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1
Skene, Loane. "Proprietary rights in human bodies, body parts and tissue: regulatory contexts and proposals for new laws." Legal Studies 22, no. 1 (March 2002): 102–27. http://dx.doi.org/10.1111/j.1748-121x.2002.tb00581.x.
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This paper examines the law on the proprietary rights of people in respect of their bodies, body parts and tissue. Proprietary rights include rights of ownership and control, The paper argues that the context in which judicial decisions are made and policy recommendations are developed sometimes results in a patchwork of legal principles. Being aware of the context in which different aspects of the law have been developed enables us to understand why principles have been developed, what is needed to reconcile them and how we can establish a coherent regulatory regime. The paper then proposes such a scheme to deal with property and control rights in this area. It argues that people (or the personal representatives of people who have died) should have a personal autonomy right to be consulted about the use of their corpse or their excised body parts or tissue in teaching, research and commercialisation of biological inventions, and to refuse or to impose conditions. They should not, however, have a right of ultimate ownership in their corpse, body parts or tissue, except for the limited right of personal representatives to gain possession of bodies and body parts of people who have died for burial or cremation if they so wish. That right should not extend to tissue preserved on slides, in paraffin wax or similar format. That tissue should be subject to proprietary interests in favour only of the hospital, research institute, its staff or the people to whom they transfer it. The same rule should apply to bodies or body parts held by a hospital or research institute with the consent of the person concerned, though the bodies or body parts may ultimately have to be returned for burial or cremation. Tissue removed under a statutory requirement without consent, such as for coronial investigation or forensic tests, should be used only for the purposes prescribed by the relevant legislation.
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Peiris, G. L. "Legal protection of human rights: the contemporary Canadian experience." Legal Studies 5, no. 3 (November 1985): 261–95. http://dx.doi.org/10.1111/j.1748-121x.1985.tb00327.x.
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The incorporation of the Charter of Rights and Freedoms in the Constitution Act, 1982, marks a decisive development in the legal entrenchment of human rights in Canada. This contemporary experiment in the protection of fundamental rights by the constitutional limitation of legislative power, and in particular the social priorities established by the Charter and the delicate balancing of interests and values inherent in its provisions, offer useful insights into the viability of mechanisms associated with an enforceable bill of rights within the framework of a modern federal state. Of even greater interest, in the context of multi-racial and multi-religious communities in the modern Commonwealth, is the recent body of case law in the shaping of which Canadian judges have shown perception in imparting effectiveness to guarantees embodied in the Charter, while being acutely aware of the risk of exacerbating tensions with the legislative and administrative organs of government.
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Edwards, Richard A. "Reading down legislation under the Human Rights Act." Legal Studies 20, no. 3 (September 2000): 353–71. http://dx.doi.org/10.1111/j.1748-121x.2000.tb00148.x.
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The purpose of this article is to examine the nature and potential impact of s 3 of the Human Rights Act 1998. The article draws upon the experience of courts in other Commonwealth jurisdictions which operate a similar provisions. The author analyses the nature of the interpretative technique, reading down, that s 3 requires and illustrates its potential by reference to a number of situations involving statutory imperfections such as ambiguity and overbreadth. The author also outlines the impact that s 3 may have on the exercise of statutory discretion. The author further argues that reading down should not be confused with more intrusive remedies, such as reading in, which are not available under the Human Rights Act.
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Zhiyong, Zhao. "The Human Body in the Regime of Chinese Cultural Heritage Law." Santander Art and Culture Law Review, no. 2 (6) (2020): 339–54. http://dx.doi.org/10.4467/2450050xsnr.20.023.13026.
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For a long time, the concept of the human body has been governed by civil law. Today, this way of treating it is no longer certain. The human body can also be understood as an integral part of cultural heritage. On one hand, this is a question of the holder of the element of the intangible cultural heritage (ICH). On the other hand, it concerns the human body beyond the living person, protected as tangible heritage or cultural property. This article analyses these diverse dimensions of the human body under Chinese legislation on the protection of cultural relics and for the safeguarding of intangible cultural heritage, taking into consideration the respect for human dignity. In this regard, it offers a cross-cutting overview of the ethical and legal challenges surrounding the management and regulation of human remains.
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Finnie, Wilson. "Anti-Terrorist Legislation and the European Convention on Human Rights." Modern Law Review 54, no. 2 (March 1991): 288–93. http://dx.doi.org/10.1111/j.1468-2230.1991.tb02654.x.
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Gearty, Conor. "Terrorism and human rights: a case study in impending legal realities." Legal Studies 19, no. 3 (September 1999): 367–79. http://dx.doi.org/10.1111/j.1748-121x.1999.tb00100.x.
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This article critically appraises the UK government's recently published Consultation Paper on the future of the anti-terrorism laws. The author considers the likely effect of the Human Rights Act 1998 on the impact of any legislation that might flow from the government's proposals. The interaction between human rights law and anti-terrorism legislation provides a useful case study of the likely effects of incorporating the European Convention on Human Rights into domestic law. The author argues that many of these effects have not been anticipated by the drafters of the anti-terrorism proposals, with the result that many of their suggested changes to the law will be vulnerable to legal challenge if not sharply modified before enactment. The author concludes by considering the likelihood that, over time, successive governments will learn to tailor their legislation to the requirements of the Convention, even in the anti-terrorism field, but that in the short-term a period of legislative instability is to be expected.
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Herdegenm, Matthias. "Patents on Parts of the Human Body." Journal of World Intellectual Property 5, no. 2 (November 1, 2005): 145–56. http://dx.doi.org/10.1111/j.1747-1796.2002.tb00154.x.
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McBain, Graham. "Abolishing obsolete legislation on crimes and criminal procedure." Legal Studies 31, no. 1 (March 2011): 96–118. http://dx.doi.org/10.1111/j.1748-121x.2010.00170.x.
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The English criminal law has not moved with the times – nor with the increasing emphasis on human rights. Legislation still extant goes back nearly 700 years and is barely intelligible. This paper analyses antiquated criminal and criminal procedure legislation and asserts it should be repealed, being superceded by more modern enactments. It also argues for the consolidation of all criminal (and criminal procedure) legislation for the period 1313–1960 into one Act of around 300 sections. This task would not be complex.
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Feldman, David. "The Human Rights Act 1998 and constitutional principles." Legal Studies 19, no. 2 (June 1999): 165–206. http://dx.doi.org/10.1111/j.1748-121x.1999.tb00091.x.
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The article assesses the interaction between the United Kingdom's traditional constitutional principles and the innovative Human Rights Act 1998, which introduces a range of substantive, constitutional values through ‘Convention rights. These values are compatible with collective as well as individual interests, and the scheme of the Act accommodates existing constitutional principles. The Act should therefore generate evolutionary rather than revolutionary change. The limited measure of judicial review of primary legislation should not threaten parliamentary sovereignty. In its technical detail the Act represents a small step beyond the principle of dualism of national and international law, subtly affecting national sovereignty and influencing the research agenda of legal practitioners and academics. The main constitutional effect of the Act, however, will be to bolster Rule of Law principles, with new remedies focusing attention on the notion of equality before the law and putting the conceptual distinction between public and private law under increasing pressure.
