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This article looks at the origins, purposes and conflicts of national interests and policies that were the primary influences in shaping the substance of the Arms Trade Treaty, which came into force at the end of 2014. It then proceeds to a more legally focussed analysis and, having identified several important issues which have had to remain undiscussed, concentrates on detailed examination and evaluation of the most important provisions of substance. These are firstly the scope of the Treaty—defining the equipment or materiel covered (Article 2). There follows analysis of the provisions which contain the obligations on exporting States, ranging from absolute prohibitions (Article 6) to ‘export assessments’ (Article 7), which in practice will be the most frequently applicable. The paper concludes by identifying several valuable provisions in the Treaty whilst also highlighting several significant weaknesses and omissions. It contends that evaluation of the Treaty's likely contribution to controlling the recognized evils of the arms trade is premature at this stage and, further, that efforts towards that end must focus on the practice and law of domestic administrative implementation, rather than international law.

'This volume was inspired by the increasing dominance of human rights in world legal and political systems'. So runs the opening sentence of the Introduction to Protecting Human Rights, a multi-national, multi-disciplinary collection of essays.' This dubious premise-it is doubtful whether the reality of human rights has been anywhere near as dominant as its rhetoric, even before the beginning of the so-called 'war on terror'-remains unchallenged throughout. Instead, Adrienne Stone's Introduction proceeds to identify the focus of the collection as 'two enduring problems for human rights theory and practice'.2 The first is the content and form of human rights; the second is how they may most effectively be implemented. The essays which follow are generally thoughtful and some are of very high quality, but they do not entirely cover the promised ground. They share the characteristic common to much writing on human rights, which suffers from an excess of philosophising and a dearth of empirically-grounded analysis. It is not that the latter is absent here, just that there is a serious imbalance. Put another way, there is a shortage of discussion about 'institutions', as opposed to concepts and theories. (There is also relatively little attention directed to 'instruments' in the sense of detailed textual analysis of specific constitutions or treaties). Nonetheless, the book grapples with large themes and merits engagement both on its own terms and as a pointer to where thinking about rights might go next. The essays which form its core address the fundamental tension between democracy in the sense of simple majority rule, and any serious attempt to protect human rights through some form of legal provision or instrument. The problem not only arises, but becomes inescapable, when the instrument for the protection of human rights takes a form which, under the constituent rules of the legal system, places those rights beyond the immediate reach of majority decision. The admirably eclectic group of contributors can draw upon their experience of four leading Anglophone jurisdictions-Australia, Canada, the UK, and the USA--each of which attempts to resolve the tension very differently. (Of the

The 'war on terrorism' engages all the institutions of the state. A constitutional structure devoted to protection of liberty must place a paramount value on separation of powers, and a parliamentary democratic constitution should ensure that the ultimate locus of responsibility rests in the legislature, the only branch which has a direct connection to the citizens. However, in an ironic reversal of practice that prevailed before the coming of mass democracy, Parliament in the UK since the early twentieth century has largely accepted a supine role compared to the executive in matters of 'national security'. The judiciary, despite the enactment of legally enforceable human rights, has also manifestly failed to exercise its proper function of curbing abuses of state power. The result is an over-mighty executive, able to draw upon the deference of other branches of government in prosecuting the 'war on terrorism' on the battlefield and in the statute book, which has trampled on individual rights with virtually no check or counte-balance. Some principles by which the balance might be restored are suggested.

Book reviewed in this article: Michael Stolleis, The Law Under the Swastika: Studies on Legal History inNazi Germany

Dicey is not fashionable these days, and for understandable reasons. The cocktail of utilitarianism and positivism, the amalgam of Bentham and Austin, that he produced led inexorably to the proclamation of unlimited parliamentary supremacy. This is widely, though with much exaggeration, conceived to be the major prop of authoritarian government. It is also, more correctly, seen as hostile to the idea of human rights possessed by persons against governments. In one sense, the decision to incorporate the European Convention on Human Rights into UK domestic law is an authoritative repudiation of the Diceyian heritage.

