Leslie Scarman was one of the most influential common law judges of the twentieth century. As a judge, he was relatively conventional and sometimes unadventurous. His technique can be contrasted with that of his contemporary, Lord Denning. However, his role in establishing the Law Commission of England and Wales afforded a model that has been copied throughout the world. His early support for a law of human rights encouraged the adoption of the Human Rights Act 1998. This paper explains the essential unity of Scarman’s legal philosophy and the importance of his contribution at a time when basic assumptions about governance in Westminster democracies are being re-examined and sometimes found wanting.

The common law restraint of trade doctrine continues to provide valuable protection in a variety of business contexts. This paper analyses an incompatibility problem that has arisen between that doctrine and EU competition rules (in particular Art 101 Treaty on the Functioning of the EU [TFEU]) as implemented by EU Regulation 1/2003, which, amongst other matters, delineates the interface between national law and EU competition law. According to the High Court, once a court has applied Art 101 TFEU, Art 3 of the Regulation prevents a court from reaching a contrary finding under the restraint of trade doctrine. Thus, the court cannot find a clause is void under the doctrine if the clause comes within the scope of, but is not prohibited by, Art 101 TFEU. In effect, this conclusion displaces the restraint of trade doctrine for parties who are subject to unreasonable restraints that fall foul of the doctrine but are not prohibited by Art 101 TFEU. The interface problem and the possible solution are presented as issues of Europeanisation. The negative impact on national law deriving from an EU measure is portrayed as a ‘top down’ Europeanisation scenario. A contrary ‘uploading’ perspective reveals how and why Art 3 and associated Recitals in Regulation 1/2003 were ‘constructed’. These findings on the intended scope of Art 3 are used to challenge the High Court's view on the negative implications of the Regulation for the restraint of trade doctrine. Finally, this paper offers specific proposals as to how courts in the United Kingdom and Ireland could ensure that the restraint of trade doctrine is not an inevitable casualty of Europeanisation. It argues that when looking for a solution to the ‘top-down’ Europeanisation problem faced by the restraint of trade doctrine, the ‘uploading’ perspective of Europeanisation suggests a solution.

Breach of confidence is in danger of being enveloped by fiduciary doctrine. Law's ability to discipline confidence-breaking by computer hackers and persons unknown to their victims may be lost if this wrong's separateness is not maintained. Distinct moral imperatives and policies arise when confidentiality is protected. However, A-G v Blake casts doubt on the independence of breach of confidence and breach of fiduciary duty. Conflation of the wrongs may have occurred at Britain's highest appellate level. Similar developments can seen in Australia, Canada, Malaysia and New Zealand.

Legal scholars over the last 25 years or so have experienced a growing sense of dissatisfaction with the traditional classifications that segment university curricula and legal textbooks. Contract and tort, for instance, are felt to be not so different after all. The intimate historical links between the tort of negligence and the action of assumpsit may be seen as reflecting the realitics more truly than the later doctrinal separation of voluntarily and involuntarily incurred obligations. The growing impact of public law on the exercise of privatc rights, and the interweaving of public and private law that runs through an evcn greater portion of the legal system, cause still more fundamental doubts.

It is an established principle that an individual who is adversely affected by a public nuisance may not sue in tort unless he can show that he has suffered ‘particular damage’ over and above that suffered by the general public. Traditionally the principle has been justified on the ground of prevention of multiplicity of suits. It is argued that unless the complainant's injury is in some way distinguishable from that suffered by the general public, the proper plaintiff is the Attorney General as the public's representative; otherwise the wrongdoer could be punished ‘a hundred times for the same cause’.

The enactment of the Charities Act 2006 is widely viewed as one of the most momentous events in the recent history of English charity law, and the impact of the Act on the pre-existing law is still being debated. This paper inquires into the operation of the Act within the religious sphere. It seeks to explore the basis upon which charitable recognition was accorded within this sphere before the Act and to assess how far the law that was previously in force has been preserved, modified or rendered inoperative by the provisions of the Act. Three fundamental dimensions of the legal regime governing religious charities are especially relevant to this inquiry. The first dimension encompasses the elusive quest for the meaning of religion in the charitable sense. The second focuses on the long-standing requirement that religious purposes must be beneficial to the public in order to be charitable. The third is concerned with the human rights implications of conferring or withholding charitable status within the religious domain. Each dimension is examined in turn with a view to providing an insight into the complexities and difficulties inherent in the pre-existing law and the extent to which these have been addressed by the reforms contemplated by the Act.

