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Contract lawyers are often divided between two schools of thought: formalism and contextualism. In the realm of contractual interpretation, this division illuminates various debates surrounding the modern contextual approach. Ultimately, however, the divide between the 'real and the paper deal' does not fully reflect the relevant fault lines. The real contest is between rival interpretations attempting to make the most coherent sense of the available text and context surrounding the document. In characterising the true nature of the exercise, I draw upon theories of coherence to articulate a framework of 'contextual coherence' that involves concepts of competing narratives, the rational motivations of the parties, and the need for a holistic assessment of the best hypothesis, in accordance with the English courts' 'iterative approach' to interpretation. I demonstrate that this framework enables us to explain and evaluate recent cases such as the UK Supreme Court decision of Arnold v Britton. [ABSTRACT FROM AUTHOR]

Examines the role and purpose ascribed to company law under the British government's White Paper 'Modernising Company Law.' British government's attitude towards corporate activity; Overview of the British Department of Trade and Industry Review, which provided for the White Paper's recommendations; Governments' perception of its role in regulating companies, their directors, shareholders and those affected by corporate activity.

This paper offers an interpretive theory which aims to make sense of judicial review doctrine in light of its underlying rationale. The idea that administrators are delegates of Parliament or the Crown lies at the heart of this theory. The paper argues that the best internal rationale for judicial review doctrine is that it holds administrators to their moral duties qua delegates of Parliament or the Crown. This rationale closely fits legal doctrine, including the grounds of review and the scope of review; it reveals the underlying coherence of the law; it shows how the law is supported by some moral reasons; and it closely reflects judicial reasoning. The delegation theory is valuable for normative, predictive, reformatory and pedagogical reasons. It can provide guidance to judges, help to predict how they will decide, help to assess the law, help to evaluate reform proposals and enhance understanding of judicial review amongst administrators, legal practitioners and students. [ABSTRACT FROM AUTHOR]

This paper considersmethodological standards in public law scholarship, showing the perils of current issues with access to relevant data and the promise of what can be achieved using better data and computational methods. It focusses on the effectiveness of Cart challenges – the largest group of claims for judicial review in the High Court – and discusses how the empirical question of the effectiveness of judicial review is linked with the normative question of what counts as 'success'. The article demonstrates the perils of inattention to data limitations in the analyses of Cart claims by the Independent Review of Administrative Law and by the government and shows the promise of better data and computational methods through an unprecedented empirical study of Upper Tribunal decisions that followed Cart judicial reviews. It concludes that the government's claim that Cart challenges are a disproportionate burden on resources lacks adequate empirical basis. [ABSTRACT FROM AUTHOR]

There is an emerging political consensus in the UK that greater devolution of spending powers will bring benefits in terms of reducing economic disparities between regions, enhancing social cohesion, and improving the economy's prospects for productivity, growth and the transition to net zero. The Subsidy Control Act 2022 is thought to be key to achieving this by providing public authorities with greater flexibility in how they make spending decisions than was previously the case under EU State aid rules. This paper examines whether the new regime does indeed make it easier for awarding bodies to grant beneficial subsidies. It concludes that the regime risks placing obligations on public authorities that are considerably more onerous than EU State aid rules and there is a need to significantly increase the scope of streamlined routes which provide legal certainty to beneficial spending decisions. [ABSTRACT FROM AUTHOR]

Constitutions come under pressure during emergencies and, as is increasingly clear, during pandemics. Taking the legislative and post‐legislative debates in Westminster and the Devolved Legislatures on the Coronavirus Act 2020 (CVA) as its focus, this paper explores the robustness of parliamentary accountability during the pandemic, and finds it lacking. It suggests that this is attributable not to the situation of emergency per se, but to (a) executive decisions that have limited Parliament's capacity to scrutinise; (b) MPs' failure to maximise the opportunities for scrutiny that did exist; and (c) the limited nature of Legislative Consent Motions (LCMs) as a mode of holding the central government to account. While at first glance the CVA appears to confirm the view that in emergencies law empowers the executive and reduces its accountability, rendering legal constraints near‐futile, our analysis suggests that this ought to be understood as a product, to a significant extent, of constitutional actors' mindset vis‐à‐vis accountability. [ABSTRACT FROM AUTHOR]

