Showing papers in "Cambridge Law Journal in 2023"

Fintech Regulation in China: Principles, Policies and Practices. By Robin Hui Huang. [Cambridge University Press, 2021. xvi + 298 pp. Hardback £84.99. ISBN 978-1-108-48811-2.]

Abstract: Financial technology (fintech) has been reshaping the global financial industry over the past decade. The term refers to the application of innovative technologies like artificial intelligence, blockchain, cloud computing and data analytics in the financial institutions and financial markets. Fintech has brought enormous commercial opportunities for both incumbent banks and new start-ups that could leverage on Internet and mobile network to reach billions of customers without efforts. It also offers consumers more affordable, convenient, bespoke financial services through various banking and investment apps on our smartphones. Scholars tend to agree that fintech is creating a more inclusive, intelligent and efficient financial world. Nonetheless, fintech has also posed novel challenges for policy-makers, legislators, and financial regulators, in relation to controversial issues like data protection, anti-money laundering, consumer rights protection and financial stability. So far, fintech has triggered a series of academic debates regarding how best to regulate the burgeoning sector. Economists and legal scholars attempt to answer meaningful questions like: what is the exact nature and scope of fintech? Shall it be regulated under the same supervisory regime that had been designed for traditional banks and capital markets? What is the ultimate goal when regulators reinvent the financial architecture? And most importantly, how to strike a fine balance between promoting financial innovation, protecting consumer interests and safeguarding financial stability, as we try to avoid the pains that the world economy had suffered from the financial innovations during the 2007–08 crisis? Against this background, Professor Robin Hui Huang’s book, Fintech Regulation in China: Principles, Policies and Practices, is a timely work to provide a holistic and in-depth examination of the global fintech sector and its regulatory framework. Although the book is primarily focused on Chinese fintech, it does refer to case studies and regulatory frameworks in key jurisdictions including the US, the UK, the EU, Australia, Canada, Singapore and Hong Kong to offer a truly comparative and transnational perspective of analysis. The book, clearly, sheds some light on finding the optimal regulatory approaches for fintech, as it is well engaged with the ongoing academic discussions and policy consultations in various countries facing the fintech revolution. The potential readership of this book includes researchers, practitioners, and policy-makers whose work relates to the interdisciplinary study of law and finance as well as law and technology. Fintech Regulation in China has been organised around five major themes based on fintech business segments (i.e. online P2P lending, cryptoassets, mobile payment, robo-adviser and others). The past decade has witnessed the rapid growth of fintech in the US, Europe, and Asia, presenting diverse business models and regulatory obstacles. However, the book suggests that the Chinese fintech sector is unique in the sense that its scale, breadth and depth of application are unparalleled. At present, China has thousands of fintech corporations including Ant Group which is the world’s largest fintech corporation with an estimated market value of over $200 billion and a customer base of 1.3 billion. Aside from summarising the remarkable achievements of Chinese fintech, the book goes further to critically assess the concrete risks exposed in financial innovation. It does a good job in analysing the evolving regulatory approaches adopted by China’s central financial authorities, self-regulatory organisation and Cambridge Law Journal, 82(1), March 2023, pp. 191–194 © The Authors, 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S0008197323000065

Rethinking risk-taking: the death of volenti?

Abstract: Abstract Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the “real world”, and argues it is not fit for modern tort law. The defence has a controversial and chequered history, being described as a “so-called principle … of little help: indeed, it is confusing, unnecessary, and if we are not careful, it will lead us to the wrong outcome”. It is submitted that volenti is based on unjustified concepts of people agreeing to risks, leads to harmful outcomes and that the defence does not fit with current approaches to tort liability. This article therefore concludes that the harmful outcomes of the volenti defence far exceed any potential benefits provided, and the defence should therefore be abolished.

The Redress of Law: Globalisation, Constitutionalism and Market Capture. By Emilios Christodoulidis. [Cambridge University Press, 2021. xiv + 592 pp. Hardback £95.00. ISBN 978-1-108-48703-0.]

Abstract: The Redress of Law: Globalisation, Constitutionalism and Market Capture. By Emilios Christodoulidis. [Cambridge University Press, 2021. xiv + 592 pp. Hardback £95.00. ISBN 978-1-108-48703-0.] - Volume 82 Issue 1

Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa. By Michael Lobban. [Cambridge University Press, 2021. xii + 450 pp. Hardback £90.00. ISBN 978-1-316-51912-7.]

