Since the decision of the House of Lords to overturn its earlier judgment in the case of Re Pinochet (No 2) the courts have closed the floodgates to further claims of judicial bias by adopting a restrictive approach to the rules on judicial disqualification. In the light of these restrictions on claims of individual bias, this paper reviews the institutional mechanisms for safeguarding impartiality at a collective level through the appointments process and the system for allocating cases to judges. It highlights weaknesses in these arrangements such as the lack of openness, the potential for inappropriate political control and the lack of diversity in the composition of the judiciary. It argues that as the concept of impartiality is increasingly linked to these institutional arrangements the continuing legitimacy of the judiciary requires that these problems are addressed.

This paper explores the relationship between the concept of the ‘identity of the child’ and legal parenthood. It examines the role of identity in the determination of legal parenthood in three contexts: (a) parental orders after surrogacy arrangements; (b) disputed paternity cases; and (c) the statutory rules in cases involving gamete donation. This paper argues that the concept of ‘identity’ plays an inconsistent role in the attribution of legal parenthood, because the concept lacks substantive content within judicial reasoning and the statutory framework. The understanding of identity, and the role it plays, appears to change in these different contexts to serve the different purposes that the law is trying to achieve. The reason for this inconsistency is that, despite the utilisation of the language of the ‘child's identity’, legal parenthood remains adult-centric and premised upon replicating the binary, two-parent model of the nuclear family. We argue that instead of appealing to this incoherent concept of ‘identity’, the courts should explicitly engage with different types of parenthood and acknowledge the importance of each for both children and parents. Such an approach would result in more truly child-centred reasoning and serve to diminish the predominance of the binary, two-parent model.

The Legal Services Act 2007 effected major changes in the disciplinary system for solicitors in England and Wales. Both the practice regulator, the Solicitors Regulation Authority, and a disciplinary body, the Solicitors Disciplinary Tribunal, were reconstituted as independent bodies and given new powers. Our concern is the impact of the Act on the disciplinary system for solicitors. Examination of this issue involves consideration of changes to regulatory institutions and the mechanics of practice regulation. Drawing on Foucault's notion of governmentality, empirical evidence drawn from disciplinary cases handled by the Solicitors Disciplinary Tribunal and the Solicitors Regulation Authority in 2015 is used to explore potentially different conceptions of discipline informing the work of the regulatory institutions. The conclusion considers the implications of our findings for the future of the professional disciplinary system.

This paper considers the possible reform of the law governing property rights upon the termination of a close personal relationship, taking as its point of departure the Law Commission's Discussion Paper on Home-Sharing (2002). Having considered the reasons for the inconclusive outcome of the Law Commission's project (and the Discussion Paper's comments on the law of trusts), the paper moves on to consider the possible shape of future reform. It examines first the preliminary question of whether possible legislation should focus on unmarried cohabitees or whether a wider range of relationships should be encompassed (with or without a cohabitation requirement), The paper then looks at the form which a legislative scheme might take, examining the possibility of focusing on contributions (along the lines of New South Wales’ legislation) and the Law Society's proposals for a regime based on‘economic advantage and disadvantage’. The experience of the courts in the matrimonial context is considered with a view to extracting relevant lessons. In general, rather defending one particular model for reform, the paper attempts to identify and explore key issues which will be of relevance across a variety of approaches to reform.

This article examines the steps taken in recent years to mainstream equality issues into the law and policy process in Ireland. Although official discourse increasingly recognises the need to tackle inequality and social exclusion, there is little to suggest that the mainstreaming process has been a transformative one. A reluctance to move beyond established legal categories or to radically challenge law and policy-making processes has greatly restricted the potential for reform. If mainstreaming is to be effective, the pursuit of equality must be recognised as a core norm guiding all aspects of law and policy making. In the Good Friday Agreement the Irish government committed itself to promoting equality in all social and economic activity and to demonstrating its respect for the diverse identities and traditions on the island of Ireland. Much work remains to be done if this commitment is to be fulfilled.

In 1629 Jones, the registrar to the court of the Bishop of Gloucester, suffered so from the smoke emanating from a nearby brewhouse that he brought an action in nuisance before the Court of Kings Bench. At the time, as water was unsafe to drink, beer and ale were staple beverages. Inclined to reject the claim, Whitelock J pronounced that ‘what is necessary for the commonwealth can never be called a nuisance to any private person.’ His colleague on the bench, Dodderidge J, was more cautious, concluding that, had the brewery been a long-established enterprise, no action would have been available, as one who comes to live near an existing brewhouse must take it as one finds it. However, where - as was true of this case - the brewhouse was a relatively new operation, the matter was less clear.

