The Review

September 2016 Issue

articles

Badges of Modern Slavery

Notwithstanding the 19th century formal abolition of slavery as legal ownership of people, modern slavery and forced labour have not been consigned to the past. In fact, their existence is more widespread, and made more difficult to tackle due to the lack of formal, legal criteria. This article suggests that reference to historical institutions reveals seven ‘badges of slavery’ that are helpful in identifying occurrences of modern slavery and forced labour. These are: humiliation, ownership of people, exploitation of the vulnerable, lack of consent, terms and conditions of employment, limits on the power to end the employment relationship, and denial of rights outside the work relationship. These constitute modern slavery, and distinguish it from other instances of exploitative employment relations, however problematic. In addition, even where the label of modern slavery is misplaced, the identification of particular badges of slavery in contemporary employment relations may assist in highlighting their troubling facets.

Amir Paz-Fuchs

Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009

There is a common perception that, prior to the exclusion of serving judges from the House of Lords in 2009, a ‘politics convention’ operated which required judges to avoid party-political controversy and ensured that they contributed to debate only rarely. On this view, the presence of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of powers problem in theory only. An examination of the contributions of serving Law Lords and other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from 1876–2015) reveals that the convention either did not exist or was frequently ignored. While most judges were infrequent participants in parliamentary debate, some were enthusiastic – a small number among the most active parliamentarians in the Lords. The most active judicial peers were conservative in their politics and the best predictor that a judge would be active in the House was an association with conservative politics or causes.

Patrick O'Brien

Corporate Mobility and Company Law

Globalisation has given commercial parties more freedom to choose the company law system that best suits their private needs. The growing range of techniques to facilitate choice between systems of company law reshapes the mandatory/enabling debate in countries where corporate mobility is a relatively new business phenomenon and where the past focus has mostly been on degrees of flexibility within domestic law. This article examines relocations, both out of and into the UK, as a source of learning on market preferences with respect to company law and on vulnerabilities. It considers the wider policy implications for the development of company law of more freedom of choice between company law systems. It concludes with a call to explore the potential for more optionality within company law to counter the rise of choice between systems of company law.

Eilís Ferran

legislation

Interdiction and Indoctrination: The Counter-Terrorism and Security Act 2015

Lying behind the recent Counter-Terrorism and Security Act 2015 is the phenomenon of foreign terrorist fighters which has sparked international and national attention. The 2015 Act deals with many facets of counter terrorism legislation, but its two principal measures are singled out for analysis and critique in this paper. Thus, Part I of the Act seeks to interdict foreign terrorist fighters by preventing suspects from travelling and dealing decisively with those already in the UK who pose a risk. Part V of the Act implements the second, broader aspect, of legislative policy, reflecting the UN emphasis on ‘Countering Violent Extremism’, through the statutory elaboration and enforcement of the ‘Prevent’ element of the long-established Countering International Terrorism strategy, which aims to stop people becoming terrorists or supporting violent extremism. These measures are explained in their policy contexts and set against criteria of effectiveness, personal freedom, and accountability.

Jessie Blackbourn and Clive Walker

cases

The Reasonable Expectation of Privacy and the Criminal Suspect

In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year-old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.

Joe Purshouse

Vicarious Liability and Non-Delegable Duty for Child Abuse in Foster Care: A Step Too Far?

In NA v Nottinghamshire County Council the Court of Appeal held that a local authority is not liable under vicarious liability or for breach of a non-delegable duty when foster parents sexually or physically abuse a child that it has placed in their care. The note discusses the decision in the light of recent developments in the law. It is argued that the result is unsatisfactory in terms of doctrine and policy. It is further suggested that non-delegable duty, rather than vicarious liability, offers the most appropriate route for establishing liability.

Stelios Tofaris

review article

Discrimination, Freedom, and Intentions

Recent years have seen a surge in academic interest in basic normative questions in relation to discrimination and discrimination law. One of the most recent and very welcome contributions to this growing body of literature is Tarunabh Khaitan’s excellent A Theory of Discrimination Law. The central ambition of Khaitan’s book is ‘to give a theoretical account of the legal model of regulating discrimination’ (4). His favoured account is a liberal, freedom-based, group-disadvantage-focused account, which allows for asymmetric anti-discrimination norms and explains the unity of discrimination laws, where these include reasonable accommodation, affirmative action and harassment norms.

In this review essay, I present the main contents of Khaitan’s book before explaining the dual nature of his project and raise some methodological concerns. Next, I scrutinise Khaitan’s rejection of egalitarian accounts of discrimination law. The final main section of this article takes a critical view of the suggestion that the distinction between direct and indirect discrimination is not based on the presence or absence of certain mental states, such as intentions to exclude or disadvantage, on behalf of the discriminator.

Kasper Lippert-Rasmussen

book reviews

Review of Steven Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations, Oxford: Oxford University Press, 2015, 471 pp, hb £50.00.

Steven Ratner's book The Thin Justice of International Law provides an assessment of the international legal system at the bar of justice. This is a book clearly written against the current. Although for centuries international lawyers were seriously concerned with deeper normative questions, today this type of exercise is quickly - and often mistakenly - dismissed as natural law. This charge often conflates the claim that the law must be morally defensible (ie, that unjust laws warrant criticism, reform, and under certain circumstances disobedience) with the claim that law and morality are internally connected. The type of ethical evaluation of legal institutions that Ratner proposes is an instance of the former, not necessarily the latter.

Ratner’s book will not be short of detractors. They may find the specific substantive claims he advocates less objectionable than his intellectual enterprise. Nevertheless, that kind of judgment would b e short-sighted. This book constitutes an ambitious and rigorous attempt to build bridges with other relevant disciplines in order to better understand the moral strengths and shortcomings of the international legal system. Ratner pushes international legal theorists into tackling new and pressing questions. Indeed, contemporary legal theory has experienced a slow transition away from the classical jurisprudential questions, towards more substantive issues. International legal theory - currently concerned mainly with traditional questions such as interpretation or positivism - may well profit from following this trend.

Alejandro Chehtman

Review of Jean Thomas, Public Rights, Private Relations, Oxford: Oxford University Press, 2015, 288 pp, hb, £60.00

Almost all contemporary institutions of government trade on the idea of rights. Yet, our understanding of such norms bobs uncomfortably upon a sea of substantive theoretical disagreement. In addition, the way that rights are legally enforced often leaves vulnerable stakeholders unprotected from the transgressions of private actors, such as large corporations. It is with an eye to these two problems that Jean Thomas directs the argumentation of her ambitious and impressive work, Public Law, Private Relations. Moving deftly between legal doctrine, normative jurisprudence, political theory, and meta-ethics, Thomas proposes a means of holding powerful private agents more readily accountable for rights abuses, in a way that is supposed to bypass the dissensus which permeates our understanding of such norms. In what follows, I will provide a rough sketch of Thomas’ insightful and nuanced line of argumentation. I will then offer some thoughts and questions that might help the reader to engage further with this important work.

Matthew Grellette

The Review

Published September 2016
Frequency Bi-Monthly
Volume 79
Issue 5
Print ISSN 0026-7961
Online ISSN 1468-2230

Virtual Issues

Virtual Issues contain curated content drawn from the MLR

GO TO VIRTUAL ISSUES