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BRAITHWAITE, VALERIE. "The Australian Government's Affirmative Action Legislation: Achieving Social Change Through Human Resource Management." Law & Policy 15, no. 4 (October 1993): 327–54. http://dx.doi.org/10.1111/j.1467-9930.1993.tb00112.x.
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Spiller, Peter. "The Judicial Legacy of Salmond J in New Zealand." Victoria University of Wellington Law Review 38, no. 4 (March 1, 2008): 797. http://dx.doi.org/10.26686/vuwlr.v38i4.5549.
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John Salmond was a judge of the Supreme Court of New Zealand during the years 1920-1924. This paper examines the nature of Salmond J's contribution to judicial precedent in New Zealand in five areas of the law: administrative; family; procedural; property; and contract law. Salmond J's judgments in these areas amply justified his reputation as an outstanding jurist. They were characterised by balance, fairness and a keen sense of human reality, and were presented with admirable structure and clarity. Of particular note is Salmond J's interpretion of the significant body of legislation passed from 1908 onwards. Fortified by his experience of legislative drafting at the time when this legislation was passed, Salmond J confidently supplemented the legislation with case law based on the legislative intent. The overall effect of Salmond J's judicial work was that, during the eight decades after his death, his judgments provided his successors on the bench with apposite language, frameworks and reference points in the cases before them.
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Toni, Toni. "ANALISIS KETERBUKAAN INFORMASI PUBLIK DALAM KAJIAN TEORI HAK ASASI MANUSIA DAN EFEKTIVITAS HUKUM." PROGRESIF: Jurnal Hukum 11, no. 2 (December 1, 2017): 1–5. http://dx.doi.org/10.33019/progresif.v11i2.202.
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The openness of public information is part of the human rights related to personal development rights guaranteed in legislation. This study was conducted to find out the legal events when examined from the theory of human rights and the effectiveness of the law. The results of this study are openness of public information is a human right is not supernatural guaranteed in the basic law and the rules of corporate governance and implementation in the field has not been fullest because it influenced several factors namely: the difference between the understanding of perception public body with the applicant information public body that held the rule of State secrets and the lack of synchronization between the standards and regulations of public information disclosure with State secrets.
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Amashukeli, S. A. "The Legal Regime of a Hydraulic Structure as an Element of a Water Management System." Actual Problems of Russian Law 16, no. 8 (September 4, 2021): 182–91. http://dx.doi.org/10.17803/1994-1471.2021.129.8.182-191.
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The paper discusses certain issues related to the legal regulation of relations arising in the creation and operation of hydraulic structures as an element of water management systems. The relevance of the topic raised is due to the significant impact on the water body of any hydraulic structure created for the use of water resources. The paper shows the legal nature of the relationship between a hydraulic structure and a water body and the ways of reflecting this relationship in the rules of law governing relations on the use and protection of waters; the legal regime for the protection of hydraulic structures from the negative consequences of improper operation is studied. Based on an analysis of the current Russian legislation, the author concludes that there is a differentiated approach to the legal regulation of the relations in question. The provisions of water legislation and legislation on environmental protection are applied to a hydraulic structure as part of a water management system that affects a water body. To a technically complex object, the improper operation of which potentially poses a threat to human life, different provisions are applied, namely the provisions of legislation and a number of regulatory and technical safety acts.
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Marks, Amber. "DEFINING ‘PERSONAL CONSUMPTION’ IN DRUG LEGISLATION AND SPANISH CANNABIS CLUBS." International and Comparative Law Quarterly 68, no. 1 (January 2019): 193–223. http://dx.doi.org/10.1017/s0020589318000404.
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AbstractThis article provides an analysis of the normative framework for Spanish cannabis clubs by contextualizing it within the growing body of comparative constitutional law that recognizes legal obstructions to personal drug consumption as intrusions of the right to privacy. Article 3(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 relieves State parties from the Article's obligation to criminalize drug possession and cultivation for ‘personal consumption’ when doing so would conflict with their constitution or basic concepts of their legal system. Spain relied on Article 3(2) in its decision not to criminalize conduct involving personal consumption. The Spanish judiciary has had to consider the legal implications of collective consumption and cultivation in the form of cannabis clubs. In addition to operating in a grey area of domestic law, Spain's cannabis clubs straddle the blurred boundary in international and European legal instruments between ‘personal consumption’ and ‘drug trafficking’. This article explores the theoretical and doctrinal implications of both Spanish law on cannabis clubs and comparative human rights law on drug use to outline the potential contours of a constitutionally protected zone of privacy pertaining to cannabis use in a social context.
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Arzapalo Villón, Tania Elizabeth. "Peru's National Committee for the Study and Implementation of International Humanitarian Law." International Review of the Red Cross 96, no. 895-896 (December 2014): 1061–73. http://dx.doi.org/10.1017/s1816383115000429.
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AbstractImplementation of international humanitarian law (IHL) in national legislation is necessary to promote compliance with IHL in the event of an armed conflict. Owing to its consultative and interdepartmental nature, the National Committee for the Study and Implementation of International Humanitarian Law (CONADIH) plays a strategic role in promoting its implementation in Peru. To fulfil that role more effectively, CONADIH was strengthened during a structural internal reform of the Peruvian Ministry of Justice and Human Rights (MINJUS), where its presidency lies. Two of the crucial steps to that end were that the presidency fell under a higher authority within the Ministry and the creation of a governing body with decision-making powers regarding IHL and international human rights law, thus leading to the incorporation of IHL into a broad range of public policies.
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Gaensslen, R. E. "Should Biological Evidence or DNA Be Retained by Forensic Science Laboratories after Profiling? No, except under Narrow Legislatively-Stipulated Conditions." Journal of Law, Medicine & Ethics 34, no. 2 (2006): 375–79. http://dx.doi.org/10.1111/j.1748-720x.2006.00042.x.
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DNA profiling and databasing have become commonplace in criminal investigation and prosecution. There is a body of both state and federal legislation enabling the establishment and operation of profile databases for law enforcement purposes. Most legislation is specific as to who (or what evidence) may be profiled for inclusion in a database. The majority of state laws permit DNA profile databasing of offenders convicted of certain defined crimes, of missing persons and their relatives, and of DNA profiles from criminal-case evidence where the depositor is unknown. More recently, a few states have acted to permit databasing profiles of suspects of certain types of crimes, and there appears to be a trend toward wider adoption of this practice. The legislation adopted or proposed thus far defines whose DNA profiles can be databased, and under what circumstances. Less attention has been given to the matter of specimen retention following profiling and databasing.
