This paper argues that the principle in Woolwich Building Society v IRC (No 2) (1993) that the citizen has a prima facie right to the repayment of money voluntarily paid in response to an unlawful demand by a public authority, should not be regarded aspart of the private law of restitution creating aprivate law right but as a free standing public law principle enforceable in the Administrative Court, broadly analogous to a legitimate expectation. The flexible process and the discretionary nature of the judicial review jurisdiction is more appropriate to the issues that arise than is the private law of restitution with its emphasis on bipolar disputes. Underlying the argument is the claim that the rule of law should not give automatic protection to a person who voluntarily makes a payment to a public authority while believing that payment to be unlawful. More generally, the paper suggests that the enterprise of seeking to subsume restitutionary principles within a single conceptual framework may be misconceived.

This paper considers the impact of the Race Relations (Amendment) Act 2000. It focuses on the kind of situation presented by the Stephen Lawrence murder investigation where racist stereotypes and assumptions infect both police inquiries into serious violent crime and the treatment of victims or their families. It first demonstrates the limited scope of individual redress available prior to the Act in such situations (examining police complaints mechanisms, private prosecutions, misfeasance in public office, judicial review and negligence). It links limitations in the scope of individual redress to a traditional priority accorded to public interests. The Race Relations (Amendment) Act 2000 gives individuals a general right to sue the police for racial discrimination in investigations. It is argued that a similar right probably now exists – at least in the context of life-threatening violence – under the Human Rights Act 1998. These developments seem to signal a shift in the balance between individual rights and the limiting claims of public interests. But the singularity of the 2000 Act is that, in introducing the mechanisms and logic of anti-discrimination law into the criminal process, it creates the potential for a more interactive relationship between individual complaint and the public interest in the collective promotion of change.

This article seeks to contribute to a growing debate within legal studies about the relationship between women, men and the ‘private life’ of the law school. Via an exploration of the economic, political and cultural shifts presently transforming understandings of what academic life entails, the article seeks to unpack the contours of the material and emotional economy in which (legal) academic labour now takes place. As a particular kind of knowledge worker within an increasingly corporatised university environment, a shift in the dominant gender configurations of higher education (marked notably, I suggest, by the rise of ‘entrepreneurial masculinities’) has itself resulted in a complex shift in the landscape of doctrinal and socio-legal legal scholarship, in the hierarchy of law schools more generally and in understandings of what a ‘successful’ legal academic career entails. Conclusions address the possible implications of these developments for legal academics seeking to re-negotiate a growing tension between ‘work/life’ commitments at a time of rapid change and uncertainty within academic life. Importantly, these are changes which, I argue, have a gendered dimension and are themselves playing out in some unpredictable and at times – for both women and men – frequently contradictory ways.

This paper explores understandings of harm in law through the application of a feminist perspective. Drawing on the idea of harm as a social construct, the paper considers the role of law in shaping perceptions of when a harm has occurred and whether it should be redressed. These themes are illustrated by means of a close legal and contextual analysis of the House of Lords decision in Waters v Metropolitan Police Commissioner, in which a woman was allegedly bullied at work for reporting she had been raped by a fellow officer. The paper raises questions about why this particular claimant had difficulty establishing that she had suffered harm, despite alleging 89 separate hostile acts by fellow officers, and even though the courts who heard her claim assumed for the purposes of legal argument that the facts alleged were true. It is argued that the narrowness of the approach adopted by most of the judges who heard Ms Waters' claim precluded recognition of the seriousness of the allegations and the social, political, and legal need to provide redress.

In this article we argue that the House of Lords recently erred severely by failing to apply the Human Rights Act 1998 retrospectively, and that the appropriate remedy is to deploy the 1966 ‘Practice Statement’. We describe how the House has made a number of basic mistakes in interpreting the literal meaning of the Act. These errors are partly explained by the court's reliance upon a general presumption that law should not be applied retrospectively. We argue that human rights legislation is a necessary exception to this rule. We maintain this for philosophical reasons, but also contend that s 3(1) of the Human Rights Act reverses the presumption against retrospectivity and requires a new presumption that human rights should be given effect whenever it is possible to do so. This is a vital issue because s 3(1) is one of the most important provisions in the UK constitution.

Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law.

