Labour came to power in 1997 with a commitment to constitutional reform and joined-up government. New Labour has indeed produced significant constitutional change: devolution to Scotland and Wales, the Human Rights Act 1998, partial reform of the House of Lords, elected Mayors, a Freedom of Information Act, an Electoral Commission and more. Joined up it was not. Nothing better illustrated this than the (arguably) botched Cabinet reshuffle on 12 June 2003. On that day, Downing Street announced the resignation (or sacking) of Lord Irvine, the Lord Chancellor since 1997, and the abolition of his post, and, in its place, the establishment of a Department of Constitutional Affairs, and, finally, the creation of a Supreme Court.

This paper examines the legal status of humanitarian intervention in the aftermath of the abortive military operation in Syria. In tracing the history of the doctrine up to the beginning of the Syria crisis, it asserts that the negative reaction to the abortive use of force has reinforced the unlawfulness of humanitarian intervention. In appraising in detail the legal positions of the UK, the USA, France and other states, it analyses the interplay of constitutional law and international law in the Syria crisis with reference to the role of consultations of national parliaments. It asserts that the Syrian precedent illustrates the difficulty of identifying the opinio iuris of a state in which the input of international law through legal advice and public debate affects the output of that state through the expression of its legal position on doctrinal questions. By scrutinising the approach of the British government in consulting the House of Commons in relation to the continuing operations against Islamic State in Iraq, it argues that the National Security Strategy review in 2015 should address the concerns expressed by parliamentary committees regarding consultation of Parliament, the provision of legal advice and the lawfulness of humanitarian intervention.

Death by neurological criteria (DNC) has remained controversial since its introduction over 50 years ago. Objections to the diagnosis of DNC have been coming before the courts in various jurisdictions, including at least seven recent challenges before the UK courts. In responding to these challenges, the UK courts have expressed no doubts as to the status of DNC and have affirmed that following a diagnosis of DNC, the matter of best interests is no longer relevant. Yet, the courts have also, tacitly, acknowledged that DNC is not quite the same as cardio-pulmonary death.

This paper begins by setting out the origins of DNC as a medico-legal construction, and its ongoing controversies. It then analyses the treatment of DNC, including authorisation of DNC testing, by the UK courts. It shows that the courts have been operating a form of ad hoc reasonable accommodation of different views of DNC but have done so without normative engagement. The paper argues that the courts should recognise that DNC disputes are not simply concerned with whether, as a matter of fact, DNC has been correctly diagnosed, but also raise profound questions about rights and interests, both of families and of the DNC dead.

The legal framework concerning liability of communication intermediaries for defamation is under-conceptualised. The paper thus develops a holistic doctrinal approach to liability of speech intermediaries, such as Internet service providers (ISPs), booksellers and newspaper vendors, for defamation. It views intermediary liability for defamatory speech against the backdrop of communication theory and freedom of expression doctrine. If properly conceptualised, as suggested in this paper, the law of defamation can accommodate the cyberspace-specific legislation in Arts 12–15 of the e-commerce Directive and s 5 of the Defamation Act 2013, as well as the innocent dissemination defence in s 1 of the Defamation Act 1996, now to be read together with s 10 of the Defamation Act 2013. The paper establishes six tenets of intermediary liability for defamatory content. In particular, it argues that ‘publication’ is to be conceptualised as a merely factual requirement for defamation, whereas the defence of ‘innocent publication’, also known as ‘innocent dissemination’, is a fault-based concept. Communication intermediaries are thus to be considered ‘publishers’, even if they have a merely automatic role in the publication process, but they may avail themselves of the defence of ‘innocent publication’. This defence has to be applied in compliance with the human rights of the parties involved.

Sexual harassment litigation may be thwarted by judges failing to address the acts in question from the perspective of the victim, thus legitimising behaviour acceptable to men but unacceptable to women. This paper shows how this problem may be overcome by adopting a ‘reasonable woman’ standard to decide if: (i) objectively, the acts in question constitute harassment; and (ii) subjectively, whether the victim suffered injury. Using US case law the paper shows how the reasonable woman standard, which has been accepted in some courts, can allow women's perspectives to be heard. The paper suggests that a reasonable woman standard should be adopted in UK tort law, specifically in litigation under the Sex Discrimination Act, but also for litigation under trespass torts and under the Protection from Harassment Act. Doctrinally, the proposed standard fits within the fabric of tort la; and does not challenge the principle of corrective justice. From a feminist perspective, the reasonable woman standard can successfully redirect tort law to address gender-specific harms.

Should people be required to know information about themselves that arises from their genetic test? This question is highly relevant given the NHS's plans to sequence 100,000 whole genomes before 2017. The approach to this issue in the USA generated significant opposition to requiring knowledge, on the basis that it interferes with autonomy. This piece presents a different perspective, arguing that requiring knowledge may not undermine the legal conception of autonomy, giving reason to doubt that it would be unlawful to require people to have genetic information about themselves. Following this, the piece presents an alternative principled position that might support a legal recognition of the interest in not having information about oneself; namely that of preventing personal harm. However, this approach runs into difficulties if the reasons for requiring knowledge are also based on preventing personal harm. The argument considers how interests might be balanced in this competing harms context.