The Scott Report' covered an extensive range of matters, notably claims by ministers of Public Interest Immunity as the reason for withholding evidence from the defence in criminal cases, the structure and use of legal powers to control the export of military and dual-use equipment, the use of foreign intelligence by government departments, and ministerial accountability to Parliament. In addition, it gives us a picture, unrivalled in detail, of how policymaking and administration are carried out within the government of this country. But what in the long run may come to be seen as the most important contribution of the Report, over and above any of its particular recommendations,2 is that it has altered the terms of public debate. It has provided a baseline for popular judgement, a platform for critique, and by implication at least, an outline of standards for how the political and administrative elite which governs the nation ought to behave. In this sense the Scott Report and the Nolan Report,3 however different their specific subject matter and the circumstances which gave rise to them, are very much in tandem. It is the spirit, perhaps even more than the letter of the Report, which is its enduring contribution.

What makes a good political scandal? Sex, financial corruption or personal hypocrisy certainly help. Nevertheless, some post-war causes cedlbres, Crichel Down or Westland for example, have secured a lasting place in constitutional history, despite the mind-numbing tedium of the events in issue. Perhaps the prime ingredient is the most intangible: a sense of contemporaneity. A scandal becomes a vehicle for grumbling disorders about the political system and, ideally, the scandal and its aftermath lances the boil and the body politic moves forward in good health. The Arms for Iraq scandal had all the signs of a tale of secrecy and political deception fit for the period of insensitive, arrogant and dogma-ridden politics in which it was conceived and born. This note discusses in turn the Scott Inquiry's processes, its findings and its prescriptions on, first, parliamentary accountability and second, public interest immunity. Our conclusion is that, despite the most penetrating forensic examination in British constitutional history, the Scott Report' has failed to correctly diagnose the disease or to apply the necessary cure.

Laurence Lustgarten reviews the recent multi-volume study of the Metropolitan Police and an earlier study taking a broader view of the police, their powers under law and the politics of police governance.

regulated: employment, housing, personal and public services and the like. These may be called matters of scope. The second essential decision is one of application: to whom should the legislation speak ? Non-discrimination provisions in a Bill of Rights -whether one that overrides conflicting legislation, as in the United States, or one that is merely of equal authority, as in Canada--cover only the actions of the State or public bodies 1; the European Convention on Human Rights is subject to the same restriction. In most federal systems, constitutional principles restrict the application of national legislation,2 but the intended structure of Scottish and Welsh devolution does not diminish the authority of United Kingdom anti-discrimination laws in those regions.3 Though the present law, the Race Relations Act 1976, contains some exclusions of scope (fewer however than did its

In Chapter 1 we examined the philosophical premises underlying the concept of indirect discrimination, as well as the history of its incorporation into British legislation, but postponed consideration of its precise legal expression and likely practical effects. That is the task of the present chapter, which examines seriatim each legal element in the statutory definition (s. 1 (1)(b); see Statutory Appendix for full text).

The broadened definition of the evil, and the enlarged scope and application of the present Act, do not of themselves ensure its increased effectiveness in combating discrimination. This will depend above all else on whether the legal principles and procedures developed to govern proof of discrimination are not unduly restrictive. This chapter will explore the practical difficulties, perhaps seemingly humdrum but ultimately crucial to the effective enforcement of the law, that seem likely to arise in litigation. It will first look at problems specific to direct discrimination, then at those of indirect discrimination, and finally at matters common to both. Whilst they will be discussed in the context of the adjudication of individual complaints, most are equally relevant to formal investigations undertaken by the CRE. A final section will analyse the remarkably contentious question whether an employer is entitled to withhold information in his possession from a complainant on grounds of confidentiality.

Those designing anti-discrimination legislation must at the outset make three fundamental choices. One concerns the areas of behaviour to be regulated: employment, housing, personal and public services and so forth. These may be called matters of scope.

The 1968 Act made racial discrimination in employment unlawful for the first time in English history. Although, or perhaps because, this is the area of paramount importance in ensuring a decent life for minorities, it has also been the one least amenable to improvement. PEP estimated that in the early 1970s, discrimination was occurring on a massive scale, including ‘tens of thousands’ of acts of direct discrimination in recruitment alone each year.1 It further estimated that a black white-collar worker had a one in three chance of suffering discrimination when applying for a job, and that for an unskilled worker the odds rose to evens.2 These figures omit discrimination in relation to promotion, progression and dismissal; they do not begin to take account of the incidence of indirect discrimination, which was not unlawful at the time the PEP survey was undertaken. Yet the same research showed substantially greater improvement in the area of housing, and in the view of the Race Relations Board, the 1968 Act led to the virtual disappearance of discriminatory advertisements, as well as to the removal of discriminatory conditions in insurance and other financial arrangements.3 Although PEP did conclude that employment discrimination had lessened as well, its greater persistence makes it the testing case for the effectiveness of legislation.