This paper considers certain proposals made by the European Commission on environmental liability, particularly in its White Paper on Environmental Liability. Civil liability has made a relatively minor contribution to environmental policy in recent decades, given its many well-known shortcomings when applied to environmental problems. Its usefulness, however, is being reassessed, given something of a consensus that traditional forms of regulation are reaching the limits of their effectiveness and that new approaches to environmental law are necessary. This paper will consider how the White Paper would move beyond the limitations of existing civil liability frameworks, in particular the fundamental incompatibility between the interests recognised in English tort law and the interests at stake in environmental protection. The Commission's recent retreat from the more ambitious elements of the White Paper may be a matter of concern.

Organ retention has been with us for millennia. Walk into virtually any cathedral and many a church in Europe and you will find an array of retained organs or tissue, allegedly originally the property of assorted saints, or even of God, and almost certainly collected without proper informed consent and retained in less than secure conditions. In our own time the complexities of organ collection, retention and use have proliferated. The events at Alder Hey Children's Hospital and the debates about the ethics of biobanking all over the world have dramatically highlighted the complexity, the difficulty and the moral importance of these issues. Some of these issues have to do with the question of who can give permission for or consent to such removal and retention. Other issues involve consideration of whose rights or interests are engaged when cadaver organs and tissue are removed and retained, just what in particular is the nature, extent and force of those rights or interests, and how they are to be balanced against other moral considerations. These questions are the subject of this paper. We will not, however, here be concerned with the issues of genetic privacy, the security of genetic information.

Court decisions concerning the life and death of patients become more and more frequent in the context of medical practice. One of the most controversial decisions in this area in recent years has been the decision of the Court of Appeal in Re A (Conjoined Twins: Medical Treatment), authorising the separation of conjoined twins. This paper will argue that the decision was flawed both on legal and moral grounds and that its potential implications for future cases are more far-reaching than the judgment itself suggests.

This paper responds to John Harris's vigorous analysis of the ethical principles involved in organ retention. The author contends that Harris overlooks the context in which revelations about organ retention came about in the UK. He pays insufficient regard to deeply held cultural and religious beliefs, and does not fully address the claims of the living to determine the fate of their body after death, or the interests of bereaved families in laying a beloved relative to rest. The paper argues that the fundamental principle governing removal and retention of body parts after death must rest on a strong presumption that such body parts should be removed only with the suficient consent of the deceased or his family.

The modern argument that the law of obligations should be recast in restitutionary terms appears to have achieved its victory over contract in A-G v Blake. Although ritual obeisance to compensatory damages is made, Blake recognises a general restitutionary remedy for breach of contract the logic of which must be to undermine completely the expectation interest. The general effect of restitutionary rather than expectation-based remedies will be to furnish a greater deterrent against breach, a result welcomed by advocates of the ‘performance interest’. All this would be well were all breaches ‘wrongs’ which should be deterred. This, however, is not so. Breach has a positive, indeed essential, role in the operation of the law of contract as the legal institution regulating economic exchange and pursuit of its general prevention is inconsistent with the operation of a market economy. The victory of restitution therefore is illusory: it is impossible that the position established in Blake can be sustained.

Since the decision of the House of Lords to overturn its earlier judgment in the case of Re Pinochet (No 2) the courts have closed the floodgates to further claims of judicial bias by adopting a restrictive approach to the rules on judicial disqualification. In the light of these restrictions on claims of individual bias, this paper reviews the institutional mechanisms for safeguarding impartiality at a collective level through the appointments process and the system for allocating cases to judges. It highlights weaknesses in these arrangements such as the lack of openness, the potential for inappropriate political control and the lack of diversity in the composition of the judiciary. It argues that as the concept of impartiality is increasingly linked to these institutional arrangements the continuing legitimacy of the judiciary requires that these problems are addressed.

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.

This paper reflects on the achievements of feminism within the legal academy. Rather than offer an encyclopaedic account of feminist legal scholarship, it seeks instead to define, in broad terms, the aims, the spirit and the methods of legal feminism, identifying the commonalities among feminist scholars. It suggests that it is the critical study of law as ‘a form of life’, to borrow from Wittgenstein, which perhaps best characterises the shared endeavour of legal feminists. The paper identifies the major intellectual and political difficulties encountered, and also engendered, by feminists in the course of their work, and it assesses the impact of feminism on mainstream jurisprudence.

Chancel liability is an ancient property right, enforced by a Parochial Church Council, attaching to certain former rectorial lands. It requires a landowner to bear the cost of repair of the parish church chancel. The right poses particular problems for a purchaser, not least because it is hard to discover and is not limited to the value of the land. A recent decision of the Court of Appeal has found that a Parochial Church Council falls within section 6 of the Human Rights Act 1998 as a public authority, and that chancel liability infringes article 1 of the First Protocol of the European Convention on Human Rights. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded, widely regarded as incongruous and does not bear scrutiny in its modern context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law.