This paper analyses competing approaches to proof of foreign nationality in the British courts, in the context of challenges to deprivation of citizenship. I argue that prevalent British approaches to proof, as on display in the Pham litigation and subsequent cases, are in unproductive tension with a fundamental principle of nationality law, namely that it is for each state to determine under its law who are its nationals. Prevalent British approaches elide this principle, effectively wresting interpretive authority over foreign nationality law away from the relevant foreign state. I argue for approaches focused on direct ascertainment of foreign nationality, as opposed to its reconstruction according to British standards. [ABSTRACT FROM AUTHOR]

The Governance of Britain Green Paper continues the programme of constitutional reform begun in 1997, and appears to reinforce the juridification of the UK's constitution. Nevertheless, several key reforms will be implemented not by legislation, but by creating new conventions. This article argues that such ‘declared’ conventions are best understood as a form of constitutional ‘soft law’, which attempt to influence constitutional behaviour rather than generating binding norms. Applying a regulatory analysis, it then argues that the case for a soft, rather than hard law approach to constitutional reform is weaker than its widespread use in the UK suggests. Finally, the article challenges the thesis that the political constitution is being replaced by a legal constitution, arguing that the government's attitude to constitutional reform still exhibits basic characteristics of political constitutionalism. Moreover, there is more to contemporary constitutional developments than a bipolar contest between political and legal constitutionalism. [ABSTRACT FROM AUTHOR]

Examines key provisions and coverage of the housing policy in Great Britain. Proposals for the reform of the housing policy; General social policy concerns in housing; Emphasis on the positioning of the state in housing provision, central-local relations, rules and discretion, rights and responsibilities and the use of strategies of control and persuasion.

Every year the UK government spends billions of pounds purchasing goods, works and services that are vital to growth, development, health and social welfare. Performed well, public procurement helps a government to nurture competition, save money, and provide better public services. These benefits will not be reaped, however, if the system is not protected adequately from distortion by corruption and/or supplier collusion. This paper concludes that additional measures are required to protect the integrity of procurement processes in England & Wales through improving the distinct public procurement, anti‐corruption and competition regimes and uniting them around a cohesive strategy. It advocates policy coordination and enhancements designed to yield major benefits to public procurement as the UK seeks to develop its own policies post‐Brexit and to grapple with the demands that the Covid‐19 pandemic has placed on public purchasing and the public purse. [ABSTRACT FROM AUTHOR]

This paper argues that reform of the wrongful trading remedy in section 214 of the Insolvency Act 1986 is unlikely to yield significant increases in civil recovery for creditors of insolvent companies. The paper argues that the widely held view that procedural restrictions in the provision have unduly limited the application of the remedy are without foundation and, likewise, that there is little evidence that current modest levels of litigation under the provision demonstrate underperformance in the sanction relative to the scale of the misconduct against which it is directed. The paper draws on a wide range of analytical and empirical evidence to argue that the scope for application of the sanction is inherently limited by factors independent of the particular rules within the statutory remedy. [ABSTRACT FROM AUTHOR]

Discusses the British government's plans on legal aid and conditional fees. Proposals for the reform of legal aid by Lord Mackay; Lord Irvine's publication of a Consultation Paper, titled 'Access to Justice with Conditional Fees'; Criticism against Lord Irvine's legal aid plans.