Abstract: Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa. By Michael Lobban. [Cambridge University Press, 2021. xii + 450 pp. Hardback £90.00. ISBN 978-1-316-51912-7.] - Volume 82 Issue 1

The unexplored contract and insolvency law dimensions of hedley byrne v heller

Abstract: Abstract It has been argued in previous work that Hedley Byrne v Heller addressed no actual mischief. In the case itself, the defendant's credit reference about Easipower Ltd. was neither a misstatement nor negligently given, and in general the indemnification of reliance on negligent statements is far better regulated by contract than it can possibly be by negligent misstatement. This paper expands on the significance of contract relative to tort in Hedley Byrne, but mainly argues that the mischief perceived by the claimant was caused by the operation of the statutory regime regulating Easipower's insolvency. This makes regarding Hedley Byrne as a necessary response to “the privity of contract fallacy” even more implausible.

The north briton no. 45 and the doctrinal origins of exemplary damages

Abstract: The companion 1763 tort cases of Huckle v Money and Wilkes v Wood hold a mythical status in the Anglo-American common law imagination. Few modern accounts of the doctrinal origins of exemplary (or punitive) damages omit reference to them. This article contends that the assumption that these two cases combined to provide damages above and beyond compensation a positive basis at English common law is misconceived. Set back into their historical context, it shows that their true significance is at odds with the decidedly lawmaking significance often ascribed to them by modern judges and scholars alike.

Fundamental Rights and the Legal Obligations of Business. By David Bilchitz. [Cambridge University Press, 2022. xxii + 499 pp. Hardback £110.00. ISBN 978-1-108-84194-8.]

Abstract: Following the publication of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, and subsequent attempts at the national and international level to enforce human rights in the commercial sphere (like the UK’s Modern Slavery Act 2015), there has been renewed scholarly interest in the human rights duties of corporations. “Business and human rights” is a difficult area of inquiry: making sound policy proposals requires attention to the intersection of human rights, corporate law, tort, both private and public international law, and other legal fields besides. Moreover, it frequently requires a theory of these fields, including a theory about which field should be deployed to solve certain problems under certain conditions. Depending on the author’s aims, it can also require engagement with economics and with difficult philosophical issues concerning the nature of the corporation. This call for interdisciplinarity is what makes “business and human rights” an exciting field of study, but the difficulty of answering that call has created a body of scholarship that sometimes feels superficial or theoretically thin. In this regard, David Bilchitz is exceptional. Bilchitz is one of the leading figures in the field; he has been working on tricky pieces of the business and human rights puzzle for a long time. He has captured the depth and breadth of his knowledge in his latest book, Fundamental Rights and the Legal Obligations of Business, which is stunning in its sophisticated coverage of numerous legal fields as well as some associated areas of philosophy. The book is divided into three parts. After an initial chapter on the nature and purpose of the corporation (to which I return below), Part I describes and critiques various models of legal reasoning that courts have adopted to address human rights infringements by corporations. Most of the chapters in this part describe models which assume that human rights obligations bind only the state. Chapter 2 focuses on the state’s duty under international law to protect a person’s human rights from violation by a third party (say, another individual or a corporation). Chapter 3 describes the “indirect application model” that exists in some national legal systems. It is the domestic analogue of the international law duty to protect: once again, human rights obligations fall on states only, requiring them to enact legislation and develop their common law with a view to preventing human rights violations by corporate actors. Chapter 4 describes what Bilchitz calls the “expanding the state” model, which redraws the boundaries of the state to extend human rights obligations to at least some kinds of state-like corporations. The overriding critique of all three foregoing models is that they wrongly suppose that corporations themselves bear no human rights obligations, and so depend on circuitous reasoning to implicate the state in a corporation’s human rights abuses. By closely analysing case law which adopts these models, Bilchitz convincingly shows that courts cannot (and, in fact, do not) attribute the relevant obligations to the state without first having some view of what the state must protect people from – that is, a view about what corporations may not to do with respect to human rights. Thus, the courts which embrace these models implicitly and inevitably determine a corporation’s human rights duties while professing that such duties bind only the state. Building on these criticisms, Bilchitz offers his preferred model of reasoning in Chapter 5 – the “direct obligations model” – which explicitly Cambridge Law Journal, 82(1), March 2023, pp. 181–184 © The Authors, 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S000819732300003X

What is the harm in addiction? autonomy, vulnerability, and the case for harm reduction drug policy

Abstract: Successful drugs policy must be driven by thoughtful principle and intergovernmental consensus, not by departmental or legal inertia, nor by public (mis)conceptions about drug use. Perhaps the most pressing choice for drugs policymakers at present is between harm reduction and abstinence approaches to drugs policy. To choose between these two approaches, we need to know addiction's normative status: is having an addiction a misfortune or a harm in its own right, even setting aside knock-on health and wellbeing consequences? We argue that the harm of addiction is driven by poor policies, but that harm is not inevitable.

