The paper discusses the issue of family involvement in the process of obtaining consent to treatment. Legally, doctors have a duty to inform the patient, and the patient has a right to be informed before making a decision. In this context, however, there is no requirement to involve relatives or to take into account their interests or requests. Yet, findings from in-depth interviews with NHS general practitioners presented in the paper indicate that in reality relatives have a substantial impact on the process of informed consent. Their presence may lead the doctor to provide more information to the patient and help the patient better understand the information conveyed by the doctor. Ultimately, the relatives' involvement enhances the patient's ability to make an informed decision, even though in some cases – when the relative is dominant – this may have a negative impact on the channel of communication between doctor and patient. These findings reflect a relational approach to patient autonomy. They lead the author to suggest that the current doctor-patient partnership model in English medical law would benefit by the addition of relatives as an integral component of the decision making team. Such a significant shift in the legal approach requires changes in the type of information conveyed by the doctor to the patient; in the means to increase the patient's understanding; and lastly at the point when decisions are actually made.

This paper addresses, from a comparative perspective, the legal position of the lay employees of religious institutions such as schools and hospitals. The legal regimes governing ‘ethos’ in the Republic of Ireland, Northern Ireland and Britain are compared. The tension which exists between the right of religious schools and hospitals to uphold their ethos in a secular society on the one hand, and the rights of their employees to privacy and personal autonomy on the other, is highlighted. It will be argued that legislative reform is required to remove uncertainty from the lives of lay employees of religious institutions who work conscientiously but fear dismissal or discrimination because an aspect of their lifestyle – usually their sexuality – is considered unorthodox by their employer. The need for a change in judicial attitudes and a lessening of deference towards the actions of religious denominations is also a theme throughout.

This paper examines how continued reductions in fee levels for criminal legal aid work affect recruitment and retention in the English publicly funded criminal defence profession. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed to explore the impact of these reductions on recruitment of new lawyers and retention of current lawyers. On the basis of these findings, also building on research conducted by lawyer professional associations, I argue that a combination of cuts to legal aid, the resulting working patterns and low morale has led to a position where the criminal defence profession, as we know it, is unsustainable.

This paper is intended to contribute to an understanding of how Jews and Judaism have been constructed in English case law. Using an analysis of law as ‘racialised’, the paper observes not just ‘the Jews’ of English law, but also the complex production of ‘Englishness’ (and English law) itself: The specific focus of the paper is upon the law of trusts; in particular, legal judgments adjudicating testamentary dispositions where the Jewish settlor has insisted upon progeny ‘marrying in’ in order to inherit. Jewishness is constructed as both ‘faith’ and ‘race’, and the paper considers these categories and their interaction. While the judges tend to find the wills in question uncertain, it is argued that it is in fact ‘Jews’ and ‘Judaism’ with which the courts are unable to come to terms.

The death of an Aboriginal man, Mulrunji, in an Australian police cell in 2004 precipitated an extraordinary response from the community. The usual distinctions between the roles of police, coroner, prosecutors and politicians became confused and merged in the media maelstrom that followed the death. Uneasy alliances developed which qualified the binary response of right versus wrong. Could the coroner's findings be reconciled with the decision of the prosecutor not to try the police officer involved? Was the government's response of overriding the decision of the independent prosecutor justified? What does this case tell us about the adversarial and inquisitorial approaches to evidence? This paper examines the tensions at play in the response to the death of Mulrunji and explores the wide reaching implications for law and justice in death in custody cases.

This paper critically examines the European Insolvency Regulation. It suggests the Regulation contains a fatal flaw at its heart; namely the ‘centre of main interests’ or COMI test governing the exercise of universal insolvency jurisdiction. The paper argues for greater jurisdictional flexibility to replace the COMI test and defends this proposal against charges that it will contribute to an excess of ‘forum shopping’ and encourage a ‘race to the bottom’. The American experience with bankruptcy court competition is considered in this connection.

The compatibility of anti-terrorism control orders with Arts 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was the subject of litigation culminating in three House of Lords' judgments in late 2007, and a further case on Art 6 will be argued before a nine-panel House of Lords in March 2009. To date, the litigation has required important modifications to be made to how control orders work, but the regime provided by the Prevention of Terrorism Act 2005 remains essentially intact. The government therefore claims that control orders strike an appropriate balance between the interests of liberty and security. This paper critiques the role played by the courts in challenging control orders under human rights laws. It argues that it is necessary to incorporate the right to freedom of movement into UK law in order to allow a proper balance between liberty and security to be effected by the courts.

