In this blog, I will discuss two recent publications which address comparatively the doctrine of vicarious liability in tort and demonstrate the value of a comparative perspective in this field. Vicarious liability is a rule of responsibility which is found across the common law of tort and typically renders an employer strictly liable for the torts of its employees provided that the tort takes place in the course of employment.The idea of holding an employer liable to pay compensation to victims of its employees’ torts, regardless of the absence of personal fault, is not, however, unique to the common law. Ideas of strict liability for the torts of others may also be found in civil law systems, although in some systems it is subject to a rebuttable presumption of fault (see, generally, Giliker, Vicarious Liability in Tort (CUP, 2010) and J Spier (ed), Unification of Tort Law: Liability for Damage Caused by Others (Kluwer Law International, 2003)). In all systems, it has proven controversial with some commentators arguing that the imposition of no-fault liability on employers conflicts with notions of corrective justice and notably, in a number of systems, it has been questioned to what extent liability can be said to be founded on economic justifications based on enterprise risk and loss distribution via social or private insurance. (more…)
Of the four ‘Ps’ which frame the UK’s counterterrorist strategy – Pursue, Prepare, Protect and Prevent – the latter is by far the most controversial. It aims to stop people from becoming terrorists, or from supporting those who already are, by countering terrorist ideology and challenging those who promote it (‘counter-radicalization’), steering vulnerable individuals away from it (‘de-radicalization’), and working with sectors and institutions where these risks are considered high. Over 50,000 people and over 2,500 institutions – including schools, universities, mosques, and faith groups – engage with Prevent in over 40 priority areas and over a million people have received relevant training. De-radicalization is coordinated by Channel, an official multi-agency initiative offering non-compulsory, tailor-made support plans based on counselling and encouragement of approved activities, to those willing to receive them. On 22 January 2019 the security minister, Ben Wallace, announced that Prevent would be independently reviewed in accordance with an amendment to the Counter-Terrorism and Security Bill currently wending its way through parliament. This should be welcomed by everyone with an interest in effective, human rights-compliant counterterrorist law and policy and particularly by those, like us, who have long contested the mythology of the anti-Prevent movement. (more…)
By Marc Johnson, Lecturer in Law (Truman Boddon Law School)
Brexit has been a source of emotionally-charged debate. One point which has received plenty of attention is the sovereignty of Parliament and its relationship with EU membership. It is often explained that the EU’s ability to make laws (which can apply in the UK) is some form of forfeiture of sovereignty. However, this statement has a number of shortcomings, not least that it ignores the election of Members of the European Parliament by the UK, providing (at least to some degree) a democratic mandate to the European Parliament. I will use Schrödinger’s cat to suggest that sovereignty can be present in multiple places and remain intact, allowing the normal operation of both the UK Parliament and European Parliament, without offending a nuanced view of sovereignty. In order to do this, one must cast aside the orthodox views of sovereignty and start with a pragmatic and philosophical approach to Parliamentary Sovereignty as it today. Brexit is akin to lifting the lid of Schrödinger’s box to observe the actual state of sovereignty at a specific point in time, but in doing so it reduces the observers to that of a quantitative measurer, and asks ‘is it dead or alive’ – when, in fact, reality is far more complex than this. (more…)
Two new edited volumes, which add new perspectives on international law, have recently been published by OUP and CUP. The first is International Court Authority (published by OUP during the summer of 2018 and edited by Karen Alter, Laurence Helfer and Mikael Rask Madsen), and the second is Legal Authority Beyond the State (published by CUP early in the spring of 2018 and is edited by Patrick Capps and Henrik Palmer Olsen (the writers of this blog)). The books are similar insofar as they present interdisciplinary scholarship on the authority of international law. Both are, at root, an exploration of how legal authority is established and evolves in international organizations, such as international courts. An important difference between the two books is how each sees the plausible limits of theoretical inquiry into the nature of authority. International Court Authority is more empirical, while Legal Authority Beyond the State is situated in the rationalist philosophical tradition. We argue that the empirical inquiry found in International Court Authority is limited to measure factual, observable behavior which appears to be engaging with international organizations and their laws, but it cannot account for authority per se, which is commonly accepted (in both books) to be the self-conscious orientation of actor’s behavior towards international law, so that it is consistent with the practical reasons offered by international organizations. (more…)
Debates on alcohol policy are necessarily complex and controversial, and a complete consensus on how we should regulate this area will not be achieved. Like other lawful but regulated products, alcohol presents benefits and harms that may be understood from ranging perspectives. These include views based in cultural, economic, ethical, historical, legal, medical, population-based, religious, and social understandings. Of necessity, outlooks on alcohol policy and the role of regulation therefore vary both within and across such differing sources of critique. The values—positive and negative—of alcohol at individual, familial, community, commercial, and population levels thus call for careful, reasoned, and respectful public debates.
