Ethical and legal discourse pertaining to the ability to consent to treatment and research in England operates within a dualist framework of “competence” and “capacity”. This is confusing, as while there exists in England two possible senses of legal capacity – “first person” legal capacity and “delegable” legal capacity, currently neither is formulated to bear a necessary relationship with decision-making competence. Notwithstanding this, judges and academic commentators frequently invoke competence to consent in discussions involving the validity of offering or withholding (...) consent as a synonym for legal capacity to consent. I argue that this gives rise to a conflation, jeopardising clarity and consistency in law. This is somewhat less problematic in instances of “first-person” legal capacity that are heavily informed by criteria for decision-making competence than in the second sense of legal capacity, which is qualitatively different from decision-making competence, or with first-person legal capacity when defined in different terms from competence. The paper concludes by proposing that the soundest resolution to this problem is by making decision-making competence a necessary and sufficient condition of first-person legal capacity, affording a more scrupulous distinction between the two different forms of legal capacity that exist. (shrink)

This paper analyses the main challenges to the idea that we should and can represent future generations in our present policymaking. It argues that these challenges can and should be approached from the perspective of human rights. To this end it introduces and sketches the main features of a human rights framework derived from the moral theory of Alan Gewirth. It indicates how this framework can be grounded philosophically, sketches the main features and open questions of the framework and its (...) grounding, and shows how it can be used to deal with the challenges to the idea that future generations have rights that can be represented in our policymaking. (shrink)

This thesis seeks to engage with and give answers to the fundamental question of rights interpretation confronting the British judiciary under the Human Rights Act 1998. As a premise, it recognises that the textual openness and consequential semantic uncertainty of the requirements of the Convention rights necessitates their interpretation. In determining the approach the courts should apply, this thesis takes as its structural foundation an analysis of the current approach of the domestic courts and the European Court of Human Rights (...) to the five pivotal questions of interpretation: who has rights, the substantive nature of those rights, how rights are to be weighted and balanced in cases of conflict, whether they are rights under a will or an interest conception, and against whom the rights are held? From this basis, the thesis builds upon the existing knowledge to apply Alan Gewirth’s Principle of Generic Consistency to the current judicial position, to critique its compatibility with this principle’s requirements. Through analysis of core settled characteristics of the Convention rights, the substance of the courts’ judgements and the ECtHR’s jurisprudence, and supported by both dialectically necessary and contingent arguments, it is ultimately argued that it is, theoretically and practically, both necessary and possible for the domestic courts to be guided by the PGC in their interpretive approach. Finally, an improved understanding of the principle of human dignity will be advocated as a means through which the domestic courts can apply the PGC’s requirements. By this means, this thesis ultimately proposes an interpretive approach to the Convention rights which gives compelling guidance in answering the fundamental questions of rights interpretation and, by encouraging direct principled engagement with these questions, increases the public understanding of the fundamental nature of rights and the acceptability of the HRA and judgements under it. (shrink)