In R. v. North and East Devon HA ex p. Coughlan the Court of Appeal significantly clarified the doctrine of substantive legitimate expectations. The facts of the case are familiar. The applicant had been very severely disabled in a road traffic accident in 1971 and was subsequently placed in the care of a local area health authority. In 1993 she and seven other seriously disabled patients were moved by the health authority with their consent to a new facility at Mardon House after receiving an assurance that they could live there “for as long as they chose”. Following a public consultation in 1998, the health authority decided to close Mardon House and transfer the applicant to a local authority home.

In his Analysis of the Laws of England, Blackstone briefly assesses the work of those of his predecessors “who have laboured in reducing our laws to a system.” Glanville and Bracton were overburdened with ancient learning; the abridgements of Fitzherbert and Brooke “merely alphabetical in character”; Francis Bacon's Elements “purposely avoided any regular order”; Coke's Institutes “are unfortunately as deficient in method as they are rich in matter.” However, “Sir Henry Finch's discourse of law is a treatise of a very different character; his method is greatly superior to all that were before extant; his text is weighty, concise and nervous; his illustrations are apposite, clear and authentic.” Indeed by Blackstone's own account it would seem that but for the abolition of military tenures and the disuse of real actions, which had rendered “near half of the book obsolete,” Finch's “happy progress in reducing the elements of the law from their former chaos to a regular methodical science” might have provided the scheme for that “proposed course of academical lectures” which was the immediate source of the Commentaries on the Laws of England.

The theory of the abuse of rights is one which has been rejected by our law, with the result that the ancient brocard ‘dura lex sed lex’ finds its most vivid illustration in the present-day decisions of the Anglo-American Courts. The absolutist view of rights which is a feature of the Common Law was summed up by Lord Macnaghten in trenchant language when he said in Mayor of Bradford v. Pickles that although Mr. Pickles's conduct in wilfully depriving his fellow townsmen of part of their water supply might be ‘shocking to a moral philosopher’ there was nothing in the law of England which could stop him from being as ‘churlish, selfish and grasping’ as it was possible for a man to be. In other words our law has not hesitated to place the seal of its approval upon a theory of the extent of individual rights which can only be described as the consecration of the spirit of unrestricted egoism.

A lightly revised version of the Inaugural Lecture given by Profesor J.H. Baker as Downing Professor of the Laws of England on 14 October 1998.

The debate in January 2007, as presented by the mass media, concerning whether an exemption should be provided for Roman Catholic Adoption Agencies from new laws prohibiting discrimination on grounds of sexual orientation in the provision of goods and services, rested upon two erroneous assumptions. The first was an assumption that awarding exemptions on grounds of religion was novel; the second was that the debate concerned whether there ought to be a religious exemption at all. This article seeks to engage with the real debate concerning the Equality Act (Sexual Orientation) Regulations 2007, which is not whether there ought to be a religious exemption (since one has been given) but rather the scope of the exemption. It also aims to show that religious exemptions are common in English law, including discrimination law, and to elucidate the various exemptions, paying particular attention to their beneficiaries and the basis on which discrimination is permitted. In short, this article seeks to understand the state of the law as a whole contextualising the recent moral panic.

Companies depend upon loan finance as one of their major sources of capital. However, banks and other financial institutions involved in the business of lending money to companies generally ensure that their exposure to the risk of non-repayment is minimised by taking security over the debtor company's property. One particularly important type of security which is available when money is lent to a company is the floating charge.

The House of Lords decision in YL v. Birmingham City Council considers the issue of what is a public authority under the Human Rights Act 1998. The question is a critical one as the Convention rights, contained in the Human Rights Act, are directly enforceable only against public authorities. The issue of whether a body is a public authority has proved highly controversial. The hiving-off of many traditional governmental functions through policies such as privatisation, outsourcing and projects under the Private Finance Initiative (PFI) has led to a blurring of the traditionally understood public-private distinction. The changed nature in the way that public services are delivered has led to sharply divergent views among the judiciary about which functions are those of a public nature for the purposes of the Human Rights Act. This is evident in the YL judgment itself: a split decision, with two dissenting judgements. The division in the House reflects different understandings of the operation of the Human Rights Act, the public-private distinction and, perhaps more fundamentally, competing ideological stances.

