The 1844 decision of the House of Lords in R v Millis – which apparently held that the presence of an episcopally ordained minister had been necessary to create a valid marriage even before legislation was introduced to regulate the formation of marriage – has universally been regarded as erroneous by generations of scholars. This paper shows that the outcome of the case was in fact correct, even though the reasoning of all but one of the judges was flawed. It explains why the case has been misunderstood, and why the misunderstandings it demonstrated have never been corrected.

Carl Schmitt and AV Dicey are two of history's most influential constitutional theorists, and they offer two of history's most influential accounts of referendums. In most respects, their approaches to referendums are in direct opposition to each other. On Schmitt's view, the purpose of referendums is to acclaim executive actors. On Dicey's view, the role of referendums is to constrain them. Despite disagreeing about whether referendums should acclaim or constrain the executive, Schmitt and Dicey agree that an agenda-setting role for representatives in referendums is inevitable. This paper argues that, in the UK context, if Schmitt and Dicey are right about the necessary agenda-setting power of representatives in referendums, then the accounts of referendums they each offer must be two sides of the same coin. Given the dominance of the executive over the legislature in the UK and the uncodified nature of the constitution, referendums are processes that necessarily both acclaim and limit the executive.

While the concept of the ‘relational contract’ has been invoked in the courts with greater visibility and regularity in recent years, the doctrinal import of relational contract theory remains for the most part unclear to contract and commercial lawyers. This paper offers a broad framework for understanding the different ways through which relational theory might have an impact on contract doctrine going forward, and evaluates the promises and perils of doing so.

In England and Wales, the question of access to information about deceased persons is determined under two separate statutes: the Access to Health Records Act 1990 and the Freedom of Information Act 2000. This paper examines the normative and legal issues raised by access to information about the dead and evaluates the statutory framework. It draws on philosophical and legal sources which support the claim that the dead are owed a moral and legal duty of confidence. However, it also shows that this is not an absolute duty and it identifies the public and private justifications which favour the provision of access to information about the dead. It argues that the current statutory framework is excessively restrictive and that it fails to provide an appropriate context within which interests favouring access may be considered. Accordingly, it argues that the law needs to be reformed and that a specific legislative framework dealing with access to information about the dead should be introduced. The paper concludes by setting out some preliminary suggestions regarding the possible form of such a legislative framework.

Corporate governance best practice now includes the requirement for a board to ensure that the system of internal control is effective in managing risks in the manner which it has approved. The Turnbull Guidance on this matter is ‘based on the adoption by a company's board of a risk-based approach to establishing a sound system of internal control and reviewing its effectiveness’. This involves the identification and prioritising of risks and embedding the risk management approach in the culture and processes of the business. This article explores the use of risk assessment in the law, particularly as it applies to the activities of companies. It is suggested that a concentration on, and perhaps a spurious quantification of, risk could mask the difficulty of making board-level decisions under conditions of true or Knightian uncertainty. Knight maintained that true uncertainty was something distinctly not of the character of risk. It occurs when ‘. . . there is no possibility of forming in any way groups of instances of sufficient homogeneity to make possible a quantitative determination of true probability. Business decisions, for example, deal with situations which are far too unique, generally speaking, for any sort of statistical tabulation to have any value for guidance. The concept of objectively measurable probability or chance is simply inapplicable’.

Over the years, the genius of the common law lay in its ability to adapt old laws to new circumstances, to remake itself in a new image which reflected the concerns and needs of the time. In this century much of our thinking about the law of torts has been shaped by the tort of negligence, which has been the paradigm of adaptability. Although it was Lord Atkin’s speech in Donoghue v Stevenson that provided the central unifying principle for the subsequent development of the tort, it was Lord Macmillan’s famous dictum that the categories of negligence are never closed which provided much of the driving force for those developments. Liability in negligence shifts the focus of the courts’ attention away from the nature of the plaintiffs interest that has been infringed to the nature of the defendant’s conduct. Once attention moved from the deed itself to the manner of its commission, it gradually became possible for the tort of negligence to seep into almost any arena. The opportunities for human error are manifold, and as the old immunities were removed new areas of liability were established.

