The LJMU Student Law Journal is a non-profit law review providing peer-reviewed publication opportunities for LJMU undergraduate and postgraduate law students.
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This poster was created for the third-year undergraduate Family and Child Law module at LJMU. It explains children’s rights in a way that primary school pupils can understand.
Copyright (c) 2024 Alexia Vilaplana Pasto https://creativecommons.org/licenses/by-nc/4.0
Copyright (c) 2024 Maddy Ellis https://creativecommons.org/licenses/by-nc/4.0
Right to Health, Securitisation of Migration and Standards of Immigration Detention in South Africa and Australia
Several countries employ immigration detention (ID) to deter the influx of asylum seekers, refugees, and irregular migrants and South Africa and Australia are no exception. The result follows that globally, tens of thousands of people are detained due to their immigration status, despite the well-established fact that ID negatively impacts the health and well-being of detainees and should only be used as a last resort. This study considers the broad range of international and African regional human rights instruments and treaty protections that create the framework for regulating migration and protecting the fundamental human rights (including health) and freedoms of immigration detainees. It further dives into the realities of health rights in ID in South Africa and Australia, measured against the theoretical framework of these governments’ duties to ‘respect, protect and fulfil’ detainees’ right to health and maintain normative immigration detention standards. Non-compliance with this international human rights framework is pointed out, and positive steps towards meeting state obligations are proposed.
Copyright (c) 2024 Tania Wehmeyer https://creativecommons.org/licenses/by-nc/4.0
This research examines the complex legal landscape surrounding duty of care, liability, and accountability in the context of Artificial Intelligence (AI) integration in healthcare. As AI systems become increasingly involved in medical practices and clinical decision-making, their unique characteristics, such as opaque "black box" decision-making and lack of human-like reasoning, pose significant challenges to existing legal frameworks. The study highlights the inadequacy of medical negligence laws in addressing AI-related incidents in healthcare and the potential of vicarious liability, product liability, the concept of the “reasonable computer”, and transparency regulations in addressing AI errors. The findings emphasise the importance of ongoing regulatory adaptation to ensure that legal frameworks evolve with advancements in AI technology, ultimately safeguarding the interests of patients and healthcare practitioners.
Copyright (c) 2024 Ciara Quinn https://creativecommons.org/licenses/by-nc/4.0
Copyright (c) 2024 Hannah Baumeister https://creativecommons.org/licenses/by-nc/4.0
Economic and Social Rights and Liberal Democracy
Copyright (c) 2024 Andrew Munro https://creativecommons.org/licenses/by-nc/4.0
Mooting is the tried and tested method of legal education of preparing law students for practice. It is to many law firms and chambers as essential to employability as the degree itself. It exists as a test of a future trainee or pupil's advocacy, communication, and research skills. With the advent of legal advice clinics in universities, the status of moots as an effective form of practical legal education has been brought into question. Arguably, however, this claim is unfounded. The essential value of mooting is expanded upon through this article by the author's own anecdotal experiences as a mooter both at the national and international level.
Copyright (c) 2024 Gabriel Wishart https://creativecommons.org/licenses/by-nc/4.0
UK Prostitution Legislation and the Implementation of the Nordic Model
The law of prostitution in the United Kingdom (UK) fails in many instances. By focusing primarily on the nuisance of prostitution, UK law does not offer any indication that a prostitute is a vulnerable party in the transaction. Although progress has been made through s.53A Sexual Offences Act 2003, this article argues that UK law requires reform to implement policies that recognise that prostitutes are victims of gender inequality. Originally implemented in Sweden in 1999, the Nordic model is the first to criminalise the purchase but not the sale of sex, reflecting the radical feminist idea that prostitutes are victims of the patriarchal belief that men have a right to on-demand sex. However, while the model reduces on-street prostitution, this does not outweigh the increased risks of violence prostitutes face. Additionally, prostitution as a whole has not reduced, with buyers and sellers using other means to organise the transaction. Although ultimately concluding that the model has far too many negative effects, the article acknowledges the near impossibility of producing a perfect prostitution policy. However, in order to sufficiently protect prostitutes from harm, the law needs to do more than send a message of disapproval. Instead, more social interventions should be implemented to support sex sellers in all aspects of their lives. Prostitution exists and will continue to exist because patriarchy allows it to do so. To eliminate prostitution, patriarchy and the patriarchal belief that men have an intrinsic right to women's bodies must first be dismantled.