Part I of the Prosecution of Offences Act 1985 has established a Crown Prosecution Service for the whole of England and Wales. The Service is, inter alia, responsible for the conduct of all police prosecutions (except minor motoring matters) following the institution of proceedings by the police. Police officers no longer present their own cases in court, but the new Service is not intended merely to replace them with professional advocates. The White Paper on which the Act is based declared that an independent prosecution service should be established. This was in order to give crown prosecutors complete freedom to veto, or to modify, the initial decison of the police to prosecute.

An initial reading of EU competition law jurisprudence and literature may suggest that there might be a competition-related freedom in the EU, expressed along the lines of ‘freedom of competition’ or ‘freedom to compete’. If competition is to be protected as a ‘freedom’ rather than merely as a ‘policy’, what this freedom involves should be established. It is important to establish the role of ‘freedom’, since it has been argued that EU competition law is a product of or has been significantly influenced by ‘ordoliberalism’. Under ordoliberalism, protecting the ‘economic freedom’ of market actors is the aim of competition policy. This paper examines the entire jurisprudence of the EU Courts to establish the role of ‘freedom’ in EU competition law as perceived by the EU Courts. This inquiry establishes whether ordoliberalism has so fundamentally influenced the jurisprudence that welfare-based objectives cannot be adopted as an/the objective of EU competition law. This is the first such comprehensive study regarding ‘freedom’ in EU competition law. The paper demonstrates that there is little quantitative or qualitative support for the ordoliberal argument when one considers the relevant jurisprudence. A quantitative analysis of the case-law and in particular the historical trend raises serious doubts concerning the validity of the conventional ordoliberal-influence thesis.

Why should a Law Commissioner be interested in family courts? Family courts were an item in the Commission’s first programme but the Commission has made no proposals on the subject. A working party was set up in 1971 and seemed on the point of producing a working paper when it was learnt that the Finer Committee intended, not merely to make some general observations, but to lay down broad principles and work them out in some detail. The Commission therefore suspended operations indefinitely. Since then, it has taken the view that the issue must be left to the responsible government departments, who have recently begun their own consideration of the subject.

There is increasing support in the contract literature for the view that the remoteness rule is essentially concerned with identifying an implicit allocation of risk made by the contracting parties. This paper argues that the remoteness doctrine is more accurately seen as a method by which the courts allocate risks which the contracting parties have failed to allocate, rather than an interpretative rule. Through analysis of the principles and their application in the recent case-law in England, Canada and Australia, the paper shows that the identification of an implicit allocation of risk does not and cannot determine remoteness cases in contract. The justice of the remoteness rule is not based on the notion that the defendant undertook responsibility for the risk in question, but on a concern that the defendant should have a reasonable opportunity to consider the risks that might arise from breach and take action to avoid them.

Research into alternative sources of organs for transplantation, including the use of organs from non-human genetically engineered animals, has occurred since the introduction of allotransplantation in the 1960s. Xenotransplantation is different from other developing genetic technologies because whilst the potential benefit is to the individual, the possible risks are to society as a whole. The risks include the transmission of unknown and currently indeterminable infectious diseases. This article explores whether the current regulator framework is able to address this issue and, in particular, whether ‘first-party’ consent to involvement in a clinical trial is a sufficient to protect third parties from harm. The competence of a xeno-recipient to consent is also considered, and it is suggested that, at the very least, public debate and participation in deciding whether clinical trials should be permitted must occur, because by allowing xenotransplant trials to help an individual, the risks will be borne by all.

‘Whatever the future of the subject, the content of the present courses suggests that jurisprudence has a capacity for self-renewal and an elasticity which enables it to interpret ideas from philosophy and the social sciences to law students in a way which stresses their modern relevance to the social and theoretical problems which an intelligent and critical study of law should suggest.’ So concludes the last survey of jurisprudence teaching in British universities carried out in 1972/73 by Cotterrell and Woodliffe. To what extent could their sentiments be echoed in 1983/84?

Ten years have elapsed since the previous survey was completed during which time important changes have occurred in legal education and its environment.