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Williams, Katherine, and Bernadette Rainey. "Language, education and the European Convention on Human Rights in the twenty-first century." Legal Studies 22, no. 4 (November 2002): 625–50. http://dx.doi.org/10.1111/j.1748-121x.2002.tb00672.x.
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In the Belgian Linguistic case the European Court of Human Rights held that legislation regarding language in education which was based on the principle of territoriality did not offend against the rights guaranteed in Article 2 of Protocol 1 or Article 8 of the European Convention on Human Rights, whether taken alone or in conjunction with Article 14 on non-discrimination. That ruling was given some 35 years ago, and this paper considers whether developments since then might lead the European Court of Human Rights to decide similar issues differently if they arose today. However, having considered the situation, including instruments which have been adopted specifically to deal with language rights and minority rights, the conclusion is reached that the European Court of Human Rights would be likely to continue to allow a fairly wide margin of appreciation to states in the highly sensitive and controversial area of language rights and how they should be protected.
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Трубина, Виолетта, and Violetta Trubina. "PLASMA OF BLOOD: LEGAL STATUS AND TURNOVER THEREOF IN RUSSIAN AND EUROPEAN CIVIL LAW SYSTEMS." Journal of Foreign Legislation and Comparative Law 2, no. 4 (September 5, 2016): 0. http://dx.doi.org/10.12737/21257.
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The shortage of blood plasma medicine in the Russian Federation has made the production of domestic medicine a top priority task of the state. Until recently the blood products were made mainly by state-owned enterprises, nowadays this has become very attractive for privately owned companies. In practice, they have to deal with the ambiguity of the status and transferability of blood plasma at different stages of the medicine production line. Therefore, the issue of legal regulation of plasma as the main raw material for the production of blood medicine has become to be a practical issue. This article attends to the problem of the nature and legal status of human blood plasma from the point of view of currently effective laws of the Russian Federation and European legislation. Special attention is paid to the basic principles applied to the use of human tissues and organs. The author reviews the legal regulation relating to the status of a human body and its organs from the point of view of international legal norms, civil legislation of the EU, Switzerland and the Russian Federation. Also, the author reasons the proprietary nature of the blood plasma as a source for biological medicine, and describes the factors limiting its transferability. The conclusion contains brief description of the legal status of the blood plasma.
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Rao, Radhika. "Genes and Spleens: Property, Contract, or Privacy Rights in the Human Body?" Journal of Law, Medicine & Ethics 35, no. 3 (2007): 371–82. http://dx.doi.org/10.1111/j.1748-720x.2007.00161.x.
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The legal status of the human body is hotly contested, yet the law of the body remains in a state of confusion and chaos. Sometimes the body is treated as an object of property, sometimes it is dealt with under the rubric of contract, and sometimes it is not conceived as property at all, but rather as the subject of privacy rights. Which body of law should become the law of the body? This question is even more pressing in the context of current biomedical research, which permits commodification and commercialization of the body by everyone except the person who provides the “raw materials.” The lack of property protection for tangible parts of the human body is in stark contrast to the extensive protection granted to intellectual property in the body in the form of patents upon human genes and cell lines. Moreover, even courts that reject ownership claims on the part of those who supply body parts appear willing to grant property rights to scientists, universities, and others who use those body parts to conduct research and create products.
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Beyleveld, Deryck, Richard Kirkham, and David Townend. "Which presumption? A critique of the House of Lords' reasoning on retrospectivity and the Human Rights Act." Legal Studies 22, no. 2 (June 2002): 185–207. http://dx.doi.org/10.1111/j.1748-121x.2002.tb00189.x.
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In this article we argue that the House of Lords recently erred severely by failing to apply the Human Rights Act 1998 retrospectively, and that the appropriate remedy is to deploy the 1966 ‘Practice Statement’. We describe how the House has made a number of basic mistakes in interpreting the literal meaning of the Act. These errors are partly explained by the court's reliance upon a general presumption that law should not be applied retrospectively. We argue that human rights legislation is a necessary exception to this rule. We maintain this for philosophical reasons, but also contend that s 3(1) of the Human Rights Act reverses the presumption against retrospectivity and requires a new presumption that human rights should be given effect whenever it is possible to do so. This is a vital issue because s 3(1) is one of the most important provisions in the UK constitution.
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Pawliczak, Jakub, and Leszek Bosek. "News and Views." European Journal of Health Law 17, no. 4 (2010): 361–83. http://dx.doi.org/10.1163/157180910x516367.
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AbstractThe Act of 6 November 2008 on Patients’ Rights and the Commissioner for Patients’ Rights collect and safeguard patients’ basic rights as well as provide, for the first time in Poland, an original concept for patients’ collective rights. In addition, the new Act stipulates the specific mechanism for protecting patients’ rights by the newly established body called the Commissioner for Patients’ Rights. Polish reform of medical law will undoubtedly contribute to the expected ratification of the Convention on Human Rights and Biomedicine. However, the nature of codified rights is relatively abstract, and the Act cannot be read without reference to legislation related to physicians and health care institutions.
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Harrison, Karen, and Bernadette Rainey. "Suppressing human rights? A rights-based approach to the use of pharmacotherapy with sex offenders." Legal Studies 29, no. 1 (March 2009): 47–74. http://dx.doi.org/10.1111/j.1748-121x.2008.00111.x.
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The use of pharmacotherapy (more emotively known as chemical castration) is the use of drugs to treat and help manage the risk that sex offenders, and in particular paedophiles, pose to society. Due to the increased climate of public fear of this risk, the government recently published aReview of the Protection of Children from Sex Offenders(the Review). This Review, published in June 2007, sought to explore how the protection of children could be improved and how greater reassurance to the public on the management of sex offenders could be provided. The Review makes several proposals with regard to managing high-risk sex offenders. Amongst the list of 20 actions, the trialling of polygraph tests, satellite tracking technology and the use of anti-libidinal suppressants is included. This paper examines the latter, pharmacotherapy, and assesses how concepts such as dignity and consent underpin the human rights' implications of its use. The paper will also assess the recent changes to mental health legislation and evaluate whether such treatment for incompetent or competent offenders is a viable option given the UK's obligations under the European Convention on Human Rights.
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Robertson, Sean. "Exception to Excess: Tactical Use of the Law by Outgroups in Bias Crime Legislation." Law & Social Inquiry 37, no. 02 (2012): 456–74. http://dx.doi.org/10.1111/j.1747-4469.2011.01275.x.
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US bias crime jurisprudence follows the discrimination model and ejects “hate” from scrutiny. It is suggestive of improvements that should be made to Canadian law insofar as it also better tracks the enactment of discrimination against difference occasioned in the everyday. Criminal law, however, remains weak at preventing crime. And where the law requires evidence of discrimination, it iterates the stereotypes and social backdrop of hate crime. But this view on law and culture underestimates how outgroups may produce countermeanings and influence the law. Turning to the more material basis of identity, neoconservatism has given the law a broad ambit whereby coercion as opposed to investment in human capacities is promoted as the means to social order. Where scholars argue that discursive collaboration with retributionist policy requires outgroups to pursue cultural revalorization, given the decreasing freedom under the contemporary authoritarian paradigm, I argue that they must also pursue distributional justice.
