Legal Studies Research Paper Series Vol. 8, No. 14

The Faculty has published Volume 8 Number 14 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Brian Sloan: Testamentary Freedom Reaffirmed in the Supreme Court (54/2017)

The case now known as Ilott v The Blue Cross [2017] UKSC 17 was the first time that the Inheritance (Provision for Family and Dependants) Act 1975 was considered at the highest judicial level. The Court of Appeal ([2015] EWCA Civ 797, noted [2016] C.L.J. 31) had significantly enhanced the award given to an estranged and “disinherited” but needy daughter (Heather Ilott) at the expense of the charities (the Blue Cross, Royal Society for the Protection of Birds and Royal Society for the Prevention of Cruelty to Animals) who were the principal beneficiaries under her mother (Melita Jackson)’s will, leaving her with £143,000 out of the £486,000 estate primarily to purchase the council house in which she and her family were living. The Supreme Court unanimously allowed the charities’ appeal, restoring Judge Million’s original £50,000 order. Giving the lead judgment, Lord Hughes reasserted the centrality of testamentary freedom in English Law, emphasised the importance of the Act’s limitation to “reasonable financial provision” for maintenance for non-spouse/civil partner applicants (s. 1(2)(b)), and held that a need for maintenance was a necessary but not sufficient condition for a successful claim. He approved previous case law in holding that maintenance could not “extend to any or everything which it would be desirable for the claimant to have”, but was not limited to “subsistence” either. He also confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testatrix, but opined the reasonableness of her decision may still be a significant consideration, as may the extent of any “moral claim” even if that is not a “sine qua non”.

Veronika Fikfak: The Legacy of Iraq: Bringing Parliament into a Debate on War (55/2016)

This paper looks at the role of Parliament in decisions to go to war. It presents some of the findings from a recently concluded study and monograph Parliament’s Secret War, co-authored with Hayley J. Hooper. In particular, I show the impact that the Iraq experience has had on introducing Parliament into the debate on war. In 2003, Parliament’s approval provided the legitimacy and support the Government needed in the absence of a Security Council resolution. Ever since then, commentators and scholars have argued that a convention has developed which requires that before troops are committed to military action, the House of Commons should have an opportunity to debate the matter. In 2011, the Government explicitly recognised the existence of this convention through statements in Parliament and by referring to the new practice as a ‘convention’ in the Cabinet Manual. In the same breath, the Government committed itself to observe the War Powers Convention in relation to future deployments. Indeed, since the Manual’s publication, the House of Commons has been given the opportunity to debate military deployments in relation to Syria, against Islamic State (IS) in Iraq and most recently against IS in Syria. The paper makes two principal arguments about the legacy of the Iraq war. First, I explore how the Iraq war has triggered a process of redefinition and renegotiation of the relationship between the Government and Parliament. Second, I show that as far as parliamentary debate is concerned the issue of legality – which featured so prominently in the debate on Iraq – has throughout the 20th and 21st century shaped the debate in Parliament and often even became the focus of discussion. I explore the implications of this in the paper.

Megan Donaldson: The Survival of the Secret Treaty: Publicity, Secrecy and Legality in the International Order (56/2017)

This article offers the first detailed history of the norm of treaty publication as it has evolved over the last century. Drawing on both public debates and archives of foreign ministries, it traces how, and why, secret treaties have persisted, even in liberal democracies. It challenges assumptions of ever-greater transparency over time, and complicates the associations made — by interwar reformers and international lawyers today — between the norm of treaty publication and ideals of legality in the international order.

Kenneth Armstrong, John Bell, Paul Daly & Mark Elliott: Implementing Transition: How Would it Work? (57/2017)

The United Kingdom Government has indicated that it wishes to have a 'transitional' or 'implementation' period as part of the process of the UK's withdrawal from the European Union. This paper examines how such transitional arrangements might be adopted in terms of both EU law and UK law, and identifies a number of potential legal difficulties that would have to be addressed if a transitional period were to be put in place. The paper concludes that the most straightforward legal vehicle for a transitional period (in the sense of deferring exit from the EU so as to provide more time for agreeing the future relationship between the EU and the UK) would be extension of the Article 50 negotiation period, albeit that adopting such a course would be fraught with political difficulty.

Mateo Aboy, Kathleen Liddell, Johnathon E Liddicoat & Cristina Crespo: Myriad's Impact on Gene Patents (58/2017)

In the three years since the US Supreme Court’s decision in AMP v Myriad, there has been much debate and speculation about the impact of the Myriad case on the biotech industry, particularly on the status of gene patents. Was it a significant decision or, as Lord Tennyson might have argued, just another decision in a myriad of single instances that make up a confused and confusing law of patents?

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