The reform of the common law ‘derivative action’, by the statutory ‘derivative claim’ in Pt 11 of the Companies Act 2006, was long overdue. Many of the common law's most intractable problems, however, lay not with the derivative action itself, but rather with the law governing the ratification of breaches of duty. The source of many of these problems lay in the distinction the law sought to draw between fraudulent and non-fraudulent breaches, and the different consequences attached to each category of wrongdoing. The Companies Act 2006 was a timely opportunity at least to resolve the confusion within the law, and ideally to adopt what has been termed a ‘voting based’ approach to ratification. Sadly, the Act did neither, preferring instead to retain the common law largely untouched. Moreover, as a careful analysis of the Act itself shows, the modest changes it did introduce necessarily preserve the common law's distinction between fraud and non-fraud, and the uncertainty to which this gives rise. The paper concludes with an examination of Franbar Holdings v Patel, which illustrates clearly the shortcomings in the law's limited reforms.

Harmonisation and legal convergence are core tasks of the EU. This paper explores the question about the determinants for national convergence of EU law, specifically applied to the ever-growing body of European consumer sales law. The measurement of national convergence is based on a unique coding of five directives in seven Member States. Using the fuzzy-set Qualitative Comparative Analysis (fsQCA) method, the paper finds that differences in national convergence can partly be explained by favourable features of the corresponding directives; however, mainly, they are the result of a combination of domestic political factors and, to a lesser extent, the country characteristics. This has important policy implications, for instance, on the need to ‘bring in politics’ in the debate about convergence, harmonisation and consumer sales law.

Universities have increasingly become aware of the fact that the intellectual property (IP) rights that attach to the work of their academics could become significant and valuable assets to the university as an institution and economic organisation. The study involved analysis of the copyright and intellectual property policies of universities in the UK and the interviewing of specialised representatives of universities in relation to the policies of their respective institutions. The principal question of the study was the way in which university policies deal with the issue of ownership of copyright generated by academic staff, which proved to be a sensitive area. University policies presume that, by default, they own all work that academics create as their employees. There seems to be insufficient appreciation of the differentiated legal interpretation of the employees' copyright rule. At least in relation to core academic work (scholarly books and journal articles in particular), initial copyright ownership by the university, by virtue of the statutory employee-copyright rule, is highly doubtful. As a result of the universities' principal position with regard to ownership, university IP policies have resorted to complicated and artificial assignment and licencing provisions, with questionable enforceability.

Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This paper, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.

The aim of this paper is to reframe the taxonomy debate which has, in recent years, come to dominate private law theory. We argue that the debate to date has been flawed by two fundamental mistakes. First, little attention has been paid to how legal taxonomies are actually used. This, we argue, is regrettable: how we build a taxonomy depends on why we build a taxonomy, and a clearer focus on this question produces an approach that is very different from the approaches that currently dominate private law theory. Secondly, both sides in the debate have misunderstood what legal concepts are, and hence tend to misuse them. We argue that legal concepts are Weberian ideal types, and use philosophical theories of concepts to put forward a very different understanding of how concepts acquire content and are used in the legal system. Putting these together, we argue for a far more developmental, and historically informed, approach to taxonomy and to legal concepts generally.

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases.

Shareholder say-on-pay voting allows institutional investors to influence the incentives of managers and, consequently, corporate behaviour. Surprisingly, the preferences of investors on executive compensation have been largely overlooked in the ongoing debates on the role of say-on-pay in corporate governance and the impact of shareholder stewardship on sustainable corporate behaviour. The analysis of investor disclosed explanations of say-on-pay votes in the FTSE 100 companies during 2013–2021 shows that institutional investors rely repeatedly on several dominant themes aimed at improving the incentives of corporate managers and controlling managerial rent extraction. But shareholder interests remain the core focus of say-on-pay votes, with only few investors demanding that companies reward executive directors for protecting the interests of a broader range of affected stakeholders. Additionally, most investors can be grouped into several clusters formed around the voting recommendations of proxy advisers. A group of UK-based institutional investors stands out by taking a more individualistic and diverse approach to the stewardship of executive compensation. These findings highlight the role of local investors in the oversight of executive pay, the growing influence of proxy advisers along with the increasing share of foreign institutional investors, and the influence of best practice governance codes in driving investor stewardship preferences.

In this paper we outline and critique legal approaches to poor mental health at work in the UK. We argue that the current legal framework is not ‘fit for purpose’. Overall, the existing framework promotes a problematic model that is ineffective because each element, individually and as part of the whole, fails to adequately engage with the nuanced realities of the relationship between undertaking paid work and suffering poor mental health. It is, we suggest, disjointed because it has evolved from a patchwork of provisions, each with different foundations, motivations, ambitions and flaws. The need for a re-focus, and what this might entail, is considered, and the capacity of a model centred on addressing workplace mental health as a manifestation of broader notions of vulnerability is explored.