Critical Contexts of Law - Assignment Example

Assignment Question 4: The main characters in the critical contexts story are fairly libertarian in action, if not in actual behaviour or politics? What therefore is the difference between a civil liberty and a human right? The concept of “human rights” has been the subject of polarised philosophical debate as regards the rights of the individual versus legal protections conferred by the state, particularly in western liberal democracies. This tension between the legal protection of human rights, political constraints and the extent of individual protection highlights the conflict between legal enforcement of rights in practice and theoretical concepts of ethics. Indeed, Donnelly acknowledges the inherent problem of implementing a philosophical foundation of substantive theory of human rights (Donnelly, 2003, p.7). In turn, this conflict is further mirrored by the confusion regarding the difference between a civil liberty and a human right. It is submitted that the criticism of the philosophical concept of human rights as a reality centres on the dichotomy between the deontological “shared ethics” paradigm and the utilitarian approach (Donnelly, 2003, p.7). On the other hand, a “civil right” whilst related to human rights is completely distinct and specifically relates to a legal right which can be protected and exercised under civil law (Foster, 2008, p.10). As such, a civil right may include a human right but is completely distinct from a human right (Foster, 2008). For example, under the civil law common law jurisdiction in the UK, individuals have rights not to be injured or the victims of negligence or nuisance as part of a civil right (Foster, 2008). Whilst civil rights are exercisable and protected by the state, human rights on the other hand are not automatically exercisable, which in turn has perpetuated a debate as to whether the concept of human rights are in fact a “fiction” of modern, western liberal democracies (Reed, 2007, p.11). In considering the concept of “human rights,” it is submitted that it is vital to consider what constitutes a “right” in the first instance. For example, Donnelly posits that the concept of having a right and how to have a right presumes the notion of entitlement; however the central element of importance is having these fundamental rights enforced (Donnelly, 2003, p.7). Indeed, this very point is the fundamental distinction between a civil right, which is enforceable and exercisable on the one hand in contrast to the individualistic concept of a human right on the other. Furthermore, Donnelly highlights the point that the “the ability to claim rights, if necessary distinguishes between having a right from simply being the (rights-less) beneficiary of someone else’s obligations. Paradoxically, then “having” a right is of most value precisely when one does not have the right” (Donnelly, 2003, p.8). It is submitted that this observation is arguably crucial to the practical success of the shared ethics paradigm in terms of the innate morality informing human adherence to basic fundamental rights. Moreover, Donnelly questions the notion of “shared” rights as in a “Hobbesian state of nature, rights would never be respected; at best disinterest or self interest would lead duty-bearers not to deny the right holder the object of her right (Donnelly, 2003, p.8). Accordingly, Donnelly’s points highlight the point that whereas ethics refer to the morality of human rights, this can contrast with the actual enforcement of morality as defined by ethical theory, which again highlights the fundamental distinction between an enforceable civil rights on the one hand and human rights on the other. Indeed, Donnelly highlights the point that ““Human rights traditionally have been thought of as moral rights of the highest order. They have also become, as we will see in more detail later, international legal rights” (Donnelly, 2003, p.11). As such, this has led to commentators questioning the concept of human rights in international relations and whether they in fact are a fiction of Western liberal democracies. Moreover, it is submitted that the debate pertaining to human rights reinforces the important distinction between civil rights, which are legal rights exercisable by citizens within the state’s legal system in contrast to human rights, which are justified on moral grounds and not always enforceable as a civil right (Reed, 2007, p.29). Indeed, this is further highlighted if we further consider ethical theory, the two central theories pertaining to ethics is the deontological and utilitarian approach to moral behaviour. The utilitarian approach considers ethics in terms of results and the deontological approach prescribes that moral behaviour should be under predetermined principles, which cannot be violated (Donnelly, 2003). For example, on the one hand Somerville is a key proponent of the deontological approach and rather than adopt an individualistic approach, Somerville refers to the concept of the “secular sacred” in the leading work “The Ethical imagination: Journeys of the Human Spirit” (2007). The essence of the “secular sacred” concept of ethics is that there are basic human rights and values that are common to humans irrespective of religious or cultural beliefs; which in turn supports her notion of the “shared ethics” in morality. However, Somerville goes further and argues that the crux of ethics with regard to human rights is whether it is “inherently wrong?”