Copyright (c) 2024 Lois Nield https://creativecommons.org/licenses/by-nc/4.0
The Ethics and Legality of Assisted Dying
This study considered the contentious issue of legalising assisted dying in the United Kingdom (UK), examining arguments for and against, analysing legal frameworks in the UK, Canada, the Netherlands, and Oregon, and considering the influence of human rights on the debate. This research aimed to propose recommendations regarding the potential legalisation of assisted dying in the UK and its scope. The study critically assessed various perspectives, revealing the multifaceted nature of the debate. Despite attempts to change legislation, the UK’s legal framework has remained mostly unchanged, with minimal prosecutions for assisted dying. The experience of other jurisdictions that have legalised assisted dying have been mostly positive but are not without criticism. The Netherlands allows for children as young as 12 to receive assistance and Canada has very permissive guidelines, allowing for patients with non-terminal illnesses, and soon mental illnesses, to request assisted dying. Despite several cases arguing that prohibitions on assisted dying infringe human rights, it has been held that they are not disproportionate. The impact on vulnerable groups was found to be minimal without increased risks compared to the general population. The findings of this project indicate the need for careful consideration of assisted dying to ensure all views are considered, the frameworks of other jurisdictions are learned from, and vulnerable populations are respected and protected. It is recommended that assisted dying be legalised in the UK in limited circumstances for people with terminal illnesses, and slowly expanded over time.
Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001
Copyright (c) 2024 Samuel Smith https://creativecommons.org/licenses/by-nc/4.0
Admissibility of Sexual History Evidence and Section 41 Youth Criminal Justice and Evidence Act 1999
In October 2016, Ched Evans was found to be not guilty of rape. The case sparked academic debate, focusing on section 41 Youth Criminal Justice Evidence Act (YCJEA) 1999 which permits the judiciary to consider a complainant’s previous sexual history under specific gateways. This provided scope for attention to be drawn to the Complainant’s lifestyle, rather than the unchivalrous acts of Evans. The Complainant’s lifestyle did not comply with the societal role that women are perceived to play, portraying women to be passive not active participants in sexual activities. Such misconceptions associated with rape myths are imbedded within society and have consequently influenced legal attitudes, especially about victims of rape. This article challenges the threshold of section 41(3)(c)(i) YCJEA regarding the admission of sexual history evidence. It highlights the concern that the provision has failed to achieve its intended results, namely to shield complainants from unnecessary stereotyping that seeks to challenge their credibility while also ensuring that the defence can meaningfully participate in the trial process. While it is debatable whether Evans opened the floodgates to the admissibility of sexual history evidence, the case demonstrates that allowing it can lead to victim blaming that might deter future victims of rape from coming forward and reporting sexual assaults. This concern is heightened given that defence counsels, juries, trial judges, and the Crown Prosecution Service perpetuate stereotypical beliefs about rape and its victims within the trial process. Fundamentally, the legal response to sexual offences can only be improved through education that will rectify misconceptions about consent and the role women play in sexual activities, eradicating stereotypical beliefs regarding victims of rape.
Copyright (c) 2024 Daisy Silvester Kerins https://creativecommons.org/licenses/by-nc/4.0
Copyright (c) 2024 Zoe McConville https://creativecommons.org/licenses/by-nc/4.0
Copyright (c) 2024 Aaron Taylor https://creativecommons.org/licenses/by-nc/4.0
The Introduction and Implementation of Voter ID in the United Kingdom
The introduction of voter identification (ID) in the Elections Act 2022 has attracted considerable attention amongst academics, lawyers and journalists alike, with tens of millions of people in the United Kingdom (UK) who traditionally cast their vote in polling stations being directly impacted. Concerns have been repeatedly raised that the reforms are unnecessary given the infrequency of impersonation, that the new law may disenfranchise minorities, the elderly and less well-off people, and pile more pressure on local authorities to administer the process, as well as costing tens of millions of pounds to implement. This article provides a brief overview of the introduction and implementation of voter ID in Great Britain and, more specifically, my own research activities in this area since 2017. During this project I have published numerous outputs, including public-facing and accessible blogs which have attracted a wide audience, but also substantive academic articles which have been used by legal teams in a challenge which ultimately proceeded to the UK Supreme Court. I have also collaborated with other academics, lawyers and journalists to disseminate my findings to a broader audience.
