Southampton Student Law Review

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• Separating Law and Morality: A Defence of Legal Positivism's Institutional Account of Law

  Legal positivism has long been hailed as providing a cogent account of the institutional aspect of law. This article expands upon and defends this view while rebutting the common claim that positivism fails to make sense of law's moral aspect. Section one establishes the conceptual boundaries between the institutional and moral aspects of law. Section two demonstrates how Hartian positivism provides a universally applicable and cogent account of the institutional aspect. Section three addresses and debunks the criticisms of Finnis, Fuller and Dworkin. It argues that their assumption that a descriptive theory of law must also be justificatory confuses the is and ought function of positivism. The article concludes that positivism does not fail to account for morality but rather, by decoupling legal validity from merit, positivism preserves the distinction necessary to identify law in the first place

• Acknowledgements
• How does the representation of women and ethnic minorities within the English Judiciary impact public confidence in the legal system and to what extent is the goal of judicial diversity being achieved?

  Judicial diversity has been a goal that is yet to be achieved, with the history of exclusion still haunting the judiciary today. This dissertation will begin by gaining a deeper understanding of judicial diversity by depicting its aims and arguments; then exploring the history of the judiciary and critically analysing the extent of success from past legislative and structural reforms. In the following chapter I will discuss the importance of public trust for judicial legitimacy whilst also analysing the wider implications for the perception of bias and the role of diversity in enhancing trust and legitimacy. This will assist in examining the different levels of trust whilst gaining a deeper understanding of the importance of achieving judicial diversity. In chapter three the dissertation will shift focus onto the barriers present both before and after judicial application, the primary objective of this is to identify the restrictions still in place that is preventing the goal diversity. Following this, using the identified barriers, chapter four critically analyses the effectiveness of current reform strategies and whether the objectives are best suited to tackle the clear barriers preventing equal opportunities into the judiciary

• From Fraudulent Devices to Collateral Lies: The Supreme Court's Recalibration of Post-Contractual Good Faith in Versloot

  This article examines the implications of the Supreme Court's decision in Versloot Dredging BV v HDI Gerling Industrie Versicherung AG (The DC Merwestone), which abolished the fraudulent devices rule in English insurance law. The Supreme Court decision represents a principled recalibration of the law governing dishonest claims conduct rather than an overextension of protection for insureds. The analysis of materiality, causation and proportionality in the fraudulent devices' context demonstrates that forfeiture is confined to dishonesty that is causally relevant to the insurer's liability, as affirmed in Versloot. Collateral lies, which merely accompany otherwise valid claims, lack this causal connection and therefore fall outside the proper scope of forfeiture. The decision therefore aligns fraud doctrine with the compensatory function of insurance contracts

• Patient Autonomy, Resource Allocation, and Consent to Treatment: An Analysis of the NHS Constitution's Commitment to Patient-Centred Care within English Medical Law

  This article analyses how far the NHS considers patient autonomy within English medical law, examining autonomy, resource allocation and consent to treatment. This essay argues that, while the NHS and courts broadly uphold patient autonomy through the right to refuse treatment, the informed consent framework and the recognition of bodily integrity, it remains subject to significant safeguarding and resource constraints. It explores how the principle of self-determination is balanced against resource limitations, where finite budgets require allocation decisions that override individual preferences. It further considers how mental capacity requirements under the Mental Capacity Act 2005 and outdated frameworks governing abortion limit autonomous decision-making for vulnerable groups. The article further examines conflicting safeguarding considerations, including end-of-life decisions, where courts have prioritised safeguarding over patient preferences. It concludes that, while the NHS strives to tailor care to individual preferences, true autonomy remains conditional; constrained by legal, ethical and resource factors

• What do Uber's Illegal Cross-Border Data Transfers show about Data Subject Rights under the GDPR, and could it do more to protect these?

  This article seeks to explore the extent to which the GDPR sufficiently supports data subjects in obtaining compensation and redress for harms suffered by GDPR breaches. It first considers the relevant legal and normative framework of data protection under the GDPR, it then discusses the specific facts of this case including Uber's wrongdoing. This is followed by discussion of data subject rights under the GDPR. It then analyses the potential forms of harm that could have been caused in this case, and how the GDPR could potentially adopt a dualistic role in enforcement, where it focuses on punishing data processors and assisting data subjects in claiming compensation

• Foreword
• The Legal Regulation of Surrogacy in the UK: Barriers, Inconsistencies and the Need for Reform

  Surrogacy in the UK is governed by a restrictive legal framework that prioritises surrogate autonomy and child welfare but creates significant challenges for intended parents (IPs). This paper critically examines whether the current statutory framework adequately accommodates contemporary surrogacy practices. It analyses the legislative scheme under the Human Fertilisation and Embryology Act 2008 (HFEA 2008) alongside judicial responses to both domestic and cross-border arrangements. Particular attention is given to the legal uncertainties arising from international surrogacy and conflicting regulatory approaches. The paper ultimately argues that the existing framework lacks coherence and requires reform to better reflect modern family formation and ensure legal certainty. It concludes that reform is needed to provide greater legal certainty by introducing a clearer framework for surrogacy arrangements before a child is born