Over the last 11 years, the Law Commission and the Scottish Law Commission have worked on a joint project to modernise the law of insurance contracts. Due to the size of the project, the Law Commissions proceeded in phases and separated out specific issues for legislative reform. Their proposals have already resulted in the Consumer Insurance (Disclosure and Representations) Act 2012 and the Insurance Act 2015 which brought about significant changes for consumer and non-consumer insureds and insurers alike. This paper examines two further areas of reform: the introduction of an implied term about payment of insurance claims by insurers within a reasonable time and a statutory restatement of the doctrine of insurable interest. It considers the old and new substantive law and provides an insight into the reform process. [ABSTRACT FROM AUTHOR]

The authors examine the future of public service broadcasting in the context of current debates about, and commercial pressures on, the BBC. They describe the European Community constraints on public service broadcasting and the need for a clearer definition of such broadcasting, noting that such a definition is not currently provided in UK law. The BBC is also under increasing pressure from fair trading rules derived from competition law, some of which may weaken its ability to deliver its public service mission. Original research undertaken within the BBC suggests that external and internal pressures have undermined the conditions for a distinctive public service output, although there remains the basis for such an output within the culture of programme-making. The authors develop theoretical bases for a redefinition of public service broadcasting centred on the principles of citizenship, universality and quality in relation to services and output, and examine the implications for the structure of channels in the digital era. Finally, the authors discuss the legal and regulatory implications of their analysis in the context of the Government’s Communications White Paper, arguing that the social and cultural purposes of public service broadcasting must not be made subordinate to competition-based concerns. [ABSTRACT FROM AUTHOR]

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a 'brooding omnipresence in the sky'. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the 'necessity' and 'sham' tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts' protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK. [ABSTRACT FROM AUTHOR]

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory's normative and practical commitment to limiting punishment. Theories of punishment combining desert-based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state's power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning-making, and institution-building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions. [ABSTRACT FROM AUTHOR]

The attempt to combine the contractual interests properly so-called with the restitution interest in the Fuller and Purdue three interests model of remedies for breach of contract is ineradicably incoherent. Stimulated by reflection on contemporary restitution doctrine's understanding of the quasi-contractual remedies of recovery and quantum meruit, this paper argues that the complete elimination from the law of contract of the restitution interest, which incorporates those remedies into the three interests model, would improve both the coherence of the model of contractual interests and the substantive law of remedies for breach. [ABSTRACT FROM AUTHOR]

In April 2013, the Defamation Act was passed, the culmination of a four-year political campaign. The legislation is intended to ameliorate the 'chilling effect' of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over-complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings. [ABSTRACT FROM AUTHOR]

This paper analyses the regulation of company political donations in the UK. It argues that UK policy makers have failed to understand the nature of company donors and, consequently, that the UK Companies Act 2006 requirement for shareholder consent for company donations is not an effective solution to concerns about company donors. To this end, the paper presents a comprehensive empirical analysis of company donations to show that the vast majority of donor companies are closely held or owner-managed entities where shareholder consent rules are ineffective. The paper highlights particular concerns that arise with donation by such companies and argues for a more accurate understanding of company donations in order to formulate effective policy responses to concerns about the role of company donors. [ABSTRACT FROM AUTHOR]

The United Nations Convention on the Rights of Persons with Disabilities ( CRPD) took effect in 2008. This paper discusses a number of flashpoints where the CRPD will require real and significant reconsideration of English mental health and mental capacity law. The CRPD introduces a new paradigm into international disability law, relying on the social model of disability. While that is no doubt a good thing, there is as yet no clear sense as to how that is to be implemented. After providing an introduction to the Convention, the paper considers four specific areas: mental capacity law (focussing on the provisions of the Mental Capacity Act 2005), psychiatric treatment without consent, civil detention of people with mental disabilities, and mental disability in the criminal system (fitness to plead, insanity and diminished responsibility). [ABSTRACT FROM AUTHOR]

This note considers the impact of the Supreme Court's decisions in Al Rawi v. The Security Service and Home Office v. Tariq on the use of closed material procedures and special advocates. The government's subsequent Justice and Security Green Paper is also discussed. [ABSTRACT FROM AUTHOR]

