Most of the cases laying down the act of state doctrine, S.A. de Smith observed, were decided ‘in the heyday of imperial expansion, when judges often seemed to be as executive-minded as the Executive.’ Morris and Read, after analysing African cases adjudicating upon preexisting rights in ceded territories, conclude: ‘Those brought up in the traditional view of the judiciary as being the bulwark against any danger of autocratic behaviour on the part of the exeuctive may find all this somewhat susprising.’ Yet Lord Diplock, who could not fairly be described as executive-minded or reluctant to oppose executive autocracy, recently described as an ‘elementary fallacy’ the suggestion that a treaty transferring territory to the Crown can guarantee inhabitants' property rights before the municipal courts.

In a recent article in this journal, David Campbell and Donald Harris criticise the House of Lords decision in A-G v Blake, which held that in some circumstances there can be a liability to surrender the profits of a breach of contract to the other contracting party, ie a liability for disgorgement, as it will be referred to here. The criticism invokes what is sometimes referred to as the economic theory of efficient breach, which can be expressed briefly as follows. The performance of contracts generally increases aggregate wealth – ie is efficient – because parties will contract only on terms that provide them with a benefit that exceeds their costs of performance. But sometimes the circumstances will change after contracting, such that overall wealth will be maximised if the contract is not performed as agreed. For example, the defendant contracting party may discover an opportunity that he or she can take up only by abandoning the contract, and this opportunity may generate enough money to leave a profit, even after the claimant has been compensated for breach.

Studies of takings of property highlight the increasing penetration of state power into private life. Controversies regularly surround compensation provisions. Many academic analyses and decisions of the European Court of Human Rights have supported the proposition that market value offers the best approximation of just compensation. However, full market value compensation may not be guaranteed if the taking of property fulfils certain legitimate objectives of the ‘public interest’. To unpack the complexity surrounding compensation provisions under the European Convention on Human Rights, this paper adopts and develops a ‘law-and-community’ approach – an important dimension, not previously investigated in the study of takings of property – which sees ‘community’ as networks of social relations, and views law as not only grounded in community but also existing to regulate communal networks. This paper then identifies the limits of both Art 1, Protocol 1 of the ECHR and the current approaches to compensation in the light of this law-and-community approach. In so doing, the paper makes a distinctive contribution by offering a new socio-legal interpretation of controversies surrounding compensation for takings of property beyond the private/public divide and by proposing an alternative framework of engaging law and regulation in wider social life.

This paper examines the aims and challenges of ‘judicial diplomacy’ in the form of bilateral meetings between UK and supranational judges. Drawing from in-depth interviews, extra-judicial writings and other documentary sources, it argues that judicial diplomacy has become an important feature of the work of senior judges in the UK, allowing them to pursue jurisprudential and strategic aims. In jurisprudential terms, the judges have sought to improve the quality of judicial decision-making at the domestic and supranational levels. Strategically, they have striven to maintain robust inter-institutional relations and maximise their influence at the supranational level. The pursuit of these aims has taken on renewed significance in the context of Brexit but may raise questions for the protection of judicial independence and impartiality. The judiciaries should therefore consider steps to improve the visibility of these interactions and their value.

The House of Lords’ decision in Derbyshire County Council v Times Newspapers Ltd has been widely welcomed as a long overdue development in the common law’s treatment of free speech issues. Eric Barendt interprets the judgment as a judicial recognition of free speech as a ‘quasi-constitutional’ right. In a more exoteric vein, a major article in the Observer bracketed the case with Factortame, Pepper v Hart, and Woolwich Building Society v Inland Revenue in suggesting that an increasingly liberal-minded judiciary was fashioning a ‘silent revolution’ against orthodox principles of Parliamentary Sovereignty.

Contemporary criminal justice is premised on a rights-bearing defendant safe-guarded by due process from arbitrary state punishment. The paucity of academic commentary on the role of the criminal defendant suggests that there is a common assumption that the role is static. However, the rights-bearing defendant is a relatively new concept. Through a legal history analysis, this paper demonstrates that the defendant's role can mutate in response to pressures placed on the criminal trial. Broadly, there have been three conceptualisations of the defendant: the penitent Anglo-Norman defendant; the advocate defendant of the jury trial; and the rights-bearing adversarial defendant. Importantly, the shift from one conceptualisation to another has occurred gradually, often without commentary or conscious effort to instigate change. There are many contemporary pressures that could be impacting on the rights-bearing defendant. The concept of a mutable defendant provides a new theory through which to analyse these pressures. This paper considers the introduction of adverse inferences regarding the right to silence and disclosure, and the rise of ‘digilantism’. These new pressures, it is suggested, help to facilitate a rhetoric of deservingness that goes against the rights-bearing defendant and raises the risk its role could once again be mutating.

This paper draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision making capacity laws by those with psychological disabilities.

After years of debate, and pages of parliamentary reports, the House of Commons has agreed in principle to allow the televising of its proceedings, both in the Chamber and in Select Committee hearings.’ The purpose of this article is to consider the application of parliamentary privilege to the broadcasting of Parliament by radio or television. The issue of parliamentary privilege arises because of the absolute privilege’ of freedom of speech for Members, which enables them in the course of ‘proceedings in Parliament’ to say or do something which, had it been said or done elsewhere, could have given rise to civil or criminal liability by the person concerned. Absolute privilege exists because it is of outstanding public importance that Members should be able to speak their minds, and this outweighs any consequential harm that may be suffered by an individual or the State. Examples of the use of the protection of absolute privilege are the making of a statement that appears to be defamatory, and the oral commission of one of a variety of criminal offences.

As part of its response to Covid-19 the government paused the use of the ‘Minimum Income Floor’ (MIF), which restricts the Universal Credit (UC) entitlement of the self-employed. This paper places the MIF in the wider context of conditionality in the social security system and considers a judicial review which claimed that the MIF was discriminatory. The paper focuses on how UC affects the availability of real choices for low-income citizens to limit or escape from wage labour, with two implications of the move to UC highlighted. First, the overlooked labour decommodifying aspect of tax credits, which provided a minimum income guarantee and a genuine alternative to wage labour for people who self-designated as ‘self-employed’, even if their earnings were minimal or non-existent, has been removed. Secondly, UC has in some respects improved the position of low-paid wage labourers in ‘mini-jobs’, who are not subject to conditionality once they work for the equivalent of approximately nine hours a week on the minimum wage.