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.

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.

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.

This paper analyses legal responses to the problem of debt taken out due to coercion within an intimate relationship. Coerced debt differs from other forms of domestic abuse, as it involves a contractual relationship between the victim and a third-party lender. Legal responses must consider whether the victim should be released from her contractual obligation. The paper employs a theoretical lens of vulnerability and relationality, examining lenders’ duties to combat coerced debt, as well as contractual doctrines of undue influence and duress, which allow victims to have transactions set aside under certain circumstances. The paper argues that victims are being failed by an inadequate legal response. The law views vulnerability as an exceptional state and relationality as a constraint, rather than inherent features of the human condition. Through the social construct of the ‘free market’, lenders are consistently favoured by the law, with little obligation to ensure that transactions are free from coercion. The paper concludes with a call for the state to take greater responsibility for coerced debt and to allocate the risk differently than it currently does. This will promote higher levels of resilience for victims and allow them to escape abusive relational contexts.

This paper examines the interaction between ‘radical’ constitutional change, in the form of political devolution, and property systems in the UK, from the perspective of those at the margins of those systems. The paper adopts a property ‘from below’ approach and critically applies the theoretical framework developed by AJ van der Walt in Property in the Margins. In that book, van der Walt outlined how property systems frequently operate to resist democratic and constitutional change and transformation through the functioning of the property paradigm, which refers to a set of doctrinal, rhetorical, and logical assumptions and beliefs about the relative value and power of discrete property interests in law and in society. Building on van der Walt's work, this paper takes eviction, which represents the landlord's apex right, as a case study and considers how qualifications of that right have been reformed by the Private Housing (Tenancies) (Scotland) Act 2016. It is argued that while the strength of the property paradigm is apparent in both English and Scottish property systems, Living Rent, a national tenants’ union in Scotland, have organised tenants to effectively contest and, in some respects, displace the logic of the property paradigm during the reform process.

Are we defined by the choices we make or the duties we owe? This paper argues that there is a conflict between the fundamental conception of the individual as possessing the capacity to choose how to live, which has been held to be the foundation of the European Convention on Human Rights, and the understanding of the individual as a bearer of duties which has long underpinned the UK Constitution. Through case law analysis, it is shown that the tension between these two understandings of the individual underlies the troubled acceptance of the Human Rights Act 1998, and influences the UK judiciary's substantive interpretations of the Convention rights. It is ultimately argued that for the Convention rights to be fully accepted in the UK, the evolution from a duty to a choice-based understanding of the individual, which was artificially accelerated by the Human Rights Act, must be more widely accepted by society and the courts.

In England, Parliament introduced the ‘necessary interest rule’ through the enactment of section 115 of the Charities Act 2011 (England and Wales), allowing ‘any person interested’ in a charitable trust to initiate charity proceedings against defaulting trustees in their administration of charitable assets. Nevertheless, insufficient attention has been paid to this rule despite it being initially enacted in 1853. Parliament has refrained from clearly defining the rule, and the courts have long been grappling with its meaning in determining whether a person is eligible to sue. This paper studies the necessary interest rule by exploring the way in which the courts have interpreted it and the uncertainties surrounding its operation. It is shown that, in the context of charitable trusts, the concern of securing the due administration and execution of the trust lies at the heart of the rule. The final section of this paper discusses the significant theoretical implications of the necessary interest rule. It considers the beneficiary-enforcer debate concerning the conceptual nature of express trusts and highlights the insights that analysis of the rule can provide into this debate.

Disputes over frozen embryos represent a particularly problematic case, legally and ethically, due to the ambiguity of their moral and legal status and the potential rights-claims which can be made with regard to them. Recent work has contextualised frozen embryos as liminal and suggested a contextual approach to their legal classification. By appeal to personal property law, with a lens provided by Roman law doctrines, and reproductive bioethics, we argue that frozen embryos may be subjects of property rights, providing a more stable framework for dispute resolution. To illustrate how a property approach would work, we reconsider the facts of the influential Evans case and argue that if a proprietary rather than promissory estoppel claim had been pursued, the reverse outcome may have been reached, to the benefit of women who are disproportionately harmed in these scenarios.

In recent years, it has become common to see claims that the doctrine of legitimate expectations has no sufficiently defined purpose, and that administrative law scholars should do more theoretical work to bring coherence to this area of law. In this paper, I suggest this ‘conceptual critique’ of legitimate expectations is misplaced and that, instead, it reveals a much wider failing of contemporary administrative law scholarship. First, I show how there has not yet been, and is unlikely to be, a satisfactory answer to the conceptual critique. Following on from this premise, I suggest that the assumptions underlying the conceptual critique are faulty and, administrative lawyers need to fundamentally alter and expand how they study legitimate expectations. The aim now, I argue, must be to move towards providing an account of the practice of legitimate expectations in the wider context of public administration. My specific argument in this paper is thus a case for a significant reorientation and an expansion of the study of how law protects legitimate expectations, but the wider suggestion is that the same shift is required in administrative law scholarship generally.

