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Judge and JuristEssays in Memory of Lord Rodger of Earlsferry$
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Andrew Burrows, David Johnston, QC, and Reinhard Zimmermann

Print publication date: 2013

Print ISBN-13: 9780199677344

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199677344.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 14 May 2021

Legislating in Vain

Legislating in Vain

(p.654) (p.655) 47 Legislating in Vain
Judge and Jurist

William Swadling

Oxford University Press

This chapter focuses on section 199 of the Equality Act 2010, which purports to abolish the presumption of advancement, by which lifetime transfers of rights between certain parties are said to be gifts. The provision — passed in an attempt to bring English law into line with Article 5 of Protocol 7 to the European Convention of Human Rights, which is concerned with ensuring equality of rights and responsibilities between spouses — is not yet in force, but the question is what its effect will be if and when it becomes law. It is argued that there can be no such thing as the presumption of advancement and therefore nothing susceptible to abolition. Although there is said to be a presumption that Parliament does not legislate in vain, this is arguably an instance of the legislature wasting its breath.

Keywords:   Alan Rodger, legislation, Equality Act 2010, presumption of advancement, transfer of right

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