Using the Wrong Policy Tools: Education,Charity, and Public Benefit

A recent decision on the application of public benefit under the Charities Act 2006 sidestepped the political debate surrounding the charitable status of independent fee‐charging schools. The broader political context nevertheless underscores the legislative reforms, and this article questions whether the new statutory public benefit requirement has utility as a welfare policy tool in the field of education. It examines the public benefit requirement in charity law against the backdrop of government policy towards education and the broader political agenda for a mixed economy of welfare provision, and argues that the difficulties Labour faced in developing its education policies were replicated in the application of the post‐Act public benefit requirement to fee‐charging schools. As a result, achieving broader policy goals for widening educational opportunity through public benefit was almost impossible given the regulatory framework and the principles upon which charity law is founded.     

An Equality and Human Rights Commission Worthy of the Name

The Human Rights Act 1998 came fully into force on 2 October 2000, enabling the European Convention on Human Rights (ECHR) to be relied on directly in our domestic courts.¹ The Act lacked provision for a Human Rights Commission to advise and assist alleged victims in bringing proceedings for breaches of Convention rights, to research, intervene in court proceedings, and promote a culture of human rights, although such a Commission had been created for Northern Ireland. A White Paper has now been issued outlining plans for a Commission for Equality and Human Rights. This paper considers the future role and potential impact of the Commission and highlights opportunities that have been missed since October 2000 in its absence. We focus on its human rights aspects and summarize key conditions for the new Commission's success.     

Trusts for Religious Purposes and the Question of Public Benefit

It is a well‐established principle that no trust may be regarded as charitable in law unless carrying out its purposes will benefit the public. Trusts for religious purposes have traditionally been presumed by courts to be for the public benefit. However, the presumption of public benefit will be removed from the law in early 2008 when section 3(2) of the Charities Act 2006 comes into force. At that time, two questions are likely to attract interest. First, to what extent, and in what ways, has the application of a presumption of public benefit assisted courts up to now? Secondly, without the assistance of the presumption, how might courts go about ascertaining whether the public will benefit in future cases? The article takes up these two questions with respect to trusts for religious purposes.     

Will Gender Self-Declaration Undermine Women's Rights and Lead to an Increase in Harms?

This article considers and rejects claims that reform of the Gender Recognition Act 2004 (GRA) to allow gender self-declaration will undermine non-trans women's rights and lead to an increase in harms to non-trans women. The article argues that these claims are founded on a mistaken understanding of the proper legal relationship between the GRA and the Equality Act 2010 (EA), and that the harm claim, in any event, lacks a proper evidential basis. The article considers three legal arguments made by gender critical feminists: that sex-based exceptions under the EA cannot be invoked against trans women with a Gender Recognition Certificate (GRC), that the appropriate legal comparator for a trans woman non GRC-holder in a discrimination case is a non-trans man, and that section 22 of the GRA, which protects the privacy of GRC-holders, undermines the ability of women's organisations to regulate access to women-only spaces.     

‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

People of non‐ideal‐weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self‐motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.     

Is There a Duty to Legislate for Linguistic Minorities?

In April 2005, the Scottish Parliament passed the Gaelic Language (Scotland) Act 2005, requiring certain public bodies in Scotland to provide some services through the medium of Gaelic. This Act was modelled to a certain degree on similar legislation for Welsh, the Welsh Language Act 1993. Both Welsh and Gaelic, and to a lesser extent Irish in Northern Ireland, benefit from a range of other measures of legislative support. Many other languages are, however, spoken in the United Kingdom, and their speakers have needs and expectations. In this article, the extent to which a state is obliged to legislate for these is assessed. Fundamental principles such as the right to freedom from discrimination, equal protection of the law, substantive equality, and the protection and promotion of cultural and linguistic diversity may argue for legislative intervention and support, and the provision of such support to linguistic minorities must itself be non-discriminatory.     

Independent schools: charitable status,public benefit and UDI

In England and Wales ‘independent schools’ (‘private schools’ or, confusingly, ‘public schools’) almost always have ‘charitable status’. Hence, they are now subject to the new ‘public benefit’ test imposed in the Charities Act 2006. There is much discussion as to whether this test will be a significant hurdle as set by the Charity Commission in interpreting the legislation. Or will the test be in practice one easily met? This article assumes that the public benefit test will be serious, involving a significant cost of compliance for independent schools, and asks at what point for a typical independent school that cost might exceed the value of the tax advantages of charitable status so that the school may prefer to sacrifice charitable status and instead operate in the same way as any other commercial business.     