Some years ago Professor Lawson reminded a Continental audience that “[i]n the English language there can be no confusion between the two legal senses attaching to the German word ‘Recht’ which has made it necessary to coin the two technical terms ‘objektives’ and ‘subjektives Recht.’” For in the English language ”the former is ‘law’, the latter ‘a right.’” In fact, as Lawson went on to explain, the notion of a “subjective right” in the civilian systems is not quite the same as “right” in the English system, in that as far as English lawyers are concerned “the term ‘right’ has no metaphysical significance.” Yet Professor Lawson suggested at one point in his report that although in America one speaks of “interests” rather than rights, the two terms are synonymous; and the association of rights with interests has also led one Belgian theorist to conclude that the common law does recognise the concept of the le droit subjectify It is the purpose of this article to return to this topic of the subjective right and English law in order to suggest that the association of le droit subjectif with “protected interest” ought to be treated with caution.

The recent decision of the House of Lords in Titchener v. British Railways Board (which will be considered below) is a reminder of the uncertainty that strangely still surrounds the defence of consent or volenti nonfit injuria to an action in negligence. It is clear that the defence at least includes the case where there is an agreement, not necessarly constituting a contract, between the plaintiff and the defendant under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise accrue to him, i.e., the plaintiff agrees that conduct of the defendant which would otherwise be actionable will not be so. The principal uncertainty is whether the plaintiff's mere voluntary exposure of himself to a danger already created, or likely to be created, by the defendant's negligence can give rise to the defence of volenti, either on the basis that such conduct of the plaintiff constitutes the requisite agreement to forgo a claim, or on the basis that no such agreement is necessary. This and other problems in regard to the nature and scope of the defence will be considered in this article.

The essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

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 author finds the English judicial style and technique more informative than the German and argues that German jurists, be they academic or practitioners, would derive some benefit by studying how the English judges craft their judgments. However, English judges would stand to benefit by looking at German substantive law and its techniques of keeping litigation under control.

The European Directive on Product Liability introduces a new regime of strict product liability to the member states of the Community. Those injured by products may recover by showing that the product is “defective,” i.e., that it “does not provide the safety which a person is entitled to expect. …” The advantage of this approach for the individual is that liability turns on the existence of a defect alone. Unlike the law of Negligence, no question of foresight of the danger, or of the precautions taken to avoid it, arises for consideration. Strict product liability depends on the condition of the product, not the fault of its maker or supplier.

This article will consider recent case-law developments concerning the standing conditions that natural and legal persons must satisfy in order to bring annulment proceedings against acts of EC institutions. These conditions, set out in Article 230(4) EC, have been so narrowly interpreted by the European Court of Justice for over forty years that private parties have rarely been able to surmount this formidable admissibility barrier when challenging Community acts. In March 2002, Advocate General Jacobs delivered a compelling Opinion in Unión de Pequeños Agricultores (UPA) v. Council, where he suggested a new interpretation of the test of individual concern, which stands at the core of the locus standi requirements in Article 230(4) EC. Only a few weeks later the Court of First Instance dramatically departed from previous case law and re-defined that same test in Jégo Quéré v. Commission, although it did so in narrower terms than those proposed by Advocate General Jacobs. However, any hopes that the time was ripe for a re-examination of the case law on individual concern, were dashed by the European Court in its judgment in UPA v. Council. The Court did not follow either the suggestions of Advocate General Jacobs or of the Court of First Instance, stating instead that it was for the Member States acting in the European Council and not for the Court, to reform the conditions of admissibility set out in Article 230(4) EC.

Recent decisions in the courts have encouraged discussion of the extent to which the common law does or should place a high or higher value on political expression. Some scholars argue for a more explicit recognition of the high value of political speech, and would seek, for example, to “constitutionalise” defamation laws. Others have adopted a more sceptical attitude to the desirability of importing American approaches to freedom of expression generally or to the privileging of political speech as a category.

The origin and growth in continental law of the doctrine of unjustified enrichment is not merely an object lesson of the greatest importance to comparative lawyers. It is also of peculiar interest to English lawyers because it affords an admirable illustration of the working of the system of precedent in the continental countries. Moreover, it furnishes abundant proof—if any be needed—of the fact that an elaborate system of rules based on judicial precedent can, and does, exist side by side with the provisions of codes which in their inception were designed to prevent case law from coming into existence.