides ample food for thought for constitutional scholars. The book begins with an overview of the UK constitution. Chapter 1 draws attention to its uncodified nature, its array of sources and the importance of parliamentary sovereignty. Having established this context, the book focuses first on an exegesis of the rule of law before turning to the separation of powers. After first providing an account, and an evaluation, of formal and substantive conceptions of the rule of law (Chapter 2), a further critical evaluation is made of Dicey’s theory, culminating in an assessment of Tom Bingham’s magisterial account (Chapter 3). These characteristics are used as a lens through which to assess the UK constitution, with chapters evaluating the accessibility of the law (Chapter 4), the extent to which the UK constitution checks arbitrary executive decision-making (Chapter 5), access to justice (Chapter 6), and the independence and impartiality of the judiciary (Chapter 7). The book then turns to the separation of powers. Beatson recognises the difficulty of applying this principle to the UK constitution, particularly given the fusion between the executive and the legislature. Consequently, he prefers to refer to and assess the balance of powers in the UK constitution (Chapter 8). The final chapter turns to provisions that enable majorities and protect minorities, examining the right to vote and parliamentary sovereignty, before assessing the extent to which the Human Rights Act 1998, the principle of legality, dicta regarding the exceptional circumstances where courts may refuse to recognise or enforce Acts of Parliament and the role of ouster clauses (Chapter 9). All of these are examined in order to evaluate the extent to which the UK constitution balances the protection of minorities against the protection of democracy through enabling majority rule. As part of the key ideas series, the book is designed to give a short overview. The book is a model of percipience. To produce a book that is so clear, detailed and current is an outstanding achievement. There is no dumbing-down for the constitutional novice and no obfuscatory short cuts in order to avoid contestable issues. Any newcomer to the UK constitution is richly rewarded with a broad knowledge and understanding of these key constitutional concepts. The book also has much to offer those who are more well-versed in the UK constitution and constitutional theory. This review will focus on four such examples, three of w","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"673 - 676"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45476734","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 : 2022-11-01DOI: 10.1017/S0008197322000551
Poorna Mysoor
connected? Both are cases of merely notional attribution with much in common. The authors note this is an open question (p. 245) but do not evaluate the normative merits of each position or the possible outcomes. Chapter 8 sets out the bars to tracing. Most are uncontroversial so the treatment is short, but the book is an end-to-end treatment. The most controversial question is whether change of position ought to be a bar. This is left for another work since the authors, through their justifications for tracing, reject the applicability of the principles of unjust enrichment. The new Law of Tracing certainly achieves its goal to set out just that. In doing so, it strikes a balance between having a grand explanatory theory from which all the rules and principles deductively flow and a more flexible theory formed inductively from the authorities. My criticism that it could have been pushed further towards the former is tempered by the advantages of the latter. Indeed, the law of tracing is not fully formed, so characterising it as precisely as possible, but not too precisely, is a fine objective. And in Chapter 5 this compromise was deployed to particularly good effect. This leads us to the final questions: Will the new Law of Tracing be the last word on the subject? Plainly no. Will it assist our understanding of the law and drive it forward? Plainly yes. Its clarity, attention to detail and insightful analysis makes it a valuable addition both to the academic debate and the practitioner’s toolbox.
{"title":"IP Accidents. By Patrick Goold. [Cambridge University Press, 2022. xvi + 133 pp. Hardback £85.00. ISBN 978-1-10-884148-1.]","authors":"Poorna Mysoor","doi":"10.1017/S0008197322000551","DOIUrl":"https://doi.org/10.1017/S0008197322000551","url":null,"abstract":"connected? Both are cases of merely notional attribution with much in common. The authors note this is an open question (p. 245) but do not evaluate the normative merits of each position or the possible outcomes. Chapter 8 sets out the bars to tracing. Most are uncontroversial so the treatment is short, but the book is an end-to-end treatment. The most controversial question is whether change of position ought to be a bar. This is left for another work since the authors, through their justifications for tracing, reject the applicability of the principles of unjust enrichment. The new Law of Tracing certainly achieves its goal to set out just that. In doing so, it strikes a balance between having a grand explanatory theory from which all the rules and principles deductively flow and a more flexible theory formed inductively from the authorities. My criticism that it could have been pushed further towards the former is tempered by the advantages of the latter. Indeed, the law of tracing is not fully formed, so characterising it as precisely as possible, but not too precisely, is a fine objective. And in Chapter 5 this compromise was deployed to particularly good effect. This leads us to the final questions: Will the new Law of Tracing be the last word on the subject? Plainly no. Will it assist our understanding of the law and drive it forward? Plainly yes. Its clarity, attention to detail and insightful analysis makes it a valuable addition both to the academic debate and the practitioner’s toolbox.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"687 - 690"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42071461","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 : 2022-11-01DOI: 10.1017/S000819732200054X
Henry Kha
{"title":"Fifty Years of the Divorce Reform Act 1969. Edited by Joanna Miles, Daniel Monk and Rebecca Probert. [Oxford: Hart Publishing, 2022. xiii + 295 pp. Hardback £85.00. ISBN 978-1-50994-788-1.]","authors":"Henry Kha","doi":"10.1017/S000819732200054X","DOIUrl":"https://doi.org/10.1017/S000819732200054X","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"694 - 697"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48361886","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 : 2022-11-01DOI: 10.1017/S0008197322000526
C. Beuermann
Abstract This article uses Atiyah and Summer's categorisation of the attributes of formal legal reasoning in Form and Substance in Anglo-American Law to examine the type of legal reasoning process used by the courts in England and Wales when determining the second stage of vicarious liability. The analysis shows that, although remaining formal in nature, the shift away from the Salmond test has resulted in a shift in the type of form used by the courts. It is suggested that future guidance issued by the Supreme Court to lower courts when determining the second stage of vicarious liability needs to take account of this change for the guidance to be effective.
