The Review

May 2017 Issue

articles

Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights

This article examines how the Judicial Committee of the Privy Council makes constitutional comparisons between ‘related’ constitutions that are or were within its jurisdiction, deploying its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across multiple constitutions. The gaze of comparativism is very harsh as older constitutions are evaluated in light of newer ones and also as fossilised constitutional interpretations presented in earlier JCPC cases where the Committee no longer has jurisdiction are given new life in contemporary cases.

Tracy Robinson and Arif Bulkan

Vexatious Claims: Challenging the Case for Employment Tribunal Fees

Since July 2013, recourse to Employment Tribunals in the United Kingdom has attracted fees of up to £1,200 for single claimants. The impact of this reform has been dramatic: within a year, claims dropped by nearly 80 per cent. This paper suggests that this fee regime is in clear violation of domestic and international norms, disproportionate in light of the Government's stated policy, and have failed to deter vexatious litigants. The only vexatious claims, we find, appear to be those which motivated the reforms in the first place.

Abi Adams and Jeremias Prassl

Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

Against the background of the reinforcement of the EU executive pursuant to the post-2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments. It proposes a public-interest-regarding conception of discretion where discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision-makers, rather than how courts may review an exercise of discretion.

Joana Mendes

legislation

Insurance Law Reform by Degrees: Late Payment and Insurable Interest

Over the last 11 years, the Law Commission and the Scottish Law Commission have worked on a joint project to modernise the law of insurance contracts. Their proposals have already resulted in significant changes for consumer and non-consumer insureds and insurers alike. This paper examines two further areas of reform: the introduction of an implied term about payment of insurance claims by insurers within a reasonable time and a statutory restatement of the doctrine of insurable interest.

Franziska Arnold-Dwyer

cases

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status, Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not.

Lea Raible

Insurance Fraud and the Role of the Civil Law

Two UK Supreme Court decisions have considered insurance fraud: Versloot Dredging BV v HDI-Gerling Industries Versicherung (The DC Merwestone) and Haywood v Zurich Insurance Co. This case note examines not only the legal implications of the decisions and their likely impact on industry practice, it also focuses on the broader issue of the proper province of the civil law and whether general deterrence can be justified as a proper objective where the criminal law is deficient in punishing fraud because of its higher standard of proof.

P J Rawlings and J P Lowry

book reviews

Review of Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought, Oxford: Oxford University Press, 2016, 361pp, hb £60.00.

Sovereignty and asserting the power of the people were unusually prominent themes in the news in 2016. While the title of Daniel Lee’s book suggests a purely historical focus, the author is an assistant professor in political science and makes references to important wider issues in political science at appropriate points. Lee clearly wishes to address multiple audiences, and there is much
of value here for political scientists wishing to look beyond purely modern literature, those interested in the interaction between law and political thought, and intellectual history more generally. It would be a pity if this book were read only by historical specialists.

Ian Williams

Review of Mavis Maclean and John Eekelaar, Lawyers and Mediators: The Brave New World of Services for Separated Families, Oxford and Portland, Oregon: Hart Publishing, 2016, 162pp, hb £55.00.

This short book says that it is ‘about the way the legal system responds when individuals face problems in their family relationships which are serious enough to involve separation’, that is, it deals with ‘private’ and not ‘public’ family law and covers breakdown in both formal and informal partnerships. As always with Maclean and Eekelaar, there is an admirable synthesis of existing scholarship, new findings, and their own thoughts and suggestions, here presented in overwhelmingly plain language with no coasting.

Chris Barton

Review of Douglas E. Edlin, Common Law Judging: Subjectivity, Impartiality and the Making of Law, Ann Arbor: University of Michigan Press, 2016, 280pp, hb $75.00.