Protection, Parity, or Promotion: Public Attitudes to Cohabitation and the Purposes of Legal Reform

Cohabitation law reform may be informed by different purposes. Three are considered in this paper: protection of parties at risk when relationships break down, parity of treatment between different forms of partnership, and the promotion of particular family forms. These are considered in relation to the Family Law (Scotland) Act 2006 in the context of recent evidence about public attitudes towards cohabitation. Public attitudes and the approach adopted in the 2006 Act are juxtaposed, raising questions about the alignment of public attitudes and the direction of law reform on cohabitation.     

Section 199 of the Equality Act 2010: How Not to Abolish the Presumption of Advancement

Section 199 of the Equality Act 2010 seeks to abolish the equitable presumption of advancement. The existence of that presumption, which discriminates according to gender because it applies in relation to husbands and fathers but not wives and mothers, is thought to prevent the United Kingdom from acceding to Protocol 7 to the European Convention on Human Rights. This paper argues that the presumption of advancement would not breach the protocol. It further argues that, even on the assumption that abolition was necessary before accession could occur, the legislation will not have the intended effect. The paper concludes that section 199 should be brought into force only in part.     

“人本”语境下的规则冲突与冲突规则

"人本相同"是国际社会公认的普世价值,但事实上的"人本不同"造成了各国民商事法律规定的冲突。"人本"语境下的冲突法应尊重人的价值,维护人的权利,重视人的发展,以促进全球范围内民商事活动的顺利进行、物质资源的合理配置、人类社会的和谐共存。我国《涉外民事关系法律适用法》以"人本"思想为价值导向,多采双边冲突规则,坚持内外法律平行,注重冲突法的实质正义,平等保护内外国当事人的合法权益,体现了"以人为本"的科学发展观,为构建和谐国际民商事秩序保驾护航。     

The Nature and Effect of the Anglo-Saxon Vernacular Will

Scotland took its time in abolishing irregular marriage. While the Roman Catholic Church stopped recognising irregular forms in 1563, and England followed suit two hundred years later with Lord Hardwicke's Act of 1753, Scotland retained the medieval canon law of irregular marriage until 1940. This article exposes the various interests lobbying for reform of the law of formation of marriage in Scotland during the 1920s and 1930s and the assertions and arguments they employed and reveals the main factors which resulted in the success of this lobbying at this particular point in time: the influence and attitude of the Church of Scotland, and, echoing the scandal of Fleet marriages in England before the 1753 Act, the availability of circumstances at Gretna Green which could be portrayed as a scandal.     

Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law

This article explores some issues arising when updating familylaw to keep pace with changes in family practices and values,in particular with changing patterns of parenting. It considersthe extension of parental rights and responsibilities beyondthe conventional boundaries of family law – to unmarriedfathers, step-parents and grandparents – with referenceto four different roles of family law. These roles are: protectingchildren, resolving disputes, regulating family life and promotingfamily norms. The article takes as an example of legal reformthe recently enacted Family Law (Scotland) Act 2006, which extendsparental rights and responsibilities to unmarried fathers whojointly register the child’s birth; but not to step-parentsor grandparents. The mixed messages that this reform conveysare considered in relation to the latest evidence of publicopinion in Scotland about parental obligations and the extentto which they align with public opinion on these issues.     

Properly drafted arbitration agreement as a safeguard to its adequate interpretation: Rwanda case study

Since the seminal Sex Discrimination Act 1975, modern British equality law developed in a piecemeal fashion over four decades. The landmark Equality Act 2010 was designed to unify, simplify and, to a limited extent, strengthen the legislation in this area. Despite its long gestation period, the Bill suffered from a lack of parliamentary scrutiny. This article sets the Equality Act in context and, by analysing certain aspects, discusses how far it has met those aims.     

