This thesis focusses on litigation for migrants' rights in the UK, and in particular litigation conducted by lawyers and activists motivated by the cause of promoting and protecting migrants' rights. The thesis conceptualises this form of migrants' rights activism as ‘cause litigation'. The thesis asks the question, what happens when immigration and migrants' rights questions are litigated for political purposes in the UK? In answering this question the thesis shows that cause litigation has in some circumstances been able to develop some highly significant forms of rights-protecting systemic change. However, the thesis also shows that cause litigation is vulnerable to adverse Executive reactions. Executive conduct in the area of immigration and migrants' rights is governed by an overarching imperative to exercise and be seen to be exercising control. Cause litigation presents direct challenges to this imperative. In response to these challenges the Executive has engaged in both evasion and an increasingly aggressive backlash against changes secured through cause litigation and the activity of cause litigation itself. This backlash has succeeded in undermining many of cause litigation's achievements and has ultimately diminished the role of cause litigation and the rule of law in regulating immigration control in the UK. This is not to argue that the advancements obtained through cause litigation are irrelevant; those that survive, albeit in a reduced form, are non-negligible in the otherwise highly adverse context of the UK's immigration politics. Cause litigation is, therefore, one of the few avenues open for migrants' rights to be protected and advanced, even if it is in a compromised and vulnerable form. It is argued, though, that an activism technique that was a response to the political disadvantage migrants' rights campaigners face, by securing practical change without mainstream political support, has ultimately not been able to escape from the UK's adverse immigration politics.

The term “the public interest” is oft-cited but seldom defined. It is in essence both an umbrella term and a short-hand for a concept (or concepts) that we know we need to understand but have difficulty explaining. However, given both the prevalence and the importance of the concept to the law in specific disputes, confronting its essential nature becomes imperative to resolving those clashes. One such instance comes in the form of the conflict of privacy and a free press. One of the foremost legal problems of our time, the clash of Article 8 and Article 10 rights does not lend itself to simple resolutions given the frequency of what might be described as ‘intractable’ or ‘zero-sum’ cases – where both rights cannot be simultaneously realised to the satisfaction of the parties involved. This thesis therefore seeks to understand where the elusive ‘public interest’ lies in such cases. To do so it firstly examines where the public interest is located in each of the respective rights, and then how those rights are to be balanced. This thesis contends that it is not enough simply to understand the nature of the two rights which are being balanced, but that it is crucial to understand how the act of balancing itself impacts upon the outcome. All of this cannot be divorced from the wider social and political context in which the contest between conflicting rights takes place. This thesis therefore systematically examines each of these pieces of the puzzle to garner an in depth understanding of them individually and how they react with each other. This is done in order to produce a set tools – definitions, understandings, and conclusions – which can be applied to factual situations in order to illuminate the location of the public interest in conflicts between privacy and a free press.

This research project investigates the governing of Europe’s external border. It analyses how the common Schengen short-stay visa policy has been applied in practice by member states in the period from 2005 to 2010. So far, little systematic theoretical and empirical research has been carried out on the implementation of Schengen. The contributions of the thesis are two-fold. Firstly, it makes available a comprehensive and easily accessible database on the visa requirements, issuing-practices and consular representation of EU states in all third countries. It enables researchers to map out and compare how restrictively the visa policy is implemented by different member states and across sending countries. Secondly, the project provides three separate papers that in different ways make use of the database to explore and explain the varying openness of Europe’s border and dynamics of cooperation among member states. The three papers are tied together by a framework conceptualising Schengen as a border regime with two key dimensions: restrictiveness and integration. The first paper asks to what extent, and why, Europe’s border is more open to visitors of some nationalities rather than others. The second paper investigates to what extent, and why, EU states cooperate on sharing consular facilities in the visa-issuing process. The third paper examines to what extent, and why, Schengen participation has a restrictive impact on the visa-issuing practices of member countries. The analyses test existing theories and develop new concepts and models. The three papers engage with rationalist and constructivist theories and seek to assess their relative explanatory power. In doing so, the project makes use of different quantitative comparative approaches. It employs regression analysis, social network analytical tools and quasi-experimental design. Overall, the thesis concludes that Schengen is characterized by extensive cooperation and restrictive practices towards especially visitors from poor, Muslim-majority and refugeeproducing countries.

