Champions of constitutions and bills of rights regularly portray them as possessing significant, sometimes mysterious, powers. One characterisation is that newly implemented constitutions may invigorate a democracy, particularly at the ballot box. This paper challenges that notion by scrutinising a relatively unexplored area of constitutional performance: voter turnout. In particular, it examines a number of jurisdictions that have recently implemented constitutions and bill of rights, finding that in many of them, voter turnout decreased after passage, sometimes significantly. As the argument for a codified British constitution endures, the findings of this paper provide provisional evidence that those advocating for such a device should be wary of touting its potentially invigorating democratic effects. Ultimately, however, the paper calls for more research into the area of constitutions and democratic performance, such as voter turnout.

This paper examines discretionary decision making in a property law context: the statutory power to correct a mistaken entry on the land register. This discretionary power has importance as an occasion when the allocation of property occurs without fixed rules but is put into the control of the court without guidance on content or goals. The case-law is studied using legal empirical analysis. The judicial approach is described and findings are analysed. The paper relates the conclusions to doctrinal and policy debates in land registration and discusses how the judicial input advances understanding of the registration system as an integrated whole.

This article explores civil society organisations’ (CSOs) participation in judicial review proceedings. This became contentious when the Ministry of Justice announced that it intended to reform the judicial review process, and suggested changes to the law on standing and third-party interventions. Ultimately, the Criminal Justice and Courts Act 2015 did not amend the law in these areas, but has arguably made it more difficult for CSOs to engage in public interest litigation. Attempts to restrict the access of CSOs to judicial review need to be seen in the context of the shifting relationship between CSOs and the state, and differing perspectives on their function. If CSOs are to continue to take part in judicial review cases they need to justify their presence in terms of their expertise and on the ground knowledge. It is argued that deliberative, dignitarian and more general theories about the nature of civil society may well establish a basis for CSOs’ continued presence in judicial review litigation.

This paper examines judicial leadership on the UK Supreme Court. It does not confine itself to the formal roles of the President and Deputy President. Rather, building on existing categories of judicial leadership, including administrative, jurisprudential and community leadership, it considers the contributions of all 12 Justices. In so doing, it provides a significant compilation of quantitative data on the activities of the Justices of the Supreme Court both on and off the bench from the the Court's inception in 2009 to the end of the 2014-2015 legal year. From this, we suggest that while a number of the Justices engaged in one or two broad forms of leadership – with Lady Hale in particular demonstrating a substantial degree of leadership across all three dimensions – at the other end of the spectrum, at least on the measures used in this paper, a significant minority did not. In the light of this, and the significant number of recent and forthcoming retirements from the Court, the paper concludes by considering the implications of our findings for the future of the Court. We argue that these retirements will result in gaps in both formal and informal judicial leadership, and it is vital that these gaps are filled by appointees who are capable of, and prepared to step up to, diverse and varied forms of judicial leadership.

Utilitarianism, the view that ‘actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness’, is no longer taken seriously either as a moral principle or as a theory of tort law. Rights-based theories appear to have won the day. The purpose of this paper is to counter this trend and demonstrate that utilitarianism is not the implausible straw man that its opponents have constructed. Relying upon a version of utilitarianism advanced by the philosopher RM Hare, I will demonstrate that distinguishing between two levels of utilitarian thinking can provide a credible explanatory and normative theory of tort law that is immune to many of the critiques usually levelled at this theory. My final conclusion is that if a rights-based theory of tort law is convincing, it may be one with utilitarian foundations.

The internet, social media and online profiling have fundamentally changed advertising, and the regulation of gambling advertising has not yet managed to address the challenges and opportunities arising from this technological shift. Furthermore, the regulation of gambling does not take into account sufficiently the needs of children and vulnerable persons. We review the empirical research on the impact of gambling advertising and show how regulatory standards firmly adhere to the transmission theory of communication that prioritises the communicative intent of the advertiser over how the advertising message is received by or impacts on vulnerable people. This article reviews the law on gambling advertising and argues that for gambling, the restrictions imposed by the largely co-regulatory system only have limited effect. We compare the regulation of gambling advertising, by way of analogy, to a sieve that holds only a little water, and make recommendations for legal reform.