In an earlier paper in this journal I criticised the British Medical Association Guidance on withholding and withdrawing treatment on the ground that it undermines the principle of the sanctity/inviolability of life. Professor David Price responded with a paper criticising the principle. This reply to my learned colleague respectfully contends that his criticisms are based on a caricatured misunderstanding of the principle.

During the early and middle decades of the twentieth century, a number of jurisdictions introduced specific laws to deal with the crime of infanticide, following the English approach to this offence which allowed for a reduced conviction and flexible sentence in cases where women killed their babies aged under 12 months whilst in a mentally disturbed state. Taking the Irish experience, this paper explores the role of social norms in the criminal justice response to infanticide. It is argued that, irrespective of the existing legal framework in place, implicit shared social norms about the ‘appropriate’ outcome in cases where women killed their babies played a crucial part in how this crime has been dealt with by the courts. The criminal justice response will be assessed against shifting legal and social environments, in particular, the enactment of a specific Infanticide Act in 1949, and Ireland's transition from a conservative to a liberal society during the last decades of the twentieth century. In particular, the role of social norms in the interpretation of the medical rationale for this law is explored, and the impact of Ireland's social and cultural liberalisation on the criminal justice response to infanticide is examined.

This report presents the findings of the survey conducted in 1993/94, this survey being an updated version of one conducted in 1983/94. The present study has been expanded to cover Australian and Canadian (Common Law) universities, and as in previous surveys has been conducted primarily through the medium of a detailed questionnaire.

In each of the jurisdictions surveyed there exist parallel concerns about legal education and, of more direct interest here, the role of Jurisprudence and Legal Theory within the law curriculum. By drawing on data received from Australia, Canada and the United Kingdom and the literature on legal education, this article aims to provide a comparative study of the extent to which Jurisprudence features in the academic training of the next generation of lawyers, a large proportion of whom will enter a profession characterised by a shared common law tradition.

The mainly social nature of humanity's existence has necessitated an apparatus of ideas for evaluating, amongst other things, the acceptability of personal interactions. The idea of consent is an important part of this apparatus. We find it a valuable ingredient in our thinking about such activities as physical, sexual, or psychic invasion, and the transfer or use of property. We commonly say that if someone performs one of these activities without the consent of another person whom we identify as having rights in the matter, they do a wrong; and, albeit perhaps a little less commonly, that if the other person does consent, they do not do a wrong. And we go on to articulate at least some of this thinking in the form of rules of the criminal law.

We show that professional management began to emerge in UK companies during the first half of the twentieth century, a development which was widely theorised and accepted. However, the managerially-led enterprise was accommodated rather than protected by company law, making it vulnerable to changes in the law. The Cohen Report of 1945 paid no attention to these developments, and led to the introduction, in the Companies Act 1948, of important, but previously little appreciated, changes in the name of enhancing the accountability of directors to shareholders. The shareholders’ statutory right to remove the directors by simple majority overturned existing structures overnight and was an important driver of the hostile takeover, which emerged shortly afterwards. This deprived management of the necessary autonomy to balance the competing interests at stake in the enterprise and to foster innovation. The emergence of the current system of shareholder primacy can be traced back to these developments.

As an academic discipline in the United Kingdom, European Community law is a relative newcomer. I belong to the last generation that learnt its Community law on the hoof, through teaching it to others or practising it. I was, though, very fortunate in serving two apprenticeships, one, in the theory of the subject, under the late Professor J. D. B. Mitchell as a Lecturer in the Centre of European Governmental Studies at the University of Edinburgh and the other, in its practical application, as Legal Secretary to Sir Jean-Pierre Warner (as he became after his appointment to the Chancery bench of the High Court) when he was Advocate General at the Court of Justice of the European Communites. John Mitchell was an enthusiastic admirer of the Court of Justice and deeply learned in its ways; and one topic among many that interested him was the role of the Advocate General, a role it fell to J. P. Warner to show that a lawyer from this side of the Channel could fill with distinction. It was with my debt to those two masters very much in mind that the subject of this lecture was chosen.