Preventing the infinite regress: discretion, bars to relief and the structure of equity

Abstract: A growing body of literature has emphasised the role of equity as a body of second order principles. These scholars argue that what makes equity distinct is that it assumes a particular outcome at common law, but then controls or disables one party's insistence on her legal entitlements. Where do equitable bars to relief fit within such accounts? This article argues that equitable bars to relief fit comfortably with the view that equity is second order law. This is for a simple reason: equity prevents the unjust exercise of legal entitlements. However, equitable rules are also amenable to being exercised unjustly. To prevent equitable rules being abused, equitable doctrines require some limited discretion to be built in. If this were not the case, then the general law would require a third set of rules to control equity and then a fourth set of rules to control those rules (ad infinitum).

Economic Torts and Economic Wrongs. Edited by John Eldridge, Michael Douglas and Claudia Carr. [Oxford: Hart Publishing, 2021. xiv + 344 pp. Hardback £85.00. ISBN 978-1-50993-475-1.]

Abstract: Economic Torts and Economic Wrongs. Edited by John Eldridge, Michael Douglas and Claudia Carr. [Oxford: Hart Publishing, 2021. xiv + 344 pp. Hardback £85.00. ISBN 978-1-50993-475-1.] - Volume 82 Issue 1

Constitutionalism at common law: the rule of law and judicial review

Abstract: Abstract UK public law is often viewed as a sophisticated power struggle between rival institutions, an approach encouraged by the assumption that the law is ultimately dependent on such contingencies as the existence of an official consensus about its sources. From that perspective, legal judgments should be read as strategic moves within the political power-game. We can make better sense of public law if, instead, we interpret it as the articulation and enforcement of standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity. The rule of Law denies the legal validity of arbitrary, unjustified assertions of power inimical to those ideals. Positive law is, at root, an instantiation of natural law, as the interplay of legal rule and underlying principle, characteristic of common law reasoning, confirms. There are important implications for our understanding of the constitutional foundations of judicial review, the limits of parliamentary sovereignty, the nature of the principle of legality, and the scope and content of fundamental rights.

Economic Torts and Economic Wrongs. Edited by John Eldridge, Michael Douglas and Claudia Carr. [Oxford: Hart Publishing, 2021. xiv + 344 pp. Hardback £85.00. ISBN 978-1-50993-475-1.]

Abstract: Writing extrajudicially, just a few years after delivering his leading speech in OBG Ltd. v Allan [2008] 1 A.C. 1, Lord Hoffmann suggested that, in the wake of that decision it was now fair to say that “the economic torts have run their course”. But despite their Lordships’ best endeavours in OBG to render the economic torts an area of interest to legal historians alone, cases involving these torts have continued to trouble courts all over the Commonwealth. Accordingly, in spite of what Lord Hoffmann hoped for in the wake of OBG, there is still a good deal of life left in these torts; and they continue to pose puzzles a-plenty. Against this background, a new book dealing with these actions was always destined to be eye-catching, especially when one bears in mind that the economic torts have been largely overlooked by most torts scholars. Furthermore, an especially attractive feature of this book is that it offers a collection of essays that is properly representative of the makeup of the private law community: there is none of the familiar dominance of contributions from male scholars based in England and Wales. However, as Shakespeare warned us several centuries ago, “all that glisters is not gold”. And that, I am afraid, is my overwhelming view of Economic Torts and Economic Wrongs. To be clear: the book is by no means a disaster. It comprises a collection of essays written by academics and practitioners located in various different jurisdictions and it undoubtedly contains some very worthwhile contributions. The problem, however, is that these are outnumbered by others that, for all their novelty, seem somehow to be misplaced. Before addressing the particular merits of some of the key essays in this volume, I think it is worth flagging up from the start what I take to be a serious omission in the editors’ introductory chapter. For this, instead of supplying a road map to the essays that follow, and a brief account of the arguments they advance, provides the reader with, in essence, a very swift (and therefore not very detailed) account of the way the economic torts have developed over the last century or so. Reference is made to a number of the landmark cases, and this is all well and good. But the reader is offered no guide to the particular conception of “economic torts” adopted by the editors. This is a great pity because, without such a guide, it is hard to fathom why quite a few of the essays that appear in this book should be thought to belong here. For all that there is well-known disagreement around the margins about just which torts comprise this particular family of actions, most torts scholars would consider some of the essays in this book as being fish out of water. There is, for example, an essay on defamation; and there are two on private nuisance. There is an essay concerned with “an award of equitable compensation against a defaulting fiduciary” (p. 232) and a related one entitled “Misfeasance by Directors”. There is also a contribution dealing with lawful act duress (which many readers would doubtless consider a topic associated with contract, not tort, law). True: some of the authors responsible for these far-from-obvious inclusions offer explanations of why they think their essays belong in this volume – a book that the editors repeatedly describe in their “Introduction” as being about the economic torts. But this only reinforces the case for their provision (and preferably defence) of a particular conception of “the economic torts”. For them merely to assert (but not unpack) the claim that “‘the economic torts’ is a wider and more diverse legal category than has heretofore been acknowledged” (p. 7) is plainly not enough. Cambridge Law Journal, 82(1), March 2023, pp. 174–177 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S0008197323000028