Copyright (c) 2024 Ben Stanford https://creativecommons.org/licenses/by-nc/4.0
A Critical Analysis of Gender Neutrality in Relation to the Sexual Offences Act 2003
Legal definitions of rape are impacted by gender stereotyping. For example, the current legal definition of rape in England and Wales recognises only men as perpetrators and excludes forced to penetrate cases perpetrated by women against men. Existing literature indicates that this is due to widely held gender stereotypes in society and law. This article explores whether a gendered approach in law affects people in society and how widely held societal attitudes regarding gender influences the law. It is suggested that forced to penetrate cases should be recognised as rape in order to erase unnecessary stereotypes about men that impact how society and the law perceive men as victims. Thus, there is a need for a gender-neutral approach to be applied to the law in England and Wales, as is accepted in other jurisdictions such as Canada.
Copyright (c) 2024 Alexandra Barker https://creativecommons.org/licenses/by-nc/4.0
Push and Pull Factors for Catalonia’s Independence
This article critically examines the push for Catalan independence, delving into legal, historical, social, economic, and political aspects that both support and challenge the region's bid for autonomy. Catalonia's historical journey from its independent kingdom status to its current position within Spain sets the backdrop for its ongoing pursuit of self-governance. Together with its distinct culture and language, this makes a strong case for self-determination, asserting a right to shape Catalan’s destiny and protect its identity. Economic considerations, including perceived unfair taxation, further fuel the drive for autonomy as proponents envision Catalonia's self-sufficiency within the European Union. Yet, the article also highlights opposing viewpoints. Critics caution against potential economic instability, pointing to concerns over debt, the establishment of new financial structures, and the intricate relationship between Catalonia and Spain. Shared cultural attributes and economic benefits from unity with Spain are among the arguments against separation. Moreover, Spain’s claim to territorial unity that is supported by constitutional rules of referendums and secession oppose Catalonia’s self-determination. The article also explores the potential external dimension of an independent Catalonia, weighing the advantages of economic growth and self-governance against challenges like the loss of EU citizenship and trade disruptions. In a comprehensive analysis spanning historical origins to contemporary dynamics, this article provides a nuanced understanding of the multifaceted debate surrounding Catalonia’s bid for independence. It offers insights into the complex legal, historical, social, economic, and political factors shaping the region’s aspirations and its future relationship with Spain and the European Union.
Copyright (c) 2024 Martyna Szurmiej https://creativecommons.org/licenses/by-nc/4.0
Have the Legal and Social Concepts of Domestic Abuse Been Profoundly Revolutionised, or Is Further Reform Required?
Domestic abuse is an important aspect of family law that is governed by everyday attitudes, personal beliefs, legislation, and legal precedents. These are important to consider when assessing how society has reacted, and still reacts, to ‘controversial’ issues that challenge the norm. This article analyses to what extent domestic abuse law may be reforming and how these changes will influence future decisions. It is suggested that although the definition of domestic abuse has broadened to include coercive control and recognise women, men, and children as potential victims. There is a need for more to be done to eliminate patriarchal views and attitudes that shape society’s understanding of domestic abuse and legal responses.
Do the Current UK Laws Governing Surrogacy and Gamete Donation Adequately Protect the Parents and Children, or is Reform Required to Achieve This?
The UK laws that cover technologically assisted reproduction are from a time in which these techniques were viewed as taboo and the science behind them was new and under -studied. This article will analyse the advantages and disadvantages of the UK’s surrogacy and gamete donation laws. It explores the extent to which they are lacking and, drawing on laws in other jurisdictions to decide what, if any, reforms are needed to ensure that parents and children that are traversing the UK’s systema are treated fairly and with respect. The article argues that the reform of laws governing gamete donation were adequate, taking into consideration the changes of the publics’ perception of this and the science that makes it possible. However, there are still areas of gamete donation such as the practice of posthumous gamete donation that necessitate reform. Furthermore, this study argues that the law governing surrogacy is in desperate need for reform. The current system can be seen to encourage a system that can leave women in economically disadvantaged countries at risk of exploitation as well as putting the prospective parents in a legally uncertain situations that the judiciary are forced to address.
