The ‘chilling effect’ of defamation law in Northern Ireland?

This article compares defamation law in England and Wales with that of Northern Ireland and analyses whether the current law in Northern Ireland is having a ‘chilling effect’ on free speech. At the time of writing, the Northern Ireland Assembly is formally considering adopting legislation based on the Defamation Act 2013 which reformed the law in England and Wales. The article aims to contribute to that debate in Northern Ireland, but it should also be of broader interest as an analysis of the effectiveness of the Defamation Act 2013. The article focuses on three key areas of reform, in both the Defamation Act 2013 and the Northern Ireland Defamation Bill: the presumption of jury trial, the threshold of seriousness, and the public interest defence. It demonstrates that the different approach of the law in Northern Ireland in these areas did not simply occur with the enactment of the 2013 Act, but rather that it started several years before that with a divergence from developments in the common law in England and Wales. The article argues that the difference has been entrenched by the changes in the 2013 Act, and that, in relation to each of those areas, the law in Northern Ireland is now on a singular course and one that can be seen to have a definite ‘chilling effect’ on free speech.

Surrogacy and public policy

The Supreme Court in the United Kingdom has held that it is not contrary to public policy to award damages in tort to fund a commercial surrogacy in another jurisdiction where this is lawful. This significant decision, in the case of Whittington Hospital NHS Trust v XX [2020] UKSC 14, will potentially have an impact on the regulation and reform of surrogacy law in the United Kingdom, Ireland and internationally. The judgment delivered by Lady Hale draws attention to multiple inconsistencies in the law, and it highlights, in particular, the need for effective regulation of domestic surrogacy. Legislators face an important and imminent challenge to reconcile the reality of commercial surrogacy with a deficient legal framework. This article seeks to highlight some of the important issues which this case has raised when considering regulation and reform of surrogacy law.

Formulating the legislative structure of a hate crime

While hate crime legislation is well established in England and Wales, Scotland, and Northern Ireland, Ireland has failed to address the issue of hate crime on a statutory basis. Law reform processes are currently underway across these jurisdictions, and this article seeks to explore a fundamental question in this context, that is, the relative merits of various approaches to structuring hate crime legislation.

The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.

Being transgender: human variation or disorder?

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Confiscation orders, confusion and a lament for the past: the case of Bernadette Hilton: R v Hilton [2020] UKSC 29

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Secretary of State for Justice v A Local Authority and others: disability and access to sex workers

This is a commentary on Secretary of State for Justice v A Local Authority and others, where the decision of the Court of Protection has been overturned by the Court of Appeal. The judgment has implications for (i) the article 8 and article 14 rights of those who lack capacity to arrange lawful sexual services; (ii) the criminal liability of their carers who are enlisted to assist with such arrangements; and, potentially, (iii) the ban on payment for sexual services in Northern Ireland.

The Pandemic Influenza Preparedness Framework as a ‘specialized international access and benefit-sharing instrument’ under the Nagoya Protocol

The World Health Organization (WHO) is starting to come to terms with the public health implications of the United Nations’ Convention on Biological Diversity (CBD) and its supplementary Nagoya Protocol about genetic resource access and benefit-sharing (ABS). Since 2017 there have been calls to recognize the WHO’s Pandemic Influenza Preparedness (PIP) Framework as a specialized international ABS instrument under the Nagoya Protocol. This article will examine whether the PIP Framework meets the criteria of a specialized international ABS instrument as laid out in a 2018 study commissioned by the Subsidiary Body on Implementation to the CBD (CBD/SBI/2/INF/17). Our analysis concludes that while the PIP Framework meets the specialization criteria, it fails to meet the supportiveness criteria and does not provide legal certainty for pandemic influenza virus ABS. Furthermore, we demonstrate that recognition of the PIP Framework as a specialized instrument would not mean that the CBD and Nagoya Protocol no longer apply to influenza viruses with human pandemic potential as has been asserted, rendering the relationship between the three international agreements unclear. As the WHO grapples with how to regulate access to other (non-influenza) human pathogens and the fair and equitable sharing of benefits associated with their use, a full appreciation of what ABS means when applied to pathogens is essential.

No tyranny for failing Donald Trump – sad! Law, constitutionalism and tyranny in the twenty-first century

Donald Trump’s presidency resulted in several accusations of tyrannical intent. The end of his term of office, and particularly the rioting of 6 January 2021 and the denial of the presidential election results, did little to dispel those accusations. Tyranny, while perhaps not fashionable as a basis of analysis, has a long-intertwined relationship with law and constitutionalism. This article uses Donald Trump’s presidency to consider the relationships between tyranny, tyrannicide, law and constitutionalism. The article considers law and constitutionalism’s role in both preventing and advancing the advent of tyranny and examines their limitations in stopping tyrannical intent. Public contestation is put forward as an equally significant bulwark against the advent of tyranny, but also a space under tremendous pressure during Donald Trump’s presidency.

‘Survival of the fittest’? Perceptions of wellbeing at The Bar of Northern Ireland

This article, based on a qualitative study conducted in June–July 2019, assesses how barristers at the Bar of Northern Ireland perceive wellbeing and mental ill-health within their profession. It will argue that the Bar can be a competitive and potentially hostile workplace environment, leading to detrimental impacts on wellbeing. It will also contend that being a barrister in Northern Ireland provides its own unique challenges for practitioners due to the self-employed independent nature of the role, where practitioners do not work in chambers or stables like their counterparts in England & Wales and Scotland. At the same time, barristers spoke positively about the flexibility of their roles and beneficial forms of collegiality, as well as an evolving culture which places greater emphasis on wellbeing. This article will argue, using the ‘job demands and resources’ model, that efforts should be made to decrease job demands and increase the job resources of barristers of the Bar of Northern Ireland to improve levels of wellbeing. This model could also be applied to the Bar in other jurisdictions to assess the impact of both shared and unique challenges and opportunities.