The Equality and Human Rights Commission was created in 2006 with wide-ranging powers to protect human rights, promote equal opportunities and encourage mutual respect between different groups. Alongside the Commission, individuals through the courts, and sector-specific enforcers (such as ombudsmen and regulators) have also been given equality and human rights enforcement powers. Within this enforcement landscape, the Commission has struggled to craft an enforcement role for itself. For the first time, this paper, through the mapping of these different actors in their shared regulatory space, outlines a role for the Commission in equality and human rights enforcement. This role consists of three primary tasks: (i) taking action that courts and sector-specific enforcers are unable to perform; (ii) overcoming some of the limitations of private enforcement in the courts; and (iii) coordinating and supporting sector-specific enforcers. The paper concludes by exploring how the Equality and Human Rights Commission (EHRC) can effectively fulfil this role.

For over 300 years, criminal courts have regarded sexual infidelity as sufficiently grave provocation as to provide a warrant, indeed a ‘moral warrant’, for reducing murder to manslaughter. While the warrant has spilled over into diminished responsibility defences, wounding, grievous bodily harm and attempted murder cases, it is provocation cases that have provided the precedents enshrining a defendant's impassioned homicidal sexual infidelity tale as excusatory. Periodically, judges and law reformers attempt to reign in provocation defences, most recently in England and Wales where provocation has been replaced by a loss of control defence that, most controversially, specifically excludes sexual infidelity as a trigger for loss of control. This paper reflects on this reform and its reception, glossing Shakespeare's scathing critique of warrants for murder in Titus Andronicus.

The paper examines conceptual barriers to incorporation of children’s rights – understood in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child 1989 – in the law of England and Wales. It identifies traditions in law and policy on children and young people, and competing political imperatives which militate against effective implementation of children’s rights to protection and provision, but suggests that participative rights pose fewer problems. It argues that the scope for further judicial development is limited in the absence of substantial changes in the legislative framework. It then examines rights-based reasoning in administrative practice and considers the impact here of ideological differences between the UK Government and the Welsh Assembly Government. It considers the scope for differential implementation within the evolving devolution settlement, and the potential impact of such difference on child law and practice in the ‘single jurisdiction’ of England and Wales. It concludes by arguing for greater attention to executive as well as legislative and judicial functions, and to extra-judicial mechanisms, for promoting rights-based decision making.

Successive studies have documented the institutionally marginalised status of many women academics. What remains unclear is whether such findings apply equally to women legal academics. This article begins the process of investigating the role, status and experiences of women legal academics, reporting the findings of the first survey into the representation of academic women in UK university law schools. The study presents a snapshot of the gender composition of law schools in October 1997, at all levels of seniority, together with data on the representation of women in each responding law school. It finds considerable differences between law schools, as well as an under-representation of women compared with men at senior levels. It is suggested that these patterns of the representation of women legal academics have important ramifications for legal education, the legal profession and the discipline of law itself.

This paper examines the processes whereby students may bring complaints against higher education institutions. It stresses that a right to redress of grievance is fundamental to the relationship between students and universities. It focuses on internal complaints procedures and discusses the findings from a survey of a representative sample of institutions of which nearly two thirds (25 in total) responded with statistical and other data on the grounds of complaint, the ethnicity and other characteristics of complainants, and the outcome of adjudications. It reveals areas of commonality and divergence in practice and raises concerns about the fairness and accessibility of the procedures. The paper also includes discussion of the process for the external adjudication of student complaints established under the Higher Education Act 2004 and the way that complaints progress to it. The paper discusses the case for reform of higher education institutions’ student complaints procedures, which are surprisingly unregulated, including the introduction of a more independent element such as ‘campus ombudsmen’.

The following scene as recounted by the English writer James Stern occurred in a German town one week after Germany's unconditional surrender in May 1945. A crowd is gathered around a series of photographs which though initially seeming to depict garbage instead reveal dead human bodies. Each photograph has a heading ‘WHO IS GUILTY?’. The spectators are silent, appearing hypnotised, and eventually retreat one by one. The placards are later replaced with clearer photographs and placards proclaiming ‘THIS TOWNISGUILTY! YOUARE GUILTY!’.

Gwyneth Bebb gave her name to a landmark case in the campaign to open the legal profession to women. In spite of this achievement, which is often mentioned but rarely analysed, historical accounts have given little or no attention to the woman or the campaign of which she was part; and what happened to her then and later has remained shrouded in mystery. The article finds that her disappearance was due in part to the circumstances of her life, outlined here, but mainly to the tendency of institutional histories, if they acknowledge women’s contribution at all, to present it as a simple (though discontinuous) tale of progress, thereby masking continuing prejudice and inequality. The article argues that women’s lives need to be properly examined to produce a more complete and truthful explanation of how things were, and how they are now.