Tissue donation: ethical guidance and legal enforceability

The legal and ethical framework regulating the use of tissue donated for medical research in Australia provides clear direction on the appropriate use of donated tissue in many instances. However, this article argues that the current framework may be inadequate to address some of the problems that may arise from misuse of such tissue. It argues that the Human Tissue Acts do not provide a sufficiently broad system of regulation and require updating. It also notes that as much of Australian research practice is regulated through ethics guidelines, which do not have the status of law, in some cases this approach may fail to provide remedies for those whose tissue is used inappropriately.     

Human Rights,Linguistics and the Law: The UK and Beyond

This article examines mediarepresentation of cases decided in respect ofthe United Kingdom Human Rights Acts (1998).These representations suggest that only somepeople are deserving of human rights. Further,a distinction between legal human rights andhuman rights is made because of this problem ofaccess. Indeed, before one can be clear abouthow to protect human rights in a legal context,one has to be clear about what human rights areuniversally and uncontroversially.     

The European Parliament and the Future of Comitology after Lisbon

The history of comitology—the system of implementation committees that control the Commission in the execution of delegated powers—has been characterised by institutional tensions. The crux of these tensions has often been the role of the European Parliament and its quest to be granted powers equal to those of the Council. This process came to a head with the 2006 Comitology reform and the introduction of the regulatory procedure with scrutiny (RPS). After just over three years of experience with the RPS procedure, the Treaty of Lisbon has made it redundant through the creation of Delegated Acts (Article 290 TFEU). This article aims to evaluate the practical implications that Delegated Acts will entail for the Parliament, principally by using the experience with the RPS to better understand the challenges ahead. This analysis will be of interest to those following the study of comitology, formal and informal inter‐institutional relations and also to practitioners who will have to work with Delegated Acts in the future.     

Bill of Sale Lending: Reforming a ‘Toxic’ Form of Credit

The Bills of Sale Acts were enacted in Victorian times as a form of secured credit whereby ‘goods’ owned by a borrower could be assigned under the bill of sale to a lender who would have title to the goods transferred to him. The lender would then allow the borrower to retain possession of the goods in exchange for instalment payments with interest. In the twenty‐first century these bills are most commonly used as ‘logbook loans’ for vehicles with extortionate interest rates and very little protection for individual consumers. This article examines the operational background to the Bill of Sale Acts. It focuses upon particular concerns for consumers and businesses and provides critique of the registration process before examining the proposals and consultations for reform currently before the Law Commission.     

The Transatlantic Origins of the Business Trust

The trust form may have afforded transaction planners all the incidents of so-called ‘corporateness' prior to the enactment of general incorporation statutes, but in England the Companies Acts hindered the development of the business trust, and in the United States, the inability of the common law to distinguish adequately between partnerships and trusts made its use uncertain. Whereas the common law in England charted a complicated path to circumvent prohibitions in the Companies Acts, undoing confusion in American common law, which relied on English precedent, required legislative intervention. This narrative complicates interpretations of the state's role in the development of organizational law. The state could help to break down intellectual barriers impeding the progress of the common law as much as the common law could seek out ways in which to circumvent the strictures of state-imposed regulation.     

Privacy of bodily samples

Privacy law in Victoria does not cover human tissue and other bodily samples. To ensure that individuals have some control over how their samples are collected, used and transferred, legislative amendments are required. Can concerns raised by the Australian Law Reform Commission about the lack of privacy protection afforded to bodily samples be addressed in the Human Tissue Act 1982 (Vic)?     

Developments in medical law in the United Kingdom in 2005 and 2006

This article highlights and summarises the key developments in medical law in the jurisdictions of the United Kingdom in 2005 and to April 2006. Topics are mental health and mental capacity, data protection, freedom of information and the impact on health data, the Human Tissue Act, genetic research databanks, Human Fertilisation and Embryology Act--Review of the legislation, consultations and related case law, developments in embryo and embryonic stem cell research, clinical trials and human subject research, medical futility, and physician assisted dying.     

The Human Tissue Act 2004: Innovative Legislation – Fundamentally Flawed or Missed Opportunity?

