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Edinburgh Law School Legal Studies Research Paper Series - March 2023

Tue 4 April 2023

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The latest in the Legal Studies Research Paper Series (Vol. 11, No. 1: Mar 22, 2023) from Edinburgh Law School is now available.

View the full Edinburgh Law School Legal Studies Research Paper Series on SSRN

The Management of COVID-19 in Care Homes in Ireland And England: Ethical and Legal Issues in a Time of Pandemic

Mary-Elizabeth Tumelty, University College Cork - School of Law

Clayton Ó Néill, Queen's University Belfast - School of Law

Mary Donnelly, University College Cork (UCC) - Law Faculty

Anne-Maree Farrell, University of Edinburgh - School of Law

Rhiannon Frowde, University of Edinburgh, Edinburgh Law School

Linda Pentony, University College Cork

This paper provides an overview of the key issues that arose in relation to the management of COVID-19 in care homes in Ireland and England between February 2020 and December 2021, with reference to relevant policies, processes, and practices. There is a particular focus on the first wave of the pandemic between February and June 2020, where the risk of contracting and dying from COVID-19 was highest for residents in care homes. The paper examines a number of key issues impacting management of the risk posed by COVID-19 in care homes including the availability of testing; the use of personal protective equipment; staffing; safe discharge from hospitals; the use of Do Not Attempt Cardiopulmonary Resuscitation Orders (DNACPR); visiting and access restrictions; and the recording of care home deaths. A critical analysis is also provided of broader themes impacting the management of COVID-19 in care homes during 2020-21, including ethical issues, human rights, regulatory governance and accountability.

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The Truth in Fake News: How Disinformation Laws Are Reframing the Concepts of Truth and Accuracy on Digital Platforms

Paolo Cavaliere, University of Edinburgh - School of Law

The European Union’s (EU) strategy to address the spread of disinformation, and most notably the Code of Practice on Disinformation and the forthcoming Digital Services Act, tasks digital platforms with a range of actions to minimise the distribution of issue-based and political adverts that are verifiably false or misleading. This article discusses the implications of the EU’s approach with a focus on its categorical approach, specifically what it means to conceptualise disinformation as a form of advertisement and by what standards digital platforms are expected to assess the truthful or misleading nature of the content they distribute because of this categorisation. The analysis will show how the emerging EU anti-disinformation framework marks a departure from the European Court of Human Rights’ consolidated standards of review for public interest and commercial speech and the tests utilised to assess their accuracy.

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Déjà vu all over again: Carbon dioxide removals (CDR) and legal liability

Justin Macinante, University of Edinburgh, School of Law

Navraj Singh Ghaleigh, University of Edinburgh - School of Law

As efforts to scale up the carbon dioxide (CO2) removals sector continue to expand, the question of liability for leaking or failed storage comes to the forefront. There are a range of possibilities and views as to who should be liable if leakage does occur, for example, one is that the party that purchased related removal units to offset emissions should be liable to ‘re-remove’ by replacing the defective removal units. Such a position may be problematic, for reasons set out in this paper. However, there is a need for a better understanding of both the permanence associated with a given CDR method and the risks that could impinge upon it. This paper contributes to that understanding by canvassing ways to address the risk of storage failure through legal approaches and structures. It does so by reviewing the comparable carbon market scenario that preceded entry into force of the Kyoto Protocol, then looks at the current situation in the voluntary carbon market and what implications scaling up the CDR sector may have. A number of legal approaches and structures that might address the risk of CO2 storage failing or leaking are canvassed and reasons why liability for on-going storage integrity should remain with the party that carries out the CDR project are elaborated. An institutional structure that builds on liability for on-going storage integrity remaining with the party that carries out the CDR project offers is proposed as the best outcome.

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The Scottish Government’S ‘Independence Referendum’ Proposal: Legal and Constitutional Issues

Stephen Tierney, University of Edinburgh - School of Law

In June of this year the Scottish Government put forward a proposal to hold a second referendum on the question of Scottish independence from the United Kingdom. It published a draft bill and sought to refer this to the Supreme Court of the United Kingdom for a ruling on the competence of the Scottish Parliament to pass it.

This paper considers the historical background to this issue, developments since the referendum in 2014, the Reference case itself which the Supreme Court is expected to hear in October, and the legal issues with which the court is confronted.