Trade unions and the law: a materialist perspective

Abstract: Abstract This paper draws on Marxist scholarship concerning the law's emancipatory potential to shed new light on the history of UK trade unions, and their relationship with law. It traces the historical development of UK trade union law from the nineteenth century to the present day with a view to illustrating the importance of considering not just the content, but also the form, of law, in explaining the role of law in shaping the development of the trade union movement, and in understanding the limits of law, including human rights law, when it comes to realising the emancipatory potential of trade unions in society today. It concludes with some observations about how legal and social actors might make use of their understanding of the legal form when it comes to harnessing the law as part of their political strategies.

Justifying concurrent claims in private international law

Abstract: Abstract Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law, and that no field-unique concerns foreclose it.

Contract as property: triangles and tragic choices

Abstract: Abstract According to the “Inadequacy Thesis”, the law's refusal to extend the tort of conversion to interferences with contractual rights is evidence of systemic ossification and proof of its failure to protect the most valuable asset class in the modern economy. Whilst it is true that, like chattels, the benefit of contractual rights can be usurped by third parties, transforming such rights into objects of property is the wrong solution to the problem. This article departs from previous analyses by stressing that the analogue of acts of interference with contractual rights is not the conversion of a chattel but a “triangle dispute”. The problem raised by triangle disputes is not how to reach the primary wrongdoer, but how to allocate the loss between the innocent parties. Invoking the concept of “property” cannot solve this problem. Its efficient solution is to be found in better contracts, not more property.

Ethical investment by charity trustees: some answers, new questions

Abstract: IN Butler-Sloss v Charity Commission for England and Wales [2022] EWHC 974 (Ch), the High Court confirmed that two charities were entitled to adopt an investment policy which excluded investments deemed to be incompatible with the Paris Agreement, even though this risked reducing the charities’ investment returns. The decision is significant because it establishes that charity trustees have a broader discretion to take ethical and other non-financial considerations into account when exercising their powers of investment than had been previously understood. The judgment provides much needed clarification of the law governing ethical investment, but also poses difficult questions for trustees. The charities concerned were grant-making trusts established for general charitable purposes. Their trustees had chosen to focus the charities’ grant-making on two purposes in particular: the advancement of environmental protection or improvement, and the relief of those in need. The trustees wished to avoid investing the charities’ funds in investments which conflicted, or might conflict, with these purposes, prompting the development of the new investment policy. The policy significantly narrowed the universe of assets from which investments could be selected, which the trustees recognised was likely to result in diminished returns in the short term. For this reason, and because there was widespread uncertainty concerning the reach of the only previous reported case on ethical investment by charity trustees, Harries v Church Commissioners [1992] 1 W.L.R. 1241, the trustees asked the court to make a declaration blessing their decision. In Harries, Sir Donald Nicholls V.-C. held that, when exercising their powers of investment, the “starting point” was to maximise financial return, since “[m]ost charities need money; and the more of it there is available, the more the trustees can seek to accomplish”. However, trustees would be justified in departing from this starting point in certain “comparatively rare” cases, including where the trustees were satisfied that there was a direct conflict between the investment and the charity’s purposes (p. 1246). The trustees in Butler-Sloss claimed that the proposed investment policy fell within this exception; they considered the policy was needed because any investments which did not align with the goals of the Paris Agreement directly conflicted with the charities’ purposes. However, the scope of the direct conflict exception was unclear. Were the trustees required to divest from investments which they considered conflicted with their charity’s purposes, or did they simply have a discretion to do so? What was meant by a conflict in any Cambridge Law Journal, 82(1), March 2023, pp. 9–12 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge. doi:10.1017/S0008197323000107

Proprietary estoppel in the supreme court: banquo's ghost?

