The difference of judicial opinion in the Supreme Court in Evans provokes reflection on fundamental constitutional principles, such as parliamentary sovereignty and the rule of law. A statute that on its face seems to permit a government minister to override a judicial decision of which he disapproves inevitably raises acute concern; the correct reading of the statute depends on the most persuasive integration of basic principles, placing the text within its wider constitutional context. The Justices deployed distinctions between law, fact, and public interest in rather different ways, reflecting their divergent interpretative approaches. The role of constitutional convention is also of particular interest – central to the legal issues arising, on one view, but largely irrelevant on another. At the root of these disagreements lie contrasting conceptions of law and adjudication.

The criminological positivists at the turn of the century started a good deal of creative rethinking about the criminal law. Some of their proposals have gained widespread acceptance in the criminal law as we know it today. Others made no headway at all. One particular proposal, and a very fundamental one indeed, began a controversy which has ebbed and flowed regularly since. That is the proposal to eliminate from the criminal law the whole apparatus of substantive principles, or at least some of them, such as the legal insanity defence, which owe their presence to the law's traditional concern for distinguishing the guilty and the innocent in terms of their blameworthiness. The essence of the proposal is that innocence in this sense, moral innocence, if you will, should not disqualify a person from the consequences of the penal law. Moral innocence should, it is urged, give way to social dangerousness as the basis for a criminal disposition.

Very substantial constitutional changes have been introduced or announced by the present Government. The article discusses these critically from the point of view of the senior judiciary.

This article develops a new theoretical framework for understanding consumer contract law, one based on competing ethics of self-interest/reliance and need. It shows how this is a better way of understanding choices as to levels of protection than the traditional “freedom versus fairness” framework. The self-interest/reliance ethic favours rules allowing traders to use processes to escape responsibility for poor quality and harsh outcomes, while the need ethic is concerned with consumer weaknesses and better protects against such outcomes. The article also shows that need-based rules are usually more effective at improving clarity and certainty, and where such rules cause uncertainty, at least as much uncertainty is caused by the alternative self-interest/reliance-based rules.

This article reflects on a group of constitutional devices: mechanisms that empower one state institution to defend itself against another. The institution is given a shield to protect against the attentions of another body, or is given a sword it can use to repel an attack. Self-defence mechanisms are interesting for many reasons, but particularly for the light they cast on the separation of powers. These measures seem contrary to the normal prescriptions of that principle, allocating a capacity to a body that it appears ill suited to possess. Understanding why the separation of powers requires these surprising allocations helps explain its operation in ordinary contexts.

The long wait for a privacy law in England might appear finally to be over. The Lord Chancellor predicted that his Human Rights Bill, on enactment, would usher one in. Some two months after the resulting Act came into force the Court of Appeal seemed, with remarkably little fuss, duly to recognise an action for invasion of privacy in Douglas & Zeta-Jones v. Hello!2 Moreover, this was achieved by employing (it was said) only the existing action for breach of confidence, and so the court could avoid frightening the horses, by appearing not to be doing anything new (or noteworthy) at all. Further, the court deftly avoided the contested quicksands of the horizontal effect (or not) of the Human Rights Act 1998.

To see what international law can offer in an apparently chaotic and fast changing world is far from easy. But it is only by examining and trying to understand the evolving international system that some answers may be found, because international law and international relations are in a symbiotic relationship.

The characterising features of the contemporary international system are globalisation on the one hand and a unipolar power structure on the other. The former is having a significant impact on international law as by its very nature actors are engaged in transactions across State boundaries in alliances that are not bounded by nationality. Modern technology facilitates these alliances of interest and gives an unprecedented voice to non-State actors, whether in human rights, in environmental matters or in international markets.

The concentration of military power in the United States had led to various incremental changes in authorisations of force by the United Nations, whether for peacekeeping or for enforcement actions. The evolving relationship between the United Nations and NATO has negative as well as positive factors and needs careful monitoring.

Who should have the ultimate say over a child's medical treatment? A series of high-profile withdrawal of care cases have highlighted the full extent of the courts’ authority to make decisions on behalf of children in the medical context. In both the Charlie Gard and Alfie Evans litigation, the courts have made clear that they have the power to make medical decisions for children at the point that child's welfare is engaged. All courts involved in both cases affirmed the orthodox position that the threshold for judicial intervention in disputes about medical care of children is the welfare of the child, often referred to as the “best interests” approach (referring to both the threshold and the test applied to determine what should be done). While no new point of law has been decided in these cases, they are important in that they confirm just how expansive the inherent jurisdiction of the courts in such cases is, extending as far as to prevent parents from removing their child to another jurisdiction to pursue alternative treatment. In this paper, we argue that the current threshold for intervention is too low. We argue that prima facie decision-making authority about a child's medical care should rest with the child's parents, affording them the ability to choose between the range of medical options available. This authority should yield only where the parents’ decision carries a “serious risk of significant harm” to the child, at which point the court then has the authority to intervene. When it does so, the court should then apply the best interests approach.

THE privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins,1 and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty.2 This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights.

In his famous Rede lecture of 1901, Maitland posed the question why the medieval law of England survived the period when (as he said) old creeds were crumbling everywhere and Roman law was pushing German law out of Germany. Much controversy has reigned since Maitland's time not only about his conclusions and his evidence, but also about the precise gist of his question—since it is not wholly clear what assumptions he was making about the nature of the so-called “Reception” of Roman law in Europe or about the extent to which the medieval common law really did survive in England. It is not the purpose of this paper to provide yet another interpretation of Maitland, but rather to re-examine from a different viewpoint the subject which he opened.