Principles,patient welfare and the Adults with Incapacity (Scotland) Act 2000

The law surrounding decision-making for adults who lose their capacity varies considerably internationally. In many cases legislation has taken a protective and consequently restrictive role for adults with incapacity and often the issue of capacity assessment within the appropriate legal framework is circumvented. In Scotland, the introduction of the Adults with Incapacity (Scotland) Act 2000 modernised that nation's approach to incapable adults. This article describes briefly the pre-2000 Act situation in Scotland, discusses the main provisions of the Act, reviews the use of principles in incapacity legislation in Britain, and discusses issues relating to patient welfare. The use of principles to extend patient autonomy into incapacity is demonstrated and compared with the English and Welsh Mental Capacity Act 2005 (the 2005 Act) through a discussion of how the principles in each of those Acts promotes particular ideologies of decision making. Finally, the article examines recent Scottish case law relating to the 2000 Act and discusses how the courts are currently interpreting the principles of the Act.     

New relaxed regulatory regime for private international charities: the Manx Private Charitable Foundation

The Manx Private Charitable Foundation has become a highly attractivevehicle for private charitable arrangements following on a changein the regulatory legislation in the Isle of Man in 2008, especiallywhere there is no UK inheritance tax or US estate and gift taxissues for donors. In the Isle of Man which has its own unique legal system, since1986 non-local charities have been almost impossible to establish,consequent upon the passing of the Charities Registration Act1986. However, with the adoption of the Charities (Exemption)Regulation 2008 that has now changed. Manx law has followed English law in the past. However, thenew English legislation of 2006 has not been followed. The old‘Pemsel Case’     

Achieving and Managing Equality in the Criminal Justice Process: Do the New Equality Measures Go Far Enough?

Abstract: This article will explore some of the legal and organisational challenges facing the various agencies involved in the delivery of criminal justice, in the UK, in adhering to the Equality Act 2006, Equality Duties and the forthcoming Single Equality Act (which, proposes a Single Equality Duty). We will consider the impact of these changes with reference to European legislation. Of particular interest will be the themes of effective implementation of the current Duties, equality of access and equality of outcome for both victims and offenders to appropriate services to tackle offending behaviour and the prevention of crime. This article will highlight issues surrounding impact assessment and the role of agency discretion and regulation. We offer some comments on future directions and the role of the regulatory bodies including the Equalities and Human Rights Commission (EHRC).     

Demanding Service or Servicing Demand? Charities,Regulation and the Policy Process

Charities in the Victorian era were characterised by the notions of service and pressure, acting as a shield and a sword for social change. Charities continue to pursue such policies, but do so at the behest of state agendas on public service provision and civic engagement. This article examines the regulatory and policy challenges of the service and pressure dynamic, focusing upon the provision of public services by charities, considering the decision of the Charity Commission in the cases of Trafford and Wigan , and the hurdles faced by charities wishing to pursue a political agenda alongside the state's concern with protecting against terrorism. The article concludes by considering the arbitrary choice made within the regulatory framework between acceptable and unacceptable political conduct and the focus upon good governance in charities and the issues which arise under section 6(3)(b) of the Human Rights Act 1998.     

Connections and Tensions Between Nationalist and Sustainability Discourses in the Scottish Legislative Process

This article illustrates how sustainability and nationalist discourses have operated together in practice in Scotland. Potential connections and tensions between nationalist and sustainability discourses are identified and used to analyse the events leading up to the passage of the Climate Change (Scotland) Act 2009 and the Regulatory Reform (Scotland) Act 2014. The analysis reveals how in certain contexts, the tensions and connections between sustainability and nationalist discourses can align to reinforce transformative initiatives while in other contexts, the tensions can lead to initiatives being watered down or set aside. The article concludes that more could be done to emphasize the connections between the two discourses. Engagement at the level of ‘nation’ can lead to sustainability discourses that are more attuned to nationalist values, increased public understanding, and acceptance of sustainable development, as well as additional opportunities for debate, public participation, and education.     

Appeals against detention in conditions of excessive security: outcomes and decision-making

The Mental Health (Care and Treatment) Scotland Act 2003 introduced the right for patients to appeal against detention in conditions of excessive security initially to those in high security. Aim: to further investigate appeal outcomes and to examine Tribunal decision-making. Results: responsible medical officer support, being on the transfer list and not having a diagnosis of learning disability increased the chances of a successful appeal. Qualitative analysis of the Tribunal’s decision-making produced 5 themes and 17 subthemes. These were used to develop a ‘checklist’ framework to improve understanding of relevant appeal factors. Conclusions: Neither appeal outcomes nor patient characteristics have changed over time. The checklist may be useful as a training tool and clinical guide. This study is timely given that the Mental Health (Scotland) Act 2015 extended the right of appeal against excessive security to patients detained within medium secure units from November 2015.