UN peacekeeping missions operate under the authority of the UN. However, the military personnel that constitute a UN peacekeeping mission remain organs of the states from which they are contributed. Thus, whether unlawful acts committed by peacekeepers can be attributed to the UN is dependent upon whether the peacekeeping force can be regarded as being under the direction and control of the UN. This is a question of fact. According to the ICJ and the International Law Commission, unlawful acts committed by peacekeeping forces will be attributed to the UN only where the UN exercised ‘effective control’ over the commission of the unlawful act. In contrast, the ECtHR has consistently propounded a very different test, asserting that unlawful acts will be attributed to the UN only where the UN retained ‘ultimate authority and control’ over the peacekeeping mission. I argue, however, that neither of these tests provides a suitable legal framework for determining attribution of unlawful conduct in the context of UN peacekeeping missions. After outlining the deficiencies of these tests, I submit that a more suitable approach to determining attribution would be based upon the overall control test as outlined by the ICTY in Tadić.

This paper critically investigates the law and economics of competition law enforcement in conflicts between workers and employers in the EU and the US. The conflict between worker solidarity and market competition attracts significant public attention due to the legal conundrum facing precariously employed gig workers. This paper reveals that in light of the strict consumer welfare standard underlying competition rules, competition law has become an overall disciplining mechanism impeding collective worker action beyond the limited case of the gig economy. Using a holistic theoretical framework comprising of neoclassical and Marxist exploitation theories, the paper shows that sound economic analysis justifies resolving the competition–solidarity conflict in favour of solidarity. After showing that the consumer welfare standard overlooks the idiosyncratic qualities of labour as a ‘fictitious’ commodity, the paper offers an original and inclusive ‘citizen welfare’ standard that takes into consideration how anti-competitive behaviour affects workers as well as consumers. As a result, the paper also contributes to the post-2008 debate on whether and how competition law could contribute to equality by shedding light on competition law's treatment of workers and their welfare.

Terms such as sanctity and inviolability have failed to provide a legally coherent or ethically sound principle upon which to determine the scope of the intrinsic value of life against extrinsic, quality-of-life considerations in a medical context. In their recent work, Margaret Brazier and Suzanne Ost introduce a new term, reverence for life, which they suggest may be more appropriate when attempting to navigate the murky waters of the meaning of life and the value that should be attached to it. They suggest that reverence should be utilised as an alternative that better reflects the nuances and the realities of the dilemma. This paper explores the existing difficulties before considering how the principle of reverence might provide a principled compromise over when the presumption in favour of preserving life should be rebutted.

This paper sets out the distinctive harm caused and wrong done to child pornography victims. It presents a paradigm of reparation within a restorative justice framework that explains the significance of material reparation for these victims. The paper demonstrates that because of the particular nature of child pornography offences and the harms and wrongs occasioned, existing avenues for legal redress in England and Wales and the USA are generally inadequate and ill-fitting, and that a new mechanism for effecting suitable reparation is required. It concludes by sketching a new mode of restorative justice for victims of child pornography, emphasising significant matters that must be addressed alongside financial redress in order to facilitate victims’ restoration.

In the past two decades, it has become commonplace for legislative–judicial engagement on contested constitutional questions to be described as a dialogue. This paper argues that the time has come to abandon the notion of dialogue. The first part of the paper describes the difficulties with dialogue theories. Despite the existence of many different versions, these theories share certain constitutionally problematic characteristics. Dialogue theories promote a view of government that is unrealistic, susceptible to normative bias and that overlooks the critical importance of disagreement and institutional differences to a system of democratic government based on the rule of law. The second part of the paper argues that Christopher Ansell's idea of collaboration-as-fruitful-conflict provides a more descriptively and normatively appropriate account of the relationship between the legal and political branches of government.

This paper examines the standard of proof applicable in proceedings for imposing pecuniary penalties for violation of competition rules. Australia, New Zealand and the UK have chosen the civil standard. This unfortunately overlooks the safeguards required by the relevant human rights treaties in proceedings that involve the determination of a ‘criminal charge’. Conversely, Hong Kong has adopted the criminal standard, which may prove unworkable in these proceedings in which economic analysis is key. After analysing whether one may set this quagmire aside by asserting that these proceedings do not involve the determination of a criminal charge, it will be argued that the more plausible solution is to accept the criminal charge characterisation, limit the civil standard to the effects-based elements of the charge and apply the criminal standard to other elements. This will achieve a permissible proportionate derogation from the human rights safeguards. Similar bifurcated models have been adopted for charges such as public nuisance and harassment, and have successfully withstood human rights challenges.

