There is at present something of a schism between restitution scholars. There are those who maintain that restitution may arise as a response, inter alia, to rights in rem and there are those who maintain that it may not. At one level, this is a debate about the internal boundaries of the law of restitution, principally about whether restitution arises exclusively as a response to the principle of unjust enrichment, or whether it may also arise as a response to a number of other causes of action. More fundamentally, however, the schism rests on a difference of view as to whether it is logically and conceptually possible to say that a right in rem is an event that gives rise to or generates other rights, such as to have the asset restored, to have restitution made, or to be compensated for loss suffered, or whether a right in rem can only ever arise as itself a response to other events.

There are two themes that recur in previous Sir David Williams lectures. First, that it is a considerable honour to be invited to give the lecture. Secondly, that it is a daunting task to do so in the presence of Sir David, particularly in a field in which he has expertise. Since that covers most of the law there is no escape from this dilemma. Let me then acknowledge the privilege of having been asked to give this year's lecture, and confess that it is with some trepidation that I do so. The subject, terrorism and human rights, is not exactly uncharted territory. When I looked into the internet for some guidance on what might be relevant to terrorism and human rights, the response to my Google search informed me that in .03 seconds 32,900,000 references had been found. This seemed to indicate that it was unlikely that I would be able to say anything that has not already been said. But there are some subjects that are of such importance that there is value in reminding ourselves of the issues that are at stake, and if necessary for that purpose, repeating what others have said. And it is with that in mind that I approach my chosen topic.

The recent patriation of the Canadian Constitution has been a fascinating process for constitutional lawyers. The role of the Canadian Supreme Court, in adjudicating on the legality and the constitutional propriety of the proceedings, has raised issues of great interest and importance. In accepting jurisdiction to pronounce on the existence of convention, the court removed a traditional barrier between law and convention: the former being applied and articulated in the courts, the latter being a matter of political practice, without authoritative definition. The majority judgments nevertheless place great weight on the orthodox distinction between law and convention, and the separation of legal and political principle which that distinction assumes. My purpose here is to question the court's reasoning as regards both law and convention. I shall argue that recent developments in public law cast doubt, even if only indirectly, on the utility of the orthodox distinction. The view that courts do not “enforce” conventions, though adequate for some purposes, may frustrate constructive thought. In any particular case in which convention is pleaded in aid of law, there are more useful and important questions to ask.

The starting point for any rule of remoteness of damage is the familiar notion that a line must be drawn somewhere: it would be unacceptably harsh for every tortfeasor or contract breaker to be responsible for all the consequences which he has caused. We could, of course, just abandon any attempt to formulate rules for this area, and look to the judge's pragmatic discretion as to what is “fair” in the circumstances of the particular case: let it be simply a question of fact. Certainly, the question of where to draw the line on recoverability of consequential losses cannot be answered by a mathematically precise formula, and occasionally the judges are quite explicit that they are drawing the line on the facts of a case because they regard that as a “fair” solution.

The modern legal framework for the protection of the mentally ill was conceived and developed in the nineteenth century. A substantial growth in the numbers of the mentally ill revealed an absence of effective and accessible legal protection for the property of patients with small estates. This challenge was met through the retention and reform of the ancient jurisdiction of the Lord Chancellor in the Lunacy Court as the sole instrument of protection. The judicial solution was adopted in preference to bureaucratic regulation, despite the strong forces of state intervention and the reform of the legal system and its processes.

When the Land Registration Act 2002 first came into force, the prevailing academic view was that it had created a system of “title by registration”, such that, where someone (B) is mistakenly registered as owner of another person's (A's) land, he acquires a good title (notwithstanding the mistake) that can validly be conveyed to someone else (C). The thesis of this article is that, whilst the logic of the “title by registration” principle might be conceptually attractive, it has proven to be unworkable in practice, is questionable as a matter of policy, and – looking to the future – ought to be abandoned in favour of a more subtle legislative scheme for resolving A-B-C disputes.

IS the right to vote in European Parliament elections a matter for EU law? Until recently, the answer to this query seemed to be a clear “no”. Indeed, while Article 223(1) of the TFEU does confer on the European Union the competence to lay down a uniform procedure for the election of Members of the European Parliament (“MEPs”), this competence has not been exercised so far. Consequently, Article 8 of the Act concerning the election of the MEPs by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom (OJ 1976 L 278 p. 1, henceforth “the 1976 Act”), provides that the “electoral procedure shall be governed in each Member State by its national provisions”. Apart from the general principles of “direct universal suffrage in a free and secret ballot” and of non-discrimination on the ground of nationality, enshrined respectively in Article 14(3) of the TEU, Article 1(3) of the 1976 Act, and Article 20(2)(b) of the TFEU, there is nothing in EU law that governs specifically the eligibility to vote in EP elections.

