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.

By introducing legal tests centring upon concepts of freedom, capacity and reasonableness, the Sexual Offences Act 2003 reflects a deliberate legislative attempt both to provide a clearer structure for jury deliberation on sexual consent and to hold defendants to a higher level of accountability in relation to their belief in its existence. While these developments are well intentioned, it is argued that they may ultimately prove to be of limited effect. More specifically, it is suggested that there is an inherent complexity in the concepts of freedom, capacity and reasonableness, at least in the largely undefined form in which they have been introduced, such that the Act may, in practice, simply result in the proliferation of a new set of malleable legal tests and unpredictable legal outcomes.

Drawing on a series of mock jury deliberations undertaken by the authors in which participants were asked, having observed a short rape trial reconstruction, to apply the tests set out in the Sexual Offences Act 2003 in order to reach a verdict, this paper examines the ways in which the concepts of freedom, capacity and reasonableness were interpreted. Bearing in mind the inevitable constraints of the mock jury methodology (in particular its verisimilitude to real juries), this paper suggests that there may, nonetheless, be some valuable lessons to be gleaned from these deliberations about the future application of the law in actual rape cases.

This paper examines the significance of the issue of causation where a death results from the supply of an illegal drug. The characterisation of the drug user’s conduct by means of a principle of voluntary intervention, as favoured in English and Welsh law, is questioned. The customary academic reliance upon the work of Hart and Honoré is doubted. The possibility of a new statutory offence of causing death by the supply of a controlled drug is considered.

This paper argues that the Law Commission's discussion paper Monetary Remedies in Public Law was vitiated by three flaws prevalent in the critical literature that it surveyed. The first, and most significant, flaw is a tendency to proceed by dislocating legal rules from their context then comparing them as abstract verbal formulae. This is made apparent through a comparison between unreasonableness in the tort of negligence and Wednesbury unreasonableness. The second flaw is the presentation of evaluative conclusions without a sufficient defence of the criteria used to reach them. The third flaw is the adoption of an unhelpfully static perspective as to the purpose of public-law liability rules, which neglects the positive role that they play in structuring good public decision making. The paper concludes by providing a sketch for the design of a research project which transcends these flaws.

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.

In this paper, which is the text of a lecture given at the official launch of the Law School at the University of Bradford on 11 May 2006, the history of law reform in England is traced, the role of the Law Commission is analysed and future prospects are considered.

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers ‘subject to’ rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

A recent consultation by the European Commission on a draft code of conduct for the voluntary and community sector to combat illegal political activities highlights the regulation of the sector. This paper considers the European Commission’s code in light of the current regulation for charities and the wider voluntary and community sector, questioning whether sector-specific regulation of political activities is achievable and how such regulation could be best achieved.

In his Dimbleby Lecture in December 2002, the Archbishop of Canterbury examined the effect of the emergence of the market state on the legitimacy of government activity in areas of morality. He suggested that, while this is becoming limited, the continuing need to provide a moral context for social life provided an opportunity for religious communities to play a crucial role. This paper suggests that the increasing significance of market concepts in healthcare law poses a similar challenge to the moral basis of medical practice, threatening to drive moral argument outside the scope of the discipline, with the consequent effect of undermining the values that drive good healthcare. Thus, the de-moralisation of medicine is also demoralising for those within the health professions. To counteract this tendency, a strong sense of a common moral community needs to be maintained amongst those engaged with the discipline of healthcare law. This paper also examines the role of law in this area. Traditionally, legal scholars have attacked the reluctance of legislators and the judiciary to wrestle from the grip of doctors the authority to determine ethical issues. The dominant view has been that this was a failure to recognise the fact that society has a stake in these matters and that legal non-intervention was an abdication of responsibility that undermines the rule of law. However, the integration of medical and moral decision making into a collaborative enterprise can also be seen as a more effective defence against the forces of demoralisation than the separation that the orthodox approach implies. If this is correct, then a key task for healthcare lawyers, as yet undeveloped, is to consider how to establish a legitimate common moral community, and what role the law might have to play in that process.

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 Communications Act 2003 can be seen as yet another attempt to reconcile the contradictions resulting from the great schism between Market and Social Liberalism that dominated twentieth-century political discourse in the West, in this case applied to the intricacies of media regulation. In this respect, the Act is simply the latest manifestation of an on-going process of philosophical accommodation that has been characteristic of British media policy, at least since World War II, if not before. This accommodation has always been imperfect, and the debates over the Act's more controversial provisions indicate that the tensions between the competing schools of liberalism will persist well into the twenty-first century.