{"title":"DISCERNING THE FORM AT THE SECOND STAGE OF VICARIOUS LIABILITY","authors":"C. Beuermann","doi":"10.1017/S0008197322000526","DOIUrl":"https://doi.org/10.1017/S0008197322000526","url":null,"abstract":"Abstract This article uses Atiyah and Summer's categorisation of the attributes of formal legal reasoning in Form and Substance in Anglo-American Law to examine the type of legal reasoning process used by the courts in England and Wales when determining the second stage of vicarious liability. The analysis shows that, although remaining formal in nature, the shift away from the Salmond test has resulted in a shift in the type of form used by the courts. It is suggested that future guidance issued by the Supreme Court to lower courts when determining the second stage of vicarious liability needs to take account of this change for the guidance to be effective.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"495 - 523"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48225451","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 : 2022-11-01DOI: 10.1017/S0008197322000575
N. Simmonds
statutes appear to be regarded as a judicial creation against which the executive must push back, rather than the opportunity to agree principles that should act as political or legal brakes on governments with strong parliamentary majorities that do not enjoy the support of the majority of the electorate. If the need for a reality check is all readers take away from reading this excellent book, then they will be enriched indeed. We can but hope it also influences those currently contemplating constitutional reform.
{"title":"Law's Ideal Dimension. By Robert Alexy. [Oxford University Press, 2021. xiv + 325 pp. Hardback £80.00. ISBN 978-0-19-879683-1.]","authors":"N. Simmonds","doi":"10.1017/S0008197322000575","DOIUrl":"https://doi.org/10.1017/S0008197322000575","url":null,"abstract":"statutes appear to be regarded as a judicial creation against which the executive must push back, rather than the opportunity to agree principles that should act as political or legal brakes on governments with strong parliamentary majorities that do not enjoy the support of the majority of the electorate. If the need for a reality check is all readers take away from reading this excellent book, then they will be enriched indeed. We can but hope it also influences those currently contemplating constitutional reform.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"676 - 679"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44577813","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 : 2022-11-01DOI: 10.1017/s0008197322000745
D. Feldman
on behalf of the applicants in Sharma, the applicants in Duarte Agostinho submit that climate change currently poses a risk to their lives and health, and this will only worsen with time. Separately, an association of senior women has filed a complaint before the ECtHR similarly arguing that the Swiss authorities have violated the positive obligations it owes them under Articles 2 and 8 of the ECHR by failing adequately to address climate change (Verein KlimaSeniorinnen Schweiz and Ors v Switzerland, App No. 53600/20). As with the applicants in Duarte Agostinho, and in contrast to the applicants in Sharma, the elderly complainants in Verein KlimaSeniorinnen Schweiz argue that they have already suffered harm because of climate change. While the likely outcome of both sets of complaints before the ECtHR is, at this stage, anyone’s guess, several aspects of the proceedings in Sharma may be of relevance. First, as noted, the applicants in the complaints before the ECtHR have argued that they have already suffered damage and their complaints are against the state as a whole, as distinct from a specific minister exercising a limited statutory power whose possible breach is related to an indeterminate harm at an indeterminate time. Issues of proximity and harm are, therefore, unlikely to be as significant in the ECtHR proceedings as they were in Sharma. Nevertheless, questions regarding foreseeability and control over the harm will no doubt assume importance before the ECtHR, particularly given that climate change is a global issue. While the law of negligence may not be the answer for individuals seeking to compel states to act to address the current climate crisis and to prevent future catastrophe, human rights law is increasingly invoked by litigants to fill some of that lacuna in protection. Only time will tell whether the ECHR, as interpreted by the ECtHR, provides such protection. As for the law of negligence, concepts such as “sufficient closeness and directness” and indeterminacy “may have reached their shelf life, particularly where one is dealing with acts or omissions that have wide-scale consequences that transcend confined temporal boundaries and geographic ranges, and where more than direct mechanistic causal pathways are involved” (at [754]).