Does the law of estoppel remedy reliance loss, or protect and grant expectations? In 1983 it was said that:

‘This is a question that the courts must decide once and for all, and … they must not shirk from providing an answer by pretending that that answer will vary according to the facts of each particular case.’

This article examines a view about this question which I shall call the ‘reliance loss theory’, which states that the normal response to a successful plea of estoppel is to compensate the claimant's reliance loss rather than to fulfil his expectations; in other words, that the court will, if possible, remedy the detriment he has already suffered in reliance upon what the other has said, without going to the lengths of obliging that other to abide by, or fulfil, what he has led the claimant to believe by his conduct or silence. The reliance loss theory has been presented as a description of what actually happens, but it also appears as an argument for what the law should be.

This paper compares and contrasts state emergency responses to national security crises with responses deployed in a period of economic crisis. Specifically, this paper challenges the appropriateness and legitimacy of the standard emergency response of legislative (as distinct from judicial) deference to the executive when confronting such economic crises. This will be done by questioning the significance in periods of economic crisis of the two principal factors that justify deferring to the executive during a state of emergency pertaining to national security: (i) the necessity of the action taken; and (ii) that the executive has an expertise in decision making in the specific area in question. Ultimately, this paper questions the application of the emergency paradigm to economic crises, arguing that such responses are rarely temporary and instead usher in a ‘new normalcy’.

The desirability of having a general duty to give reasons for court decisions has been much debated in Commonwealth jurisdictions. In England, a series of recent cases has consistently upheld the duty, albeit with qualifications. The existence of this general duty is defensible in principle. However, exactly what is required to comply with the duty is not clear. The explanation the judge is expected to give may be analysed in terms of its structure, contents and standard. These aspects are dependent on many factors, such as the rationale underlying the duty, the limitations faced by the judicial system, the nature of the decision- making process, and the significance of the decision. While one can identify the major considerations that operate at a general level, the scope and extent of the duty to explain a particular decision are dependent on the circumstances of the case. This variability makes it difficult to be certain as to when a breach of the duty has occurred. The duty must meet the purposes for which it is imposed and at the same time must not be too unrealistic in its demands.

Categorising something as a business judgment can provide directors with a powerful shield from accountability. It has been said that the courts in England and Wales defer to directors’ business judgments and directors’ decisions are protected from review in other jurisdictions by a business judgment rule. Yet what a business judgment is has never been addressed, and so precisely what is being protected, and why, is unclear. This paper analyses case law in England and Wales and key Australian and US cases to answer this question. It argues that the courts use the term judgment in two senses: an ability, and a decision sense, and that business judgment in both senses can be linked to Knight's concept of entrepreneurial judgment, and directors’ wealth creation function. Conversely, decisions that are linked to directors’ corporate governance function and are less easy to categorise as entrepreneurial are less likely to be viewed as business judgments.

Decisional privacy offers individuals the freedom to act and to make important decisions about how they live their lives, without unjustifiable interference from other individuals or the state. Children's perceived vulnerability, incapacity for rational decision-making and dependence on adults have been used to justify depriving children of decisional privacy rights and subjecting them to the exercise of adult power over the conditions of their lives. The aim of this paper is to articulate a theory of children's decisional privacy. It is argued that decisional privacy is valued as a condition that enables individual autonomy. A relational, gradual conception of autonomy is advanced, to explain how children can be recognised as having the capacity for autonomy, and in some circumstances, actual autonomy. This paper presents four fundamental principles of a children's rights approach to decisional privacy, which collectively serve to enhance children's meaningful participation in decision-making about their best interests, consistently with children's evolving capacities and the receipt of appropriate parental direction and guidance. The theory developed in this paper presents an opportunity for adult decision-makers to reflect upon how they make decisions for and about children, and how children can play a meaningful role in those decision-making processes.

In most countries and universities, few legal scholars pursue their academic careers in a country that is different from their home jurisdiction. However, the UK is a rare exception, as its universities have shown a great willingness to appoint legal scholars from any legal tradition and any part of the world. As the topic of foreign-trained legal scholars is underexplored in the current literature, this paper aims to fill the gap. It identifies 539 foreign-trained legal scholars at Russell Group universities, which amounts to 36.69% of their academic staff in law. Subsequently, the paper presents the results of a survey which explored how respondents deal with the challenges of being based at UK universities, such as the possible expectation to assimilate to the UK legal environment, and considering the impact of the result of the Brexit referendum. Overall, the paper finds that foreign-trained legal scholars should not be regarded as (negative) ‘irritants’ to UK legal scholarship and education, but that they can be rather be seen as (positive) ‘change agents’ in their universities.