(Somerville, 2007 xi). This again refers to the concept of morality underlying the notion of human rights which should be differentiated by exercisable and enforceable civil rights. Furthermore, Somerville argues that in considering human rights protection, often the legal issue of human rights protection is inherently linked to the issue of whether it is ethical and that to consider ethics, “we must first ask whether what we plan to do is inherently wrong. Although as societies we once commonly addressed this question….a wide variety of societal factors has led us as societies to rely instead on a situational ethics approach that says that nothing is inherently wrong, rather it all depends on the situation.” (Somerville, 2007, p.xi). As such, Somerville posits that in considering the wider concepts of ethical morality, it is important to note that “the primary question in this approach is: Does it do any good? Moreover, what is possible and even legal might not be ethical”. Therefore, to this end, Somerville argues that in considering the notion of “human rights” protection need to consider the concept of ethics (Somerville, xi). However, in discussing the concept of what constitutes inherently wrong and immoral, Somerville’s central ethical paradigm relies on the shared ethics concept (Somerville, 2007 xi). Nevertheless, the crux of this shared ethics approach relies on human compliance, which is arguably unrealistic and blurs the distinction between civil rights and human rights. Indeed, if we reconsider Donnelly’s observations regarding human rights, he makes the point that human rights on the one hand whilst sometimes comprising civil rights, are often wider in scope as a concept in terms of encompassing “abstract values such as liberty, equality and security. They are rights, particular social practices to realise those values” (Donnelly, 2003, p.11). Accordingly, it is further reiterated that the distinguishing difference between a civil right and a human right is that the civil right is legally enforceable, whereas human rights are wider in scope and often comprise an underlying value or moral principle which may not necessarily result in an individual entitlement to enjoy the actual right. What Charles feels about his rights can be categorized as human rights as well as civil rights. According to Charles perception, he had the right to exercise control over women because of his attraction, the right to forget events, to get drunk and the right to buy anything he likes. The right of buying comes under the category of civil rights while forgetting anything or attracting someone come under personal rights that one can perceive as a human being. Charles is a libertarian character who knows about his rights and freedom that he can exercise according to his will. Like Charles, other characters of the story are also libertarian. Property law comes under the category of civil rights under which, Charles buys property and the other rights that he can have are human rights but getting drunk, attracting women and other rights come under the category of liberties. ASSIGNMENT 2: Question 2: Rights to Bleak House The extent of potential legal rights in Bleak House (the Property) will depend on the nature of the right (whether equitable or non-equitable) and as the Property was bought in 1990, the pre 2002 rules of the Land Registration Act 2002 will be applicable. Charles was the sole proprietor of the Property and whilst Muriel did not contribute to the purchase price, she made significant contributions to the household expenses and it was her marital home. Therefore, Muriel may have had an equitable proprietary interest under common intention constructive trust (Megarry and Wade, 2008). The leading case of Lloyds Bank plc v Rosset ([1991] AC 107) highlighted the essential requirements for the imposition of a constructive trust asserting its foundation in the common intention of the parties to share the properties. Lord Bridge further asserted in this case that intention could be express or inferred from conduct. Furthermore, Lord Bridge in highlighting the reasoning in Gissing v Gissing ([1970] 2 ALL ER 780.) asserted the concept of detrimental reliance in order for there to be a constructive trust. A prime example of this is Eves v Eves ([1975] 1 WLR 1338). Notwithstanding the widening interpretations of trust law, the courts’ approach has been positively inconsistent in relation to indirect contributions. Therefore if we apply the case law rationale by analogy to Muriel’s legal position, as she lived in the Property and contributed to the Property, it is highly likely that she will have an equitable proprietary interest under a common intention constructive trust. Additionally, as Charles’ wife, Muriel had a statutory right to occupy the Property. With regard to Bill’s rights to the Property, there is no evidence of a valid express, however in light of the fact that Bill undertook renovations to the Property and was given indication by Charles that he could always live there, this would also point to Bill having an equitable interest under common intention constructive trust. However, there is no consistent approach to what constitutes a “substantial contribution” under constructive trust (Wilson, 2009). The decisions of Gissing v Gissing (1970) and Midland Bank plc v Cooke ([1995] 4 ALL ER 562) suggest that the share can be inferred by conduct. In the current scenario therefore both Bill and Muriel’s share under the constructive trust would be a question of fact dependent on the level of contribution to the overall property value (Wilson, 2009). Alternatively, as Charles encouraged Bill to believe he would always have a right to live in the Property and Bill relied on these representations to undertake renovations and work on the Property with the extension at his own expense; he may also be able to rely on proprietary estoppel to claim proprietary rights in the Property. The doctrine of proprietary estoppel, was acknowledged in Ramsden v Dyson ((1886) L.R. 1 H.L. 129) where it was asserted that if there was an agreement or arrangement between two parties which indicated that one party had been encouraged to believe that they would have a specific interest in the property; if the party then acted upon this believe to their detriment, the courts would be required to give effect to the promise on equitable grounds. To this end, it is arguable that the equitable roots of proprietary estoppel were clearly intended to operate as a narrowly applicable doctrine in cases involving unconscionability (Wilson, 2009). This is further supported by the judicial rationale in Wilmott v Barber ((1880) 15 Ch D 96) where the Court of Appeal went further and established what has been coined the “Wilmot v Barber Probanda” (Chappelle, 2007), which sets out five elements that must be present before an estoppel will be granted. These five elements were as follows: the plaintiffs must have made a mistake as to his legal rights; he must have spent money or relied on mistaken belief; the defendant must be aware of the true position; the defendant must be aware of the plaintiff’s mistake; and the defendant must have encouraged the plaintiff’s expenditure or other act of reliance. However, the leading decision in Taylor Fashions v Liverpool Trustees Co Ltd ([1982] QB 133), saw the courts take a broader and relaxed approach to the Wilmott v Barber probanda on the basis of unconscionability, particularly where a party had knowingly encouraged another party to act to their detriment. This is evident in ReBasham ([1986] 1 WLR 1498) where it was held that if a property owner encouraged a claimant to behave in a specific manner in reliance on the belief of a specific property right or benefit pertaining to the property, this would constitute a representation under the estoppel formula”. On the other hand, the doctrine of estoppel would appear to go further and acknowledge rights outside the narrow confines of proving “contribution” to the property again undermining any notion of an “orthodox” application. For example, in Pascoe v Turner ([1979] WLR 431), the doctrine of estoppel was utilised to transfer the estate to the plaintiff. Additionally in Matharu v Matharu (1994] 68 P & CR 93) the daughter in law continued to live in her in-laws house after the breakdown of a marriage. The Court of Appeal nevertheless held that she had rights under the doctrine of proprietary estoppel and was entitled to remain the property. The second element of the Taylor proprietary estoppel test is that of reliance and is closely linked to detriment (Mackenzie & Phillip, 2008). It must be demonstrated that the claimant relied upon the representation to the extent that they were influenced or induced (Smith, 2009), which has created problems in practice. For example, in Greasley v Cooke (1980] 1 WLR 1306), Lord Denning asserted the objective reasonable man test and held that satisfaction of the objective test would lead to a presumption of influence. This undermines Taylor however and the courts often go to great lengths in awarding the substance of the representation of entitlement originally made to the claimant (Smith, 2009). With regard to detriment, in Grant v Edwards ([1986] Ch 638), Lord Edwards stated that detriment required proof that a claimant acted to their detriment or substantially changed their position as a direct result of the representation. Moreover in Gillett v Holt ([2000] 3 WLR 815), Walker felt that the courts had adopted an extremely narrow application of the detrimental reliance requirement and that detriment was wider than simply financial detriment. As such, whilst the lines between proprietary estoppel and the common intention trust are clearly blurred, the doctrine of estoppel clearly goes further in widening the ambit of what constitutes “detrimental reliance”. For example, in Ottey v Grundy ([2002] EWHC 2858), the claimant had given up a career to look after the deceased to her detriment. She was not named in the deceased’s will however, it was held that she went beyond the role of girlfriend, there was reliance upon a promise made, once reliance was made upon the promise, it became irrevocable in equity. If we apply the principles of proprietary estoppel to the current scenario, it is evident that Charles clearly wanted Bill to live in the Property and they had an on/off personal relationship and encouraged him to continue living in the Property while working on the Property with repair work and extension work. As such, this points to Bill’s reliance and detriment on Charles’ representations and acquiescence in Bill living in