The growth of statutory consumer protection regimes in modern commercial societies has the potential profoundly to disrupt the private law landscape. Such schemes aim to increase access to justice for consumers by offering simplified and clear suites of rights and corresponding remedies. In so doing, however, they affect core areas of private law rights and remedies, and may come to undermine or replace existing contractual principles and policies. The result could be an incoherent system of private law with different principles and rules applying to commercial and consumer transactions. Coherence in the law requires that lawyers abandon their traditional 'oil and water' attitudes to legislative schemes and confront directly the interactions between these two bodies of law. This paper engages in that enquiry by considering the relationship between the relatively new consumer redress provisions in the Consumer Protection from Unfair Trading Regulations 2008 and general law principles. [ABSTRACT FROM AUTHOR]

Many concerned about UK corporate governance have urged those who own equity in listed companies to forsake a traditional bias in favour of passivity and act as responsible, engaged 'owners'. The recent financial crisis has given added impetus to such calls, with the notion of 'stewardship' taking centre stage and resulting in July 2010 with the launch of a Stewardship Code targeting UK-based institutional investors. This paper summarises the Stewardship Code initiative and argues that, primarily due to sustained fragmentation of share ownership occurring over the past 20 years, the Code is unlikely to foster substantially greater shareholder involvement in UK corporate governance. [ABSTRACT FROM AUTHOR]

Section 199 of the Equality Act 2010 seeks to abolish the equitable presumption of advancement. The existence of that presumption, which discriminates according to gender because it applies in relation to husbands and fathers but not wives and mothers, is thought to prevent the United Kingdom from acceding to Protocol 7 to the European Convention on Human Rights. This paper argues that the presumption of advancement would not breach the protocol. It further argues that, even on the assumption that abolition was necessary before accession could occur, the legislation will not have the intended effect. The paper concludes that section 199 should be brought into force only in part. [ABSTRACT FROM AUTHOR]

This paper extends recent discussions about copyright and the public domain by looking at attempts in post-war Britain to promote access to scientific information. More specifically, it concentrates on the Royal Society's Fair Copy Declaration (1950) and the related library copying provisions introduced in the Copyright Act 1956, which were designed to protect access to information. While the UK library copying provisions were presented as an expanded version of the Fair Copy Declaration recast in a statutory format, we show that the library copying provisions reflected a specific way of thinking about creation, production and distribution that differed markedly from those that underpinned the Fair Copy Declaration. We also argue that the logic of creation reflected in the library copying provisions shaped copyright law over the course of the twentieth century and beyond. [ABSTRACT FROM AUTHOR]

While generally the impact tax has on patterns of corporate ownership and control has received little attention in the relevant academic literature, this paper argues that tax is potentially an important determinant of ownership patterns in large companies. The paper focuses on historical developments in Britain, where an ‘outsider/arm's-length’ system of corporate governance took shape during the twentieth century and became fully entrenched by the end of the 1970s. Taxes imposed on corporate profits, taxation of managerial and investment income and inheritance taxes help to explain why during this period blockholders sought to exit and why there was sufficient demand for shares among investors to permit ownership to separate from control. [ABSTRACT FROM AUTHOR]

Focuses on the Unfair Contract Terms Act 1977 (UCTA) and the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999, two legislations associated with unfair terms in Great Britain. Outline of the UCTA; Framework of the UTCCR; Implementation of the directives on providing a legislative regime.

There is broad agreement across the western industrialised world that men who father children outside of marriage share in an obligation to support their offspring financially. Against this consensus, some men's groups have claimed that if women are accorded control over the decision to continue or to terminate a pregnancy then it is unfair to hold genetic fathers financially liable for child support. This paper assesses the merits of this claim from a feminist perspective. Having considered a number of arguments, it suggests that the currently accepted grounding of child support liability (in voluntary creation of need) provides little scope for refuting the men's groups' argument. The paper then moves on to argue that voluntary creation of need is, however, inadequate as a basis for child support liability, and that the current analysis offers compelling grounds for preferring a collective model of support obligations. [ABSTRACT FROM AUTHOR]