Revolutions in Family Law and Their Effect on Family Disputes
Herring once set out that family law has undergone a profound revolution over the last few years which has shaped the way in which family law disputes are handled. Whilst there is some truth in this statement, the extent to which the aforementioned reforms have impacted the law in this area is up for debate. This paper questions how such reforms have provided the courts with alternative methods of dealing with family law cases and particularly focuses on the areas of access to justice and familial breakdown. It is concluded that, despite the amendments, the legal system remains flawed in handling family matters. This paper explores the adverse effects of such changes with a particular focus on cuts to legal aid and litigants in person. Further, the research discusses the proposal of a non-fault divorce system and how, despite the goal being to reconstruct the previous divorce law into one which existed on a ‘no fault’ basis, fault continues to be a central position within the process of a divorce.
The devastating consequences of racial inequalities have been highlighted by recent events, with striking evidence showing the disproportionate rates of diagnosis and deaths of ethnic minorities amid the COVID-19 pandemic.[1] Tracing these disparities back to social and economic factors and a lack of opportunities, it is evident that a substantial degree of racism exists in the UK. Still, the Government has yet to provide an adequate plan to tackle such issues and has instead dismissed claims of institutional racism.[2] The data combined with subsequent inaction reflects the harmful attitudes that are still prevalent, placing minorities at a dangerous disadvantage. This article will determine whether the extent of the racism that we see in the UK today is rooted in a legal or moral fault. This will be done by tracing the history of law and morality to Ancient Greece and by using natural law theory and legal positivism to consider how racial discrimination has gained legal or moral support. Using this understanding, legal developments at national and international level will be traced to demonstrate how both legal and moral attitudes have changed over time, with specific reference being given to the city of Liverpool. Recent racial inequalities will then be examined with police powers and health care receiving the most scrutiny. It will be concluded that there has been little effective change in law and morality since the findings of the MacPherson Report[3] which has recently become a topical issue for policing leaders.[4] [1] Public Health England, ‘Disparities in the Risk and Outcomes of COVID-19’ (GW-1447, PHE Publications, August 2020) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/908434/Disparities_in_the_risk_and_outcomes_of_COVID_August_2020_update.pdf> accessed 17 March 2021. [2] Commission on Race and Ethnic Disparities, ‘Commission on Race and Ethnic Disparities: The Report’ (Gov.uk, March 2021) <https://www.gov.uk/government/publications/the-report-of-the-commission-on-race-and-ethnic-disparities> accessed 3 April 2021. [3] William MacPherson, ‘The Stephen Lawrence Inquiry’ (Cm 4262-I, 1999). [4] Vikram Dodd, ‘UK Police Chiefs Consider Public Admission of Institutional Racism’ The Guardian (12 December 2021) <https://www.theguardian.com/uk-news/2021/dec/12/uk-police-leaders-debate-public-admission-institutional-racism> accessed 5 January 2022.
Intersectional Discrimination and Exploitation Within the UK Fast Fashion Industry
‘Fast Fashion’ is the term for clothing businesses which create clothes at a quick rate and sell them at low prices, often following the latest microtrends in fashion. While multi-million-pound companies within the United Kingdom (UK) such as PrettyLittleThing and Boohoo are what society sees as the face of this industry, it is really made up of garment workers, 80% of which are women of colour, who are discriminated against and exploited behind the scenes inside and outside of the UK. The legislation that governs how UK companies treat their workers, such as the Modern Slavery Act 2015 and the Companies Act 2006, as well as the Government’s weak response to non-compliance with the national minimum wage, allows this discrimination and exploitation to continue, leading to impunity for employers. The fact that most of these workers are women of colour from non-western cultures highlights that this is an intersectional issue. This article argues that the UK Government is not producing effective legislation that protects workers’ rights, specifically, women of colour garment workers in the fast fashion industry. Overall, tougher legislation must be put in place to ensure that employers and businesses work to eradicate intersectional discrimination and exploitation of garment workers within the fast fashion industry.
Corporate Social Responsibility, Data Protection and the Right to Privacy
Technology and the internet have added a new stakeholder concern to the Corporate Social Responsibility (CSR) agenda: online privacy and data protection. This article traces the emergence of CSR on the agenda of businesses, considering developments in the United Kingdom, the United States and European Union and the business case that supports a move towards taking CSR seriously. Additionally, the article draws on views of leading theorists such as Friedman and highlights the power of consumer boycotts to pressure corporations to adopt ethical and socially responsible practices. Building on existing literature that establishes data protection as a CSR, the research outlines the legislative efforts to protect personal data and online privacy in the UK, focusing on the General Data Protection Regulation. It also considers the challenges created by Brexit and ongoing legislative efforts that attempt to limit data protection in the UK. Linking CSR and data protection to human rights, the article establishes breaches of data protections as violations of the right to privacy for which businesses should be held accountable. The paper argues that businesses are starting to pay more attention to their CSR in general and data protection as a CSR in particular. However, online privacy is still a rather new concept on the CSR agenda and businesses have to improve their efforts to ensure they have the correct framework in place to use and store data securely.