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Sovereignty, Property and Climate Change

Neil Walker, University of Edinburgh, School of Law

If, as so many now do, we accept that anthropogenic climate change poses an existential threat to human life on our planet, in what ways does the global legal and political framework within which we address this threat provide either a contributory or an alleviating factor? In particular, what role do the key framing concepts of ‘sovereignty’ and ‘property’ play? There are various arguments, or levels of argument, that focus on the connection between the two framing concepts as contributory to the initiation and acceleration of anthropogenic climate change. Pulling these various arguments together, we may pose, as a summary hypothesis, that sovereignty has supplied and continues to supply a congenial host for the kind of property regime that produces economic growth, but also, and progressively, harmful climate change associated with such growth. At a most basic level of argument, we can point to how the development of a kind of ‘elective affinity’ between sovereignty and property helped to fashion and sustain a political economy ultimately generative of harmful climate change. This argument has a contingent quality, focusing on historical circumstance and the development of powerful self-reinforcing synergies. Beyond that base line account, however, there are also structural and aesthetic arguments that reinforce the place of sovereignty as a receptive host to the strengths and dangers of a growth-centred property regime. Here we can discern deeper connections and stronger causalities, associated with certain fundamental features of the concepts themselves. These connections may hold notwithstanding the increasing clarity of the dangers associated with excessive growth. While there is much to support these various levels of argument – historical-symbiotic, structural, aesthetic - they all finally have a tendential rather than a necessary quality. They allow space for counter-tendencies. As it is difficult if not impossible to imagine sovereignty and property not both continuing to provide key elements of the global legal framework, we need to work with these counter-tendencies if we are to find a way of averting climate disaster.

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Addressing the Falling Labour Share in the UK and Beyond: Labour Law’s Call to Arms

David Cabrelli, University of Edinburgh - School of Law

Economic studies jointly carried out by the ILO and the OECD, as well as the work of the economist Thomas Piketty has heightened public attention to the fact that the share of GDP in G20 (and other developed and developing) countries paid out as earned income has dropped since the early 1980s, with a corresponding increase in the share going to capital. To what extent can Labour Law contribute to the reversal of this decline in the labour share? Some commentators argue that reforms designed to strengthen trade unions and encourage broader collective bargaining coverage in the working population will lead to a correction. Others have recommended corporate governance reforms that prioritise more worker representational participation on the boards of corporations to promote the interests of labour. This paper will consider both of these suggestions, alongside others, and advance the proposition that inventive modes of regulatory thinking and new labour law solutions are required, which are tailored to the economic and social exigencies of the prevailing system of liberal meritocratic capitalist market exchange. The claim is that careful analysis of the current incarnation of capitalism (liberal meritocratic) can help us to identify the appropriate nature, scope and content of any labour law reforms that are motivated by a desire to resist the labour share decline. This paper will provide a preliminary basic sketch of how those adaptations of the rules of labour law should be configured.

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The Burden of the European Constitution

Neil Walker, University of Edinburgh, School of Law

Why, with varying degrees of intensity, has the European Union constitutional debate always been with us in some shape or form over recent decades, notwithstanding the failed Constitutional Treaty project of the early 2000s? Why, despite this sustained attention, do optimistic views remain so scarce on the ground, either as to the prospects of the successful production and ratification of a canonical Big C Constitutional document, or even if such a prospect were to be realised, as to the likelihood of that documentary achievement augmenting the legitimacy of the EU? Yet why, nevertheless, is it so difficult to imagine the debate over a written constitution for the EU just fading away and being consigned to the dustbin of history? These questions have acquired a renewed urgency as we contemplate the latest attempt to ‘reset’ the European project. The Conference on the Future of Europe – a joint venture of the European Parliament, the Council, and the European Commission, concluded its work in May 2022. As with many previous EU political initiatives, it was one with quite radical polity-wide ambitions, yet, like many before, without explicit Constitution-making intent. But also like many before, it is an initiative around which Constitution-talk has circulated, both during and after the event. The paper seeks to show why this is so. It argues that constitution-talk conveys both the architectural ambition and the symbolic gravitas we associate with the successful making and legitimation of political community in moments of potential transformation, providing a focal point of hope and anxiety for those with very different views as to the appropriate polity ambitions and optimal political form of the EU. These hopes and anxieties supply both the recurrent allure and the continuing burden of the European constitution.

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