In November 2004 Royal Assent was finally given to the Human Tissue Act which was passed in response to the organ retention scandals at Alder Hey hospital and other hospitals around the UK. At first glance it may appear to set many of the concerns raised in the Bristol Interim Inquiry and Alder Hey Inquiry to rest. But on closer inspection a more complex position emerges. The paper examines the extent to which it can be regarded as a groundbreaking piece of legislation clarifying a notoriously uncertain area of law or whether in the long term it will be viewed as a fundamentally flawed Act and a missed opportunity.     

An inquiry into the legal status of the ECOWAS cybercrime directive and the implications of its obligations for member states

On 19 August 2011, the ECOWAS Council of Ministers adopted Directive C/DIR.1/08/11 on Fighting Cybercrime at its Sixty Sixth Ordinary Session in Abuja, Nigeria. The adoption of the Directive at that time arose from the need to tackle the growing trend in cybercrime within the ECOWAS region, as some Member States were already gaining global notoriety as major sources of email scams and Internet fraud. Accordingly, the Directive established a legal framework for the control of cybercrime within the ECOWAS region, and also imposed obligations on Member States to establish the necessary legislative, regulatory and administrative measures to tackle cybercrime. In particular, the Directive required Member States to implement those obligations “not later than 1st January, 2014″. This article undertakes an inquiry into the legal status of the Directive as an ECOWAS regional instrument in the domestic legal systems of Member States.In this regard, the article examines whether the requirement regarding the superiority or direct applicability of ECOWAS Community laws such as ECOWAS Acts and Regulations in the domestic legal systems of Member States also apply to ECOWAS Directives such as the Cybercrime Directive. The article also examines the legal implications of the Directive's obligations for Member States. The article argues that while some Member States have not implemented the obligations under the Directive, that those obligations however provide a legal basis for holding Member States accountable, where the failure to implement has encouraged the perpetration of cybercrime that infringed fundamental rights guaranteed under human right instruments such as the African Charter on Human and Peoples’ Rights or under their national laws.     

Godden v Hales revisited – James II and the dispensing power

This article considers whether the King's Bench decision in Godden v Hales (1686) allowing James II to dispense with the application of the Test Acts was correct. Most modern historians believe that the decision was either correct, or at least a justifiable interpretation of the legal precedents; contemporaries overwhelmingly believed the decision was wholly wrong. This article explains the nature and importance of the dispensing power, and considers the relevant case law precedents in detail. It concludes that the line of authorities forbidding the king from dispensing with the anti-simony statutes should have been applied to the Test Acts. The accusations of illegal and unconstitutional conduct relating to the dispensing power made against James II during the 1688 Revolution and in the Declaration of Rights were thus wholly justified.     

Disqualification of Election Candidates in Nigeria: Some Reflections

Since 1999, when the new democratic governance came into being, there have been three different Electoral Acts in Nigeria. The provisions for disqualification of candidates for election in the 2002 Electoral Act were significantly altered by its 2006 successor. While under the former, the power resided in the Independent Electoral Commission (INEC), the latter completely removed the power from INEC and placed it in the courts. Despite the clear tenor of the new provision, INEC and its sympathizers have continued to hold the view, even in the face of a Supreme Court decision to the contrary, that the 2002 position has not changed. This article sets out to examine this aspect of the electoral process under the 2002 and 2006 Electoral Acts and the cases decided under each, particularly a recent Supreme Court ruling on the matter.     

Irrationality, evidence-based medicine and the standard of care

The determination of the legal standard of care in Australia for medical diagnosis and treatment has gone through three apparent phases in modern times: the Bolam era, the post-Rogers v Whitaker era, and the current Civil Liability Acts era. It is conventionally accepted that the two shifts linking these phases were a jettisoning of the Bolam principle in Rogers and a return to a modified Bolam principle in the Civil Liability legislation, with the post-Rogers interregnum being a time of a court-imposed standard. This story is somewhat inaccurate. The Bolam test relied more on practice accepted at the time as proper by a responsible body of medical opinion rather than the practice of a "responsible body of medical men". The ability of post-Rogers courts to override medical evidence was more a rhetorical power than an actual one. And the irrationality condition, which reserves the right to override medical opinion under the Civil Liability Acts, is more dependent on sound evidence than the terminology might suggest. It is not so much that the legal standard of care has changed in dramatic ways as that the content of competent professional opinion has evolved as medical research and practice have developed. There is greater continuity than is usually granted, throughout the three phases, of the standard's reliance on current best evidence and opinion. This is more easily seen with the advent of evidence-based medicine.     