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Fox, Jonathan. "State Religious Exclusivity and Human Rights." Political Studies 56, no. 4 (December 2008): 928–48. http://dx.doi.org/10.1111/j.1467-9248.2008.00724.x.
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This study uses the Religion and State (RAS) and the Cingranelli-Richards (CIRI) data sets to examine whether the extent to which a state government supports religious exclusivity influences that state's human rights record. It tests this relationship for all states included in the study as well as for four problem sets which look specifically at democracies. The results show that both for all states in general and for democracies in particular, state religious exclusivity — which is defined here as state support for some religions or one religion over others and state legislation of religious precepts as law — is associated with poorer human rights records. However, this result is weaker in tests which include only Western democracies. The results also show that Muslim states tend to have relatively poor human rights records and Christian states tend to have relatively good human rights records.
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Biernat, Tadeusz. "Między polityką a prawem. Problem „upolitycznienia” tworzenia prawa." Przegląd Prawa i Administracji 110 (November 30, 2017): 115–32. http://dx.doi.org/10.19195/0137-1134.110.9.
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BETWEEN POLITICS AND LAW. THE PROBLEM OF “POLITICIZATION” THE CREATION OF LAWThe purpose of this article is to analyze the phenomenon of “politicization” of the law making process. Astrong form of politicization is the political instrumentalization of law when the law is treated as the implementation of particular interests of the political power; when is created in violation of the legality of the law-making activities; when it violates the rights of individuals human rights. The weaker but more common form of politicization the creation of law is related to the violation by apolitical authority, legislative body, additional restrictions imposed on it, which are supposed to guarantee ahigh level quality of the law. Three of the most characteristic limitations will be the basis for analyzing the phenomenon of politicization of law making. They are related to: the legitimization of law-making, the democratization of law-making process, and the standards of legislation that are characteristic of lawmaking in ademocratic state under the rule of law. To some extent, these phenomena are interconnected, one can say that they are involved in shaping the pattern of the proper legislation by preventing or reducing the politicization of the lawmaking process and its key decisions.
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Zimmer, Reingard. "Living wages in international and European law." Transfer: European Review of Labour and Research 25, no. 3 (August 2019): 285–99. http://dx.doi.org/10.1177/1024258919873831.
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A number of countries worldwide provide for a statutory minimum wage. Generally speaking, however, it is not a living wage, although the right to a living wage is guaranteed in a variety of agreements under both international and European law. The Council of Europe’s European Social Charter (ESC), for example, codifies a living wage and, according to the case-law of its supervisory body, the level of 60 per cent of the net average wage is to be taken as the basis for appropriate remuneration. This article argues that the Charter of Fundamental Rights of the European Union also incorporates the right to a living wage, which should be at least 60 per cent of the net average wage. The Charter is legally binding for EU institutions, agencies and other bodies. Member States are bound only to the extent that the material scope of the relevant EU laws has been opened, which is the case when EU law is implemented or when obligations arising out of specific Union legislation are required for the relevant subject area, as will be explained in the article. In purely national situations nevertheless, values laid down in international law have to be observed when interpreting national laws.
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Iksanov, I. S. "The Role of the European Court of Justice in the Protection of Human Rights and Freedoms." Humanities and Social Sciences. Bulletin of the Financial University 9, no. 3 (December 4, 2019): 73–76. http://dx.doi.org/10.26794/2226-7867-2019-9-3-73-76.
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The article discusses the role of the European Court of Justice, the specifics of its activities, and its goals. The author also touches upon the historical aspect of the development of the European Court. According to the author, the European Court of Justice has had a beneficial effect on the development of the rights granted by Union citizenship. The actions of the European Court of Justice have created new ground for persons with Union citizenship, increasing access to social benefits beyond the rights of economic migrants, for all those who exercise their European rights. The European Court of Justice sought to allow students to travel for their education, looking for new ways to ensure their free movement and learning with funding in the event of unforeseen events. It is essential that the court focuses on three core values so that citizenship does not become a limitation: nondiscrimination, the right to freedom of movement and the right to family life. The European court of human rights is an international judicial body; its jurisdiction extends to all member States of the Union. The main thing for the European Court of Justice is to ensure compliance with and enforcement of the Convention by the States parties. Also, when considering cases, the Court can point to gaps in legislation and issues concerning law enforcement practice, positively influencing law enforcement policy and legal proceedings, and, as a result, contribute to the improvement of the law enforcement system. This article reflects the activities of the European Court of Justice aimed at identifying the problematic aspects of the legislation of the European Union.
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TILEY, JOHN. "HUMAN RIGHTS AND TAXPAYERS." Cambridge Law Journal 57, no. 2 (July 1998): 235–73. http://dx.doi.org/10.1017/s0008197398330019.
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Is it really worth having all this fuss and bother about the Human Rights Bill? Over the years the Convention has been interpreted to require United Kingdom courts to change their practices in various ways at the personal level, but what about protecting a person from an unjustified demand for tax? Suppose that the Inland Revenue demands tax from you which the courts later determine to be unlawful because the regulation under which the demand was made was not valid. You were not a party to that litigation but you are clearly within the ambit of the decision supplied by the courts. The Inland Revenue then persuades Parliament to deprive you of the benefit of the decision by retroactive legislation, although leaving the actual party to the litigation with the fruits of that enterprise. Is this the stuff on which the judges at Strasbourg will rush to protect the taxpayer from the State? The answer sadly is no — these judges are not going to risk embarrassing the contracting States by making rights bite where that would be expensive: National Provincial Building Society and others v. United Kingdom [1997] S.T.C. 1466. Of course these judges may fear that contracting States would reduce the powers of the court were they do so such a thing; such a fear would not be irrational since the German and UK Governments proposed that direct tax matters should be removed from the European Court of Justice in the sessions leading to the Treaty of Amsterdam. Perhaps a supra-national body is right to be cautious, but what should our own courts do? Once the Convention is incorporated into our domestic law, will our own judges feel a little more strongly about the matter and perhaps grant a declaration that the legislation is incompatible with the Convention? If they have a right to be incensed about the way in which Parliament protects the Revenue at the expense (literally) of the taxpayer, will they do something or will they just couch like lions under the throne of Parliamentary Sovereignty?
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Gerasimenko, Marina Yu, and Dmitry A. Vasiliev. "Opportunities and restrictions in the types of recreational use of forests." Russian Journal of Physiotherapy, Balneology and Rehabilitation 18, no. 3 (March 8, 2021): 172–76. http://dx.doi.org/10.17816/1681-3456-2019-18-3-172-176.