Even within the context of public health analysis, we cannot just look to scientific studies to inform and determine policy: we are required to consider forms of ‘evidence’ from different disciplines and sectors. This is well explained in a recent publication by the Health Foundation, with papers applied to child obesity but with lessons that are generalisable across health policy. However, for many working in public health, or members of wider communities who have interests in what makes good health policy, challenges emerge in relation to the conduct of public debates: often care, reason, and respect are replaced by simplistic slurs and assertions. And in this context, accusations of nanny statism are a key and persistent example. (more…)
The recent debate on gender recognition reform, as played out in the press and on social media, has been painful to behold. With passions running high, much of the discourse has been marked by a lack of regard for the viewpoints of others, on occasion spiralling into professional and even personal abuse online. That the pursuit of equality should unleash such unkind sensibilities is troubling, particularly in a feminist context in which values such as inclusion, empathy, and respect for different standpoints have generally commanded wide respect.
What lies behind the apparent deadlock in debate between transgender activists and ‘gender critical’ feminists? On the one hand, there is the perfectly proper concern of trans people to have access to a legal process of gender recognition which they do not experience as invasive, cumbersome, and pathologizing. On the other, there are misgivings expressed by some in the feminist community that a legal regime of gender recognition, understood as ‘self-declaration’ and operating in various forms in Argentina, Belgium, Brazil, Chile, Columbia, Denmark, Ireland, Malta and Norway, will weaken the hard-won gains of decades of feminist activism particularly with regard to securing women’s access to safe sex-segregated spaces such as rape crisis centres and women’s refuges. The fact that existing equality legislation already provides a level of protection allowing same-sex service providers to deny access to transgender individuals where they can show this is a proportionate means of achieving a legitimate aim (for example, a counselling service might reasonably be concerned that sexually abused women will be less likely to attend group counselling if ‘male-bodied’ trans women are also in attendance) does not seem to have allayed these concerns, though surely they should, particularly as the Government has made clear that they have no plans to change equality law. (more…)
Whisper it gently, but a solution to the Brexit riddle seems to be coming into view. Westminster has yet to see it, but it will not be long now (famous last words…) before the reality, finally, becomes impossible to avoid. March 2019 will be upon us very soon. Unless *something* is agreed the UK will leave the EU on 29 March with no deal.
Developments in the EU
While the attention of the nation is focused on Westminster, and in particular on the travails of Prime Minister Theresa May – who on 12 December survived a no confidence from her own MPs by an uncomfortable margin of 200 to 117 – the most important developments have come from the European Union; the ruling of the European Court of Justice on the revocability of Article 50, and the EU’s ever clearer political statements that it will not countenance renegotiation.