Are company executives greedy? Recent reports reveal that executives’ pay no longer corresponds with corporate performance. The earnings gap has also continued to widen since the 1980s and senior executives in public companies are regularly criticised for taking too much from the corporate purse. The press has highlighted large salary figures and, during a period of economic recession, headlines which accuse corporate bosses of riding a gravy train have considerable impact. This is an issue for corporate governance. We are forced to ask why company law has seemingly failed to control levels of pay at the top of the corporate hierarchy.

This paper identifies and considers difficulties that gave rise to successful appeals from prosecutions where expert evidence was relied upon to demonstrate that defendants had killed or caused harm to infants in their care. It evaluates the extent to which these difficulties may be addressed by measures which have been introduced or proposed by way of tackling problems associated with expert evidence. Part of the paper is dedicated to an analysis of the Law Commission's consultation paper on the admissibility of expert evidence in criminal proceedings. The paper argues that trial judges may not be best placed to discharge the Law Commission's proposed gate-keeping test for screening the reliability of expert evidence. Expert evidence will often be ‘outcome determinative’ in prosecutions for infant harm, which is why we argue for the introduction of a specialist gate-keeping panel instead to determine the reliability of new theories and techniques.

The doctrine of insurable interest grew out of eighteenth-century anxieties over fraudulent seafarers and habitual gamblers. It was created by the courts, entrenched by statute and remains in place to this day despite the fact that it serves no practical or legal purpose. It was hoped by many that, when the English Law Commission and Scottish Law Commission established their joint review of insurance contract law in 2006, the doctrine would be consigned to the proverbial dustbin of history. Eight years later, these hopes have been dashed. The doctrine is here to stay. This paper asks ‘Why’ and finds the answer to be elusive.

This paper argues that the principle in Woolwich Building Society v IRC (No 2) (1993) that the citizen has a prima facie right to the repayment of money voluntarily paid in response to an unlawful demand by a public authority, should not be regarded aspart of the private law of restitution creating aprivate law right but as a free standing public law principle enforceable in the Administrative Court, broadly analogous to a legitimate expectation. The flexible process and the discretionary nature of the judicial review jurisdiction is more appropriate to the issues that arise than is the private law of restitution with its emphasis on bipolar disputes. Underlying the argument is the claim that the rule of law should not give automatic protection to a person who voluntarily makes a payment to a public authority while believing that payment to be unlawful. More generally, the paper suggests that the enterprise of seeking to subsume restitutionary principles within a single conceptual framework may be misconceived.

UK immigration law is changing rapidly. There have been four major revisions of the immigration rules since 1979, interspersed with numerous minor, but none the less significant, amendments. Moreover, in an increasingly complex field, litigation has flourished. Applications for judicial review have been lodged at a rate which has recently prompted the Court of Appeal to severely restrict access to the court - in all but the most exceptional cases - until the statutory appeal process has been thoroughly exhausted. One consequence of this level of activity has been that the provisions under which family members may join their relatives in the United Kingdom have changed radically during the short life of the Immigration Act 1971.

The function and effectiveness of legal rules as instruments of social organisation have become an important focus of attention for those interested in financial architecture. This paper offers a critical overview of the policy of rule use of the Financial Services Authority (FSA) in the UK and considers the background of this policy, its nature and some problems pertaining to its implementation. The aim is twofold: first, to describe how current policy trends interact with and shape the FSA's policy of rule use and, secondly, to assess the impact of these trends on the effectiveness of this policy. Special attention will be given to developments such as the policy of making more intensive use of rules termed in a high level of abstractness and generality, the fostering of a discursive and participatory character of regulation, the shift towards meta-regulation and the adoption of a risk-based approach to regulation.

Racism has climbed the political agenda at national, European and international levels. Reports from national and international non-governmental organisations (NGO’s) and inter-governmental organisations have focused considerable attention on racism and xenophobia and document an increase in racism, xenophobia, anti-Semitism and race-related activities. As racism has climbed the political agendas, so there has been a substantial increase in the number of national, European and international legal instruments devoted to it. In particular, race-related restrictions on freedom of expression (‘hate-speech’) are increasing and seem likely to continue to do so. Such restrictions give rise to controversy in terms of constitutionality, legal policy and consistency with European and international human rights law. There are also differences of views between the policies of NGO's on restrictions on racist speech.