The United Kingdom has a plastic problem. In 2016, Britons produced more plastic waste per capita than the citizens of any other country, bar the United States.[1] It is for this reason that the UK has continued to adhere to the European Union’s targets for recovery and recycling of plastic, despite leaving the EU in 2020.[2] The EU’s broad objective is for member states to achieve what is known as a circular economy, wherein plastic is collected and reused indefinitely. In order to achieve a circular economy, the UK sets recycling targets for both households and businesses. The legislation governing how local authorities and private citizens are expected to handle their waste differs significantly from legislation applied to their commercial counterparts. The UK maintains a blanket target of achieving a 65% municipal recycling rate by 2035.[3] This is despite the fact the majority of plastic discarded as household waste is created commercially. This article considers whether the targets the UK sets are fair and proportionate in the context of the realities of both sectors. It will then question if public policy surrounding how recycling is conducted is sufficiently robust enough to achieve the government’s targets. [1] Kara Law and others, 'The United States’ Contribution of Plastic Waste to Land and Ocean' (2020) 6(44) Science Advances. [2] European Union (Withdrawal Agreement) Act 2020. [3] Department for Food, Environment and Rural Affairs, 'Our Waste, Our Resources: a Strategy for England' (DEFRA, 18 December 2018) 67 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/765914/resources-waste-strategy-dec-2018.pdf> accessed 29 July 2021.
Are the Laws Forbidding Euthanasia and Assisted Suicide in the UK Taking Away the Personal Autonomy of Terminally Ill Citizens?
The purpose of this article is to examine the view that the current blanket ban on assisted suicide in the UK actively takes away the personal autonomy of citizens with terminal illnesses who wish to end their own lives. This work will examine a variety of factors that may contribute to this legal debate such as personal autonomy, end-of-life decisions, human rights and medical ethics. The current problems associated with the law on euthanasia will also be addressed in order to better comprehend the socio-legal debate surrounding whether or not assisted suicide ought to be legalised. This article will also discuss the potential measures that could be implemented in the future to legalise euthanasia and how law-makers can prevent the slippery-slope which is a fear of those against the legalisation of assisted suicide.
Evidencing sexual violence: a socio-legal analysis of (gendered) norms and policies
As MacKinnon suggested, ‘women who work with the law have learned that while legal change may not always make social change, sometimes it helps, and law unchanged can make social change impossible.’This paper offers a comparative analysis of several jurisdictions, looking particularly at gendered, often systemic, patriarchal attitudes towards sexual violence. It draws upon a wide range of resources to argue that law and policy reforms alone cannot address the challenges associated with preventing - or prosecuting - acts of sexual violence, given certain socio-cultural attitudes towards victims generally. Clearly, sexual violence may lead to (often highly gendered) public health and human rights violations, with both short and longer-term consequences. Given that, globally, as many as one in five women are likely to be sexually assaulted over the course of their lifetime, female victims may feel that their evidence will be largely or completely discredited, or their experiences simply ignored. And yet, violence against women is not unique to any specific historical period or culture. As Sigsworth has further argued (in relation to South Africa) a perceived need to assert – or reassert - masculinity may also be relevant in many cases. The concept of the ‘vulnerable population’ can often be reflective of social attitudes or of ambiguous laws or policies. (Disabled women, for example, are more likely to be sexually abused, raped, or assaulted that those who are able-bodied. ) Within many criminal justice systems, long delays, judicial or jury bias, and potentially degrading cross-examinations of victims cannot be ignored. Victim-blaming can further exacerbate inherent vulnerabilities. The reporting of sexual violence often varies significantly across jurisdictions: as such, the extent to which victimhood and gendered stereotypes might be either constructed or interpreted by wider society will also be discussed here.
Who holds the key to child welfare paramountcy?
The triadic, rights-based relationship between child, parent, and state has sparked much socio-legal debate. Judicial rights-balancing exercises have contributed to the shaping of the law and policy frameworks that support child and parental rights but have also influenced sociological understandings of the concepts of parenthood, childhood, and best interests. There is a need however for greater clarity in relation to the meaning and scope of the child welfare paramountcy principle and the remit of parental responsibility: within the UK for example, the Gillick principle - and certain provisions of the Children’s Convention - still draw criticism. This paper seeks to reassess the triadic relationship (child, parent, state) via a ‘keyholder model’ to illustrate its workings and tensions.
