Annotated Bibliography: Grande Bretagne / Great Britain: Part Four: Administrative Law texts

(with C. N. Doe).

“The Role of Judges in the Formation of Public Law: Activism or Autolimitation?

(with G. Anthony).

"A Note of Caution about the Role of Law in Controlling the Administration in the United Kingdom"

"A Note of Caution about the Role of Law in Controlling the Administration in the United Kingdom"

Two Views of ‘Subordination’: the Personal Scope of Employment Discrimination Law in Jivraj v Hashwani

In Jivraj v Hashwani, the Supreme Court considered what requirements are necessary for a relationship to be considered as an employment relationship for the purposes of determining the scope of domestic employment discrimination law. The Court held that an element of subordination was necessary for the relationship to be considered employment under a contract personally to do work. This article discusses what the Court in Jivraj meant by this requirement, contrasting two differing views of subordination. It examines some implications of the decision for the relationship between employment law and anti-discrimination law, and for recent debates on the scope of employment law more generally.

Regulatory or Regulating Publics? The European Union’s Regulation of Emerging Health Technologies and Citizen Participation

‘Citizen participation’ includes various participatory techniques and is frequently viewed as an unproblematic and important social good when used as part of the regulation of the innovation and implementation of science and technology. This is perhaps especially evident in debates around ‘anticipatory governance’ or ‘upstream engagement’. Here, we interrogate this thesis using the example of the European Union’s regulation of emerging health technologies (such as nanotechnology). In this case, citizen participation in regulatory debate is concerned with innovative objects for medical application that are considered to be emergent or not yet concrete. Through synthesising insights from law, regulatory studies, critical theory, and science and technology studies (STS), we seek to cast new light on the promises, paradoxes and pitfalls of citizen participation as a tool or technology of regulation in itself. As such we aim to generate a new vantage point from which to view the values and sociotechnical imaginaries that are both ‘designed-in’ and ‘designed-out’ of citizen participation. In so doing, we show not only how publics (do not) regulate technologies, but also how citizens themselves are regulated through the techniques of participation. © The Author [2012].

Review: R. Bellamy, D. Castiglione and J. Shaw (eds.), Making European Citizens (Palgrave Macmillan, 2006)

Review of edited collection.

Reviewing the European North/South Divide under the Prism of Beck’s ‘Risk society’ Thesis

Reviewing the European North/South Divide under the Prism of Beck’s ‘Risk society’ Thesis
Southern European political cultures have been viewed as extremely disadvantageous terrains for the development of a civic culture compatible to the requirements of a modern polity. Trust confined to the local and the familial, weak civil societies, violation of the law in the absence of supervision are some of the elements combined to draw an extremely negative picture of southern European political cultures in the relevant literature. These are very well entrenched perceptions that dominate all studies dealing with social aspects the southern European nations. Recent works produced by students of environmental mobilisations have argued that the environmental problematique has operated as a catalyst that, at least, forces us to re-examine the aforementioned perspectives if not to outright dismiss them.

This paper argues that although these challenging perspectives are not immune from criticisms, they have put forward a strong case that deserves further attention. A careful reading of Beck’s ‘risk society’ thesis suggests that mistrust to expert authorities and defensive reactions by social actors against them are not confined to specific national contexts but are now characteristics of countries previously held to be exemplary cases of civicness. Following that observation the paper proceeds by posing a number of related questions:

1) Can we argue that we are witnessing a general ‘Mediterranisation’ of European political culture or by arguing that we essentially accept what was idealistic evaluations of post-war European cultures determined by specific political conceptions?

2) Is there still any role for the use of a north/south divide in the cross-national study of social processes and to what extent?

A roadmap for marine spatial planning: A critical examination of the European Commission's guiding principles based on their application in the Clyde MSP Pilot Project

The European Commission has developed a set of common principles for marine spatial planning in the European Union. A critical examination of these principles in practice is undertaken through an evaluation of the Clyde Marine Spatial Planning Pilot Project. The principles are found to be lacking in specificity and somewhat inconsistent with the ecosystem based approach, which they advocate. Lessons for new marine spatial planning initiatives, relating particularly to stakeholder participation, governance, data requirements, objective setting, and skills and knowledge needs, are derived from the Clyde Pilot. © 2011.