Substantial numbers of criminal offences are created in the UK in delegated legislation, often carrying heavy maximum penalties. The majority are created in statutory instruments passed under the negative resolution procedure, which offers very limited opportunity for scrutiny and does not involve a parliamentary vote. This phenomenon has slipped under the radar of orthodox criminal law scholarship, where debate has focused primarily on the criteria that should be used to determine the content of the criminal law and on the principles to which such offences should conform, rather than on the process of creating criminal offences. Creating offences in delegated legislation raises questions of democratic legitimacy and has resulted in criminal offences being created which do not conform to basic principles of fair notice and proportionality of penalty. To address this, we propose that parliamentary approval should be required for all serious offences. It would be impractical to do this for all criminal offences, and direct participation in the legislative process via consultation can act as an alternative (or additional) legitimating principle. This does, however, require that the consultation process complies with certain basic minimum requirements, and we explain how these requirements might appropriately be framed.

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.

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases.

This article considers the use of comparison in establishing multi-ground claims of intersectional discrimination. Leading examples of test cases from the US and the UK exemplify the challenges in using comparison to establish discrimination against Black women, based on the grounds of both race and sex. These challenges include: the insistence on using a single mirror comparator (viz white men) or the difficulties in choosing multiple comparators from a range of options (viz white women, Asian women, Black men, white men etc); the missing rationale for the selection; and the unwieldiness in actually appreciating the nature of intersectional discrimination based on this exercise. To overcome these, Canadian courts have relaxed the strict requirement of necessarily resorting to comparison for proving discrimination and switched to the flexible approach. However, in practice, flexible approach appears as fastidious as strict comparison in its selection and use of comparators. Thus, neither of the two approaches has been too helpful in supporting intersectional claims. The article argues that instead, a useful way of proving intersectional discrimination is to follow the South African approach of making comparisons contextually: (i) between all relevant comparators, identified in reference to one, some, and all of the grounds or personal characteristics; and (ii) sifting through comparative evidence with the purpose of establishing similar and different patterns of group disadvantage which characterise the nature of intersectional discrimination. This approach brings both principle and purpose to employing comparison and can be especially useful in appreciating intersectional discrimination as based on multiple grounds.

Vicarious liability has a greater reach within both professional and amateur football than previously thought. The newly-expanded doctrine has opened up vicarious liability for amateur players, and within grassroots teams. A greater range of torts may also now trigger vicarious liability, such as acts of on and off-pitch violence. The Football Association will need to review the scope of the National Game Insurance Scheme, which significantly lags behind this expanded exposure to vicarious liability.

Examining vicarious liability in the context of football also reveals significant problems with the current approach to vicarious liability within unincorporated associations. This category developed in the context of institutional abuse within highly-organised religious institutions; it does not mean that this category of vicarious liability should be applied to grassroots sporting organisations in the same way. For instance there is scope to apply a different test at stage two. It is argued that the courts will need to tighten up this category so as not to unnecessarily expose members of grass roots organisations to vicarious liability which is able to be executed against their personal assets. Both amateur and professional clubs may also wish to carefully consider their selection of players.

Section 1(2A) of the Children Act 1989 establishes a statutory presumption that ‘involvement’ of both parents in their children's lives after divorce or separation is in children's best interests. This paper sets out to examine what effect this had had. The aim of the legislation was to improve the transparency and clarity of judges’ reasoning. This would help to reduce the numbers of parents litigating and would placate fathers’ rights groups who were damaging confidence in the family justice system. Drawing on a sample of reported cases, this paper concludes that, at the higher levels, courts are not implementing the presumption. Nor has the presumption succeeded in placating fathers’ rights groups or significantly reducing the number of cases coming to court. It appears that the presumption has had little impact and the government's aims have not been realised. However, where it is having some impact, the presumption may be putting mothers and children at risk.