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Forests determine the climate and have a beneficial effect on human health. Depending on the type of plantings, various physiological reactions of the body are observed. There is legislation of the Russian Federation. Providing for the basic rules for the use of green spaces and woodlands for recreational purposes. Forests that are our recreational riches can be used for medical and rehabilitation purposes, for providing health resort assistance and for health-improving purposes. Strict compliance with the law ensures the long-term use of forest land for recreational purposes.
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FASTERLING, Björn, and David LEWIS. "Leaks, legislation and freedom of speech: How can the law effectively promote public-interest whistleblowing?" International Labour Review 153, no. 1 (March 2014): 71–92. http://dx.doi.org/10.1111/j.1564-913x.2014.00197.x.
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Narutto, S. V. "Significance of Prof. Ekaterina I. Kozlova’s Academic Legacy for the Modern Understanding of the Legislative Process and Legislation." Actual Problems of Russian Law 15, no. 3 (April 9, 2020): 55–64. http://dx.doi.org/10.17803/1994-1471.2020.112.3.055-064.
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The paper deals with the issues of law-making development in the context of actual ideas of Prof. Ekaterina I. Kozlova with regard to the place of a legislative body in the system of state power, order and the results of its activities, the problems of limits of legislative regulation and the politicization of legislation leading to a decline in the quality of laws. The author substantiates the conclusion that the expansion of legislative regulation creates problems, including conflict-of-laws rules, legal uncertainty, numerous references to regulation carried out through bylaws. Excessive legislative regulation leads to restriction of human rights and freedoms, hinders democratic processes. At the same time, the existence of gaps in the legislative material leads to arbitrary interpretation and unlimited discretion of the enforcement.Prof. Kozlova’s works have been developed in the modern scientific doctrine of parliamentarism, federal legislative process and legislation, public control.
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McCallion, Maura, and Ursula O'Hare. "A new legislative framework for mental capacity and mental health legislation in Northern Ireland: an analysis of the current proposals." International Journal of Mental Health and Capacity Law, no. 20 (September 8, 2014): 84. http://dx.doi.org/10.19164/ijmhcl.v0i20.262.
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<p>When the Bamford Review of Mental Health and Learning Disability completed its work in the autumn of 2007, it drew to a close an extensive consultation and analysis of mental health and learning disability services and the law in Northern Ireland. Its last report on A Comprehensive Legislative Framework made<br />a compelling case for a major overhaul of the law that the Review team itself described as ‘quite radical’. The Review identified the case for reform in the need to ensure that mental health law conforms to the requirements of human rights law, reflects changes to professional practice, reflects the needs of service<br />users and their carers, and keeps pace with reform elsewhere in the UK. Alone of all the jurisdictions in the UK, Northern Ireland has been operating largely in a legislative vacuum in relation to mental capacity law. The Review’s proposals for reform therefore extended to reform of mental health law and the introduction of mental capacity law.</p><p>In the autumn of 2008 the NI Executive published its response to the Bamford Review indicating that it intended to develop the law sequentially: reform of the Mental Health (NI) Order 1986 by 2011 followed by the introduction of mental capacity law in 2014. Responses to the Executive’s consultation resulted in<br />the Department of Health Social Services and Public Safety (DHSSPS) revising its approach and it signalled its intention to bring forward mental capacity and mental health legislation together. This reated a unique opportunity in Northern Ireland for fusion of incapacity and mental health legislation. A further consultation paper was issued in January 2009, setting out the key approaches to the content<br />of two bills. However as a result of the consultation, the Health Minister Michael McGimpsey announced in September 2009 that there would be a single bill with an overall principle of autonomy. His press statement noted: “ A strong body of opinion, particularly from professional groups and lead voluntary organisations, which considered that separate mental health legislation continues to be stigmatising and recommended that mental capacity and mental health provisions should instead be encompassed into a single piece of legislation”</p><p>This short paper provides an overview of the current direction of travel on law reform in Northern Ireland. It comments on the policy climate and arguments for a fusion of mental capacity and mental health legislation. It also highlights some of the key policy issues that will need to be further explored as the Department develops its law reform proposals and concludes with some hopes and fears for the new legislation.</p>
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Pankova, O. V. "The Convention for the Protection of Human Rights and Fundamental Freedoms in the System of Sources of Legal Regulation of the Administration of Justice in Administrative Offences." Actual Problems of Russian Law 15, no. 12 (December 30, 2020): 57–64. http://dx.doi.org/10.17803/1994-1471.2020.121.12.057-064.
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The paper presents the author’s view of the problem of interaction between international and national administrative law and attempts to determine the place of the Convention on the Protection of Human Rights and Fundamental Freedoms in the Russian legal system and the administrative and tort legislation of the country. Based on the analysis of different points of view, the conclusion is enunciated that international treaties ratified by the Russian Federation are incorporated into the general body of administrative legislation; and they constitute a source of administrative law in the part in which they contain legal provisions governing the administrative and legal status of citizens, as well as guarantees of its implementation, including guarantees of equitable justice in cases arising from public law relations and administrative and tort cases. In this regards, the author analyzes the provisions of Article 1.1 of the Administrative Code of the Russian Federation, determining the place and role of universally recognized principles and norms of international law and international treaties of the Russian Federation in the system of sources of administrative and tort law—the author refers the Convention for the Protection of Human Rights and Fundamental Freedoms to the sources mentioned above. The paper considers this Convention as an international treaty of the Russian Federation that not only regulates interstate relations, but also actively invades the regulation of procedural administrative responsibility, since it establishes the general parameters of a fair trial in administrative and tort cases. The paper also pays attention to the implementation in the draft Code of Administrative Offences of the Russian Federation and the Procedural Code of the Russian Federation on Administrative Offences of the Constitutional Principle concerning international legal norms in the legal system of the Russian Federation.
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Gable, Lance. "The Patient Protection and Affordable Care Act, Public Health, and the Elusive Target of Human Rights." Journal of Law, Medicine & Ethics 39, no. 3 (2011): 340–54. http://dx.doi.org/10.1111/j.1748-720x.2011.00604.x.
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The passage of the Patient Protection and Affordable Care Act (ACA) in March 2010 represents a significant turning point in the evolution of health care law and policy in the United States. By establishing a legal infrastructure that seeks to achieve universal health insurance coverage in the United States, the ACA targets some of the major impediments to accessing needed health care for millions of Americans and by extension attempts to strengthen the health system to support key determinants of health. Yet, like many newly passed legislative provisions, the ultimate effects and significance of the ACA remain uncertain. Those charged with implementing the ACA face formidable obstacles — indeed, some of the same obstacles that have been erected to impede other major pieces of social legislation in the past — including entrenched political opposition, constitutional challenges, and what will likely be a prolonged struggle over the content and direction of how the law is implemented. As these debates continue, it is nevertheless important to begin to assess the impact that the ACA has already had on health law in the United States and to consider the likely effects that the law will have on public health going forward.