BAILII, Legal Education and Open Access to Law

The British and Irish Legal Information Institute (BAILII) entered the online legal information landscape in 2001 with charitable status as a provider of UK and European judgments, and has over the past decade or so moved from a system quickly put together with any materials which could be found, to a system which provides a core resource to professionals in law. In this article we provide an overview for the law teacher of the system’s first years and we then look at whether usage in law schools has matched that of the professional, how the JISC funded Open Law project enabled development for law students, and where we might go in the future as part of the Legal Information Institute collective which operates under the ‘Free Access to Law’ banner.
As members of the Open Law team who sought funding, carried out the research and implemented the project, it seems to us that the project was generally successful. Our indications were that prior to Open Law the use of BAILII by students was low – it was not readily found or discussed by lecturers, was difficult to use, and generally less user friendly than it could have been. The changes implemented by Open Law appear to have changed that position considerably. However, our findings also indicate that there is much work to do to re-energise digital legal information as a legal education research field.

What is an absolute right? Deciphering absoluteness in the context of Article 3 of the European Convention on Human Rights

The answer to the question of what it means to say that a right is absolute is often taken for granted, yet still sparks doubt and scepticism. This article investigates absoluteness further, bringing rights theory and the judicial approach on an absolute right together. A theoretical framework is set up that addresses two distinct but potentially related parameters of investigation: the first is what I have labelled the ‘applicability’ criterion, which looks at whether and when the applicability of the standard referred to as absolute can be displaced, in other words whether other considerations can justify its infringement; the second parameter, which I have labelled the ‘specification’ criterion, explores the degree to which and bases on which the content of the standard characterised as absolute is specified. This theoretical framework is then used to assess key principles and issues that arise in the Strasbourg Court’s approach to Article 3. It is suggested that this analysis allows us to explore both the distinction and the interplay between the two parameters in the judicial interpretation of the right and that appreciating the significance of this is fundamental to the understanding of and discourse on the concept of an absolute right.

Offshoring Clinical Trials: The Mutable Ethics, Weak Protections and Vulnerable Subjects of EU Law

In this paper I engage with science and technology studies work on pharmaceuticalisation to explore how European Union (EU) law helps to produce and support the preference for pharmaceutical responses in public health governance, while authorising the production of vulnerable subjects through the growing off-shoring of clinical trials. Drawing on the analysis of legal and policy documents, I demonstrate how EU law allows and legitimates the use of data procured from vulnerable subjects abroad for market authorisation and corporate profitability at home. This is possible because the EU has (de)selected international ethical frameworks in order to support the continued and growing use of clinical trials data from abroad. This has helped to stimulate the revision of international ethical frameworks in light of market needs, inscribing EU public health law within specific politics (that often remained obscured by the joint workings of legal and technological discourses). I suggest that law operates as part of a broader ‘technology’ – encompassing ethics and human rights discourses – that functions to optimise life through resort to market reasoning. Law is thereby reoriented, instrumentalised and deployed as part of a broader project aimed at (re)defining and limiting the boundaries of the EU's responsibility for public health, including the broader social production of public health problems and the unequal global order that the EU represents and helps to depoliticise and perpetuate. Overall, this limits the EU's responsibility and accountability for these failures, as well as another: the weak and mutable protections and insecure legacies for vulnerable trial subjects abroad.

Parental Disputes, Religious Upbringing and Welfare in English Law and the ECHR

This article assesses the position of English law concerning parental disputes about the religious upbringing of children. Despite the strong emphasis on both parents being able to direct their child’s religious upbringing, courts have interpreted the child’s welfare to restrict the exposure of the child to parental religious beliefs or practices in some circumstances: preserving the child’s future choice of religion, the physical integrity of the child, the child’s contact and relationship with both parents, the child’s educational choices, and the child’s relationship with both parents’ religious community. It is suggested that courts should have a wide understanding of welfare and should be wary to prohibit parents teaching their minority beliefs. This article also compares the position of the European Court of Human Rights (ECtHR) and suggests that, despite the stronger emphasis by the ECtHR on parental rights, English law is generally not that much at odds with the ECtHR.