and continuing to live in the Property. Accordingly, whilst the onus of proof would be on Bill, the factual scenario indicates that this points towards grounds for asserting proprietary rights in estoppel. Therefore, it can be said with clarity that Bill had right of gaining shelter in Bleak House as Charles wanted him to remain there and Bill renovated Bleak House. ASSIGNMENT 3: When is it legally fair to dismiss an employee? (Bill and the Nannies and their rights to claim unfair dismissal) In order to consider whether Bill and the nannies are protected from dismissal and whether they can bring unfair dismissal claims under UK employment law, it will be necessary to evaluate whether they satisfy the legal requirement of being an employee, which is essential to any claim for wrongful and/or unfair dismissal under UK law. The legal definition of employee is described under Section 230(1) of the Employment Rights Act 1996 (ERA) as “an individual who has entered into or works under……..a contract of employment”. The section 230 definition has been criticised for being ambiguous (Honeyball 2010) and it is necessary to refer to the common law test for defining the status of employee. The statutory provision is bolstered by the Ready Mixed Concrete test (Ready Mixed Concrete (South East) Ltd v Minister of Pensions & National Insurance [1968] 2 QB 497), which requires an examination of the “overall picture” (Pitt, 2009) The starting point for determining whether an individual is an employee is the “control” test (Honeyball 2010. This was established in Yewens v Noakes (1880 6 Q.B.D. 530), where Bramwell LJ asserted that “A servant is a person subject to the command of his master as to the manner in which he shall do his work” (at p.532-533). However, socio-economic developments in the labour market have changed the shape of employment status, thereby undermining the suitability of the control test as a sole determinant of employment status (Pitt, 2009). This was further acknowledged by the Court of Appeal in Walker v Crystal Palace FC ([1910] 1 KB 87), where the control test was given a different slant by focusing on whether the employer had the right to control the background arrangements for the work such as when and where the work was done, payments and holiday entitlements. However, the Walker extension of the control test was further developed into the “integration” test as propounded by Lord Denning in Stevenson Jordan and Harrison v MacDonald & Evans ([1952] 1 TLR 101) “…under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business” (at p.111). Alternatively, factors pertaining to the working arrangement between the Mandox household vis-à-vis Bill and the nannies will also be important in determining employee status such as responsibility for tax, national insurance and labelling of employee status. However, the integration test is difficult in reality to apply to the modern labour market and what Pitt refers to as the “shamrock organisation” where firms have different types of workers including permanent full time workers, supply workers, and the flexible workforce (Pitt, 2009). As such, in recent years, courts and employment tribunals (whilst taking account of the integrated test) now lean towards a multifactor approach, taking into account all possible relevant factors and weighing them against each in order to determine if an individual is an employee, which may be advantageous in respect of the nannies in the current scenario (Pitt, 2009). This was propounded in Market Investigations v Minister of Social Security ([1969] 2 WLR 1). In this case, Cooke J highlighted the following non-exhaustive factors as relevant to determining the issue of whether or not an individual was an employee: whether or not the worker provides personal service, control which “will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor”, whether the employer or the worker provides the tools and equipment, whether the worker hires his own helpers, what degree of financial risk the worker takes, if any; what responsibility for investment and management the worker has, and if the worker directly profits from good work. A case that is often utilised as a prime example of the multifactor approach is the decision in the case of Ready Mixed Concrete v Minister of Pensions and National Insurance ([1968 2 QB 497). In the Ready Mixed Concrete case, the company had institute a scheme whereby delivery of its concrete to customers would be carried out by a team of “owner-drivers”. The issue was whether the owner-drivers were employees of the company. If so, the company was liable to pay national insurance contributions in respect of them. The company argued that they were self employed and they had been described as such in their written contracts. If we consider the facts of the case, with regard to control, there were no fixed hours of work and they could choose their own routes. However, they had to be available when required and to obey reasonable orders “as if an employee”. Moreover, they were paid by results. Additionally, although stated to be self employed in the contract, it was held that the relevant test was the substance of the contract in practice. This was reiterated in Ferguson v Dawson ([1976] 1 WLR 1213) and Massey v Crown Life Insurance ([1978] 1 WLR 676, where it was held that the express label given to the employment status