This paper sets out the findings of an exploratory study that, drawing on the so-called ‘new sociology of childhood’, has theorised the child as a competent social actor and conjectured that, on this basis, whilst they might lack formal legal capacity, children may nevertheless possess legal capability. Taking a child-first (as opposed to a law-first) approach, the study has sought to assess children's legal understanding using digital gaming as a research tool. We have identified as an area of particular strength children's attitudes to gender equality, and we have determined that many children demonstrate competency to deal with consumer-related issues appropriately. However, at the other extreme, we have established that children demonstrate considerable uncertainty concerning the levels of force that adult authority figures are permitted to exercise over them. We have found in the course of this study that children are competent and willing to express their views on matters that concern them. However, they do not expect to be invited to do this in their day-to-day lives. Related to this we have found a vast lack of awareness among children concerning the rights afforded to them under the United Nations Convention on the Rights of the Child.

Judges are increasingly asked to decide whether a rule of national law is applicable to a cyberspace actor who is not present in their jurisdiction, or whose activities do not clearly fall within the established understanding of the rule. They do this through interpreting the applicability and meaning of the law.

Every attempt to enforce a national law makes a claim that the law has authority over the cyberspace actor. By accepting that claim, the judge asserts that the law's claim is legitimate. This is a Hartian exercise, adopting the internal view of the national legal system as the test for legitimacy.

But in cyberspace the legitimacy of a national law claim is determined not by the internal perspective of the legal system but by the external perspective of cyberspace actors. A law will only have authority in cyberspace if it can convince cyberspace actors that its claim is legitimate. And a legal system which repeatedly makes illegitimate claims thereby weakens its status as a system which adheres to the rule of law.

Judges can help solve this problem by interpreting laws and applying public and private international law so as to reject applicability claims which are illegitimate. To do this successfully, they need to understand the jurisprudential foundations of any law's authority in cyberspace.

‘Revenge porn’ is conceptualised as a modern phenomenon which the law is not equipped to deal with. The advent of smartphone technology has allowed sexually explicit material to be created easily and disseminated quickly. An increasing number of individuals have fallen victim to this phenomenon in recent years. This paper submits that victims of revenge porn ought to be held due monetary redress in the civil law, while acknowledging that the damage done by revenge porn need not necessarily involve a loss. Victims of revenge porn are likely to suffer from severe emotional distress and upset, but these injuries are non-patrimonial. This can consequently make it difficult to frame an action for damages. This paper asks if the delict iniuria might offer appropriate remedy in instances of revenge porn. The actio iniuriarum was, in Roman law, a delict which served to protect the non-patrimonial aspects of a person's existence – ‘who a person is rather than what a person has’. As the propagation of sexually explicit images of an individual without their consent is clearly an affront to the esteem of that individual, it is argued that instances of revenge porn ought to be considered actionable as iniuria in modern Scottish law.

This paper addresses a straightforward question: ‘Should tort law recognise a defence of duress?’ Previous scholarship concerning this issue is thin on the ground, and the answers it supplies are demonstrably inadequate. Those who have favoured the development of a duress defence in tort have done so by analogy with criminal law where duress is, of course, well established. The rival school of thought has sought to highlight the fact that excuse defences are out of place in tort and that, therefore, there is no room for duress in tort. This paper rejects both approaches. It accepts that the criminal law is a poor source of analogy, but rejects the idea that duress must be seen as an excuse (and hence the idea that there can be no space for it in tort). It offers a fresh start based on the role of duress within tort law's sibling, the law of contract. It identifies three possible conceptions of duress in contract and then asks whether these conceptions could be used to ground a comparable defence of duress in tort by analogy. It concludes that a plausible case can be made in respect of each conception, but – given that the paper has primarily theoretical ambitions – it stops short of advocating any one conception in particular.