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Yao, Li. "Human Rights Legal Support in the Civil Code of the People’s Republic of China in the Context of the Development of New Technologies." Lex Russica, no. 4 (April 24, 2021): 130–41. http://dx.doi.org/10.17803/1729-5920.2021.173.4.130-141.
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The 21st century has seen the development of biotechnologies and artificial intelligence technologies leading to illegal testing of a gene and the introduction of a person’s voice, image, body movements into appropriate electronic procedures, followed by the imitation of a similar human voice, body movements, etc., which can cause a violation of personal rights. Since the establishment of the PRC, four codifications of civil legislation have been carried out: 1954, 1962, 1979 and 2001. However, none of them was implemented for various reasons. In May 28, 2020 for the first time, China has adopted the Civil Code of the People’s Republic of China entering into force on January 1, 2021. The Civil Code of the People’s Republic of China has become the basic law of the market economy in China. It consists of seven parts: "General Part", "Property law", "Contracts", "Personal rights", "Marriage and Family", "Inheritance", "Tort liability" and "Additional provisions". The paper analyzes the features of civil protection of human rights in the new Civil Code of the People’s Republic of China in the era of the development of biotechnology and artificial intelligence. The author examines the provisions on the legal protection of human rights in the illegal occupation of medical and research activities related to human genes, human embryos, and reveals ways to protect the rights to image, voice, privacy and personal information in civil law in violation of personal rights using artificial intelligence technology in China. The author also explains the regime of a preliminary injunction in civil law and ways to find a balance of different personal rights and interests in the Civil Code of the People’s Republic of China.
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Lee, Susan. "Recent Developments in Health Law." Journal of Law, Medicine & Ethics 28, no. 1 (2000): 81–83. http://dx.doi.org/10.1111/j.1748-720x.2000.tb00320.x.
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In December 1998, two groups of scientists announced that they had successfully isolated and cultured human pluripotent stem cells. This news was greeted with both tremendous enthusiasm and concern. Because these cells can develop into most types of cells or tissues in the human body, they hold great promise for scientific research and medical advances. For example, stem cells can potentially be used to:Generate cells and tissues for transplantation and therapy for conditions such as Parkinson’s disease, spinal cord injury, stroke, burns, heart disease, diabetes, and arthritis;Improve scientists’ understanding of the complex events that occur during normal human development, as well as the abnormal events which cause conditions such as birth defects and cancer; andSubstantially change the development and testing of drugs. New medications could be tested initially on stem cells, and only drugs which were safe and effective on the cells would be tested further on laboratory animals and humans.
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Paustovskaya, Natalia, and Dmitrii Popushoi. "LEGAL BASES OF SOME FORMS OF THE INTERNATIONAL LEGAL COOPERATION IN THE SPHERE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF MOLDOVA." Social Legal Studios 10, no. 4 (December 25, 2020): 80–86. http://dx.doi.org/10.32518/2617-4162-2020-4-80-86.
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This article concerns on forms of international procedural cooperation of Republic of Moldova as an actual modern problem. It has been noted that scale of organized crime, terrorism, illegal drug and arms trafficking, illegal migration, human trafficking and other crimes compel different states to unify their efforts in counteracting these crossborder phenomena by creating organizational mechanisms of interaction. International legal aspects of crime counteraction, in particular the UN Convention against Transnational Organized Crime, the European Convention on Mutual Assistance in Criminal Matters and Additional Protocols to it have been studied. It has been specified that foreign countries legislation uses most advanced mechanisms of mutual legal assistance for a long time, but institute of joint search groups is a relatively new form for criminal procedural legislation of Republic of Moldova. An attention to amendments to criminal procedural legislation concerning implementation of the institute of joint search groups has been devoted. It has been acknowledged that according to legislation of Republic of Moldova a request on forming of joint search group could be sent by any engaged state. Such group is to be created in any state where criminal persecution needs to be enforced. There is certain information to be included in such request: law enforcement body which requested, the request�s subject and grounds, data on persecuted person and his full name, nationality, address, if necessary � suggestions on group membership. Signing of the Police Cooperation Convention for Southeast Europe by Moldova facilitated implementation of cross-border surveillance institute which comprises procedural action to be conducted when representatives of one country�s law enforcement body are keeping under surveillance during criminal persecution in another country a person, suspected in participation of the crime which envisaged extradition, or a person who is reasonably believed to be helpful in identification or establishing whereabouts of the aforementioned person, and has the right to continue such surveillance in Republic of Moldova according to legal assistance request submitted previously. It has been substantiated that international cooperation in crime combating is based on legal assistance providing and aimed at expansion of the quantity of countries which are contracting parties of such cooperation agreements.
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Harust, Yu V., and S. Yu Kalyta. "The National Police of Ukraine as a component of the domestic law enforcement system." Legal horizons, no. 18 (2019): 61–65. http://dx.doi.org/10.21272/legalhorizons.2019.i18.p61.
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In Ukraine, there are qualitative changes in the reform of law enforcement agencies in order to more effectively ensure the rule of law in the country, protect human rights and freedoms and increase public confidence in these bodies. Undoubtedly, it is important to create a National Police, which plays an important role in the domestic law enforcement system. Since the first days of its operation, the police have received support from citizens, who argue with various sociological surveys, because this law enforcement agency is open enough in its activity, there is contact with the population. The article is devoted to the activity of a component of the domestic law enforcement system – the National Police. The National Police of Ukraine (police) is a central executive body that serves society by ensuring the protection of human rights and freedoms, combating crime, maintaining public safety and order. This topic is very relevant, as the police are a relatively new subject in the law enforcement system and are on their way. The scientific article investigates which regulatory acts regulate the activity of this law enforcement agency, the structure, main tasks of the police are found out on the basis of the current legislation. The structure of the National Police is quite complex and due to the shortcomings in the legislation, there are problems concerning the interaction between the units. The publication examines the procedure for appointing persons to the post of a police officer and identifies the main problems of selecting candidates to the ranks of the National Police. The importance of introducing in the Law of Ukraine “On National Police” the task of the police is emphasized – to provide within the limits specified by the law services for assistance to persons who, for personal, economic, social reasons or due to emergency situations, need such assistance. Some of the shortcomings of the Law of Ukraine “On the National Police” have been identified and suggestions for improvement of this legal action have been proposed. Keywords: law enforcement system, National Police of Ukraine, police tasks, police structure, police officer.
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Шерстобоев, Олег, and Oleg Sherstoboev. "The Doctrine of Proper Judicial Protection in Administrative Law (on the Example of Expulsion of Foreign Nationals)." Journal of Russian Law 2, no. 2 (January 20, 2014): 68–79. http://dx.doi.org/10.12737/2241.