Few enactments cover a particular field comprehensively. In response to the pressure of interest groups, belief that legal intervention is impractical or inappropriate in certain circumstances, a decision that certain manifestations of the problem addressed are of little importance, or sometimes simply due to draftsman’s error, certain categories of people or activity are generally exempted. Yet however reasonable the case for a particular exception may seem, the cumulative effect of reasonable arguments may be that the net becomes a sieve. One respect in which the present Act is a marked improvement on its predecessor is that its employment provisions are subject to many fewer restrictions of scope and application. None the less some exceptions, considered in this chapter, remain.

Thus far we have looked at the problems of employment discrimination either in terms of national patterns or in relation to the practices of private employers. The public sector, in which hiring policies are much more standardised and centralised, and which may be more directly guided by government policy, requires separate treatment. In this chapter we first look at employment in the Civil Service and the nationalised industries. Next considered is the potential use of the power of central government in the market-place — as a consumer of goods produced in the private sector — as a means of securing that its contractors do not discriminate, or indeed make active efforts to ensure equal opportunity. The last area examined is employment by the police, in which decisions are largely made independently by each Force, though in some respects uniform national standards must be applied.

This chapter will examine the meaning of discrimination in convergent but analytically distinct ways. We look first at its evolution in British legislation, considering simultaneously how these statutory changes embodied an altered view of the problem of racial inequality, and then analyse diverse concepts of discrimination at a more abstract level. Ultimately our concern is with the way in which discrimination may be applied as a legal concept. Any such definition, however, is at bottom the expression in a peculiar specialised vocabulary of what may, rather loosely, be termed a social-philosophical concept; and it is only when work at this level is complete that the translation into law may begin. Hence both levels of analysis are undertaken.

Employment discrimination is governed mainly by s. 4, reproduced in the Appendix. It will be seen that s. 4 (1) concerns applicants or inquirers, whilst s. 4 (2) relates to employees. The discussion of employment discrimination in this chapter will follow this sequence. However, three technical points, applicable equally to both subsections, may be examined first.

One of the significant innovations of the 1976 Act is that an individual who feels he has suffered discrimination may bring an action on his own behalf. On the face of it this hardly seems remarkable; where a statute creates new rights for the benefit of a category of individuals it usually enables the protected group to enforce those rights in some judicial forum. Yet this was not the position under the previous legislation, and in order to understand the present provisions fully a brief review of the structure of enforcement under the 1968 Act is necessary.

Confining discussion of discrimination in the area of employment to actions by managers and their subordinates would present a seriously incomplete picture. With a growing majority of the workforce composed of trade union members, the performance of unions is critical. Perhaps the most unique feature of British trade unionism is the role of shop stewards, with their double-sided relationship to the autonomous work group which elects them and the organisation of which they are the purported delegates. Their equally unique and highly controversial position under the Act must also be examined in detail.

The rule of law is considered by common consent to be a 'good thing'. It is one of those essentially contested concepts every theorist, advocate, and political protagonist wants to claim for her or his own. This is not surprising, for in common political debate 'rule of law' is a shorthand expression of important values concerning protection from tyranny and what is less often emphasised equality.1 This equality has two dimensions of state and citizen, and of personswith no special treatment accorded higher classes or status groups as was the case in feudal society. The English law of persons which, as Maitland put it, at one time comprised "nobles, clerics, monks, serfs, slaves, excommunicates and outlaws"2 (not to mention children and women), came to know virtually only the abstract individual as bearer of universal legal rights and duties. This transformation was part of a broader social and ideological movement, for the rule of law is the fundamental legal component of the political philosophy of liberalism; and as with all liberal concepts, at one time it had a sharp progressive cutting edge. The difficulty is that formal equal treatment of those who are substantively unequal perpetuates, and may indeed compound, substantive inequality. This understanding might have been reached by classical philosophy; if justice consists in treating equals equally and unequals unequally, as Aristotle said in the Politics, then surely it is a logically inevitable conclusion that it is unjust to treat unequals equally. But this leap requires a prior determination: that inequalities of wealth, opportunities, and educational and occupational skills are contingent and are matters of societal concern. For much of human history those inequalities were regarded as inevitable, and indeed by some people as reflecting inherent and ineradicable personal differences. Attempts to interfere with them were seen charitably as fatuous or at worst as contrary to divine or natural law. It is one of the central moral insights of socialism, which has reoriented even the politics of its opponents, that such inequalities