Reforming the United Kingdom Constitution: Law,Convention, Soft Law

The Governance of Britain Green Paper continues the programme of constitutional reform begun in 1997, and appears to reinforce the juridification of the UK's constitution. Nevertheless, several key reforms will be implemented not by legislation, but by creating new conventions. This article argues that such ‘declared’ conventions are best understood as a form of constitutional ‘soft law’, which attempt to influence constitutional behaviour rather than generating binding norms. Applying a regulatory analysis, it then argues that the case for a soft, rather than hard law approach to constitutional reform is weaker than its widespread use in the UK suggests. Finally, the article challenges the thesis that the political constitution is being replaced by a legal constitution, arguing that the government's attitude to constitutional reform still exhibits basic characteristics of political constitutionalism. Moreover, there is more to contemporary constitutional developments than a bipolar contest between political and legal constitutionalism.     

United Kingdom Military Law: Autonomy, Civilianisation, Juridification

This paper argues that military law has undergone a long-term process of change. Previously an autonomous legal system with little civilian input at the administrative, judicial and policy-making levels, military law became subject to a consensual policy of civilianisation from the early 1960s, reflected primarily in the adoption of civilian criminal law norms by the military justice system. More recently there has emerged the juridification of significant areas of military relations in respect to discipline and certain other terms of service which hitherto have not been subject to externally imposed legal regulation. Explanations for the shifts from autonomy, through civilianisation, and then to juridification, ranging from political and social developments to new human rights and equal opportunities discourses, are offered for such changes.     

Rule-making, rule-breaking? Law breaking by government in the Netherlands and the United Kingdom

This article concerns a relatively novel issue: rule breaking and unlawful conduct by government bodies; to which degree does it occur, what is the nature of this misconduct, what are the underlying motives, and what are the consequences and possible solutions? Rule and law breaking is harmful for the credibility and integrity of a state and its law enforcement system. However, very little empirical research has been carried out into this issue, in comparison to research into state crime. There is little clarity about how public actors deal with criminal and administrative laws and rules in areas like environmental protection, safety regulations and working conditions. Do government bodies set a good example? Is their behaviour better or worse than the public and businesses? An analytical framework for research will be presented and also the results of an extensive research project in the Netherlands; the main themes of which have been benchmarked against data from the United Kingdom. The article will conclude with a summary of the main findings and a number of suggestions for further research and policy development.     

Stepwise Progression: The Past,Present, and Possible Future of Empirical Research on Law in the United States and the United Kingdom

The article distinguishes empirical research on law from other modes of legal enquiry. It charts the changing fortunes of empirical research on law in the United States and the United Kingdom and accounts for the differences between them. In both countries, the development has been uneven and intermittent rather than gradual and linear, with a number of important differences in trajectories, in particular: the number of growth spurts; their timing; the present position; and whether the rise and fall of activity refers to research on civil and criminal justice or on civil justice alone. The different trajectories are explained in terms of path dependency (the fact that developments in the present are shaped by developments in the past); sequential development (emphasizing the importance of timing and that developments in one institution may be contingent on developments in another); and institutional responsiveness (an institution's capacity to respond to opportunities in its external environment).     

European Community Law and the Redistribution of Regulatory Power in the United Kingdom

Abstract: This paper draws on a series of case studies of implementation of specific Community law instruments, in the fields of food safety, toy safety, beverage labelling, television broadcasting, and free movement of persons. The objective is to explore the question of how, and to what extent, the need to implement Community law and policy functions to reinforce or to retard shifts in regulatory power in the United Kingdom: from local to central regulatory power; from official regulation to self-regulation; and from bureaucratic and political controls to privately-initiated control through the courts.     