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Proper judicial protection is an aggregate of legal norms, principles, doctrines that allow maximum guarantee for fair treatment of an administrative dispute, in particular, relating to expulsion of foreign nationals. Among basic means that guarantee a proper settlement of a dispute, one can name the right to appeal the act of public administration, the right to independence of a body, considering the case, the right to qualified legal assistance, competition, completeness of supervision. The author of the article reviews standings of the European Court of Human Rights, as well as the legislation and practice of the USA, Great Britain, Germany and Russia on the issue of judicial protection of foreign nationals, deported from their territory. As a result of the analysis, the author outlines three models of the provided judicial protection: limited, selective and complete. Each model has its pluses and minuses, but from a theoretical point of view the best variant is a complete model of judicial protection.
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Vickers, Lucy. "Whistling in the wind? The Public Interest Disclosure Act 1998." Legal Studies 20, no. 3 (September 2000): 428–44. http://dx.doi.org/10.1111/j.1748-121x.2000.tb00152.x.
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In a number of high profile disasters, human and financial, in recent years, such as the Piper Alpha oil rig fire and the collapse of the BCCI bank, employees had concerns about the impending disaster but did not raise them for fear of repercussions at work. This has led to increased recognition of the role that employees can play in safeguarding the public interest. In 1998 legislation was finally passed to provide employment protection for employees who raise concerns about malpractice and wrongdoing at work. The Public Interest Disclosure Act 1998 (PIDA) provides protection against dismissal and detrimental action where employees make disclosures about a range of specified subjects. Protection is primarily aimed at internal disclosure, but the Act also provides a framework for raising issues externally. This article examines the provisions of the Act and assesses its potential to protect those who risk their livelihoods to raise concerns that are in the public interest.
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Bogdanov, D. E. "Bioprinting Technology as a Legal Challenge: Determining the Model of Legal Regulation." Lex Russica, no. 6 (July 1, 2019): 80–91. http://dx.doi.org/10.17803/1729-5920.2019.151.6.080-091.
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The technology of 3D printing creates serious challenges to the legal system that in its development is lagging behind scientific and technological progress. The development of 3D printing technology leads to the «digitalization» of objects of the material world when the boundaries between the physical world and the digital space are blurred. If 3D printing digitalizes objects of the material world, bioprinting digitalizes the human body. An individual tends to depend on the digital incarnation of his body or its individual organs in the corresponding electronic 3D models.Bioprinting is aimed at the formation of a new medical paradigm that will result in overcoming the deficiency of human organs and tissues in the field of transplantology. The discovery of the possibility of reprogramming differentiated cells and obtaining induced pluripotent stem cells eliminates the ethical and legal problem associated with the use of stem cells of the embryo. This should be taken into account in the development of a model of legal regulation of relations connected with the creation of bio-print human organs.Bioprint organs are synthetic organs, so the relations associated with their creation and implantation need independent legal regulation. Contemporary transplantology legislation and bans and prohibitions contained in it do not take into account the features of the creation of organs through 3D bioprinting. It is acceptable to commercialize relations in the field of bioprinting, to perform non-gratuitous transactions in this area, as well as to permit limited turnover of «bioprinting» organs subjecting them to the regulation applied to any other objects of civil law. Legislation on biomedical cellular products is also not able to regulate relations related to the creation and implantation of bio-printed human organs. Thus, the need arises to adopt a special legislative act aimed at regulating relations at all stages of the use of bioprinting technology.
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Kirby, Michael. "The common law and international law – a dynamic contemporary dialogue." Legal Studies 30, no. 1 (March 2010): 30–60. http://dx.doi.org/10.1111/j.1748-121x.2009.00138.x.
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International law, as expressed in treaties and in customary law, is of growing importance in municipal jurisdictions throughout the world. Some barriers to the use of international law in national courts are identified. Occasionally, they include scepticism and even hostility about this body of law. However, the past 60 years have witnessed a remarkable change in judicial attitudes in final courts in most Commonwealth countries.In the UK, the impact of Europe has helped create an ‘incoming tide’. In South Africa, India and Canada, constitutional provisions have stimulated the change. New Zealand is now affected by its Bill of Rights Act. But, in Australia, none of these forces was available and decisional authority adhered for decades to strict dualism.The changing pace of utilisation of international law in the UK and Australia are described. In the UK, the Human Rights Act 1998 now consolidates a trend already happening in the courts. In Australia, the Mabo decision in 1992 effectively endorsed the Bangalore Principles on the municipal application of international human rights norms. This paper describes the contrasting case-law. In the foregoing countries, it concludes with a response to criticisms of judicial utilisation of international law and a suggestion of the proper jurisprudential basis that can be identified to sustain a judicial process that is now well advanced in the countries surveyed.
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Kalyniuk, Natalia Mykolayvna. "Realization of the human right to education in quarantine conditions: Ukrainian realities." Engineering and Educational Technologies 8, no. 4 (December 30, 2020): 8–18. http://dx.doi.org/10.30929/2307-9770.2020.08.04.01.
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It is substantiated that one of the effective ways to protect human and civil rights in Ukraine is a synergistic combination of mechanisms of state power to protect these rights and freedoms. The article is devoted to the problem of realization by a person of the constitutional right to education in the conditions of quarantine restrictions. In general, the current legislation on protection of the population from infectious diseases is not properly applied in Ukraine. It is emphasized that the availability of education as a constitutional guarantee of the realization of the right to education on the principles of equality defined by Art. 24 of the Constitution of Ukraine is that no one can be deprived of the right to education, and the state must create opportunities for the exercise of this right. The problematic aspects of the implementation of the constitutional right to education in the conditions of quarantine established in the state and the approved anti-epidemic measures for the spread of acute respiratory disease COVID-19 caused by the coronavirus SARS-CoV-2 are considered. The shortcomings of the current legislation regulating the implementation of the individual and the right to education in the context of the COVID-19 pandemic are highlighted. It is established that the legal grounds for the introduction of an emergency situation in Ukraine are the Law of Ukraine "On Ensuring the Sanitary and Epidemic Welfare of the Population" and the Law of Ukraine "On Protection of the Population from Infectious Diseases". However, neither the Law of Ukraine "On Ensuring the Sanitary and Epidemic Welfare of the Population" nor the Law of Ukraine "On Protection of the Population from Infectious Diseases" can provide the Cabinet of Ministers of Ukraine with restrictions on constitutional rights and freedoms under Article 64 of the Constitution. restrictions only in case of martial law or state of emergency. The mechanisms of realization by a person of the constitutional right to education in the conditions of established quarantine restrictions are clarified. Distance learning has been studied as the only possible alternative to the usual mode of attending secondary schools. It is proved that currently in schools there is no opportunity, time, funds for the organization of system and technical support of distance learning, therefore, the only possible form of education is to visit schools in the usual way. In addition, we draw your attention to the fact that before the beginning of the school year, education authorities at both regional and regional levels, local governments, which under current law are required to comply with the orders of the executive body implementing policy in the field of protection health in the context of preventing the spread of infectious diseases and the application of anti-epidemic measures, checking the readiness of educational institutions to work in quarantine realities. Schools are sufficiently provided with individual and collective protection. This allows them to operate and provide educational services to students.