This paper considers the legality of the broadcasting prohibition on ‘advocacy advertising’– the use of advertising space to communicate social, political and moral arguments to a wider public – in the light of the growing jurisprudence on the freedom of political expression. The prohibition is currently found in the Broadcasting Act 1990, and the Government has proposed its reiteration in the forthcoming Communications Bill to fall within the regulatory ambit of OFCOM. The paper begins by introducing and illustrating advocacy advertising and the restrictions upon it. It proceeds to review the relevant jurisprudence on political expression, to analyse the familiar arguments in favour of retention of the prohibition, and to weigh the counter-arguments. The paper concludes that the purported justifications sit ill against existing legal rulings, and evidence a poor understanding of the critical sophistication of the public as a broadcasting audience. It suggests that a continuation of the prohibition would be unlawful. [ABSTRACT FROM AUTHOR]

This paper argues that military law has undergone a long-term process of change. Previously an autonomous legal system with little civilian input at the administrative, judicial and policy-making levels, military law became subject to a consensual policy of civilianisation from the early 1960s, reflected primarily in the adoption of civilian criminal law norms by the military justice system. More recently there has emerged the juridification of significant areas of military relations in respect to discipline and certain other terms of service which hitherto have not been subject to externally imposed legal regulation. Explanations for the shifts from autonomy, through civilianisation, and then to juridification, ranging from political and social developments to new human rights and equal opportunities discourses, are offered for such changes. [ABSTRACT FROM AUTHOR]

Lying behind the recent Counter-Terrorism and Security Act 2015 is the phenomenon of foreign terrorist fighters which has sparked international and national attention. The 2015 Act deals with many facets of counter terrorism legislation, but its two principal measures are singled out for analysis and critique in this paper. Thus, Part I of the Act seeks to interdict foreign terrorist fighters by preventing suspects from travelling and dealing decisively with those already in the UK who pose a risk. Part V of the Act implements the second, broader aspect, of legislative policy, reflecting the UN emphasis on 'Countering Violent Extremism', through the statutory elaboration and enforcement of the 'Prevent' element of the long-established Countering International Terrorism strategy, which aims to stop people becoming terrorists or supporting violent extremism. These measures are explained in their policy contexts and set against criteria of effectiveness, personal freedom, and accountability. [ABSTRACT FROM AUTHOR]

Discusses the Consultation Paper 'Access to Justice-Multi-Party Situations: Proposed New Procedures' on multi-party procedures to alleviate concerns about access to justice in Great Britain. Possibility of developing a procedure which will serve two primary purposes; Analyses of the judicial interpretation of the representative proceedings rule.

The protection of national security has traditionally been an exception to general norms of public accountability, based on prerogative powers. The last three decades have seen efforts to bring national security closer to the normal constitutional control mechanisms of parliament and the courts. The design of and changes to mechanisms of accountability have, however, been accepted without discussion of the often narrower purposes for which they were first established (most notably for oversight of surveillance), the extent of their departure from constitutional principles, or their impact in embedding new forms of exceptionalism in the constitutional framework. This article critically assesses these developments, prompted for example by the Law Commission's recommendations to reform official secrets laws, which adopted trusted intermediary and indirect accountability models without full consideration of historical and contemporary concerns or the exceptionalism on which they were based. Though focused on the UK, our account provides a cautionary tale for national security law reform in any modern democracy. [ABSTRACT FROM AUTHOR]

This paper analyses the poor alignment of the aging statutory framework and modern understandings of medical best practice in the context of abortion services. With a particular focus on medical abortion, it assesses the significant challenges that the gulf between the two poses for clinicians, service providers, regulators and the courts. Law is said to be at its most effective where there is a shared regulatory community that accepts and endorses the values that underpin it. It is suggested that the example of abortion law provides a marked example of what happens when legal norms once justified by broadly shared moral understandings, concerns for patient safety and requirements of best practice are now either unsupported by or, indeed, sit in opposition to such concerns. [ABSTRACT FROM AUTHOR]