This paper examines concerns raised by employers about consensual sexual relationships occurring at work. It begins by examining the link between sexual relationships and sexual harassment as a justification for regulating relationships, particularly hierarchical ones, and suggests that the willingness of employers, particularly in the USA, to prohibit or regulate relationships might be motivated by reasons other than a concern for women’s equality at work. Secondly, it argues that although recent changes to the law on sexual harassment in the UK might encourage employers to consider prohibiting or regulating sexual relationships here, there are countervailing legal principles to be considered, such as anti-discrimination law and privacy rights. Finally, it argues that there is a real problem of harassment when relationships end and that sex discrimination law should be directed to ensuring that unacceptable behaviour is not tolerated, rather than prohibiting consensual relationships.

This paper examines the interplay and tension between housing law and policy and property law, in the specific context of the right to buy (RTB). It focuses on funding arrangements between the RTB tenant and another party. It first examines how courts determine the parties’ respective entitlements in the home, highlighting the difficulty of categorising, under traditional property law principles, a contribution in the form of the statutory discount conferred on the RTB tenant. Secondly, it considers possible exploitation of the RTB scheme, both at the macro level of exploitation of the policy underpinning the legislation and, at the micro level, of exploitation of the tenant. The measures contained in the Housing Act 2004 intended to curb exploitation of the RTB are analysed to determine what can be considered to be legitimate and illegitimate uses of the scheme. It is argued that, despite the government's implicit approval, certain funding arrangements by non-resident relatives fail to give effect to the spirit of the scheme.

This paper considers the effectiveness of the enforcement provisions of consumer product safety law by examining the new legislation in this area (the General Product Safety Regulations 2005), and the broader context in which it operates. The paper suggests that to understand the likely effectiveness of the Regulations, it is necessary to examine what the author refers to as the internal and external dimensions of enforcement. The paper is divided into three parts: part one sets out the enforcement provisions of the Regulations; part two examines the internal elements of enforcement; part three examines the external elements of enforcement. The internal elements are those provisions found in the statute that direct enforcement authorities in the action they can take. The external elements are those pressures outside the statute that inevitably impinge upon the ability of the enforcement authority to make a decision. It will be argued that while recent developments make some important strides forward in protecting consumers from dangerous products, there is a risk that the law will not be enforced satisfactorily.

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.

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.

Although sex education lessons have been provided in our schools for many years, concerns about the sexual health and practices of the nation's youth remain centre stage. In recent years, a number of initiatives have been introduced, with varying degrees of success, to increase young people's awareness of sexual matters and to reduce the high number of unplanned teenage pregnancies. One particularly controversial idea is that parents should be divested of the right to withdraw their children from sex education classes. In this paper, I consider the implications of this proposal, paying special attention to the response of those conservative religious organisations most likely to oppose it. My central thesis is that, while the state should be careful not to ride rough-shod over the wishes of parents in what is an extremely emotive area, the interests of the child are paramount and all young people in maintained secondary schools should have access to comprehensive sex education programmes.

The 2004 decision of the Court of Appeal in Manchester City Council v Romano and Samari highlighted the unexpected impact of the Disability Discrimination Act 1995 (DDA) upon the control of anti-social behaviour by social landlords where that conduct is caused by a mental disorder. This paper positions the legislation against the backdrop of advanced liberal housing policy, and its concern with the management of risk and the fostering of individual responsibility among tenants. In particular, it explores the possible criticism that, by preventing landlords in certain circumstances from taking action against the mentally disordered on grounds of their anti-social conduct, the DDA patronises those individuals by denying them the opportunity to take responsibility for their actions.

The approach adopted by epidemiologists when attributing a causal mechanism to an observed statistical association is contrasted with the common law of causation in personal injury cases. By recognising the need to distinguish between probabilistic measures of (1) the strength of an association and (2) the fact-finder’s ‘degree of belief’ in the claimant’s causal hypothesis, the verdicts in a number of epidemiology-based cases, mostly in British courts, are shown to be questionable. The argument is then made for a wider application of proportionate liability, extending beyond defective drug cases (where epidemiological evidence is most often found) to medical negligence, occupational injury and tobacco-related litigation. An increased coherence in the common law of personal injury can be achieved without compromising the fundamental aims of tort and, it is argued, by reaffirming the importance of just one ‘policy’ precedent on liability for increasing risk.