By Dr Joanna McCunn, Lecturer in Law (University of Bristol Law School) and Dr Andrew J Bell, Research Assistant (Institute for European Tort Law of the Austrian Academy of Sciences and University of Graz, Vienna).
The ‘extraordinary’ recent case of Scarle v Scarle has brought national press attention to a property law rule dating from 1925. Though little-known and seemingly bizarre in application, the rule stands atop millennia of legal thinking and is a useful and pragmatic tool for solving this instance of an unusually challenging evidential problem. This problem, of intractable uncertainty, occurs across the legal system, and the various rules used to address it can have surprisingly extensive policy benefits.
Scarle v Scarle
John and Ann Scarle were discovered dead at their home, having both succumbed to hypothermia under mysterious circumstances. It became vital to know which of the two had died first. If Ann had outlived her husband, she would have inherited the whole of their jointly owned property; if Ann had died first, it would have passed to John. Dispute arose because each of the spouses was to be succeeded by a daughter from a previous relationship; each daughter thus stood to inherit all or nothing from her parent.
The dispute coalesced around a presumption known as the ‘commorientes rule’. Found in section 184 of the Law of Property Act 1925, this provides that, where it is uncertain which of two or more persons has outlived the other(s), a younger person is deemed to have survived an elder. While the rule itself is clear, it has been unclear what kind of ‘uncertainty’ is required for the rule to apply. Does a sequence of deaths have to be proven beyond reasonable doubt to avoid the presumption (the criminal law standard), or only on the balance of probabilities (the civil standard)?
HHJ Kramer decided that the ordinary civil standard applied: the commorientes rule is only engaged when it cannot be proven on the balance of probabilities (i.e. >50% probability) which person survived longer. In Scarle, however, even that hurdle was not met. The evidence as to the order of deaths was too equivocal and section 184 therefore kicked in: Ann Scarle was younger than, and so taken to have outlived, her husband. Her daughter inherited everything. (more…)
According to a recent report by a cross-party group of MPs, ‘Islamophobia is rooted in racism and is a type of racism that targets expressions of Muslimness or perceived Muslimness’. This definition has, however, been rejected by the government and criticised by others not least on the grounds that, although Islamophobia coincides with racism in certain contexts, this is not always the case. Understanding the differences and similarities between various kinds of social prejudice is important not only for intellectual reasons, but also because a lack of clarity may militate against tackling them effectively.
In the popular sense, ‘race’/‘ethnicity’ involves shared physical identity (particularly skin colour and facial features), plus assumptions about kinship and origins more often imagined than real. Standard components of ‘racism’, typically based on myth, caricature and stereotype, generally include the belief that races possess distinct and inherent characteristics including social practices, the sense that one’s own race is superior to most if not all others, and express or implicit prejudice against people of races apart from one’s own.
‘Islamophobia’ generally refers to irrational antagonism towards Islam and/or Muslims also typically based on myth, caricature and misleading stereotype. Strictly speaking, a ‘phobia’ is a clinically observable anxiety disorder defined by recurrent and excessive fear of an object or situation. The term has, however, been extended to include individual and collective hostility towards minorities such as homosexuals (homophobia), foreigners (xenophobia) and Islam/Muslims (Islamophobia).
Racial and anti-Muslim discrimination can clearly overlap, particularly in England and Wales where over 90% of Muslims are non-white. (more…)
Together with competition and integrity, transparency is one of the fundamental pillars of every procurement system around the world. Much of the efforts to ensure probity in the expenditure of public funds through procurement concentrate on mandating competition-enabling transparency of contract opportunities and accountability-facilitating transparency of the outcome of procurement processes. In the European Union, the 2014 Public Procurement Package continued to place the principle of transparency amongst its general principles and established rather detailed disclosure obligations, including the mandatory publication of a wider range of electronic notices (including for contractual modifications), a consolidation of the tenderers’ rights to access information about the procurement process, and higher standards for documentation and record-keeping by the contracting authorities.