This article addresses 'statutory wills' executed under the Mental Capacity Act 2005 ( MCA) for persons with impaired mental capacity. The article provides an overview of the historical development of statutory wills, before exploring their rising contemporary significance. It considers the shift from the previous 'hypothetical substituted judgment' test to the contemporary 'best interests' orientation of the MCA. The article assesses the problems that the best interests approach raises in this area, and its (in)compatibility with the right to equal recognition before the law under the UN Convention on the Rights of Persons with Disabilities, arguing that the pervasive reach of best interests in contemporary mental capacity law requires reconsideration. The paper concludes by suggesting that a more limited framing of the power to execute statutory wills is required in order to appropriately balance the rights of individuals with disabilities with practical considerations around the distribution of assets on death. [ABSTRACT FROM AUTHOR]

The general neglect of tort defences is most significant in defamation actions. This paper attempts to reduce to a few guiding principles the numerous, and apparently unrelated, doctrines recognised as defences by the law of defamation. Defining the cause of action as an injury to the claimant's reputation, it argues that they fall into three classes: (i) defences which exclude unlawfulness because the injury was inflicted in pursuance of a right or liberty of the defendant; (ii) defences which exclude blameworthiness because the defendant was not at fault for causing the injury; (iii) defences which relieve the defendant of liability despite the injury being both non iure and negligent: this group, not being underpinned by recognised principles, deserves particular scrutiny. The rule of repetition should be qualified by recognition of a defence of 'warranted republication'; the remainder should be abolished, being an anachronistic hangover from the old requirement of malice. [ABSTRACT FROM AUTHOR]

Section 13(5) of the Human Fertilisation and Embryology Act 1990 requires fertility clinics, before offering regulated treatment services, to take account of the welfare of any child who may be born as a result of the treatment and any other child affected by that birth. This paper presents the findings of an empirical study examining the impact on practice of the controversial reform of this section in 2008. While the broad values underpinning section 13(5) appear well embedded in clinic staff's engagement with ethical issues, there is little evidence that practice has been influenced by the 2008 amendments. A complex picture emerged regarding the implementation of section 13(5), particularly in its interaction with other factors, such as funding criteria and professional norms around counselling, implying a higher level of ongoing attention to likely parenting ability - particularly that of single women - than might be expected from a reading of the statute and guidance alone. [ABSTRACT FROM AUTHOR]

English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations. This paper argues that such criticism is misplaced. Based on empirical evidence, the article shows that those choice of law decisions are directly influenced by their procedural context and respond to the need to balance the multiple policy issues generated by international commercial litigation. In particular, English decisions need to be assessed in light of three distinct factors: the standard of proof required at different stages of the procedure in England, the national policy to promote England as a center for commercial dispute resolution and the incentives to export English law in certain strategic industries. The use of implied choice and the escape clause to achieve these ends constitutes a legitimate practice that does not frustrate the aims of the EU choice of law regime. [ABSTRACT FROM AUTHOR]

The Government has recently abolished Imprisonment for Public Protection, a highly controversial form of indeterminate sentence. Yet, at the time of writing, nearly 6,000 inmates are still serving such sentences, all of whom will have to convince a Parole Board that detention is no longer necessary for the protection of the public. This paper evaluates recent European Court of Human Rights jurisprudence which considered the legality of post-tariff detention in the absence of suitable rehabilitative provision. The Court held that there would be a violation of Article 5(1) if prisoners were held without access to such provision. Consideration is given to the implications of this ruling for those serving such sentences and, more broadly, to the impact it may have on risk-based sentencing policies. [ABSTRACT FROM AUTHOR]

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights-based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights-holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of 'foundational' rights. It is argued that an essential component of a rights-based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights-based system of resettlement provision. [ABSTRACT FROM AUTHOR]