Litigants in Person – Access to Justice via the Court Process?
Since the enactment of The Legal Aid, Sentencing and Punishment of Offenders Act 2012, there has been an increase in litigants in person. This is owing to the fact that this Act implemented harsh cuts to legal aid which has made legal aid virtually impossible for many cases within the civil and family courts. Legal aid is still available where there are certain types of documentary evidence that the client has suffered domestic violence. The increase in litigants in person can be seen in a recent comparison of statistics which show that in the financial year of 2012/13, a total of 58% of parties were recorded as having legal representation in private law cases that had at least one hearing. Compared to the financial year of 2017/18, this figure had reduced to only 36% of parties. It could be suggested that as a result of these cuts, many litigants are struggling with their case. Not only are litigants struggling but the civil and family courts are now struggling with the influx of litigants in person. This article will examine whether the concept of justice is achievable by litigants in person. This will be done by firstly explaining what litigants in person are and outlining the issues which they may encounter. The help which litigants in person may experience will then be outlined; this will include the different organisations available to litigants in person and the role of the judiciary. Suggestions for possible reforms aimed at offering more assistance to litigants in person are also made.
LITIGANTS IN PERSON; ACCESS TO JUSTICE; PRO BONO;
Copyright (c) 2020 Kiera Barnes, Reem Abdulhakim Taha
Has the 2016 General Data Protection Regulation really given consumers more control over their personal data?
The General Data Protection Regulation (GDPR) - which came into force in May 2018 - introduced a complete change to data privacy law. Arguably one of the most comprehensive pieces of European Union legislation, the GDPR appears to put data subjects in charge, with new and improved subject rights, wider territorial scope and increased accountability and enforcement mechanisms, all of which aim to strengthen their individual rights. The digital revolution presented the existing data protection legislation, namely the Data Protection Directive (DPD) (1995), with significant challenges. New means of processing personal information have led to increasingly acute consumer concerns over how personal data is gathered, handled, and stored. Modern - and largely intangible - processing methods may result in data subjects lacking control over their personal data. Control is in itself an essential aspect of data protection, not only in terms of privacy, but to uphold informational autonomy. As their own data is affected, a consumer should be able to ‘…predict with sufficient certainty which information about himself in certain areas is known to his social milieu…’ in order to have control over it. This may be done by having the right to choose how data is dealt with and where it will eventually end up. This article analyses what the Regulation has achieved in relation to giving consumers more control over their personal data. The wording and principles of the GDPR appear to prioritise consumer control, more so than any other European legal instrument. The issue of how GDPR has affected consumers has however received far less attention than the repercussions of the legislation upon organisations. Much academic commentary has focused upon commending, comparing or criticising the European initiative: this article will look to these to gauge whether this ‘gold standard’ reform really ‘does what it says on the tin.’ It compares GDPR with DPD to set out the rationale for reform, having regard to the increased influence and advance of modern technologies in a globalised market; it then argues that the breakdown of technological boundaries means that the DPD had perhaps lost touch, in terms of territorial scope, definitions, and terminologies. It therefore then examines those rights and principles that give rise to greater consumer control over personal data, not least transparency, fairness, lawfulness and accountability. Arguably, changes were not truly ground breaking, given that these principles are similar to those set out in the earlier Directive. The rights contained in the 2016 Regulation clearly reinforce these core principles however, not least the rights to be forgotten, to have data access, and portability. An enforcement mechanism is a crucial aspect of consumer control. The conclusion argues that, despite clearly improving individual control, the Regulation may still not provide adequate protection when it comes to the most advanced areas in the technological field, namely, where mechanisms automatically or unknowingly process personal data. With this area of law constantly developing, however, it may be premature to critique certain obscure methods of processing: UK citizens similarly face a perhaps unknowable future post-Brexit. The concept of data protection remains a fundamental right however, given how the Charter of Fundamental Rights of the European Union works alongside the GDPR to uphold individual rights. In other words, both the Regulation – and the concept of a right to data protection - may be redundant if existing in isolation; they must rely upon each other to operate effectively.