as between the parties was a relevant consideration, however the overriding factor was to consider the substance of the contract between the parties. Moreover, in Lane v Shire Roofing Limited ([1995] IRLR 493) it was held by the Court of Appeal that even if paying tax on self employed basis, the relevant question was whose business was being carried out on this occasion? If the answer was that it was the company’s as opposed to the individual’s own business, then this was a factor operating in favour of employment status. In the Ready Mixed Concrete case, it was held that a balancing act had to be undertaken and whilst many of the circumstances pointed towards a contract of service, the fact that the drivers paid for and maintained the lorries, meant that the drivers had effectively assumed part of the economic risk under the contract. As such, they could not be stated to be properly under a contract of service and therefore were not employees. If we apply this to the current scenario, it is evident that Bill initially worked as a barman and relied on the Mandox household for food and shelter. Whilst undertaking some odd repairs around the Bleak house, it would appear from the factual circumstances that this was borne out of the fact that he was given a place to reside as opposed to anything pointing towards working for the Mandox household as an employee. This is further highlighted by the fact that Bill continued to work as a barman whilst living at the Mandox household. With regard to the nannies, ultimately their status as employee or self-employed freelancer will depend on the terms of their agreement with the Mandox household. Whilst the majority of such arrangements are undertaken on a self-employed basis in practice (Pitt, 2009), it doesn’t per se mean that they will not constitute employees, which would be protected under the UK law of unfair dismissal under section 98 of the ERA. This begs the question as to whether they should be considered employees. The problem is the amount of regulation imposed on private individuals in homecare vis-à-vis the lack of protection for such workers (Painter & Holmes, 2010). Alternatively, the Ready Mixed Concrete case widens the parameters of the potential candidates that fall within the definition of employee for the purpose of unfair dismissal law. Whilst these decisions pertaining to employee status clearly fly in the face of established employment law principles, they are arguably necessary to achieve a just result and prevent employer abuse of power in imbalanced bargaining scenarios. However, the fundamental flaw of these decisions is the fact that the judiciary have articulated their decisions under the language of “legal principles” whereas they are in fact case by case determinations. Perhaps the central problem is that the judiciary are expanding the test for employee status within the confines of precedent and established principles of employment status whereas the complex reality of business/worker relationships requires a case by case approach to strike the necessary balance, which is pertinent to the current scenario. Another problematic area once employee status is defined, are the exact terms of contract particularly with regard to the right to vary and impose restrictive covenants to protect business interests. Section 4 of the ERA provides that employers have a legal obligation to inform employees. The additional difficulty with regard to the nannies is that whilst the UK citizens initially employed would fall within the ERA provisions if the definition of employee was satisfied, the nannies employed from abroad could be left unprotected on grounds of status in the country (Pitt, 2009). For employees working from abroad, they must have the right to work in the UK, which either a British passport, documents demonstrating the right to live in the UK, or that they are a national of a European Economic area country or otherwise has an application registration card from the UK Home Office stating that the holder is permitted to work in the UK (Pitt, 2009). Bibliography D. Chappelle, (2007) Land Law. 8th Edition, Pearson Education. Jack Donnelly, (2003). Universal Human Rights in Theory and Practice. Cornell University Press S. Foster (2008). Human Rights and Civil Liberties. Pearson Education K Gray & S. F. Gray (2009) Elements of Land Law, Oxford University Press 4th Edition S. Honeyball (20100 Honeyball and Bowers Textbook on Employment Law, 11th Edition. J MacKenzie & M Phillip (2008) Land Law 12th Edition Oxford University Press Megarry and Wade., (2008) The Law of Real property. 7th Edition Sweet & Maxwell. R. Painter & A. Holmes (2010) Cases and Materials on Employment Law (8th Edition, Oxford University Press G. Pitt,(2009) Employment Law (7th Edition, Sweet & Maxwell E. Reed (2007). The Ethics of Human Rights: Contested Doctrinal and Moral Issues. Baylor University Press. R J Smith, (2009) Property Law: Cases and Materials .4th Edition Longman. M. Somerville (2007) The ethical imagination: journeys of the human spirit. Anansi M. Somerville (2004) The Ethical canary: science, society and the human spirit McGill-Queen’s Press S. Wilson (2009). Todd & Wilson’s Textbook on Trusts 9th Edition, Oxford University Press Legislation Employment Rights Act 1996 Land Registration Act 2002 All legislation available at www.opsi.gov.uk accessed March 2011. Read More