The proposition that ‘Restitution is based on unjust enrichment’ is usually the first that a student of Restitution is presented with. It is a claim at several different levels: as to the terminology we should use in discussing Restitution; as to the sort of rules the subject contains; and as to the way these rules have been developing or should develop in the future. Nor is this confusion of claims particularly surprising. Much of the work of the academic lawyer consists of interpreting the judgements of the higher courts; it is not really very odd when those courts’ ambivalent approach to whether they are making the law, or simply applying it, rubs off. ‘Restitution is based on unjust enrichment’ is really a collection of subsidiary propositions about Restitution; and it is clear that, of those who believe that Restitution is so based, not all would subscribe to every one of the subsidiary propositions.

In any system of property law a complete specification of rights and duties raises at least two questions. First, allocation of rights and duties inter se between the parties to the transaction; secondly, the rights and duties of the parties to the original transaction against the rest of the world. The traditional common law analysis where a third party wishes to acquire an indefeasible interest in a chattel is to direct the latter to the ‘owner’ and indeed the prerequisite for the enjoyment of most property rights depends upon our ability to acquire it from someone else. Furthermore, inherent in the idea of acquiring an absolute right in property (title) is exclusivity of possession ie superiority over the transferor and third parties.

International surrogacy agreements involve a child born to a surrogate mother who is of a different nationality to the commissioning parent(s) in a state other than that of which the commissioning parent(s) are nationals or reside. Many of these arrangements lead to children being born stateless, which deprives that child of many rights that are directly linked to one's nationality as well as causing significant practical problems, such as difficulty in obtaining a passport. In undertaking the first Public International Law analysis of nationality and international surrogacy agreements, we map out how various provisions can be used to guarantee protections against statelessness. Accordingly, we argue that the drafting of a proposed new convention is not the ideal solution in this respect, and should not be to the detriment of the ratification and implementation of the relevant conventions that we identify; in particular, the 1989 Convention on the Rights of the Child. We argue that these protections offer the most meaningful protection in the short term and should be used to inform any future protections under the proposed Convention. We conclude by encouraging the advancement of Public International Law arguments when petitioning in a domestic context on behalf of stateless international surrogate children.

New Labour's recent ‘Welfare to Work’ policies encourage people with disabilities, where possible, to enter and participate in the workplace. The current policy of ‘inclusion’ is supported by the Disability Discrimination Act 1995 (DDA), which came into force in December 1996 providing those who are discriminated against on the grounds of their disability with an action against their employer. Drawing upon recently decided case law, this paper considers what the DDA offers those who are discriminated against because of a mental illness. I argue that policy-makers, courts and tribunals, because the relationship between physical and mental impairments is often misunderstood, fail to reflect the varied nature of or understand the stigma associated with, mental ill health. The law is thus at present incapable of providing adequate protection for mentally impaired individuals who attempt to participate or remain in the labour market, and new approaches, which are sensitive to the diverse nature of disability, need to be considered.

This paper examines the historical and theoretical basis of the privilege against self-incrimination and the case-law regarding the privilege before the UK and European courts in order to understand better the development of the privilege in relation to competition investigations in the UK and EU. The historical and theoretical basis of the privilege indicates that the privilege is a relatively modern legal creation and a number of theoretical bases are offered to justify its existence. The theoretical justifications assist in a better understanding of the extant case-law, but indicate that some of the distinctions drawn between categories of protected information have no clear basis. The paper goes on to examine the difference between self-incrimination and self-accusation, the extension of ‘human’ rights to corporate entities, and the existence of a privilege as a ‘functional necessity’. Finally the paper makes some suggestions about the type of information that might be sought legitimately in competition investigations and those requests that might be challenged.

The Criminal Justice and Courts Act 2015 has created several new offences regarding juror misconduct. While this legislation has been passed in response to jurors accessing improper ‘evidence’ online, it is wrong to treat juror misconduct as a new problem. The most famous case on this topic (Bushell's Case) did not completely prohibit juror punishment, but the rhetorical force of the decision was such that penal practices have until recently been overlooked in the academic literature. This paper argues that assessing the new offences is greatly helped by understanding how juror misconduct has been responded to in the past. Drawing on the language of Bushell's Case itself, as well as new archival research, it argues that previous practices of juror punishment have largely depended on whether particular instances of misconduct related to the juror's ‘ministerial’ or ‘judicial’ functions; and that ‘judicial’ offences (those relating to verdict formation) have been much less likely to be punished. Rather, such offences have tended to be managed away. If today's judges continue acting in this way, the new offences are unlikely to be resorted to very often, with the judiciary being much more likely to focus on techniques for avoiding misconduct in the first place.

In carrying out their functions government bodies frequently enter into contractual arrangements, both with private persons and with other public authorities. Like private individuals, for example, they make leases, employment contracts, and contracts of procurement to obtain the goods and services they require. Frequently they make contracts with the public in the course ofproviding public services and amenities – for example, in running public transport services, or in providing facilities such as recreation centres or museums to the public on payment of a fee. In addition, the government uses contract as a method ofcontrolling behaviour as an alternative to enacting regulations. It may, for instance, control the behaviour of those granted licences to trade or carry on other activities through contractually stipulated conditions