More generally, the push for the development and adoption of open data standards for public procurement—in particular by the Open Contracting Partnership—has renewed efforts to bring procurement under the open government umbrella and to facilitate higher levels of transparency and accountability, in particular through big data analysis. In the European Union, the Commission highlighted the importance of procurement transparency in its 2017 Communication on ‘Making procurement work in and for Europe’, stressing that ‘The digital transformation, the growing wealth of data in general and the availability of open data standards offer opportunities to create better analytics for needs-driven policy-making and warning systems to signal and tackle corruption in public procurement’. The Commission thus established the goal of increasing transparency, integrity and better data as one of its six key strategic priorities. In particular, the Commission advocated the creation of national public contract registers by the Member States, providing transparency on awarded contracts and their amendments to enable dialogue with civil society and hold governments more accountable. (more…)
Unaccompanied asylum-seeking children often get short term leave to remain in the UK for only 30 months or until they turn 17-and-a-half, whichever is the shorter period of time. While they may get extensions at the end of such periods often they simply get removed from the country. Thus, age 18 is a time of heightened uncertainty and fear for these children.
In April this year, the Independent reported that hundreds of asylum-seeking children were removed to disturbed regions which the UK government deems too dangerous to visit, such as Afghanistan, Iraq, Somalia and Sudan. A year back, the Guardian covered a number of suicides by young people who had taken their own lives after years of negotiating the asylum system.
These young people committed suicide around age 18. Instead of the age of majority, it was the time of deepest despair for them. (more…)
Freedom of expression has long been extolled by those who love freedom generally. For example, attempting to capture Voltaire’s commitment to it, historian Evelyn Beatrice Hall coined the famous phrase, wrongly attributed to the French philosophe himself – ‘I disapprove of what you say but will defend to the death your right to say it’. George Orwell also once memorably quipped: ‘If liberty means anything at all, it means the right to tell people things they don’t want to hear’. And, according to the European Court of Human Rights, this includes offending, shocking and disturbing.
Spats, fall-outs, intellectual and personal feuds, have, of course, been commonplace amongst scholars since antiquity. And before the institutionalisation of the right to free speech in the west, the consequences could be much more serious than ruffled feathers. In the 16th century, for example, questioning the Catholic doctrine of transubstantiation – that the wine and wafers used in the Mass miraculously turn into the physical body of Christ upon consumption – could result in being burned at the stake as a heretic. In the centuries since, the west has become accustomed to vigorous, legally-protected, yet not always even-tempered academic debates. For example, arguably making a bid for the most disrespectful scholarly put-down on record, nineteenth century German philosopher, Arthur Schopenhauer, denounced his much more famous and influential contemporary, Hegel, as a ‘flat-headed, insipid, nauseating, illiterate charlatan’. (more…)
On 6 July, groups and individuals from around the United Kingdom gathered to mark the annual LGBT+ Pride (‘Pride’) festivities in London. An estimated 1.5 million people filled the streets of the nation’s capital – proudly expressing their identity, supporting friends and family, or merely enjoying what has become one of the largest and most popular public celebrations across the country. In 2019, Pride events (both at home and abroad) have a particular significance – coming fifty years after the famous ‘Stonewall Inn Riots’ in New York City, which are often cited as a key moment for developing sexual orientation and gender identity (‘SOGI’) rights in the United States.
At the London Parade festivities last Saturday, representatives of most of the UK’s main political parties were present – publicly reaffirming their commitment to LGBT+ rights. However, it has been striking to observe the extent to which LGBT+ populations (and the potential impact of leaving the European Union upon their lives) have been absent from Brexit conversations. (more…)
On June 14th 2019, a group of academics, union representatives, civil society organisers, and members of food-related NGOs and think tanks gathered in Bristol along with the United Nations Special Rapporteur on the Right to Food, Professor Hilal Elver. The intention was to look closely at the condition of work and workers behind the UK food system. Throughout the day, we shared testimonies, experiences and accounts concerning the main challenges and obstacles faced by workers from farm to fork, including beyond the boundaries of the United Kingdom. We discussed trafficking, modern slavery, low wages, availability, technological innovation, migration, and several other issues that affect and characterize the life and the future of people who make our food possible. We have closely followed the ongoing conversations around the UK Food Strategy, including a consultation that opened just last week, along with the parliamentary debate around the Agricultural Bill and the proposals on the new post-CAP domestic settlement for agriculture. We have also been particularly attentive to the increase in household food insecurity in the country, in particular among farmworkers, farmers and workers within the food sector. It is striking that hunger, obesity and malnutrition are increasingly felt among those who produce and transform food.