If an irregularity has been committed in the course of a company's affairs, or some wrong has been done to the company, can the individual shareholder bring a complaint before the court? The Rule in Foss v. Harbottle purports to give a negative answer to this question, subject to certain “exceptions.” The answer need occasion no surprise when it is remembered that the judges have for long been reluctant to interfere in the internal affairs of companies and similar associations; they have usually abdicated their jurisdiction in favour of the obvious alternative authority—the majority of the members. “It is not the business of the court to manage the affairs of the company. That is for the shareholders and the directors.” Whether this approach is a wholly adequate basis for judicial policy in the area of modern company law is open to doubt; the “majority” in the modern public company is usually under the effective control of a small body of managers. But the approach of the courts remains the same; the interests of the majority are theoretically paramount in the last resort. The rights of the minority must, in consequence, be restricted; and, in particular, the minority cannot complain of wrong done to the corporation as a whole or of internal improprietiess. In such terms of deceptive simplicity is the Rule in Foss v. Harbottle often presented; but the Rule is notorious among students of company law for the difficulties which lie underneath this simple surface. In order to investigate those difficulties, it is necessary, first, to examine the two different parts of the Rule and their point of contact; secondly, to mention twe preliminary matters concerning directors which must be kept in mind in the course of the discussion; and thirdly, to set out, and examine under four headings, the principles which are commonly said to constitute the “exceptions” to the Rule.

There is an apparent paradox between Dicey's treatment of parliamentary sovereignty as the central premise of the British constitution and his advocacy of the referendum, a tool of popular sovereignty. Bogdanor wrote:

Cosgrove, who wrote an authoritative biography on Dicey, explained that Dicey turned to the referendum in his search for a device that would prevent Home Rule. Dicey's commitment to defeat Home Rule, he wrote, distorted his judgment.

The doctrine of legitimate expectations is a developing area of administrative law, and many issues remain outstanding. Promises, practices, and policies generate legitimate expectations, but what is special about them? Why do they and only they generate legitimate expectations? The lack of an obvious answer has led some commentators to claim that the doctrine is ultimately incoherent and should be disaggregated. In this paper, we challenge this claim by arguing, first, that promises, practices, and policies each comprise or make applicable a certain type of rule, and second, that having a legitimate expectation is a matter of such a rule binding a public body to act in some way. This rule-based account gives the doctrine of legitimate expectations both coherence and distinctiveness.

Although the rules of international law relating to the acquisition of title to territory have long been substantially clearer than most rules of international law, this clarity has to some extent been obscured by the efforts of writers to make them clearer still. The clarity of the rules is due to the circumstance that this branch of international law—unlike some branches—is one on which international tribunals have frequently been called upon to pronounce. It has, in fact, been elucidated to an unusual degree by a relatively small number of recent and authoritative judgments. The obscurity arises from the fact that the terms and classifications traditionally employed by the writers have not to any great extent been followed by the courts in modern times. No comprehensive attempt to overhaul the traditional doctrine on the subject in the light of the recent decisions seems so far to have been made.

If a thief steals money from you is it still yours? What if the thief passes it to a friend as a gift? Does it make any difference if the thief spends the money in a shop?

The answer to these questions depends on the “currency” of money, a legal attribute not shared by other kinds of property. A person's title to property is generally derived from the previous owner. When the property is transferred, the title that once vested in him simply passes to the recipient with the result that the recipient cannot acquire a better title than the person from whom he got the property.' To take an example, when a thief steals a car he has bare possession of it and the victim remains the owner. A person buying the car from the thief can only get possession of it. This general rule governing the transfer of title to property is summed up in the maxim nemo dat quod non habet.

This paper argues that the pari passu principle of insolvency law does not fulfil any of the functions often attributed to it. It does not constitute an accurate description of how the assets of insolvent companies are in fact distributed. It has no role to play in ensuring an orderly winding up of such companies. Nor does it underlie, explain, or justify distinctive features of the formal insolvency regime, notably, its collectivity. The case-law said to support the pari passu principle serves actually to undermine its importance. And the principle has nothing to do with fairness in liquidation. The substantive argument in the paper concludes by examining the actual role of the principle. The arguments made here have important implications for almost every debate about insolvency law, from the status of secured and preferential creditors to the appropriate role of corporate “rescue” procedures.

Previous work on the wrongful trading provisions of the Insolvency Act 1986 (s. 214) has been content with description, or with statutory construction. This paper employs the tools of agency theory and the creditors' bargain heuristic to analyse the need for these provisions, their structure, role, and effect. It examines why those interested in the company's undertaking would demand and accept a s. 214-type duty. The analysis reveals that the duty would not be equally relevant for all types of companies, and that the influence of the market for managerial labour ensures most s. 214 actions are likely to be brought against directors of closely-held companies, and against shadow directors. The analysis, by pointing out that security plays a role similar to s. 214 itself, also justifies a recent Court of Appeal decision which precludes secured creditors from any recoveries under that section. Finally, the incentives created by the provisions for the managers of both healthy and distressed companies are examined. It is suggested that these incentives are generally socially efficient.