Posts

The rules on horizontal direct effect of directives have been criticized for leading to situations of unfairness and uncertainty. To what extent is the decision of the Court of Justice of the EU in Bauer (C-569/ 16) an improvement? Critically assess the decision by reference to the Court’s earlier case law.

Image
Direct effect refers to “the obligation of a court…to apply the relevant provisions of Community law, either as a norm which governs the case or as a standard for legal review” (Prechal, 1995). Simmenthal clarified that this obligation includes disapplying or setting aside conflicting national rules. Directives produce a special case. Whilst it is “trite law” (Dashwood, 2007) that Directives have vertical direct effect, they may not be invoked in proceedings between individuals and thus have no horizontal effect. This essay will evaluate the exceptions to the ‘no horizontal direct effect’ rule and the resulting uncertainty and unfairness in the law. It will additionally consider how, in light of Bauer, the CJEU facilitated the possible horizontal effect of Directives by employing the Charter of Fundamental Rights (‘the Charter’). If confined to specific facts, the decision represents an improvement from the orthodox position concerning the horizontal effect of Directives.  The Rule: No

'The [Human Rights Act 1998] is in many ways an astonishing Act. It introduces vague [C]onvention rights ... into our law. It requires other statutes somehow to be read consistently with these vague rights, the working out of which requires domestic courts to make political judgments (about what is or is not proportionate, about what is justified in a free and democratic society) and implicates courts in political controversies about how rights should best be protected. In enacting the [Human Rights Act], Parliament was clearly willing to compromise existing constitutional principle to some extent.' (EKINS and GEE) To what extent do you consider these criticisms of the Human Rights Act 1998 to be warranted? [2019].

Image
Whilst the Human Rights Act (HRA) has undoubtedly improvement aspects of the domestic law, it still received a plethora of criticism upon its enactment. Whilst academics such as John Spencer believe this hostility is due to “astonishing misunderstandings” of human rights in general, this essay will argue that, whilst the majority of the criticisms aforementioned are warranted, they are too narrow-minded as to the practical realities of the situation.  Upon dissection, the statement first concerns ‘vague rights’. Human rights are a contested concept, formulated at high levels of abstraction which can lead to broad rights with unclear scopes. For example, the Right to Life (Art 2) has several contentious subsections, including abortion, capital punishment and assisted suicide. It can be stretched even to provision of food and housing – what is a life, if its quality is disregarded? In contrast to common law rights, the Convention rights cannot be described as ‘vague’. The former, with it

What is the actual impact of ABS on traditional models of legal services, negatives and positives and the possible future of ABS practices?

Image
In January 2012, Alternative Business Structure ( ‘ABS’) licensing came into play as the Legal Services Act 2007 (‘Act’) paved way for novel and economical alternatives to traditional legal service models in the United Kingdom. 1 The passage of ABS was aimed at ensuring that legal services were available for consumers at an affordable rate and this implied removal of unduly restrictive rules that have negative implications for consumers 2 . In addition, ABS’s were considered as an option of promoting competition in the legal industry that will stand to benefit the legal services consumer. ABS has already been in existence in Australia since 2001 and both the Hong Kong Law Society and American Bar Association are considering adoption of a similar system.  The Act has sanctioned significant changes in the legal services arena by introduction of ABS. An ABS offering legal services can be owned by non-lawyers and the opportunity to receive external investment h