Does subjectivity play a role in common law decision-making? If it does, is that something that lowers the quality of those judgments and puts in question the whole institution of adjudication? Douglas Edlin’s new book answers ‘yes’ to the first question and ‘no’ to the second. In doing so, it draws an analogy between judging law and judging art – or more precisely, between a Kantian account of aesthetic judgement and the process of common law judgment. In addition, it is said, making room for these two answers will help move theories of legal reasoning beyond the misleading opposition between strong objectivism and mere subjectivism. As Edlin puts it, ‘The problem is not that there is a subjective element to judging. The problem is that we think this is a problem’. Edlin’s book, then, offers both a diagnosis and a treatment for this malady of theory.

Maksymilian Del Mar

Review of Gemma Turton, Evidential Uncertainty in Causation in Negligence, Oxford: Hart Publishing, 2016, 245pp + xi, hb £60.00.

For Gemma Turton, ‘[t]he coherence of negligence law is dependent upon its pursuit of corrective justice-based personal responsibility’ and any eparture from this pursuit, such as promoting distributive justice or assisting deterrence of reckless behaviour, is to be avoided. And if the ruling in Fairchild v Glenhaven Funeral Services [2002] UKHL 22 stemmed from a belief that it would be unfair to allow victims of mesothelioma to go uncompensated for a fatal disease contracted during their employment, then this ruling too cannot be defended. A large part of her book is concerned with undermining the notion that, in Fairchild, the harm that attracted liability was not the injury but rather the increased risk of the injury which did indeed eventuate.

Chris Miller

Review of Alice Taylor, The Shape of the State in Medieval Scotland, 1124–1290, Oxford: Oxford University Press, 2016, xxiv and 525pp, hb £85.00.

As everyone is painfully conscious at the moment, the making and unmaking of unions raises difficult questions about the identity, integrity and continuity of legal systems. Urgent as questions like these may be, they are far from new. If the last few decades have revived the once prevalent connections between Scotland and the Continent, may it at least be supposed that a more ‘British’ future would serve to revive even deeper connections between Scotland and England? In a powerful revision of the familiar narrative, built partly through synthesis of more recent work by other historians and partly through original research and analysis, Taylor treats the shaping of the state as a more gradual process in which ideas borrowed from England were given new significance, in which the arrival of the Anglo-Normans was not especially important, and in which royal authority was extended less at the expense of than through cooperation with the aristocracy.

J D Ford

Review of David Hine and Gillian Peele, The Regulation of Standards in British Public Life: Doing the Right Thing? Manchester: Manchester University Press, 312pp, pb £75.00.

Hine and Peele’s book can best be described as ‘A Tale of Two Committees’. The Committee on Standards in Public Life (CSPL) and the Public Administration Select Committee (PASC) emerge as consistent threads in the development of ethics regulation in the United Kingdom since the 1990s. The influence of the CSPL, in particular, has been significant. Following the ‘cash-for-questions’ affair in 1994, when it was alleged that two Members of Parliament had been bribed in exchange for asking parliamentary questions, the need for a stronger ethics framework became a priority. The authors lucidly chart the development of that ethics framework with significant detail.

Barry Solaiman

Review of Jonathan Herring, Vulnerable Adults and the Law, Oxford: Oxford University Press, 2016, 304pp, hb £70.00.

In an article of 2014 Joseph Stiglitz refers to our time as ‘the age of vulnerability’. This formula summarises well the growing sense that nobody is immune from need and adversities, and stresses how the theme of precariousness is central for today’s scholarly and public debate. In this context, Vulnerable Adults and the Law offers a rich and insightful summary of the English legal approach to the issues of frailty and dependence. This work does not provide an analysis of all relevant regulations, but concentrates on areas which have been more at the centre of discussion in the past few years. The central thesis of the book, taken from feminist theory, is that everyone is vulnerable and dependent, and that we need to put vulnerability at the centre of legal discourse.

Kevin De Sabbata

The Review

Published May 2017
Frequency Bi-Monthly
Volume 80
Issue 3
Print ISSN 0026-7961
Online ISSN 1468-2230

Virtual Issues

Virtual Issues contain curated content drawn from the MLR

GO TO VIRTUAL ISSUES