Michael Douglas and Catherine Zeta-Jones, the first and second claimants, sold the exclusive rights to publish their wedding photographs to OK! magazine, the third claimant; however, in spite of elaborate security arrangements, Hello! magazine obtained unofficial photographs, publication of which the claimants sought to restrain in the present proceedings. Although an injunction was granted at first instance, it was discharged by the Court of Appeal which held that, on the facts, damages would constitute an adequate remedy should the claimants succeed at trial. Given the interlocutory nature of the proceedings, Douglas v. Hello! Ltd. [2001] 2 W.L.R. 992 does not provide determinative answers to the substantive questions raised by the facts. Nevertheless, it supplies useful guidance as to the role of privacy in English law and tentatively addresses the “horizontal effect” of the Human Rights Act 1998 by considering whether that legislation may found claims against private parties as well as public authorities.

Mr. Farley’s action for breach of contract against his surveyor gave the House of Lords an opportunity to consider the recovery of damages for non-pecuniary loss (Farley v. Skinner [2001] UKHL 49, [2001] 3 W.L.R. 899). Mr. Farley had been considering buying a house and instructed Mr. Skinner to survey the property. In particular, Mr. Farley asked Mr. Skinner to investigate whether the property was affected by aircraft noise, saying he did not want a property on a flight-path. Mr. Skinner subsequently reported that he thought it unlikely that the property would be so affected. Mr. Farley, having acquired and spent significant sums refurbishing the house, was therefore disappointed to discover that his enjoyment of the property was significantly impaired by the sound of aircraft waiting to land at nearby Gatwick airport.

THE tension between the competing values of security and human rights in the fight against terrorism was the subject of the ECtHR (Fourth Section) decision of Ibrahim v Others v the United Kingdom (Application nos. 50541/08, 50571/08, 50573/08, and 40351/09), 16 December 2014. Two weeks after the London bombings of 7 July 2005, bombs were detonated on the London transport system but failed to explode. After the first three applicants were arrested on suspicion of detonating the bombs, they underwent “safety interviews” which are conducted urgently for the purpose of protecting life and preventing serious damage to property, without any solicitor present and before the suspect can seek legal advice, as authorized under the Terrorism Act 2000. At the start of the “safety interviews”, instead of the “old-style” caution which reminds the suspect of his right to silence and informs him that anything said may be given in evidence, the police wrongly issued the “new-style” caution, which reminds the suspect of his right to silence and informs him that the court can draw adverse inferences at trial from his silence. This was contrary to s. 34(2A) of the Criminal Justice and Public Order Act 1994, which states that adverse inferences cannot be drawn at trial if the defendant did not have the opportunity to consult with a solicitor prior to questioning. During the “safety interviews”, the first three applicants denied any involvement in or knowledge of the detonation, but, at trial, they acknowledged their involvement in the detonation yet claimed that the bombs had been a hoax and were never intended to explode. The statements taken at their “safety interviews” were admitted at trial. The fourth applicant, Abdurahman, was initially interviewed by the police as a witness. When he started to incriminate himself by discussing the assistance he provided to one of the suspects, the police did not, at that stage, arrest him and inform him of his rights to silence and to legal inform as required under the Police and Criminal Evidence Act 1984 Code of Practice C; they only did so after having further questioned him as a witness and having taken a written statement from him. His written statement was admitted at trial.

In its judgment in the LaGrand case (Germany v. United States of America), delivered on 27 June 2001, the International Court of Justice found, for the first time in its history, that its orders indicating provisional measures were legally binding. This has long been the subject of extensive controversy, but the Court has traditionally refrained from stating its views on this point, even though such orders are frequently disregarded (e.g., in Anglo-Iranian Oil Co. (1951), Fisheries Jurisdiction (1972), Diplomatic Staff in Tehran (1979) and Genocide Convention (1993)). In LaGrand the Court adopted a positive stand on provisional measures and displayed full readiness to draw serious consequences from non-compliance therewith. One can expect that the important ruling in this case will have a far-reaching impact on future attitudes toward the Court’s provisional measures.