英国执行欧盟细胞指令的经验和启示简

英国为执行欧盟人体组织和细胞三个指令在立法和执法上所作的努力及其获得的成功,对于我国建立人体组织细胞法律制度,发展监管科学,有效治理“干细胞治疗”乱象,具有重要借鉴价值.在实证的基础上,分析、介绍英国人体组织法的基础、基本制度和运作方式,设想中国干细胞疗法监管科学的框架,应当包括监管的目标和长远战略、科学立法、制度文化、监管体制与执法机制、行业治理、患者维权的伦理—法律问题等.     

Freedom of information and data protection law – A conflict or reconciliation?

The interface between the Freedom of Information and Data Protection Acts is complex and reconciling the two regimes has required considerable legislative contortion. The emerging body of jurisprudence relating to s.40 of FOIA demonstrates that assessing the operation of the exemption requires a degree of sophistication, balancing the rights of FOIA applicants and the public with the privacy rights of public officials.     

Acts of International Organizations as Extraneous Material for Treaty Interpretation

Netherlands International Law Review - Acts of international organizations often reflect developments in international law. Therefore, they could contribute to the evolutive interpretation of...     

The Human Transplantation (Wales) Act 2013: an Act of Encouragement,not Enforcement

The Human Transplantation (Wales) Act became law in Wales in September 2013. The Act aims to increase deceased donor organ and tissue donation in Wales by introducing a ‘soft opt‐out’ system to replace the previous requirement of express ‘appropriate’ consent under the Human Tissue Act 2004. Adults dying in Wales (with certain exceptions) will be ‘deemed’ to consent to donation, unless evidence of their objection is produced, and a duty is imposed on Ministers to promote transplantation and inform the public through awareness campaigns about how to choose the deemed status or opt out. Although a welcome development, these campaigns may obscure the effects of deemed consent, especially in the context of generally rising UK donation rates. There may also be problems of legal interpretation and of integration with the ‘opt‐in’ laws in the rest of the UK. In the absence of any statutory duty to retrieve all lawfully donated organs, the apparently restricted influence of donor relatives is likely to remain effectively dominant.     

>The role of subjectivity in criminal justice classification and prediction methods

Leo Katz, Bad Acts and Guilty Minds: Conundrums of the Criminal Law Chicago and London: The University of Chicago Press, 1987, vii + 343 pp.     

The legal constitution: United Kingdom parliament and European court of justice

Membership of the EC has transformed the legal status of the UK parliament. Prior to British accession, Acts of Parliament were the supreme law of the land, unchallengeable in any court. This paper argues that EC membership raised the courts ‐ national as well as European ‐ above parliament and that at the time of accession parliamentarians were almost wholly unaware of this fundamental change. The author links MPs’ ignorance to the highly political, rather than legal, nature of the British constitution and traces the evolution of their constitutional understandings. Identifying a new dynamic interplay between British judiciary and parliament, the study argues that the creeping hegemony of law within constitutional politics merits continuing analysis by legislative scholars.     

Community or Communities of Courts in European Integration? Sex Equality Dialogues Between UK Courts and the ECJ

“All of them were filled with the Holy Spirit and began to speak in other tongues as the Spirit enabled them . . . When they heard this sound, a crowd came together in bewilderment, because each one heard them speaking in his own language. Utterly amazed, they asked: ‘Are not all of these men who are speaking Galileans? Then how is it that each of us hears them in his own native language?’ Amazed and perplexed, they asked each other, ‘What does this mean?’” (Acts 2: 4–12)     

Why Legislate for Sustainable Development? An Examination of Sustainable Development Provisions in UK and Scottish Statutes

This article examines the use of the term ‘sustainabledevelopment’ in Acts of the Scottish and UK Parliaments.It begins by examining the UK's traditional reluctance to legislateon sustainable development, the more recent reversal of thatapproach and some definitional issues surrounding the term.It then moves on to consider the sustainable development provisionsin detail examining their form, strength and limits, and howthey can be monitored, reviewed and enforced both inside andoutside court. The article concludes that over and above anysymbolic value, in many instances the provisions also have legalsignificance. The formulations vary and while some are simplymaterial considerations to be used in decision-making, thosewhich set out mandatory requirements such as reports do createbinding legal rules. Furthermore, there are a few examples wherethe duty or objective is set out as a clear legal rule thatcould be interpreted as providing a framework for decision-making.