Where to next? Advancing Indigenous cultural rights within a ‘universal’ human rights framework
International law underwent a major shift when the second World War ended; the creation of the United Nations (UN) led to a system based upon human rights. The UN Charter, which affirmed support for equal rights and self-determination, was adopted in 1945, followed by the Universal Declaration of Human Rights (UDHR) in 1948. A number of binding treaties were ratified in the years that followed, most notably the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1966. This shift, together with the first explicit endorsement of self-determination, (defined as the freedom of a group of people to choose a political status and pursue development ) led to the demise of colonial powers dominating entire peoples and the creation of a number of new states. Indigenous peoples, effectively trapped within the borders laid down by their colonial oppressors, were largely left out of this. Indigenous peoples, broadly defined as tribal groups that have been somewhat engulfed by settler states, have often been left at a severe disadvantage by this subjugation. They make up about 5% of the world population but 15% of them exist in extreme poverty. The human rights of Indigenous peoples had long been treated as a domestic matter for the states in which their territory fell. This often had disastrous consequences, particularly in terms of their culture and socio-cultural human rights. Forcible attempts were made to assimilate Indigenous peoples in Canada, for example, through the state-sponsored residential school system, in which children were separated from their families, and housed in inhumane conditions. They were ‘educated’ as a means to stamping out Indigenous culture, whilst transferring the children onto the lower rungs of the economy. This practice continued for over a century and, along with other government policies, has been termed a cultural genocide. An international Indigenous rights system has developed during that time frame, however. There are now a number of international agreements and treaties that concern Indigenous peoples, most notably the UN’s Universal Declaration on the Rights of Indigenous Peoples (UNDRIP). Whilst this has brought necessary attention to the plight of Indigenous peoples, it is not regarded as a fix-all solution. General Assembly President Sheikha Haya Rashed Al Khalifa has warned that ‘even with this progress, Indigenous peoples still face marginalization, extreme poverty and other human rights violations. They are often dragged into conflicts and land disputes that threaten their way of life and very survival.’ This article argues that these clashes have, to an extent, undermined the protections of Indigenous rights, and whilst Indigenous peoples are now recognized by the international human rights regime, they continue to be marginalized. There are fundamental disagreements between several states, not least Canada, and the international Indigenous rights regime. Some of these are ideological, owing to the nature of Indigenous cultural rights themselves and to their uncomfortable fit within the international, ‘universal’ human rights regime that has been prominent since 1945. Other problems are more practical, stemming from the profound clashes between Indigenous cultural beliefs and the more Eurocentric values that tend to underpin modern, Western political and economic systems. A critical examination of the international Indigenous rights system is presented here, with Canada used as a case study. The background and development of the international Indigenous right system is outlined and explained, and its evident strengths and weaknesses briefly described. The article then examines ideological clashes between Western conceptions of human rights and Indigenous rights: self-determination, cultural, and land rights, as well as the collective nature of Indigenous rights. The practical incompatibilities between Indigenous peoples in Canada, and Canada as a sovereign settler state are then evaluated. This will point to the conclusion that the cause of Indigenous peoples has been only marginally advanced by the international Indigenous right system and that the future is not particularly promising.
Indigenous rights; land; culture; Canada
To what extent is the regulation of sport effective in terms of financial management of clubs?
The 2018 events surrounding the financial fair play dispute that arose between Manchester City Football Club and UEFA provides the background for this article. Much case law and literature has focused upon professional sport financial issues, including salary caps and financial fair play. Three specific legal issues are discussed here, however, framed by three core questions, and using European football as the primary example: do current professional sports financial management regulations (Financial Fair Play, or hereinafter FFP) provide sufficient deterrence against club financial misconduct? Do football clubs’ corporate governance principles differ to those applicable to other corporate environments? Are salary caps a viable football financial management option? The article will then argue the need for reforms to current football FFP approaches. The opening section offers definitions and explanatory notes on the relevant governance in sport, including what constitutes ‘financial fair play.’ Section two looks to the Manchester City Football Club - UEFA dispute, to offer analysis of the current financial regulations - and the long-term football governance consequences – to suggest that FFP has not (yet) translated into improvements for financial sustainability. Section three offer suggestions for reform, including the proposition that a well-constructed salary cap system would perhaps prevent future disputes. The conclusion further argues that an appropriate salary cap model provides for surer, more transparent financial governance than the current FFP system.
Financial Fair Play; Sports; Football; Corporate Governance
Copyright (c) 2020 Daniel Bidder-Potts, Mr