{"title":"STATUTORY INTERPRETATION: NATURAL MEANING AND CONTEXT","authors":"D. Feldman","doi":"10.1017/s0008197322000745","DOIUrl":"https://doi.org/10.1017/s0008197322000745","url":null,"abstract":"on behalf of the applicants in Sharma, the applicants in Duarte Agostinho submit that climate change currently poses a risk to their lives and health, and this will only worsen with time. Separately, an association of senior women has filed a complaint before the ECtHR similarly arguing that the Swiss authorities have violated the positive obligations it owes them under Articles 2 and 8 of the ECHR by failing adequately to address climate change (Verein KlimaSeniorinnen Schweiz and Ors v Switzerland, App No. 53600/20). As with the applicants in Duarte Agostinho, and in contrast to the applicants in Sharma, the elderly complainants in Verein KlimaSeniorinnen Schweiz argue that they have already suffered harm because of climate change. While the likely outcome of both sets of complaints before the ECtHR is, at this stage, anyone’s guess, several aspects of the proceedings in Sharma may be of relevance. First, as noted, the applicants in the complaints before the ECtHR have argued that they have already suffered damage and their complaints are against the state as a whole, as distinct from a specific minister exercising a limited statutory power whose possible breach is related to an indeterminate harm at an indeterminate time. Issues of proximity and harm are, therefore, unlikely to be as significant in the ECtHR proceedings as they were in Sharma. Nevertheless, questions regarding foreseeability and control over the harm will no doubt assume importance before the ECtHR, particularly given that climate change is a global issue. While the law of negligence may not be the answer for individuals seeking to compel states to act to address the current climate crisis and to prevent future catastrophe, human rights law is increasingly invoked by litigants to fill some of that lacuna in protection. Only time will tell whether the ECHR, as interpreted by the ECtHR, provides such protection. As for the law of negligence, concepts such as “sufficient closeness and directness” and indeterminacy “may have reached their shelf life, particularly where one is dealing with acts or omissions that have wide-scale consequences that transcend confined temporal boundaries and geographic ranges, and where more than direct mechanistic causal pathways are involved” (at [754]).","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"81 1","pages":"460 - 463"},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49551847","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 : 2022-11-01DOI: 10.1017/S0008197322000721
Stelios Tofaris
[2019] C.L.J. 516) that the fact-specific nature of “assumption of responsibility” means duties of care, in this area, are less abstract questions of law and closer to fact-dependent questions about careless breach. Indeed, many have suggested that a suitably exacting breach threshold would control liability better than the broad-brush of duty of care. In HXA (ibid.) Baker L.J. emphasised that local authorities enjoy a wide discretion in making their complex and difficult decisions – so that there is a “high hurdle” in the way of proving breach. Perhaps this insight should be generalised. It might remove the need to grapple with the mysteries of “assumption of responsibility” and duty of care. The Law Commission thought so in 2008 when it proposed “sufficiently serious breach” as the touchstone of public authority liability: Law Com CP 187, “Administrative Redress” (2008). The Government of the day, eyeing a looming financial crisis, rejected a proposal that might end up damaging the budgets of public services. The climate for reform in the political and economic ruins of 2022 is equally inauspicious. And so a political question – when should child protection services pay for their failings? – remains wrapped within the enigma of assumption of responsibility, or at best deemed a pure question of “fact”.
〔2019〕C.L.J.516）认为，“承担责任”的特定事实性质意味着在这一领域，注意义务是不那么抽象的法律问题，更接近于与疏忽违约有关的事实相关的问题。事实上，许多人认为，适当严格的违约门槛将比宽泛的注意义务更好地控制责任。在HXA（同上）中，Baker L.J.强调，地方当局在做出复杂而困难的决定时享有广泛的自由裁量权，因此在证明违规行为方面存在“很大障碍”。也许这种见解应该加以概括。它可能消除了解决“承担责任”和注意义务之谜的必要性。2008年，法律委员会提出将“足够严重的违约行为”作为公共权力责任的试金石：Law Com CP 187，“行政补救”（2008）。当时的政府正着眼于迫在眉睫的金融危机，拒绝了一项可能最终损害公共服务预算的提案。2022年政治和经济废墟中的改革气候同样不吉利。因此，一个政治问题——儿童保护服务机构应该在什么时候为自己的失败买单仍然被责任承担之谜所包裹，或者充其量被认为是一个纯粹的“事实”问题。
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