In this paper, I shall attempt to take a practical view of some of the issues which the common law courts will be facing in the coming months, in granting remedies under the Human Rights Act 1998. I shall be looking at these issues from the viewpoint of a judge, sitting regularly in judicial review cases, and also as Chairman of the Law Commission, which has for many years taken full account of the Convention in its law reform proposals. Notwithstanding the width of the title, I shall concentrate on remedies in damages, since that is the area to which the Law Commission's work has been mainly directed in recent times. I shall be referring to the recent LCD Consultation Paper on proposed rules under the Act.1 I shall steer clear of the difficult subject of the “declaration of incompatibility”, which has been fairly described as “not a legal remedy but a species of booby prize…”.2

International sanctions have grown in use significantly since they were deployed in response to Iraq's invasion of Kuwait in August 1990.1 In the decade since the Kuwait crisis, economic and other measures not involving the use of force have been deployed by the international community against the Federal Republic of Yugoslavia (Serbia and Montenegro),2 Libya3 Rwanda4 Haiti5 Liberia,6 Somalia,7 Sudan,8 Sierra Leone,9 Angola,10 Eritrea and Ethiopia11 and, most recently, Afghanistan.12 International sanctions today derive—principally13—from a single source: the Security Council acting on the powers delegated to it by Member States under Article 41 of the UN Charter. However, while the sanctions contemplated by Article 41 have proved to be of continuing relevance in an increasingly interdependent world, the circumstances which enhance the potency of economic sanctions as a means of responding to an international crisis also increase the risk of loss by innocent States. The increased willingness of the Security Council to use its binding authority to impose economic sanctions has raised important questions both as to the cost of economic sanctions to implementing States, and the limits on the Council's powers.

The permanence of the genocide definition1 over more than five decades is remarkable considering how much criticism has been directed against it since the adoption of the Genocide Convention in 1948.2 The existence of a stable internationally agreed definition of genocide presents indubitable advantages, particularly if compared with the lasting uncertainties in the definition of other international crimes, such as crimes against humanity. However, the genocide definition is also characterised by a number of problematic aspects and unresolved interpretative questions, some of which have been addressed in the decisions of the ad hoc Tribunals for the Former Yugoslavia and for Rwanda.3 Divergent approaches to the mens rea requirement, to the definition of the four protected groups against whom genocide can be committed, or to the identification of acts that constitute genocide had been confined to an exclusively academic ambit until not long ago, but can now be determinative of an acquittal or conviction. With the exception of one decision by the ICTY,4 all other judgments on genocide have come from the ICTR, in whose custody are some of the most prominent members of the interim government and of the militias accused of having organised and carried out the 1994 Rwandan genocide.5

“Perhaps the greatest difficulty the civilians have in accepting the trust is caused by what I have come to regard as an English peculiarity logically detachable from the trust, namely, the distinction between the legal and the equitable estate. In Scots law, which, even if it did not invent and develop the trust for itself but took it over from England—the point is doubtful—has accepted it without inhibitions or reservations, no such distinction has ever been known. There the trustee becomes owner and the beneficiary acquires a contractual right against him.”1

InCentros Ltd and Erhvers-og Selskabsstyrelesen (hereinafter Centros),1 the European Court of Justice ruled that it is contrary to Article 52 (now Article 432) and Article 58 (now Article 48) of the EC Treaty for the authorities of a member State (in casu Denmark) to refuse to register a branch of a company formed under the law of another member State (in casu the United Kingdom) in which it has its registered office, even if the company concerned has never conducted any business in the latter State and intends to carry out its entire business in the State in which the branch is to be set up. By avoiding the need to form a company there it would thus evade the application of the rules governing the provision for and the paying-up of a minimum share capital in force in that State. According to the Court, this does not, however, prevent the authorities of the member State in which the branch is to be set up from adopting appropriate measures for preventing or penalising fraud, either with regard to the company itself, if need be in co-operation with the member State in which it was formed, or with regard to its members, where it has been determined that they are in fact attempting, by means of the formation of a company, to evade their obligations towards creditors established in the territory of the member State of the branch.

This article considers the basis on which the English courts exercise their discretion to refuse to recognise foreign marriages1 whose formal validity2 is beyond question and whose essential validity3 is probably also satisfied.4 It has been widely stated that this discretionary veto is to be wielded in accordance with the dictates of “public policy”. As far back as 1945, Lord Greene MR said that such matters were to be resolved “with due regard to common sense and some attention to reasonable policy”.5 Nearly 40 years later, Lord Simon, similarly minded and speaking in the House of Lords, was a good deal more emphatic. He said: “[t]here is abundant authority that an English court will decline to recognise or apply what would otherwise be the appropriate foreign rule of law when to do so would be against English public policy”.6 Perhaps surprisingly, this policy-based discretionary veto has commanded virtually no academic attention.7 It is my intention to address that anomaly. It is wholly inadequate, as is sometimes done, both by the courts (as we have seen) and academics, simply to refer glibly to “public policy” as though its contents were somehow self-evident and its meaning plain.8 It is also signally unenlightening merely to state, as Jaffey has done, that “[t]he premise should be that an invalidating rule of a domestic system, whether English or foreign, should only be applied to a given international marriage if there is a good reason for its application”.9 So doing merely recasts one nebulous term, “public policy”, as another, “a good reason”. Judicial synonyms have been scarcely any more illuminating. Take for example Lord Simon's famous enjoinder to have recourse to “common sense, good manners and a reasonable degree of tolerance”.10 A number of familiar criticisms can be made of the opacity of such broad terms as “common sense”, “good manners” and “a reasonable degree of tolerance”: they deny the common law the clarity, consistency and objectivity that are frequently (and correctly, in my view) thought to be necessary in order to legitimate and constrain the adjudicative function.11 But beyond these objections, two further, more particular criticisms can be made in respect of the invocation of “public policy” to deny recognition to “offensive” foreign marriages.