Abstract: THE facts of Guest v Guest [2022] UKSC 27, [2022] 3 W.L.R. 911 fitted a familiar pattern. For over 30 years, Andrew worked and lived on Tump Farm, owned by his parents, David and Josephine, for low wages. David promised Andrew (taking account of other familial expectations) a sufficient share of the farm to enable him to run a viable farming business on the parents’ deaths. The parents made wills accordingly. But following a falling out, Andrew was removed from the wills and left Tump Farm. The judge’s undisturbed conclusion ([2019] EWHC 869 (Ch)) was that Andrew had made out a proprietary estoppel claim against his still-living parents: he had relied to his detriment on David’s non-contractual promises, such that it was unconscionable for David to resile from them. The case invited the Supreme Court to consider a fundamental question, effectively for the first time in living memory at the highest level: should successful estoppel claimants like Andrew generally have their expectations fulfilled, should they generally be limited to having their detriment reversed, or was the correct approach a third way? The precise answer divided the panel, which issued two lengthy judgments (lacking explicit direct engagement with each other) over 10 months after the one-day hearing. Leading the majority, Lord Briggs (with whom Ladies Rose and Arden agreed) identified the objective of an estoppel remedy as compensating for the unconscionability caused by the defendant promisor in repudiating their representations. The preferable and simplest way of remedying that unconscionability was to assume (not presume) that claimants should have their expectations fulfilled. This was to be the “starting point” in “many cases”, although “considerations of practicality, justice between the parties and fairness to third parties may call for a reduced or different award” (at [94]). Lord Briggs grounded his approach in previous case law, identifying satisfying expectations as the “main driver of the remedy” (at [22]). Following a detailed review, he concluded that “there is not a single English authority favouring the approach that the essential aim of the remedy was to protect the claimant’s reliance interest and therefore to compensate for the detriment” (at [52]). Inter alia, he emphasised that the “minimum equity”-based approach in Crabb v Arun District Council [1976] Ch. 179, 198 was not about identifying expectation and detriment and then awarding whichever was cheaper for the defendant. Rather, Scarman L.J. in Crabb was concerned with the “minimum equity to do justice” (emphasis added), with “justice” meaning remedying the unconscionability in the repudiation of the Cambridge Law Journal, 82(1), March 2023, pp. 13–16 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited. doi:10.1017/S0008197323000119

Credit where credit's due: the supreme court take on directors’ duties and creditors’ interests

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Fintech Regulation in China: Principles, Policies and Practices. By Robin Hui Huang. [Cambridge University Press, 2021. xvi + 298 pp. Hardback £84.99. ISBN 978-1-108-48811-2.]

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Undue reticence on undue influence?

Abstract: VITIATING factors in contract law raise difficult and interesting questions. Lawful act duress has been subject to detailed scrutiny in Times Travel (UK) Ltd. v Pakistan International Airline Corp [2021] UKSC 40, [2021] 3 W.L.R. 727, albeit the decision has been subject to criticism (see Morgan [2022] C.L.J. 16). The decision of the Supreme Court of Canada in Heller v Uber Technologies 2020 S.C.C. 16 shone some light on unconscionable bargains (see Hunt [2021] C.L.J. 25). Now it was the turn of undue influence in Nature Resorts Ltd. v First Citizens Bank Ltd. [2022] UKPC 10, [2022] 1 W.L.R. 2788. Unfortunately, the Privy Council’s approach arguably raises almost as many questions as it answers. The Privy Council’s primary decision is that there was no basis for departing from the Court of Appeal’s decision that any presumption of undue influence would, on the facts, have been rebutted. Much more interesting, however, are the brief observations made regarding the presumptions which may be engaged in the doctrine of undue influence. The decision of the majority was given by Lord Briggs and Lord Burrows J.J.S.C.; Lady Arden J.S.C. dissented on a point concerning companies legislation, not discussed further in this note. The appeal concerned the sale of shares in the appellant company, Nature Resorts Ltd. (“NRL”), which owned the Culloden Estate in Tobago. The purchasers agreed to buy 75 per cent of the shares in NRL from the sole shareholder, Mr. Dankou. To facilitate this purchase, they obtained a loan from the Respondent bank. The terms included that the bank would have the security of a mortgage over the Culloden Estate. The bank instructed a lawyer, Richard Wheeler, to prepare the documents relating to the mortgage and the charge over the shares. The purchasers defaulted on their loan, and the bank decided to exercise its power of sale under the mortgage. NRL sought to set aside the deed of mortgage on the basis of undue influence exercised by Wheeler over Dankou, one of the issues being whether it should be presumed that Wheeler abused the professional relationship between himself and Dankou (and NRL), procuring the transaction under challenge. This claim failed before the High Court of Justice of Trinidad and Tobago, and likewise before the Court of Appeal of Trinidad and Tobago. The High Court had held that there was no presumption of undue influence; the Court of Appeal held that there was such a presumption, but it had been rebutted. The Privy Council dismissed NRL’s appeal, holding that the Court of Appeal was justified in finding that any presumption of undue influence had been rebutted; the Privy Council further held that the High Court had been right in the first place that there was no presumption which needed rebutting. Cambridge Law Journal, 82(1), March 2023, pp. 21–24 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge. doi:10.1017/S0008197323000132