The aim of this thesis is to demonstrate how my research promotes knowledge exchange about my overarching research theme: the rights, status and capacity of distinct categories of individuals in underdeveloped and emerging areas of law. These categories include disempowered individuals (namely young people and transsexuals) and persons of reduced or questionable legal capacity (to date, children and disabled people). The thesis is in two parts. Part 1 (Volume I) is a reflective commentary and Part 2 (Volume II) comprises the published work submitted. In the reflective commentary, my published work is critically appraised and placed within a wider legal and thematic framework. My overarching research theme is summarised and evaluated with reference to the legal premises, methodology and the research outcomes of my published work. In particular, I present a critical reflection of eight of my publications, each of which is concerned with the impact of the law, and issues surrounding legal reform, upon the young and certain disempowered adults. I demonstrate that this body of work forms a contribution to interdisciplinary sharing of novel and meaningful research outputs both (i) within the academic arena and (ii) throughout the wider professional community. I argue that my published work is original, because it is concerned with important, but largely neglected, areas of Scottish (and often wider UK) law. Furthermore, I argue that my publications are independent and significant in that they provide a distinct and critical evaluation of existing law and seek to promote the growth of individual status and capacity. This, in turn, often generates greater provision for individual rights, and the imposition in law of private law and state remedies.

This thesis explores social workers’ practice and understanding of support for the exercise of legal capacity in adult safeguarding. The impetus for this study was the ‘revolution’ of article 12 of the UN Convention on the Rights of Persons with Disabilities, which questioned fundamental and long-held legal positions on the rights of people with mental impairments to make decisions about their lives. This shift is a fundamental one, but there is very little existing empirical evidence of how such a revolutionary change in legal frameworks might actually work in practice, and what the challenges may be. Thus, this thesis aimed to empirically examine existing practice, to explore what the baseline of understanding was, and the difficulties that social workers encountered in using support mechanisms. An ethnographic approach was taken, with participant observation of an adult safeguarding team over a 17 week period, followed by interviews with 7 of the social workers who had been closely observed. The importance of this study is that the focus of the debate on article 12 has been on restoring legal capacity to individuals who had previously been denied it on the basis of their lack of mental capacity. While this is important, and is discussed in this thesis, the empirical work that forms the basis of this study demonstrates that denial of legal capacity affects a much wider group. In this context, ‘support’ may be less about supporting decisions in the particular instance, but rather supporting the individual to effect the decision that they have made, or to continue to be able to make decisions in the future. Using a theoretical framework of relational autonomy and universal vulnerability, the analysis shows that social workers the individual framing of mental capacity in the law means that they struggle accommodate the possibility of support for that mental capacity from a third party. Adults who have mental capacity but are considered ‘vulnerable’ are also significantly disempowered in the safeguarding framework. The social workers see the concept of mental capacity as overly limiting, and that vulnerable adults who are not captured by the Mental Capacity Act 2005 may still lack what this thesis terms ‘relational capacity’. A link made between vulnerability and a lack of relational capacity results in individuals being disempowered, kept as ‘objects to be organised’, rather than agentive subjects. The conclusion of this thesis is that the potential for undue influence in the exercise of support under article 12 is very possible. The data shows that we must consider carefully how we respond to this, building a universally enabling environment, rather than one which reduces agency and legal capacity.

The Right to Information (RTI) – a right every individual has to access public information held by governments – is now established in more than 100 countries. RTI laws set up a new logic in government: availability of public information is the principle and secrecy the exception. RTI laws create new public information arenas where several actors request, release and use public information for several purposes. In this work, I seek to explore why RTI arenas based on similar principles, work differently leading to different outputs. My explanation is based on a historical- institutionalist perspective arguing that origins of these laws and previous institutional structures matter. I argue that three factors help to shape these arenas: the level of participation in the policy-making process, the professionalisation of state bureaucracy and RTI enforcement institutions. The combination of these factors gives us three different kinds of arenas: functional, mixed and contested. I develop a conceptual framework, operating at a middle-range theory level, to analyse the role RTI laws, requesters, the state, and the existence of RTI enforcement institutions play in each configuration. I show how these arenas evolve and work, running a structured and focused comparison of three case studies: Uruguay, Chile and New Zealand. This work shows how these arenas ended up differing in outputs such as availability of public information and efficiency in processing RTI requests, as well as the existence of effective accountability mechanisms to resolve disputes about public information.