In recent years the courts have been faced with the problem of deciding what status should be given to marriages that are celebrated outside the provisions of the Marriage Act 1949 yet believed to be valid by the parties to them. Some such marriages have been classified as non-marriages, while others have been saved by the application of the presumption in favour of marriage. The decisions are unsatisfactory for a number of reasons. It will be suggested that the concept of non-marriage should be confined to ceremonies that in no way purport to be marriages. The presumption in favour of marriage should also be limited to situations where there is a valid basis for presuming a marriage rather than being used to avoid dealing with the deficiencies of the law.

The government has made a commitment to ensure that sustainable development is placed at the heart of decision-making. The UK's strategy has primarily involved the development of voluntary measures to achieve sustainable development in policy-making. These measures are monitored by a Sustainable Development Commission and, most importantly, a parliamentary Environmental Audit Committee. However, a number of public bodies also have a statutory duty in respect of sustainable development. These duties do not create enforceable legal obligations, but may have significant value as a clear statement of policy on the achievement of sustainable development – providing political leadership at the highest level. It is essential to this aim that the government provides a clear message regarding the objective of sustainable development. However, close investigation of these duties reveals not only a partial legal framework, but a number of inconsistencies in the government's approach to the achievement of sustainable development.

So much of what, so far, has constituted the grammar of mainstream historical discourse on English law can be broadly characterised as being primarily concerned with either formal legal institutions or their socio-political context. While such histories are generally useful, they fail to see what other-histories – what radically different stories – could be told instead. Such a web of other-histories, it is here suggested, require both time and imagination. By temporarily leaving mainstream historical accounts and entering into the time of legal history the centrality of so many institutional and socio-political histories of English law may have to be reconsidered. In particular, what would become clear is that one type of legal history needs urgently to be told – a history of the ‘blotted-out’. Neither included in mainstream legal history, nor excluded from it – neither visible nor memorable – the history of the blotted-out is the history of what can be found, so commonly and ordinarily, in everyday life. Mainstream legal history is either unaware of, or uninterested in, the blotted-out. Yet, it is precisely a history of the blotted-out which, importantly, would guard, in history, the possibility of law's most original imagination.

This paper examines the law on the proprietary rights of people in respect of their bodies, body parts and tissue. Proprietary rights include rights of ownership and control, The paper argues that the context in which judicial decisions are made and policy recommendations are developed sometimes results in a patchwork of legal principles. Being aware of the context in which different aspects of the law have been developed enables us to understand why principles have been developed, what is needed to reconcile them and how we can establish a coherent regulatory regime. The paper then proposes such a scheme to deal with property and control rights in this area. It argues that people (or the personal representatives of people who have died) should have a personal autonomy right to be consulted about the use of their corpse or their excised body parts or tissue in teaching, research and commercialisation of biological inventions, and to refuse or to impose conditions. They should not, however, have a right of ultimate ownership in their corpse, body parts or tissue, except for the limited right of personal representatives to gain possession of bodies and body parts of people who have died for burial or cremation if they so wish. That right should not extend to tissue preserved on slides, in paraffin wax or similar format. That tissue should be subject to proprietary interests in favour only of the hospital, research institute, its staff or the people to whom they transfer it. The same rule should apply to bodies or body parts held by a hospital or research institute with the consent of the person concerned, though the bodies or body parts may ultimately have to be returned for burial or cremation. Tissue removed under a statutory requirement without consent, such as for coronial investigation or forensic tests, should be used only for the purposes prescribed by the relevant legislation.

One of the most important issues arising from the Human Rights Act 1998 is the degree of its applicability, if any, to relations between private individuals. While the wording of the Act itself provides no clear guidance on the matter, and a wide-ranging spectrum of potential outcomes has been identified, there is an emerging academic consensus that the Act will have some horizontal effect – but limited to enabling development of the existing common law, and not extending to provision of new actions and remedies. This paper seeks to challenge that consensus. Fidelity to the jurisprudence of the European Court of Human Rights requires that the effect of the Act go beyond mere incremental development. There is clear authority that the legal systems of signatory states must provide remedies for infringement of individual rights by other individuals. Nothing in the Human Rights Act 1998 obstructs this interpretation. Further, the paper seeks to identify certain fatal errors in the arguments of the ‘developmental consensus’ .