The demand for family mediation to adapt and change has risen sharply in the contemporary English and Welsh family justice system. This paper focuses on a crucial, yet overlooked, barrier to reform: the tensions felt within the family mediator profession. It first provides an important overview of the introduction of family mediation in the late twentieth century, highlighting the distinction between the traditional therapeutic mediator and the subsequent lawyer mediator. Recent anecdotal evidence suggests that friction exists amongst the two mediator sub-groups, similar to earlier tensions felt between lawyers and mediators. The remainder of this paper is based on an empirical study, comprising 17 interviews with family mediators, which confirms these tensions, as well as a lack of national identity across the profession. However, the data also reveal mediators’ desire for collaboration and community within the profession. The paper is hopeful that regulatory reform can help mediators to ‘mediate themselves’ going forward, and questions whether this transition is supported by a new hybrid mediator.

The new UK regulatory structure for financial services is now firmly in place. This brings with it changes to the consumer credit regime, both in terms of regulation and supervision. The unfair credit relationship test is a sanction contained in the Consumer Credit Act 1974, and its future may well be subject to review as further reform to the UK regulation is actioned. This paper provides a fresh examination of the test's developing role in relation to protecting borrowers against unfairness and its application by the courts. The question is then posed as to whether evidence of underlying ‘competing’ ethics in both case-law and statutory policy suggests that the test will no longer be appropriate in the control of unfairness in relation to the credit consumer, when changes to the legislation and regulatory framework are concluded.

It is clear that several members of the judiciary are unhappy about some of the moral implications of Caldwell recklessness. In particular, there is concern about the accused whose capacities, mental or physical, are appreciably more restricted than those of the ordinary person. Such person may not just fail to foresee risks obvious to rcasonable people, they may plausibly be seen as being incapable of so doing. Judicial anxiety about this first surfaced in Elliott v C. There, the Queen's Bench Divisional Court allowed a prosecution appeal against the acquittal of a 14 year old girl (who was in a remedial class at school) for the criminal destruction of a garden shed and its contents.

The concept of defectiveness is undoubtedly of crucial importance in the structure of the Consumer Protection Act 1987. The definition of the term ‘defect’, upon which will depend the actionability ofdamage caused by a product, is set out in s 3, which reads as follows:

(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes ‘safety’, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

The rise of popular music in the twentieth century has raised questions about the appropriateness of the current system of copyright law. Copyright law is based around the notion of the individual ‘romantic’ author, an individual who creates with his own innate thoughts. Copyright law provides an exploitable property right to authors – a right, in rem, which may be exercised against the rest of the world. It is a right that may be sold and transferred, a right to which fiscal value may be placed. The property paradigm of copyright is one that is exclusionary. Popular music reveals that copyright works may be collaborative in nature, and this can bring into question whether an exclusionary property-based model is appropriate. Historically, copyright has not always been based around the property paradigm; some early cases highlighted the ‘merit’ of the potentially infringing work, and they focused on the manner of creation of that potentially infringing work. Some later cases have also emphasised the manner of creation of a copyright work. These are cases that concern what is termed ‘reverse engineering’– a modern term that encapsulates how an earlier work is used in a later work. Paradigmatically, to focus on reverse engineering is to mark a move away from the property paradigm of copyright. This paper argues that to institute such a methodological approach would lead to a more accurate ontology and would thus lead to more efficient legal regulation.

English common law is often understood to provide for the resolution of social disputes predominantly by resort to legal rules. Whilst there may be initially reasons for a rule which do not constitute legal reasons, once the rule becomes promulgated in a statute or is embodied in a judgment of a higher court then the application of the rule in future cases is justified by that very promulgation or embodiment. No further appeal to the social reasons originally behind the rule, what might be referred to as the ‘primary reason’ for a rule, is necessary. According to the theory any subsequent dispute to which the rule is addressed will be resolved one way or the other because there exists a distinctly legal reason for reaching that decision which is independent of the content of law and independent of, for example, social or moral considerations.

This paper, which is the revised text of the first Stephen Livingstone Memorial Lecture delivered in February 2006, surveys the human rights jurisprudence of the House of Lords over the past 10 years. It considers not just how the Law Lords have responded to the Human Rights Act 1998 but also how they have developed the law on equality, asylum and immigration. In assessing whether human rights are ‘safe’ in the hands of the Law Lords, it looks, first, at how willing the Law Lords have been to engage with human rights arguments, concluding that they have relished such discourse. The piece then examines how rigorously the Lords have protected rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The conclusion reached is that the Law Lords have been doing a good job on that front. What is preventing them from adopting an even more rights-based approach to their work in general is the UK’s stubborn adherence to the ‘dualist’ theory of international law. The author agrees with Lord Steyn that the time has come to reconsider that position.

The centenary of Maine’s death prompts the questions: why is he remembered and what is his significance for us today? In part the answer is simple. He wrote well, and his books such as Ancient Law are a pleasure to read. It is frankly a relief to turn to his works after reading the remarkable but laboured chapters of that other nineteenth century jurist, John Austin (1 790-1859).

But going beyond his style and assessing his intellectual merits and the modern uses of his ideas is a more complicated matter. If his jurisprudential ideas are compared with those of, say, Bentham and Austin it is clear that there is an initial contrast in the way their respective theories are categorised. When the latter two thinkers are considered it is useful to refer to Benthamite and Austinian forms of jurisprudence.