LORD Hoffmann's famous “restatement” of the principles of contractual interpretation in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 W.L.R. 896, 912–13, was heralded as a “quiet revolution” (McLauchlan (2000) 19 N.Z.U.L.R. 147, at 148) in that it appeared to overthrow the legalistic approach of the past. That approach, often associated with the “plain meaning rule” (Bank of New Zealand v Simpson [1990] A.C. 182 (PC), 189) involved giving effect to the expressed meaning of the text, which (limited exceptions aside) could not be contradicted by the relevant background (or matrix of fact). By contrast, the approach in ICS mandated the Court to search for the apparently intended meaning by consulting the relevant and admissible background in all cases. The ICS approach rapidly became dominant, and indeed orthodox, across multiple jurisdictions. However, in a series of judgments commencing with Re Sigma Finance Corporation [2009] UKSC 2; [2010] 1 All E.R. 571, the Supreme Court of the United Kingdom has gradually moved away from the approach in ICS (albeit without expressly overruling it) and emphasised the importance of giving effect to the natural and ordinary meaning of the words used, in combination with other factors (see especially Marley v Rawlings [2014] UKSC 2; [2014] 2 W.L.R. 213, at [18]–[19]; Arnold v Britton [2015] UKSC 36; [2015] A.C. 1619, at [14]–[23]). This return to a more traditional approach to interpretation vindicates sustained criticism of the validity of the ICS approach in principle and practice (see e.g. Staughton [1999] C.L.J. 303; Berg (2006) 122 L.Q.R. 354; Buxton [2010] C.L.J. 253).

The European Court of Human Rights’ decision in Al-Adsani v. UK (2002) 34 E.H.R.R. 273 does not openly reject the view that torturers have become enemies of all mankind. It does however affirm that they can protect themselves abroad with a magic weapon that neither pirates nor slave traders usually possessed. This is the shield of sovereign immunity, which prevents State torturers from being tried before courts of a foreign State. In Al-Adsani, the ECHR, by a bare majority of 9 votes to 8, decided that States and their officials can invoke immunity even where they are accused of breaches of peremptory norms of international law (ius cogens), i.e. norms which, by definition, admit of no derogation (Article 53 of the Vienna Convention on the Law of Treaties).

When first I was invited to participate in this colloquium, I was given the title of “Constitutional difficulties to the introduction of a system of administrative law,” which I take to imply a full administrative jurisdiction. That subject was, in a sense, not exciting, except as a challenge to produce legal difficulties, under a system such as our own, to doing anything at all. Difficulties undoubtedly do exist, but they exist in the realm of psychology, not of rules of law. Even so they are important. A constitution does not live by legal logic alone, and the positive changes in law which the introduction of such a system would involve run counter to received, but unexamined, notions or myths, particularly those relating to Parliament. Such notions have surprising strength. It would have been difficult to persuade the Pontifex Maximus to lead the other Pontiffs into proclaiming the inadequacy of their mythology, let alone to lead them into propounding the virtues of a rival. Yet under our cult of Parliament this is precisely what the Prime Minister or the alternative Pontifex Maximus has to do. This change is beyond the scope of those subtle shifts which we can achieve by stealth, in the way in which we transferred power from King to Ministers. While these difficulties are real and must be mentioned, I take it that in the form in which the subject is now posed it is broader and that I can treat of the constitutional advantages as well as, and rather more than, these political difficulties.

The debate about distinguishing public law and private law has been wide-ranging and variously focused. It has contributed to a paradox (or contradiction) in legal thinking, described by Peter Cane in his contribution to Public Law in a Multi-Layered Constitution. On the one hand, Cane stresses that the distinction between public and private “seems alive and well”––manifest, inter alia, in judicial review procedure and the establishment of an Administrative Court in England, in EC law (demarcating the scope of directives with direct effect), in the provisions applicable to public authorities in the Human Rights Act 1998, in the “state action” doctrine of the US Supreme Court, and in the statutory demarcation of the Administrative Appeals Tribunal's jurisdiction in Australia. On the other hand, he stresses the extent of scholarly criticism of the distinction––that it is outmoded, descriptively inaccurate or normatively undesirable. In his view, the resolution of the paradox lies in recognition that “the supporters and the opponents of the public/private distinction are talking about different things”. He concludes that, for its opponents, as a result of institutional and functional hybridisation, “the distinction misrepresents the way power is distributed and exercised” but that, for its supporters, “it embodies an attractive normative theory of the way power ought to be distributed and its exercise controlled”. In his presentation of the paradox and its resolution, Cane thus brings together various views and distinctions––English, American and Australian––and suggests that a contrast between descriptive criticism and normative evaluation is crucial to understanding the public/private debate. By the breadth and inclusivity of his analysis, however, he also brings into question the desirability of unitary analytical treatment of various distinctions in various contexts, supported and opposed by people talking about “different things”.