ACROSS Europe, the legal recognition of same-sex relationships has changed rapidly. Of the 47 Member States of the Council of Europe, 26 countries currently recognise same-sex relationships, whether through marriage or registered partnership. Italy, however, remains the only founding member of that organisation that does not provide any formal system for the legal recognition of same-sex relationships.

Wallie Nangle was an executive officer in the Lord Chancellor's Department. In November 1989, it was alleged that he had sexually harassed a female colleague. Following an investigation in which the complaint was upheld, Mr. Nangle was transferred to another department with a loss of increments for 12 months. This decision was upheld after an appeal to the permanent secretary in the department, though the loss of increments was reduced from 12 to three months. Alleging that these decisions had been taken in breach of the rules of natural justice and with procedural impropriety Nangle sought judicial review. But the application failed, with the Divisional Court holding that despite his status as a civil servant, the plaintiff was engaged under a contract of service and that he should seek relief in contract rather than public law to remedy any loss which he had suffered.1 The question which arose in this case was precisely what remedies could Nangle secure in private law? He might recover damages for any loss of increments if the employer had in fact failed to comply with the terms of the disciplinary code. But it is difficult to see what contractual remedy would have been available at the time against the Crown to restrain a disciplinary transfer on the ground that the disciplinary proceedings were conducted in breach of the rules of natural justice, that is to say in breach of rules applying more usually in public law which the courts have shown little desire to apply in the context of employment.

This paper chronicles the very recent rise to prominence of the composite judgment, showing that at least one in seven decisions of the Civil Division of the Court of Appeal is now delivered in the form of an agreed, collective judgment of the court. In effect, English courts have quietly espoused something resembling a civilian judicial procedure. The article considers when appellate courts have tended to have recourse to this device and how they allocate responsibilities for drafting composite judgments, and concludes with reflections on some of the consequences that could flow from widespread adoption of this new appellate device. A subsequent paper will explore further the philosophical and comparative ramifications of this significant shift in English judicial method.

The article considers the dangers of too readily imposing liability for environmental damage on banks lending to environmentally sensitive industries. There is evidence from the United States that businesses in environmentally sensitive industries have found it more difficult to raise money from banks and that insurance companies have limited environmental cover. The author expresses the hope that the English courts will not go down the “capacity to influence” route that has been so recently rejected in the United States. Lenders not exercising operational control should not be liable. He then considers the safe lending practices by which the risk of environmental liability can be considerably reduced. These safe lending practices attempt to tread the line between the lender being fully aware of all risks in respect of the lending and avoiding conduct which might be characterised as participation in or control of the borrower’s business.

One of the salient points made in Dr. Radzinowicz's article is that the government publications collectively and inaccurately known as ‘Blue books’ have been almost totally ignored in our histories of Criminal Law. But his point is equally valid with respect to the history of many other branches of the law. One reason for this neglect is the inadequate bibliography of these historical sources. No doubt there has been some improvement in this respect during the last generation, but my own experience in using them has been that, except for the series styled ‘British and Foreign State Papers’ and the Calendars of some ancient state documents, their indexing is very imperfect. Yet the wealth of historical material in them is inexhaustible. What Maitland said of the unprinted sources of legal history might be applied to the publications that have been printed by government authority.

Austin has been sniped at for so long that there is now more hole than target. Many would say that this has happened because he is such an obvious target. His conclusions have been widely condemned, his clarity and precision commended, though less fervently. Some have accepted his concepts, but felt them to be inadequate for his task; others have felt the concepts themselves to be inappropriate. Professor Hart succinctly expresses a new orthodoxy in claiming, “Austin … was sometimes clearly wrong; but … when this was so he was always wrong clearly.” This is surprising as Hart is elsewhere one of the most perceptive and diligent searchers for ambiguities and inconsistencies in Austin's work. It is contended that the conventional view of Austin as a careful and painstaking manipulator of hard concepts is quite unjustified. This is not so much to suggest that Austin was wrong as that he was muddled, inconsistent and ambiguous. It is to suggest that time spent shooting at Austin is invariably successful, and invariably unrewarding. An attack upon one version of a doctrine can usually be evaded by reference to another. If Austin is often wrong, he is also often right, and frequently on the same point but in a different place. For those committed to a general attitude towards Austin this may be merely aggravating; for the uncommitted it can be vastly stimulating.

Ropaigealach v. Barclays Bank plc (not yet reported) is another case that attempts to define precisely the relationship between a mortgagee's right to possession of mortgaged premises following default by the mortgagor and the court's ability to defeat or defer this right under its statutory powers. More than that, the Ropaigealach decision illuminates brightly the true extent of a mortgagee's possessory rights and may, if other mortgagees cannot resist the temptation to follow its lead, require the further intervention of Parliament to protect mortgagors of dwelling houses.