The Modern Law Review

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 0026-7961

Issue Number

No. 87-1, January 2024

Latest documents

Despoina Mantzari, Courts, Regulators, and the Scrutiny of Economic Evidence, Oxford: Oxford University Press, 272 pp, hb £70.00
Mary Synge, The University‐Charity: Challenging Perceptions in Higher Education, 2023, xix + 504 pp, hb £120.
Contesting Housing Inequality: Housing Rights and Social Movements
This article engages with a leading contemporary criticism of social and economic human rights, namely that because such rights are organised around sufficiency norms, they are ill‐equipped to challenge and overturn forms of material inequality. The sufficiency thesis raises issues around the nature of social rights and their capacity to deliver transformative change, and lays a direct challenge to social movements employing human rights talk and practices in campaigns for social justice. This article breaks new ground by taking the right to housing as a case study for assessing the sufficiency thesis. It is argued that while there is some support for the sufficiency thesis in dominant institutionalised legal forms of the right to housing, the wider claim of the thesis, that social rights are incapable of challenging forms of material inequality, does not hold water. This argument is supported by a broad approach to housing rights that engages with the work of the UN Special Rapporteurs on housing and which takes seriously the way in which contemporary social movements in Spain and Scotland employ housing rights in their struggles for housing justice.
A New Self‐Defence Framework for Domestic Abuse Survivors Who Use Violent Resistance in Response
This article criticises the government's rejection of proposals by the Prison Reform Trust that would have extended self‐defence in householder cases to victims/survivors of domestic abuse. The authors argue that the Prison Reform Trust proposals should be enacted, and further supported by novel complementary reform of the option to retreat, and the exclusion of intoxicated mistaken belief in self‐defence claims. Specifically, the authors advance a statutory rebuttable presumption regarding the option to retreat in cases involving domestic abuse, namely, an assumption that the victim/survivor was not realistically able to retreat safely, unless it is proven otherwise. The authors also examine the appropriateness of the policy decision to exclude intoxicated mistaken belief in all self‐defence cases and advocate for its removal. It should be replaced with a requirement that all mistaken beliefs must be reasonable regardless of the presence of intoxication. Procedural recommendations are also advanced, including amendment of the Crown Court Compendium to include judicial directions on self‐defence which adopt a social entrapment approach in domestic abuse cases, and supported by the admissibility of non‐medical expert evidence on the nature and impact of coercive control.
Beverley Clough, The Spaces of Mental Capacity Law: Moving Beyond Binaries, Routledge, 2021, hb, 208 pp, £130.00
Discrimination in Abortion Law and the Message the Law is Sending: R (Crowter) v Secretary of State for Health and Social Care
R (Crowter) v Secretary of State for Health and Social Care involved a legal challenge to the law on abortion under the Abortion Act 1967, on the basis that the disability ground ‘expresses’ a negative message about disabled people, based on negative stereotyping, and that this expression is incompatible with Articles 8 and 14 of the European Convention on Human Rights. The case is significant because of the way that rights‐based arguments about abortion were framed; they were not centred on the interests or rights of the pregnant woman or the fetus, but on the rights of disabled people. This framing reflects the well‐known expressivist argument in the disability and bioethics literature. The arguments raised about a potential violation of rights due to ‘the message’ the law is sending could have far‐reaching implications, well beyond the law on abortion.
Will the New UK Subsidy Control Regime Help ‘Level Up’ the Economy?
There is an emerging political consensus in the UK that greater devolution of spending powers will bring benefits in terms of reducing economic disparities between regions, enhancing social cohesion, and improving the economy's prospects for productivity, growth and the transition to net zero. The Subsidy Control Act 2022 is thought to be key to achieving this by providing public authorities with greater flexibility in how they make spending decisions than was previously the case under EU State aid rules. This paper examines whether the new regime does indeed make it easier for awarding bodies to grant beneficial subsidies. It concludes that the regime risks placing obligations on public authorities that are considerably more onerous than EU State aid rules and there is a need to significantly increase the scope of streamlined routes which provide legal certainty to beneficial spending decisions.
The Travels of Treason
The law of treason has been criticised for being based on ‘outdated’ statutes which are inflexible and unsuitable for modern needs. However, a historical examination of the evolution of treason in Britain and its empire suggests that the law was often adaptable. In nineteenth century England, jurists wished to rein in older constructive treasons, to leave the 1351 Act as the appropriate law for wartime treasons, while the more lenient 1848 Act was to be used against ‘political’ conspiracies to subvert the state by force. However, the ‘constructive’ treasons remained part of the law, and were given new life in imperial contexts. In Ireland and Canada, the idea that plotting the king's ‘political’ death was treason remained central to understandings of the 1351 Act. In India, the interpretation of the provision of the penal code against ‘waging war’ against the government was influenced by old English ideas of ‘constructive’ treason and used against those who challenged British rule. Imperial understandings of treason were also shaped by cases arising out of the Boer war, where the underlying law was Roman‐Dutch law. Rather than being restrictive and unable to adapt to modern needs, the law of treason was flexible and malleable.
A Privileged and Conventional Relationship: Legal Professional Privilege and the Law Officers’ Convention
Motions in the UK and Scottish Parliaments demanding the publication of legal advice to government from its Law Officers have tested the Law Officers’ Convention that the existence and content of their advice is only disclosed exceptionally. They have demonstrated government relying on the Convention and legal professional privilege (LPP) to resist disclosure. This article provides the first coherent explanation of the relationship between LPP and the Convention. This is that government's right not to disclose Law Officers’ advice is based on LPP with the Convention imposing a fetter on government's ability to waive privilege and/or to disclose whether Law Officers’ have advised. The article provides new insights into the relationship between the UK, Scottish and Welsh Ministerial Codes and the Convention. The UK and Welsh Codes do not articulate the Convention's exception as applied in practice. The Scottish Code exhibits good practice that could be adopted elsewhere but also creates a variant Convention.
Regulatory Agencies and the Inclusion Trilemma
Regardless of economic cycles, financial regulation can be understood to be bound by an uncomfortable social policy trilemma. When faced with 1) providing market integrity, 2) fostering innovation, and 3) enabling financial inclusion, regulators have long been able to achieve, at best, only two of these three goals. Often the result of this trilemma are choices made in the name of consumer and investor protection, or innovation, that indirectly promote, enable or exacerbate wealth inequality by redlining capital markets or exposing the vulnerable to undue risk. In this article, I explain this trilemma and argue that addressing it will require novel innovations – from incorporating inclusion and innovation formally into regulatory mandates to upgrading existing offices of innovation, and creating offices of financial inclusion, to better navigate the tradeoffs inherent in the trilemma.