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…)