In light of our research, experiences and conversations, we have listed below some of the main conclusions arising from our workshop. There is no food without labour, and because a healthy and justly rewarded workforce is essential to a sustainable food system, we consider that these elements should inform the whole process of the UK food strategy. When it comes to labour, the future of food is not only about a skilled workforce that knows how to use technology. It is about: an integrated approach and greater coordination within the food system; attention to the bottlenecks; a broad notion of food workers; intersectionality; transparency and visibility; protection, respect and fulfilment of the workers’ human and labour rights; access to justice and reliable enforcement; and fair access and use of technological innovation.(more…)
The question of local authority liability in negligence for failing to intervene to protect vulnerable parties from harm has been discussed by the highest UK courts in recent years. Local authorities have statutory powers to intervene to assist citizens in need. When, then, should they be liable for failing to intervene to protect citizens from harm from third parties? In recent years, the Supreme Court in two cases relating to the police sought to move away from policy-based analysis (seen famously in the controversial decision in X (Minors)v Bedfordshire CC  2 A.C. 633) to one based on traditional common law approaches to omissions and precedent: see Michael v Chief Constable of South Wales  UKSC 2 and Robinson v Chief Constable of West Yorkshire  UKSC 4. These cases draw an important distinction between a defendant who harms the claimant and one who fails to stop a third party harming the claimant. The second situation will not generally give rise to liability unless:
A relationship exists between the parties in which one party assumes responsibility for the welfare of another; or
The authority can be said to have created the source of danger or
The third party who has harmed the claimant was under the defendant’s supervision or control.
The latest Supreme Court decision in Poole BC v GN  UKSC 25, delivered on 6 June 2019, marks an attempt by the Court to provide clearer guidance to litigants, while trying to reconcile somewhat contradictory earlier case-law. It is a rather complex decision – although given in a single judgment – and an important one. The purpose of this blog, therefore, is to explain the Court’s reasoning and give some indication of its implications for future case-law development. (more…)
In April the Financial Conduct Authority issued a Feedback Statement (FS19/2) on its Discussion Paper (DP18 /5) ‘A duty of care and potential alternative approaches’ affecting the financial services industry. The Feedback Statement reports on the outcomes of the consultation and summarises the views of those who responded to the consultation. This is a topic that has been on the regulatory agenda for several years, originally initiated by the Financial Services Consumer Panel (FSCP), but also considered by the Law Commission and the House of Lords Select Committee on Financial Exclusion, with varying degrees of support. The authors have assessed these reform proposals in an earlier blog post. Whilst it is difficult to draw any firm conclusions from this round of discussions as to the FCA’s future policy in this area, it does indicate how the FCA’s work on this topic is developing. (more…)
By Dr Pedro Telles, Senior Lecturer in Law (Hillary Rodham Clinton School of Law, Swansea University) and Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).
Brexit, its research and its teaching are increasingly becoming a field of study on their own—see eg the illuminating contributions to the special issue edited by C Wallace & T Hervey on ‘Brexit and the Law School’ (2019) 53(2) Law Teacher 133-229, some of which build on the earlier series of SLS ‘Brexit and the Law School’ Seminars, one of which Albert had the pleasure to host at the University of Bristol Law School in July 2017. This seems rather natural, as it is hard to overstate the impact that Brexit is having on the work of academics active in all areas, but particularly for public and EU law scholars. In this post, we offer some personal reflections on the frustrations of carrying out Brexit-related research, some of which are related to Brexit and its unforeseeability, while others are derived from more general constraints on the ways legal research is published and assessed.
Researching a moving target …
The first issue that concerns us is the need to try to foresee what is likely to happen along the Brexit process (itself unknown and highly volatile), which puts legal scholars in a difficult bind because this is clearly a politics-driven phenomenon that curbs almost every imaginable rule or precedent remotely applicable to a comparable situation. We are not sure that legal scholars are in the best position to offer policy forecasts but producing research that is of any use to policy-makers requires such an effort. (more…)