The Consumer Insurance (Disclosure and Representations) Act 2012, which abolishes the consumer assured's duty to volunteer information, heralds the first successful outcome of the English and Scottish Law Commissions current insurance contract law reform project. This paper outlines the defects of the common law duty of disclosure which the Law Commissions sought to address. It goes on to consider why previous legislative attempts failed, the self-regulatory measures introduced by the insurance industry as a means of resisting earlier pressure for statutory intervention, and how that resistance broke down. Finally, it examines the scope of the 2012 reforms and the current consultation being undertaken in respect of the duty of disclosure in relation to business insurance. It concludes by assessing the significance of the statute in providing a necessary impetus for future insurance law reforms. [ABSTRACT FROM AUTHOR]

This article considers whether the rationale for legal advice privilege applies to corporations. It examines the rationale for legal advice privilege in the aftermath of the disagreement between the Court of Appeal and the House of Lords in the Three Rivers litigation, and argues that the rule of law rationale for advice privilege endorsed by the House of Lords is based largely on the needs and behavior of individuals. The paper examines the case for recognising advice privilege for corporations. Recent developments in corporate law and governance, especially in relation to directors' duties, have arguably reduced the need for a corporate privilege. Public and large private companies in particular already have sufficient incentives to obtain accurate legal advice about their affairs even without a privilege. There are also sound policy reasons for restricting the right of corporations to claim legal advice privilege given its costs to the administration of justice. [ABSTRACT FROM AUTHOR]

This examination of the implementation of the European Union's Directive on Unfair Commercial Practices in the United Kingdom by the Consumer Protection from Unfair Trading Regulations 2008 assesses the likely impact on the national law governing the marketing practices of rogue traders, including its ambition to simplify and extend legal protection, and the likely success of the Directive in achieving the harmonisation of the laws and practices regulating marketing in Europe. In particular, the discussion evaluates the regulatory strategy of the Directive in its attempt to secure uniform laws through the combination of principles, rules, and concrete examples of prohibited practices. The paper also investigates the likely impact of the Regulations on the private law of contract and tort and the possibilities for improvements in a consumer's personal right of redress. [ABSTRACT FROM AUTHOR]

The Law Commission has concluded in a recent consultation paper (‘Administrative Redress’) that claimants are able to sue public bodies successfully in negligence in an unacceptably wide range of circumstances. For this reason, it has proposed the introduction of a new touchstone of liability: ‘serious fault’. The Law Commission regards the liability regime it proposes as superior to the existing law since it would reduce the number of occasions on which claimants deflect public bodies from their core concerns (delivering goods and services that serve the public interest). The Law Commission also finds support for its proposal in a ‘principle of modified corrective justice’. On the analysis offered in this essay, the requirement of ‘serious fault’ is better understood as strengthening a commitment to ruthlessness (in the sense specified by Thomas Nagel) that is present in the existing law. This essay also argues for a reform of negligence law (as it applies to public bodies) that is very different from that proposed by the Law Commission. This is the application of the proportionality principle at the third stage of the duty of care test in Caparo Industries plc v Dickman. More generally, this essay criticises the Law Commission on the ground that it assumes that public bodies have sufficient information to perform a wide range of tasks effectively. This is often not the case. Moreover, negligence law in its existing form is a (non-market) discovery-procedure by means of which public bodies can, when defending novel claims, become better acquainted with the environment in which they operate. [ABSTRACT FROM AUTHOR]

This paper describes Otto Kahn-Freund's advocacy of the British ‘collective laissez-faire’ system of regulation of industrial relations, in which regulation proceeded autonomously of the state. It suggests that a weakness of collective laissez-faire as a normative principle was its failure to make adequate provision for the furtherance of the public interest. It links this failure to a more general reluctance, on the part of Kahn-Freund, to conceive of the state as representative of the public interest. And it seeks to explain this reluctance with reference to Kahn-Freund's experiences of living and working as a labour court judge in the Weimar Republic, and of moving to the UK as a refugee from Nazism. [ABSTRACT FROM AUTHOR]

