Legal Studies Research Paper Series Vol. 11, No. 6

The Faculty has published Volume 11 Number 6 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Mark Elliott: The United Kingdom’s Constitution and Brexit: A ‘Constitutional Moment’? (22/2020)

The United Kingdom’s constitution is, by any reasonable standard, an unusual one. The reason for this, it is sometimes said, is that the UK’s constitution is an evolutive one that has developed incrementally over a long period of time, rather than the product of the sort of a defining ‘constitutional moment’ that, in many countries, supplies the supplies the foundation upon which (new) constitutional arrangements are built. This is not, however, strictly true. The UK undoubtedly experienced a highly significant constitutional moment in the late 17th century, when the fundamental principle was established that the Crown in Parliament enjoys legislative supremacy, thus giving rise to the axiomatic concept of parliamentary sovereignty. However, while these events, which reached their denouement in 1688-9, doubtless amounted to a constitutional moment, what is unusual — and what sets the UK constitution apart from nearly all others — is that that critical moment was not followed by any recognisable form of codification. In this way, the near-uniqueness of the UK’s constitutional arrangements is attributable not to the want of any significant constitutional moment in the UK’s long constitutional history, but to the absence of any attempt to codify the implications of such a moment. That lack of codification certainly does not, however, detract from the defining significance of what happened in the late 1600s, whereby parliamentary authority was established at the expense of monarchical power.

More than 300 years later, the question arises whether the UK is currently experiencing another constitutional moment which, questions of codification aside, might prove to be as significant an inflection point in the UK’s constitutional history as the events that unfolded in the 1680s. The occasion for asking that question is provided by the UK’s departure from the European Union, which occurred on 31 January 2020. This is so for two reasons. First, withdrawal from the EU was a highly significant constitutional — and well as social, economic and political — development, the repercussions of which will be felt for a very long time to come. Second, however, Brexit is the antithesis of a self-contained phenomenon in constitutional — as in other — terms. As well as being a consequential constitutional event in its own right, Brexit is likely to yield, and in some respects is already producing, substantial reverberations within the wider constitutional order. Against this background, the purpose of this article is to sketch the existing and likely constitutional implications of Brexit for the UK and, in doing so, to assess whether the UK is currently experiencing what history might come to regard as a constitutional moment or inflection point.

Laura R. Bradford, Mateo Aboy & Kathleen Liddell: COVID-19 Contact Tracing Apps: A Stress Test for Privacy, the GDPR and Data Protection Regimes (23/2020)

Digital surveillance has played a key role in containing the COVID-19 outbreak in China, Singapore, Israel and South Korea. Google and Apple recently announced the intention to build interfaces to allow Bluetooth contact tracking using Android and iPhone devices. In this article we look at the compatibility of the proposed Apple/Google Bluetooth exposure notification system with Western privacy and data protection regimes and principles, including the General Data Protection Regulation (GDPR). Somewhat counter-intuitively, the GDPR’s expansive scope is not a hindrance, but rather an advantage in conditions of uncertainty such as a pandemic. Its principle-based approach offers a functional blueprint for system design that is compatible with fundamental rights. By contrast, narrower, sector-specific rules such as the US Health Insurance Portability and Accountability Act (HIPAA), and even the new California Consumer Privacy Act (CCPA), leave gaps that may prove difficult to bridge in the middle of an emergency.

Eyal Benvenisti: The WHO – Destined to Fail?: Political Cooperation and the COVID-19 Pandemic (24/2020)

In this essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.

Lesley Dingle: Reflections on the Monographs of David Yale QC, FBA (25/2020)

David Yale was Reader in English Legal History at Christ’s College Cambridge from 1952 to 1992. His researches were focussed mainly on the laws of Tudor England, and resulted primarily in five major monographs. This article looks at aspects of Yale’s analyses of the writings of three jurists of this period on important developments in English Law, as elaborated in his monographs. The topics highlighted are: the birth of modern equity by Heneage Finch (Lord Nottingham); the prerogative powers of the English monarch by Sir Matthew Hale; and the definitions of jurisdiction in English Admiralty Law by Sir Matthew Hale and William Fleetwood.

Alex De Waal & Sarah Nouwen: The Necessary Indeterminacy of Self-determination: Politics, Law and Conflict in the Horn of Africa (26/2020)

This article forthcoming in the journal Nations and Nationalism frames a special collection on Nationalism and Self-determination in the Horn of Africa. It introduces the key concepts (the Horn of Africa, self-determination and nationalism), discusses the international law on self-determination and demonstrates how the praxis of self-determination in the Horn of Africa has contributed to normative developments. On the basis of five case studies (pertaining to Djibouti, Ethiopia, Eritrea, Somalia and Sudan/South Sudan) this framework article argues that nationalism and self-determination have had different meanings in the political cultures across the different countries of the Horn of Africa and across time. Rather than dismissing the concept of self-determination on account of its different meanings and understandings, we contend that such indeterminacy is unavoidable and should be welcomed. Nationalism is driven by historical circumstances that are contingent and often transitory. Self-determination claims based on such nationalism are equally contingent and transitory. When the principle of self-determination gets translated into concrete legal entitlements (for instance, a referendum on independence), it tends to solve one problem only by creating others. Instead, the pursuit and realization of self-determination require constant political processes. The papers in this collection highlight the challenges in giving effect to the principle of self-determination, including its subjugation to power politics. But they also show how the concept of self-determination does some important work in support of the emancipation of oppressed peoples: it provides a means to articulate the right to collective political agency. In this regard it is quite distinct, and more emancipatory, than other recent innovations in international norm-setting, such as the responsibility to protect (R2P), which depoliticize the specific situation and undermine the political agency of the suffering population.

Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.