Fundamental Rights and the Legal Obligations of Business. By David Bilchitz. [Cambridge University Press, 2022. xxii + 499 pp. Hardback £110.00. ISBN 978-1-108-84194-8.]

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CLJ volume 82 issue 1 Cover and Front matter

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An involuntary union? supreme court rejects scotland's claim for unilateral referendum on independence

Abstract: IN November 2022, the UK Supreme Court concluded that the Scottish Parliament did not have the competence to enact legislation to hold a second referendum on Scottish independence (Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31, [2022] All E.R. (D) 64 (Nov)). That an independence referendum would relate to matters reserved to the UK Parliament, specifically the Union and the Westminster Parliament, is in many senses the least remarkable aspect of the judgment. It does, of course, have important political ramifications for Scotland and the independence movement. From a legal perspective, the case has consequences for UK constitutional law and the relationship between domestic and international law. The reference came to the Supreme Court in a novel manner. The Scotland Act 1998 provides a specific mechanism through which the government Law Officers, both those advising Scotland and the UK, may refer a question to the Supreme Court as to whether Acts of the Scottish Parliament are within competence. According to section 33, such references are made within four weeks of the passing of the Bill through the Scottish Parliament, prior to the Bill receiving royal assent. However, this option was not available as the draft Bill had not yet been laid before the Scottish Parliament. Section 31 of the Scotland Act requires that the person in charge of a Bill states that, in their view, the Bill is within the competence of the Scottish Parliament. The Scottish Ministerial Code requires that any statement must first be cleared by the Scottish Law Officers. However, the Lord Advocate had concluded that, in her opinion, the Bill was not within the competence of the Scottish Cambridge Law Journal, 82(1), March 2023, pp. 1–8 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge doi:10.1017/S0008197323000090

The illegality defence and sanction-shifting: in defence of gray v thames train ltd

Abstract: This article considers the rule that a claimant who has been wronged will be denied recovery where the damage flowed from a sanction imposed as a result of their own illegal acts such that compensating the claimant would divert a sanction intended to be imposed on the claimant to the defendant. The article has two purposes. The first aim is to provide a counterweight to the overwhelming body of academic literature critical of Gray v Thames Trains Ltd. in which the House of Lords, in applying the illegality bar found it unnecessary to examine the purpose of the criminal sanction against the claimant, preferring to treat its existence as sufficient to lead to a denial of recovery. The article argues that academic support for adoption of an alternative test of “significant personal responsibility” rests on precarious grounds, depending, as it does, on the “unsatisfactory state of law” and “different policies” arguments. This article reconceptualises the rule in Gray and systematically examines the role played by the theme of consistency between the civil law and criminal law in judicial decision-making. The second aim is to evaluate Gray in light of Patel v Mirza. The article critiques the Supreme Court's inconsistent treatment of deterrence in Henderson v Dorset University NHS Foundation Trust and Stoffel v Grondona, and argues that the way the court in Henderson conceptualised the relationship between Gray and Patel discloses an approach which is more closely aligned with that adopted by the minority in Patel.

Service out of the jurisdiction – raising spirits?

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The Province and Politics of the Economic Torts. By John Murphy. [London: Hart Publishing, 2022. xxx + 287 pp. Hardback £85.00. ISBN 978-1-50992-731-9.]

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CLJ volume 82 issue 1 Cover and Back matter

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