After years of problems with the Child Support Scheme in Britain, the Government has decided to attempt reform again, less than four years after a previous major change was implemented in 2003. The author evaluates these reform proposals, drawing upon his experience in leading a recent major review of child support policy in Australia. While many of the reform measures offer a sensible way forward for child support policy, Britain risks going backwards in terms of community acceptance of the child support obligation. The Government needs to consider the likely impact of its policy settings on private agreements about child support. Ways are proposed both to protect the Treasury and to promote the wellbeing of children by adopting different policy settings that ensure the resident parent has an incentive to bargain for the level of child support required by the new formula. The new formula itself is evaluated in the light of the international research on the costs of children. Ways are also suggested for developing a co-ordinated approach across government to the provision of support services for parents who do not live together. [ABSTRACT FROM AUTHOR]

The use of cultural defence has been much discussed in the American context and has figured as one of the areas of concern in feminist assessments of multiculturalism. This paper examines two categories of cases from the English courts, those where cultural context has been seen as significant in interpreting the actions of female defendants, and those where ‘culture’ is invoked to explain severe acts of violence against women. It argues that cultural arguments become available to female defendants mainly when they conform to stereotypical images of the subservient non-Western wife. They have not, on the whole, been successfully employed by male defendants to mitigate crimes against women, though there are troubling exceptions. The larger problem is that mainstream culture itself promotes a gendered understanding of agency and responsibility, as when it perceives men as understandably incensed by the sexual behaviour of their women, or women as less responsible for their actions because of the influence of men. The conclusion is that the uses and abuses of cultural defence highlight issues that have wider provenance, for it is when cultural arguments resonate with mainstream conventions that they have proved most effective. [ABSTRACT FROM AUTHOR]

What is it to be a legal person? A review of the jurisprudence of persons reveals considerable confusion about this central legal question, as well as deep intellectual divisions. To certain jurists, law's person should and does approximate a metaphysical person. Depending on the metaphysics of the jurist, the legal person is thus variously defined by his uniquely human nature, by his possession of a soul, or by his capacity for reason, and therefore his moral and legal responsibility. To other jurists, law's person is not a metaphysical person but rather a pure legal abstraction; he is no more than a formal, abstract, but nonetheless highly convenient device of law. This paper endeavours to bring some order and clarity to these scholarly debates about the nature of legal personality. It also considers their implications for feminist legal theorists, with their enduring interest in the character of law's subject. [ABSTRACT FROM AUTHOR]

The nature and scope of relief for directors in breach of their duties did not figure prominently in the Steering Group's fundamental review of company law. Little is proposed beyond removing one of the two pre-conditions for relief laid down in section 727 of the Companies Act 1985; the requirement of reasonableness. This article seeks to subject the relieving discretion to a more radical re-appraisal. Drawing upon the views expressed by its architects together with the current judicial approach adopted towards the provision, it is argued that its underlying rationale would be better met if the test for relief was based solely upon the court's determination of fairness. It will be demonstrated that such a model would better serve to bolster the fundamental tenets of transparency, simplicity and accessibility that underpin the approach of the Government's White Paper towards company law reform while also reinforcing the continuing value of relief. [ABSTRACT FROM AUTHOR]

In R (Coughlan) v Minister for the Cabinet Office, the UK Supreme Court held that the Minister for the Cabinet Office acted lawfully when making orders which introduced, as a pilot scheme, a requirement for voter identification in local government elections in certain local authority areas. The case turned on the interpretation of section 10 of the Representation of the People Act 2000, pursuant to which the orders were made. This note argues that the Court erred when it concluded that the intended scope of the power created by section 10 was clear without first analysing the prior question of whether that power had to be interpreted restrictively. The Court's reasoning appears to misunderstand the operation of the presumptions in favour of a restrictive interpretation of interferences with fundamental rights and of 'Henry VIII powers'. This note submits that, ultimately, the Court's approach threatens to erode the principle of legality. [ABSTRACT FROM AUTHOR]