The Court of Session decision in Pringle, Petitioner again raises the issue of what constitutional effect, if any, is to be attributed to the Treaty of Union between Scotland and England. Specifically, is it competent for the Court of Session to find that an Act or a provision in an Act of the United Kingdom Parliament is invalid because of an inconsistency with an Article of the Treaty of Union as enacted in Scots law by the former Scottish Parliament in the Union With England Act 1707 (c 7)? This is the first case since MacCormick v Lord Advocate in which the Inner House of the Court of Session has commented on this favourite question of Scottish constitutional lawyers and, although hardly answering the question any more revealingly than it did in that case, the court's latest reservation of opinion on the answer is worthy of some further discussion.

This paper explores the implications for English law of the decision of the European Court of Justice in joined cases C-46/93 Brasserie du Pêcheur v Germany and C-48/93 R v Secretary of State for Transport, ex p Factortame (No 4) and subsequent decisions developing the principles enunciated therein. More specifically, it examines how the English law of torts is to accommodate the European law obligation to compensate, in appropriate circumstances, individuals suffering a loss as a result of a breach by the state of Community law. In confronting this question English law is engaged in the unfamiliar exercise of attempting to match a remedy to an already recognised right: the history of the common law, and the law of torts in particular, is of defining rights in the light of the existing remedies under which they could be asserted.

Despite recent attempts at judicial reformulation, the question of the effect of a plaintiffs illegal conduct on his right to pursue a common law negligence action for personal injury damages remains largely unsettled, and on an uncertain policy and doctrinal foundation. There is a continued obsession with public policy, whether expressed, as it is in England, as a matter of public conscience, or in Australia, as a proximity consideration preventing the finding of a duty of care. However formulated, public policy, in particular the public conscience, as an ad hoc means of determining the effect of a plaintiff's illegality, is unsatisfactory for this purpose, and has proved problematic and unmanageable for the courts. It is here submitted that personal injury negligence law, properly understood and deployed, does not require, nor is served by, the continued application of the illegality defence.

The recent litigation arising out of the Spycatcher affair was bound by the very nature of the issues at stake to be controversial; yet whatever view is to be taken of the rights and wrongs behind these issues one aspect of the litigation that was always likely to give rise to difficulties and to leave the common lawyers open to criticism was the conceptual framework in which these issues were handled. Ought serious constitutional questions like press freedom - questions that involve not just the public ‘interest’, but also the public’s ‘right’ to information in a democracy - to be debated at the level ofprivate ownership? Indeed is it actually rational to treat a government body, in relation to another government body or to the press, as if it were a private citizen entitled to the same rights (for example a ‘right to privacy) the human legal subject?

The idea that psychoanalysis might be of use in the study oflaw and legal activity is by no means anything new. At the beginning of this century, the Russo-Polish jurist Leon Petrazycki proposed a theory of legal psychology, arguing that law, as an intuitively intelligible component of the human mental process, is in essence constituted by individual feelings of moral obligation and responsibility. Around the same time, psychoanalytical theory was beginning to make a slight impact on American and European jurisprudential thinking. This impact was to become all the more significant when, in the 1930s, Thurman Arnold and Jerome Frank presented arguments about the nature oflegal reasoning, and the roles of both academic lawyers and judges, which were very clearly founded upon broad interpretations of psychoanalytic ideas and concepts. In the continental tradition, Hans Kelsen, though in his early work drawing a distinction ‘between pure legal theory and psychological-sociological speculation,’ nevertheless attempted on occasion to conceive of the sovereignty of the state in Freudian psychoanalytic terms

Law is a social institution. Indeed, it is more: it is one of Man's better inventions in that it has made co-existence possible between large numbers of people and has enabled them to achieve within a framework of control and co-ordination more than individuals could achieve on their own. Law is not by any means the only mode of social regulation, nor may it even be thought paramount; but it is important and pervasive and, as such, deserves to be respected by every society. If a society falters in respect of its law, that could be heralding its undoing. Is that an extravagant statement? Let us see what has been taking place of late in the industrial sphere, which is vital enough to national existence.

This paper challenges the traditional assumption that punitive damages are unavailable for breach of contract. It is shown that Addis v Gramophone provides weak authority for this assumption. The paper considers whether there is a logically coherent argument for retaining punitive damages in tort, while denying them for breach of contract, and it is shown that there is not. The main arguments advanced against punitive damages in civil proceedings are examined and shown to be unpersuasive. Finally, the efficient breach theory is considered and rejected on the ground that it significantly underestimates the costs associated with breach. In conclusion, the paper recommends that punitive damages should be exceptionally awarded to deter outrageous breaches of contract in cases where compensatory damages are inadequate and gain-based damages are unavailable.