• Evaluating the Proposal to Raise the Minimum Age of Criminal Responsibility to Eighteen in England and Wales

  England and Wales maintain one of the lowest minimum ages of criminal responsibility (MACR) in Europe at ten. This article critically evaluates the proposal to raise the MACR to eighteen by employing a two-stage analytical framework. The first stage applies an immunity-based analysis to determine whether early criminalisation is normatively defensible. The second applies a capacity-based analysis to assess whether eighteen represents an appropriate threshold for the attribution of criminal liability. This article argues that, while raising the MACR is necessary to shield children from the systemic harms of premature criminal exposure, the proposal of eighteen misconstrues the function of criminal responsibility by equating minimum culpability with full civil autonomy. In its place, a gradual model of responsibility is proposed, operationalised through a reformed doli incapax, which requires courts to positively establish a child's understanding on their conduct alongside a welfare-compliant disposal. The article concludes by examining why reform has proven politically resistant, arguing that the conflation of immunity and capacity arguments in political discourse has allowed each question to be bypassed by the other, and that separating them is the necessary precondition for principled reform

• Balancing Human Rights with Migration Control in Post-Brexit UK Immigration Law: An Analysis of Legislative Reform and Case Studies

  This paper evaluates whether UK Immigration law effectively balances human rights with the need for orderly control and management of migration. It examines the impact of Brexit, particularly with the removal of free movement, it then analyses key statutes, including the Nationality and Borders Act 2022 and the Illegal Migration Act 2023. The paper then further evaluates the role of the 1951 Refugee Convention, the Human Rights Act 1998 and the ECHR regarding protecting individuals' rights in migration. Then, exploring the Windrush Scandal and the case of East African Asians v UK, and how both these case studies highlight policy failure and human rights breaches. Overall, this paper argues that the UK are yet to find a system that meaningfully balances effective migration control whilst upholding human rights

Featured documents

• Case comment: Re T (a child) (surrogacy: residence order) [2011] EWHC 33 (fam)
• The Restriction of the Power of the Courts to Stay Proceedings in Favour of More Appropriate International Courts: The Decision in Owusu v Jackson

  The judgment in Owusu v Jackson has provided an answer to the controversy over whether courts of EU Member States have discretion to stay proceedings in favour of courts of non-Member States. Specifically, the European Court of Justice established that the doctrine of forum non conveniens could not ...

• Parad0x and Pragmatism: ?Virtual Immunities' and the Imposition of Liability in Negligence Claims Against Local Authorities

  The field of public authority liability has attracted much attention through apparent uncertainty of law. The issue of immunity for local authorities, due to policy considerations, has received divided judicial and academic opinion. This paper journeys beyond the hypothetical realm of immunities -...

• The Law of Illegality and Trusts: A New Mess for the Old One

  In Patel v Mirza,1 the Supreme Court overruled the highly controversial judgment of the House of Lords in Tinsley v Milligan.2 The new ‘range of factors’ test adopted by the landmark decision, which replaced the narrow ‘reliance’ test formulated in Tinsley v Milligan, however does not produce...

• Should the courts be moral censors of biotechnological innovation? An analysis of the morality provisions of patent law with specific reference to Rule 28(1)(c) of the Implementing Regulations to the EPC concerning embryonic stem cell patents

  This dissertation considers the legal treatment of the morality provisions in patent law, exclusively in the context of biotechnological inventions. Specifically, the dissertation will focus on Article 53(a) EPC and Rule 28(1)(c) of the Implementing Regulations, the equivalents of Articles 6(1) and ...

• A Critical Discussion of the Causes of Miscarriages of Justice in England and Wales within the Role of the Police and the Steps that Can Be Taken to Prevent These
• The Problem with Reasonable Force: Rebalancing the Law in Favour of the Householder by Adopting Alternative Jurisdictional Approaches

  There is a strong view held among many members of the public that the law favours the rights of intruders over those of the householder. Under the current law, a householder may only use as much force as is “reasonable” in the circumstances to protect themselves, others or their home from intruders....

• The Problem with Intention: Is the Resulting Trust Approaching Extinction?

  Although the resulting trust is widely used in a large array of distinct situations; the theoretical basis of the doctrine is often overlooked. This study will evaluate the two prevailing views upon the foundation of the trust: Lord Browne-Wilkinson in Westdeutsche and Megarry J in Vandervell,...

• Offensive Tweeting: Criminal or Just Crass? 'Freedom Only to Speak Inoffensively is not Worth Having

  There is currently much interest surrounding the question whether the established approach to freedom of expression does more to protect high value, political speech to the detriment of casual Internet content. This paper starts off explaining the fundamental workings of Article 10 of The European...

• Modern Day Illegality: Mance LJ and the Range of Factors Approach

  The longstanding principles underpinning equitable and common law proprietary claims in relation to illegality have recently been reconsidered in the Supreme Court, the outcome of which was a change of approach in assessing reliance on illegality. This paper explores Mance LJ’s (as he then was)...