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Elliott, Mark. "Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention." Legal Studies 22, no. 3 (September 2002): 340–76. http://dx.doi.org/10.1111/j.1748-121x.2002.tb00197.x.
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Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law.
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Kennedy, Roger. "Psychotherapy, child abuse and the law." Psychiatric Bulletin 13, no. 9 (September 1989): 471–76. http://dx.doi.org/10.1192/pb.13.9.471.
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Those working with families in the field of child abuse often find themselves becoming intimately involved with Family Law. Although the involvement may produce confusion and frustration in professionals untrained in the law, it may also help facilitate appropriate and effective treatment of severely disordered families. I believe not only that legal framework can help those working in the mental health field, but also that a psychotherapeutic understanding of individuals, families and groups can aid lawyers steer families more effectively and humanely through the legal process. By the term psychotherapy I mean a body of theoretical and clinical knowledge concerned with looking at people's conflicts, feelings, anxieties and reasons for actions, which includes an understanding of the unconscious processes of the mind. A psychotherapeutic approach cannot provide a substantial basis for legal theory, for the latter is heavily weighted towards the notion of the ‘reasonable’ man, whose unconscious ideas and emotions are significant only if they lead to an intention to act illegally and the carrying out of the illegal act. However, the day-to-day practice of law may perhaps be enriched by a more rigorous attempt to understand human emotions, particularly in the often emotionally painful areas of Family Law. Moreover, I suspect that there are a number of shortcomings in the current complex, sometimes muddled, way that families have to deal with the law, which the proposed new legislation (DHSS, 1987) may not address. A psychotherapeutic understanding of some of the reasons for this muddle as well as of the general issues in this field may have benefits for lawyers, mental health workers and clients.
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Herring, Jonathan. "Law and the Human Body, by Rohan Hardcastle. Oxford: Hart Publishing, 2007, xxxii + 204 + (index) 5pp (£40 hardback). ISBN 978-1-84113-601-1." Legal Studies 28, no. 3 (September 2008): 484–88. http://dx.doi.org/10.1111/j.1748-121x.2008.00099_4.x.
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Little, Gavin. "Scotland and parliamentary sovereignty." Legal Studies 24, no. 4 (December 2004): 540–67. http://dx.doi.org/10.1111/j.1748-121x.2004.tb00262.x.
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The authority of the classic Diceyan approach to parliamentary sovereignty has, as is well known, been called into question as a result of the UK's membership of the EU and human rights legislation. However, this paper focuses on the implications of Scottish devolution for the orthodox doctrine of parliamentary sovereignty. The constitution, and the legislative supremacy of Westminster within it, remains a controversial political issue in Scotland. Accordingly, rather than hypothesising inductively from constitutional doctrine, consideration is given to the nature of the interaction between the socio-political forces which underlie Scottish devolution and the concept of parliamentary sovereignty. It is contended that the foundations of the Scottish political order have shifted in a way which is already presenting significant challenges. Moreover, looking to the future, the pressure on the orthodox Diceyan approach is likely to intensify over time. In this context, it is questionable whether constitutional conventions of the sort which are already evolving or the possible development by the courts of more formal constitutional norms will, in the long term, be able to reconcile parliamentary sovereignty with Scottish political reality. Indeed, it is argued that — from a Scottish perspective at least — the viability of classic, Diceyan parliamentary sovereignty as a meaningful constitutional doctrine will be called into question in the years to come.
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Asiryan, S. R., Y. V. Milonenko, and V. V. Prilipko. "Problems of execution of echr decisions in ukraine and ways to overcome them on the example of the federative republic of Germany." Uzhhorod National University Herald. Series: Law, no. 63 (August 9, 2021): 307–11. http://dx.doi.org/10.24144/2307-3322.2021.63.54.
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The article examines the history of the formation of the European Union, the adoption of the European Convention on Human Rights. The mechanism of protection of the main convention provisions, history and significance of its origin are analyzed. The authors conclude that the ECHR was originally a flexible catalog of universal human rights, most of which were declarative in nature, as they did not provide for a procedure to protect the implementation of substantive rules, but in developing this document the European Community the right of citizens to appeal against violations of their convention rights. It is for the practical implementation of the protection of convention provisions that a unique judicial body was created - the European Court of Human Rights. The main problems in the implementation of ECHR decisions at the international and national levels are investigated. The normative procedure of execution of ECtHR decisions under the legislation of Germany and Ukraine is compared.
It is proposed to amend Art. 8 of the Law of Ukraine "On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights", and to reduce the total duration of enforcement proceedings against ECHR decisions from three to one month in order to ensure effective enforcement of judgments. In addition, a mechanism for the prompt implementation of measures of a general nature should be developed to ensure compliance with the provisions of the Convention at the level of national legislation.
In addition, it is proposed to introduce disciplinary and administrative liability for non-compliance, improper enforcement or in any way obstructing the enforcement of ECHR decisions by public authorities and officials, as well as the establishment of an obligation to compensate for delays in delaying enforcement. In order to ensure the autonomy of the execution of ECtHR decisions in Ukraine, it is proposed to create a special state budget fund whose purpose will be to ensure the execution of decisions of the European Court of Human Rights.
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Samuel, Geoffrey. "Governmental liability in tort and the public and private law division." Legal Studies 8, no. 3 (November 1988): 277–302. http://dx.doi.org/10.1111/j.1748-121x.1988.tb00644.x.
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The recent litigation arising out of the Spycatcher affair was bound by the very nature of the issues at stake to be controversial; yet whatever view is to be taken of the rights and wrongs behind these issues one aspect of the litigation that was always likely to give rise to difficulties and to leave the common lawyers open to criticism was the conceptual framework in which these issues were handled. Ought serious constitutional questions like press freedom - questions that involve not just the public ‘interest’, but also the public’s ‘right’ to information in a democracy - to be debated at the level ofprivate ownership? Indeed is it actually rational to treat a government body, in relation to another government body or to the press, as if it were a private citizen entitled to the same rights (for example a ‘right to privacy) the human legal subject?
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Amos, Merris. "Extending the liability of the state in damages." Legal Studies 21, no. 1 (March 2001): 1–14. http://dx.doi.org/10.1111/j.1748-121x.2001.tb00164.x.
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It is still the case in English law that invalid administrative action alone gives rise to no claim for damages. Individuals suffering loss as a result of invalid administrative action may remain uncompensated unless they have a private law remedy against the public body such as a claim in tort or contract. Notwithstanding this prohibition, the passage of the Human Rights Act 1998 and developments in Community damages law have greatly increased the liability of public bodies in damages. However, the extension of liability in these areas raises questions as to whether it is satisfactory or even possible for the prohibition on damages for invalid administrative action to be maintained given the anomalies that have and will be created. Statutory reform, drawing on Community law, the Human Rights Act and jurisprudence of the European Court of Human Rights, may go some way towards resolving existing anomalies and providing individuals with an adequate, alternative means of obtaining redress.