On 13 December 1999, the Conseil d'Etat celebrated 200 years since its creation in the Constitution of An VIII. Much has been written over the year on the judicial functions of the Conseil, but far less has been written on its consultative functions or on its influence on the administrative law of other jurisdictions. In one sense, this is not surprising. Since 1818, the case law of the Conseil has been published regularly and commented upon by French lawyers, as well as by those from abroad. But the consultative functions of the Conseil are not a matter of public record in the same way. The advice given to the government on draft legislation and on other matters is private. We know that the government has received advice on certain matters, but the content of the advice or opinion is not made public, except on the rare occasions in which the government chooses to make it public. (In very recent years, this is becoming more frequent.) As to the influence of the Conseil, while certain obvious influences have occurred, many of the mechanisms are not recorded and rely on actions by individual conseillers d'Etat. The following four papers try to reflect on these areas of the Conseil's activity.

Consideration of the Conseil d'Etat and its role in the preparation of legislation helps us in Britain to appreciate how our own legislative process might be improved. The Hansard Society Report1 suggested in 1992 that Britain needed to look beyond just improving the drafting of legislation and needed to reform the legislative process, both before a bill is presented to Parliament and in its passage through Parliament. My reflection on the French process is to suggest that this offers us a further focus of attention—the questions which should be asked during the scrutiny process. There are two areas where we need to ask questions—on fundamental rights and practical effectiveness. I think that the British trust too much to the political process to ensure that questions concerning respect for fundamental values and also administrative workability are addressed before a bill is passed by Parliament. This paper is influenced by observations made in 1986 of the Interior Section of the Conseil d'Etat in its scrutiny of a number of government bills at the beginning of the Chirac premiership.

My title for this article reflects a very proper question for a foreign audience which has become more familiar than in the past with the dual (consultative and judicial) role of the French Conseil d'etat. For many years, interest in Britain focused on the judicial function of the Conseil. More recently, attention has shifted to the activities of the “sections administratives”, which involve the screening and the drafting of all the proposed legislation and the essential part of subordinate regulations prepared by government. I have the feeling this interest is probably fuelled by the recent constitutional changes in the United Kingdom, and the need to prevent legal difficulties cropping up between different and new political bodies.

In both the Ottoman Empire and the Turkish Republic, legal reform efforts have invariably relied on Western models and in administrative law this model has been the French. The first such effort was with the Tanzimat (The Charter of Reformation) in 1839, though these reforms did not have deep effect until the 1860s when the bases of the main administrative institutions such as the Turkish Conseil d'Etat were laid down.1 However, the Conseil d'Etat was not the only institutional model taken from France. The French layer of Turkish administrative law includes other institutions such as the Cour des Comptes, the Tribunal des Conflits, some financial organisations, the system of autonomous provincial and local administration and administrative tutelage.2

Meeting British lawyers and participating in a comparative reflection on our legal systems has for me a history that goes back to 1966. In 1966 I participated, in London, in the first meeting of British and French administrative lawyers. Among the participants were Nicole Questiaux and Neville Brown; there was also the late President Letourneur, who was a forerunner in the development of the relations of French Administrative lawyers with British lawyers, at a time where these relations were very far from being as extensive as they are today. If I look back to this long period, I think that important progress has been made towards a better mutual understanding of our legal systems. My concern in this paper is with the dynamics and direction of the interactions which the Conseil d'État has had with other legal systems.

The recent judgment of the Corte di cassazione, Italy's highest appeal court in civil and criminal matters, in the so-called “jeans rape case” has caused much controversy and attracted much media attention both in Italy and abroad. The Corte di cassazione has been showered with criticism for purportedly establishing a “jeans alibi”, according to which a woman cannot be raped if she is wearing jeans as she must have consented to their removal. However, this judgment is of significance not merely for this statement but because it is particularly demonstrative of the difficulties faced by the Corte di cassazione in separating law from fact in an appeal on the grounds of illogicality of the reasoning given by the lower court. The Corte has been subject to academic criticism recently for exceeding its competence to review on a question of law and entering into the realm of the merits, criticism which this judgment has undoubtedly fuelled. The aim of this article is to explore the nature of the Corte di cassazione and, in providing a critical analysis of the “jeans rape” judgment, to examine the difficulties inherent within this particular ground of appeal.