Inching toward incrementalism: federalism, devolution, and health policy in the United States and the United Kingdom

In the United States, the recently enacted Patient Protection and Affordable Care Act of 2010 envisions a significant increase in federal oversight over the nation's health care system. At the same time, however, the legislation requires the states to play key roles in every aspect of the reform agenda (such as expanding Medicaid programs, creating insurance exchanges, and working with providers on delivery system reforms). The complicated intergovernmental partnerships that govern the nation's fragmented and decentralized system are likely to continue, albeit with greater federal oversight and control. But what about intergovernmental relations in the United Kingdom? What impact did the formal devolution of power in 1999 to Scotland, Wales, and Northern Ireland have on health policy in those nations, and in the United Kingdom more generally? Has devolution begun a political process in which health policy in the United Kingdom will, over time, become increasingly decentralized and fragmented, or will this "state of unions" retain its long-standing reputation as perhaps the most centralized of the European nations? In this article, we explore the federalist and intergovernmental implications of recent reforms in the United States and the United Kingdom, and we put forward the argument that political fragmentation (long-standing in the United States and just emerging in the United Kingdom) produces new intergovernmental partnerships that, in turn, produce incremental growth in overall government involvement in the health care arena. This is the impact of what can be called catalytic federalism.     

Toward Reform of Defamation Law in the British Caribbean: Efforts at Reform in the United Kingdom and Jamaica

The ongoing review of defamation laws by the Jamaican government has sharpened the focus on the need to identify appropriate standards for public officials in libel actions in light of the growing recognition of a need for transparency. Conventional wisdom speaks to the indispensable role of the media to inform the public of government activities to facilitate the democratic process. Jamaica's unique history of colonialism, underdevelopment and poverty has led to a political system based on pork barrel economics – inimical to government transparency so necessary in a democracy. This article explores how British, Caribbean and U.S. jurisdictions have sought to manage the paradigm shift between the right to reputation and the need to ensure responsible and accountable governance. The aim is to identify a path of reform for Caribbean defamation law that ensures greater public official accountability and better incorporates twenty-first century notions of democracy.     

Disability Discrimination Law in the United Kingdom and the New Civil Rights History: The Contribution of Caroline Gooding

This article concerns the theoretical and practical contribution of radical lawyer, feminist, and disability activist, Caroline Gooding to disability rights in the United Kingdom. It assesses the impact of her published work in the 1990s and translation of her insights into practice through her work on the Disability Discrimination Act 1995 and later at the Disability Rights Commission, not least in securing in legislation a positive disability equality duty. In particular, it seeks to situate Gooding's contribution within the ‘new civil rights history’, with its emphasis on the role of lawyer as mediator, facilitator, and ‘gatekeeper’. It argues that through her engagement with strategic law enforcement, law reform, and the wider mobilization of the law, Gooding created ‘alternative visions and accounts’ of disability and so forged a decisive connection between disabled people as a social movement and the law, in ways of exemplary value to social movements more generally.     

Unconscionability of E-contracts: A Comparative Study of India,the United Kingdom,and the United States

Liverpool Law Review - Adhesion contracts have a strong likelihood of being unconscionable. The laws and principles are further complicated by the introduction of electronic contracts, specifically...     

United Kingdom: Sisters and inheritance tax

Joyce and Sybil Burden are two sisters who have lived togethersince birth and currently occupy a UK farmhouse. When one ofthem dies the other will face a large inheritance tax bill andwill have to sell the     

Coroners' autopsies: quality concerns in the United Kingdom

Safety in health care has increasingly become a key focus of health care providers. Data on "patient outcomes" and evidence-based clinical decision-making have led to real changes in health care policy and care provision. Specialist groups such as the National Patient Safety Agency which operates the National Confidential Enquiry into Patient Outcome and Death (NCEPOD) in the United Kingdom are reliant on good information in order to identify factors that lead to poor patient care. In a recent study the NCEPOD reviewed the quality of coroners' autopsy reports on which they rely for much of their core data. The study found that just over half of the reports (52%) were considered satisfactory by the reviewers, 19% were good and 4% were excellent. However, over a quarter of autopsies were marked as poor or of an unacceptable standard. While analysing the factors associated with poor-quality autopsies, comments and recommendations were made with regard to the processes of death investigation and the degree to which the coroner's death investigation meets the needs of health care services.