The right to health is often seen as being in enduring ‘crisis.’ On the one hand, social rights supporters see the pervasiveness of unsatisfied health needs as evidence of widespread violations of the right. On the other hand, social rights sceptics see the resource-conditional nature of the right as reason for its unenforceability. As a result, there is no tangible sense of where along the line between promising everything and delivering nothing the obligation to fulfil the right to health sits. This thesis suggests, however, that the right to health can be rescued. But the rescuer will require multi-disciplinary tools. The contribution made by this thesis is the development of a methodological framework for measuring right to health compliance. The contribution is two-fold. Firstly, through a public health-devised measurement of avoidable mortality, the thesis provides a methodology for describing what type of health the right to health guarantees. And secondly, through an econometric estimation of efficiency, it provides a methodology for determining what level of this type of health the right guarantees for individuals under resource scarcity as well as for offering a signal with respect to the degree to which this standard is in fact being met. It is argued that compliance with the obligation to fulfil the right to health is a function of the duty-bearer’s ability and willingness to provide for health. The results suggest that not all unmet health needs signal a violation of the right to health. Some duty-bearers are doing as well as they can with the maximum resources available, notwithstanding the relatively low levels of health sometimes being achieved. At the same time, the results also reveal many instances where the actual level of health achieved falls well short of the level expected. But, on the basis of the willingness indicators used in this thesis, whether these shortfalls systematically characterise unwillingness is unclear. Instead, this question requires a more nuanced, qualitative, investigation. In the case of Brazil, the hypothesis of unwillingness appears to hold. The methodology can be used efficiently for signalling compliance.

This thesis is about migrants’ everyday encounters with Italian immigration law and its bureaucracy. Centred on research conducted in an advice centre for migrants, I explore the ways in which various actors within the immigration nexus (migrants, brokers, advisers and officials) interacted with what I call the documentation regime. The documentation regime was characterised by pervasive uncertainty. Everyday encounters with it created frustration and anxiety for migrants and those who worked on their behalf. The bureaucracy’s arbitrary nature, however, also allowed for its manipulation. Rule bending and loop-hole finding characterised the strategies which migrants developed in order to successfully navigate the regime: strategies which were referred to as “Italian-like”. Immigration law, therefore, simultaneously produced migrants as both structurally marginalised and as resourceful and tactically astute agents, embedded within a particular social context. While focusing on migrants’ active navigation of the regime highlights their agency and resourcefulness, I do not suggest that these were acts of resistance. Rather, I wish to situate their practices within the wider socio-economic setting in which they took place. Although in some ways migrants became insiders through their bureaucratic encounters, they did not escape the racialised category of low-level worker. The requirement of a work contract for legal status, and the kinds of work available to migrants, continually reproduced their marginalisation in Italian society, even among the most integrated. By exploring the situation of the second generation, who were socially Italian yet subject to the same immigration laws as their parents, I highlight the racialised discrimination which migrants experienced. It is this situation which motivated migrants’ desire to move on from Italy, which was considered as only a stepping-stone country: an entry into the rest of Europe and beyond.

Many convicted offenders around the world do not vote in elections because they have been disenfranchised, which is the legal deprivation of their voting rights as a consequence of their convictions. Addressing this practice from the perspective of legal and constitutional theory, this dissertation deals with the question of how modern democracies should understand the connection between the right to vote and the commission of a criminal offence. After careful analysis of issues related to the democratic importance of the right to vote, the civic virtue of offenders and the requirements of a democratic punishment, the dissertation argues that disenfranchisement is a practice that constitutes an unjustified exception to the general principle of universal suffrage. However, it may also critically express and shape some of our general ideas about democracy and citizenship. In particular, it is argued that the exclusionary and degrading aspects of disenfranchisement can illuminate inclusionary aspects associated to the right to vote. In making this argument, it is suggested that the right to vote not only works as a right of participation but also embodies a mechanism of democratic recognition. Addressing the current common law jurisprudential trends on disenfranchisement, it formulates a case for a strong judicial review of legislation in cases in which voting eligibility is at stake.

Chapters 1 and 2 deal with the relationship between the Church in Wales and its clergy; the way in which ministerial working arrangements might be interpreted by the secular courts and the civil law consequences which would flow from this interpretation. The study begins with an analysis of the relationship in the general context of employment law. From this examination it emerges that civil law does not adopt a single, universal definition of employment status, but categorizes working agreements differently for different purposes. Consequently, the discussion moves on to look at how the working arrangements of Church in Wales clergy would be construed in relation to vicarious liability in tort, concluding that vicarious liability would almost certainly attach to torts committed in the course of performing ministerial duties. Having established that the church will be vicariously liable, Chapters 3 and 4 go on to consider the scope of the potential liability in connection with trespass and negligence respectively. The common theme which emerges from these chapters, is the difficulty of defining the boundaries of ministerial duties, given the breadth of activities which these duties can encompass, and the underlying Anglican belief that Holy Orders confer not just a set of tasks but a permanent state of being. The conclusion in chapter 5 proposes dealing with this challenge by analysing the clerical role for the purposes of tort in relation to the professional tasks, expertise and undertakings set out in the Clergy Terms of Service. This analysis can be separated from the theological understanding adopted by the church in the context of doctrine, and gives a workable framework for establishing the scope of tortious liability. This approach is then tested and illustrated with a series of case studies.