This paper reviews the status of the principle that a claimant can demonstrate a causal link between the defendant's wrongful act or omission and his or her damage by establishing that the act/omission made a ‘material contribution’ to the damage. This principle has been reviewed, in the context of cumulative causes that cannot be ‘compartmentalised’, by the Privy Council in Williams v The Bermuda Hospitals Board. There, the Privy Council regarded the cases of Bonnington Castings v Wardlaw (leaving aside the point as to the divisibility of the disease pneumoconiosis), Bailey v Ministry of Defence and Williams itself as essentially similar to each other. They were to be regarded as cases where the court was entitled to conclude that it was the totality of the exposures/delay in question that caused the ultimate harm. As regards Bailey, this was said in terms not to involve any modification of the but-for test; presumably the same holds good for Bonnington Castings and Williams itself. So orthodoxy appears to be preserved/restored. But is that so?

The landmark Supreme Court judgment in Prest v Petrodel Resources Ltd provides a significant reassessment of the law relating to a court's ability to circumvent corporate personality. The Supreme Court considered that the application of ordinary legal principles (‘the concealment principle’) should ordinarily override a court's ability to apply an equitable veil-piercing doctrine (‘the evasion principle’). Whilst accepting the primacy of the concealment principle, this paper disputes the correctness of the Supreme Court's implied assertion that, in cases concerning ‘one-man type’ companies, the concealment principle should be advanced through application of agency-derived principles. Rather, this paper contends that the concealment principle should be progressed by adopting solutions derived from the law of constructive trusts and associated principles of equity. To an objective of providing a doctrinally sound framework for the development of the law in the post-Prest era, this paper further suggests that the constituent elements of the evasion principle could be consistent with the operation of a distinct species of constructive trust. Moreover, it is argued that, in future, this ‘evasion trust’ should, in complete abrogation of the equitable piercing doctrine, be developed so as to apply in all cases exhibiting intentional and fraudulent abuses of the incorporation process.

Contemporary British counter-terrorist legislation is dominated by ‘counter-law’ in Richard Ericson's terms: by using law against law, it systematically undermines the rule of law. This paper supports this proposition by developing a detailed ‘archetypal’ account of the rule of law considered as a critical ideal, drawing on Fuller's ‘morality of law’. The rule of law is identified with four tendencies in law – towards greater universality, knowability, followability and justifiability – and ‘counter-law’ with tendencies to block or reverse all of these. Counter-law tendencies in contemporary counter-terrorist legislation are discussed in detail, with particular reference to the proliferation of inchoate, preparatory and situational offences. This critique is also related to contemporary debates on law and counter-law; it is argued that critiques which relativise or historicise the liberal model of the rule of law fall short by failing to engage with it on its own terms, thereby undervaluing its utility as a normative resource. The paper concludes by discussing the range, significance and gravity of the departures from the rule of law that have been identified, considering some counter-arguments and drawing conclusions for policy-makers and legal scholars.

This paper presents the findings from the first qualitative study to consider the relationship between intersex experience and law, representing a significant contribution to a currently under-researched area of law. Since 2013 there has been a global move towards the legal recognition of intersex, with Australia, Germany and Malta all using different techniques to construct and regulate intersex embodiment. This paper is the first to compare and problematise these differing legal approaches in the legal literature. In doing so it demonstrates that many of these approaches are grounded in ideas of formal equality that lead to the entrenchment of vulnerability and fail to build resilience for the intersex community. Through engagement with the intersex community a more contextual account of substantive equality is enabled, encouraging new approaches to law and social justice. Our qualitative study revealed that prevention of non-therapeutic medical interventions on the bodies of children was understood to be the key method to achieving equality for intersex embodied people. Whilst this is the cornerstone of intersex-led legislative reform, such an approach necessitates support through a mixture of formal and substantive equality methods such as anti-discrimination law, education and enforcement procedures. This paper concludes by offering a series of recommendations to legislators capable of enabling substantive intersex equality.