First, on Monday, came the judgment of the CJEU in the Wightman case. The CJEU ruled on the unilateral revocability of Article 50. In a judgment which emphasised the sovereignty of the withdrawing Member State, and its ability to decide whether its destiny lies within or outside the EU, the Court held that unilateral revocation is possible ‘in an unconditional and unequivocal manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements’. It confirmed that ‘the purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State’. For fuller analysis of the judgment, see here, and, with added Taylor Swift, here. (more…)
*This blog post reflects the views of the authors alone. The blog has not been approved by, and should not be understood as the opinion of, the European Commission or European Network of Legal Experts in Gender Equality and Non-Discrimination*
At a moment when gender rights are the subject of intense political and media debate in the United Kingdom, the Report is a timely reminder of the real, substantive inequalities which transgender and intersex communities experience on a daily basis. While the Report evidences some welcome progress in the spheres of gender identity, gender expression and sex characteristics, it reinforces existing research (e.g. here, here) showing that – both de jure and de facto – trans and intersex individuals experience less secure protection than cisgender peers and persons who do not experience intersex variance. (more…)
I recently published an article in the Human Rights Quarterly titled ‘Women’s Human Rights: From Progress to Transformation, An Intersectional Response to Martha Nussbaum.’ As the title suggests the article is an extended rumination over Martha Nussbaum’s earlier article in the same journal titled ‘Women’s Progress and Women’s Human Rights.’ My article examines the account of women’s progress that Nussbaum presented. In particular, it asks the ‘intersectional question’ about women’s progress made under the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The account of progress appears wanting when this question is asked; and I try to spell out the reasons for why post-colonial, Dalit and so-called ‘third world’ feminisms fall by the wayside of women’s progress when progress is examined closely. I argue that progress is transformative only when it is inclusive, i.e. intersectional in that it sees women not only as disadvantaged by their sex or gender alone but also on the basis of their race, colour, religion, caste, sexual orientation, age, disability, etc. Readers may see the article for more on this, especially pages 877-884 for a Dalit feminist critique.
Here, I want to pre-empt two kinds of readings which are given to intersectional scholarship like this one. I am not saying that either Nussbaum’s or my own article opens up intersectional scholarship to these readings. But that often, this kind of work is read in a particular light which casts a shadow of anxiety over intersectionality. I want to air and address two ways in which it manifests itself and show that there are ways of overcoming it and finding such scholarship worthwhile. (more…)
The 585-page Draft Agreement on the Withdrawal of the UK from the EU (“the Withdrawal Agreement”), agreed on 14 November, paves the way for the UK’s departure from the EU on 20 March 2019. The Withdrawal Agreement and the associated Political Declaration on the Future UK-EU Relationship, agreed earlier today, represent the culmination of the Article 50 negotiations between the UK and the EU. The Withdrawal Agreement includes provisions on citizens’ rights (Part Two), provisions governing separation (Part Three), provisions on the transition or implementation period (Part Four), financial provisions (i.e. the divorce bill) (Part Five), and institutional provisions, including a dispute settlement system under a newly-created Joint Committee (Part Six); together with Protocols on Ireland, Cyprus and Gibraltar. For a comprehensive analysis of the Agreement as a whole, see Steve Peers’ analysis, here.
Our intention here is not to engage with the unfolding political drama, but rather to analyse some of the key legal provisions of the Withdrawal Agreement, which explain the way in which the withdrawal process will operate. We begin with a couple of caveats. First, the Withdrawal Agreement is a long document, and we have had only a week to read and think about it. It is not easy to work out how the various parts of the Agreement and the Political Declaration are intended to fit together. Second, this post only purports to provide a broad-brush legal analysis of the Withdrawal Agreement; there are deeper complexities lurking within many of its provisions. We have chosen to focus on those areas in which we have the greatest expertise. Our hope is that this post will provoke a reaction among those keen to participate in both legal, and more political, discussion of the Withdrawal Agreement, and that it will help to generate greater understanding of the proposed terms of the UK’s exit from the EU.
On the basis of our analysis of the deal, we conclude that it should be rejected. It is a better outcome than ‘no deal’. But, it is significantly worse than the status quo. There are significant reasons why not only Brexiters but also remainers should be concerned. (more…)