This paper provides an in-depth case study of the enforcement of copyright in photographs by certain rights-owners today: freelance professional photographers who derive income from the exploitation of photographic copyright. Referring to the theoretical framework of Guido Calabresi and A Douglas Melamed, the paper reflects on the implications of the case study for the nature and function of copyright in a specific context today. Bringing the experience today into conversation with the enforcement of copyright by professional photographers in past times (the late nineteenth/early twentieth centuries), the paper notes the influence of the bureaucratisation of copyright exploitation (ie exploitation through picture libraries) on legal decision making in a particular forum today: the Intellectual Property Enterprise Court Small Claims Track. The paper concludes with more general reflections on the case study's implications for the courts and copyright policy-makers today.

This paper explores the impact of cuts and continued fee stagnation on publicly funded criminal defence in England and Wales. In so doing, we take an explicit focus on Wales, which has been neglected in socio-legal scholarship on criminal justice matters. Drawing on 20 interviews with criminal defence lawyers in south Wales, we examine how they have experienced the changes to criminal legal aid in recent years. The lawyers in this study largely considered underfunding as a key political issue, with criminal legal aid identified as an easy target, also highlighting concerns around the impact of underfunding on their practice and how they can work for clients. As such, lawyers queried whether there is a viable future for criminal legal aid. These findings have implications for Wales, and the whole England and Wales jurisdiction, as we will discuss throughout.

The liability of public authorities in negligence continues to be a problematic area of the law. Some of the difficulties have been caused by the adoption by the courts of unnecessary and unworkable tests, in addition to the ordinary principles of the law of negligence. This is normally done to restrict liability, as with the policy–operational dichotomy, and the propositions that no liability can arise in respect of an act that ‘falls within the ambit of a statutory discretion’ or where the matter is non-justiciable. Sometimes the intention seems to be to extend liability, as with the suggestion that, generally, a duty of care may arise where there is an irrational failure to exercise a statutory power. Recent cases have helpfully continued the process of removing these special rules, leaving matters to be dealt with by the ordinary principles of negligence. Those principles enable proper account to be taken of the particular functions and responsibilities of public authorities. However, the cases remain difficult and the outcomes can still give rise to debate and disagreement. Insofar as there is a good case for extending the range of situations in which compensation is available in respect of the careless or unlawful acts of public authorities, it would be better to develop ex gratia schemes and the provision of remedies through ombudsmen than to extend the law of tort.

This article is a response to a series of articles on contract law and distributive justice. In the first article, published in the Yale Law Journal, Professor A. T. Kronman put forward the thesis that the law of contract is necessarily concerned with distributive justice – that is, with the ‘fair division of wealth among the members of society’. In the second article, published in the Oxford Journal of Legal Studies, W. N. R. Lucy rejected that thesis and argued that limits on contracting are based on freedom rather than distributive justice. In this article I argue that contract law is and should be concerned both with freedom and with the substantive fairness of the distribution effected between the parties.

Recent governments have introduced a plethora of reforms seeking to decentralise power to local government in England. Invariably, however, these have fallen short of stated objectives, leaving councils at the mercy of central supervision and with insufficient local autonomy. This paper explores the reasons underpinning this concern. It identifies a top-down approach to localism and considers the culture of centralism that persists as a consequence. It then discusses how a bottom-up approach might be achieved, exploring how political and legal mechanisms can protect councils from centralised interference in the future.

The National Security Act 2023 replaces the Official Secrets Acts 1911, 1920 and 1939, updating, rationalising, and expanding the various offences which they contained and introducing new rules aimed at the same broad end of countering the threat posed to the UK by the efforts of hostile states and their proxies. It therefore represents a legislative confirmation of the ongoing pivot back to ‘state threats’ rather than terrorism as the focus of the national security enterprise in the UK, though now informed by the experience of counter-terrorism law since 2000. This paper assesses the main changes made by the 2023 Act, including in the context of threats to the democratic process, actual and potential, which have been identified in recent years. The argument offered is that the focus of the 2023 Act – encompassing threats to democracy only where they rise to the level of threats to national security – is undermined by the absence of a more thoroughgoing project to protect the democratic process more generally against foreign interference.