Showing papers in "Modern Law Review in 1990"

Ascription of Legal Responsibility to Groups in Complex Patterns of Economic Integration

Abstract: When am I responsible for the acts of another? As a general rule, never: I arn not responsible for the deeds of others and deeds that are not my own. Even though these others may be intimates rather than strangers members of my family, club, union, or community -the common law will not ascribe responsibility for their actions to me. The law constructs an atomistic conception of social relations, delimiting our legal responsibilities to our own acts and omissions, absolving us from blame for our brother's wrongs. This principle of personal responsibility sometimes appears to admit exceptions. Ownership or control of land may expand my responsibilities to include actions of others on my land, even trespassers and God.' Sometimes the common law imposes a duty to control others, such as a teacher's duty to keep a toddler out of the road or a prison authority's duty to keep the prisoners incarcerated, and failure to perform this duty with care renders teacher and warder liable for the damage caused.2 And then again, I can be responsible for the actions of my chattels: my cows eating the neighbour's corn. Yet these do not count as proper exceptions to the principle of personal responsibility in the homocentric eyes of lawyers. My responsibility remains personal; my liability arises from an omission to act in breach of a personal duty, from a failure to control trespassers, to restrain the child, to douse the fire staxted by a celestial thunderbolt; only the measure of my liability depends upon the acts of others. And as for my cows, why, not even Puss counts as a person in (modern) law, so the issue of responsibility for the acts of others does not arise. But this simple picture described by the principle of personal responsibility must be coloured by one significant exception, which we may call the principle of group responsibility. Here we enter the realm of the firm: the organisation of productive relations. A group of individuals work together to produce commodities and services for sale in the market. Under the division of labour, each person's actions contribute towards a common goal. The team acts as one, though like any team, there are captains exercising authority and squabbles about the distribution of rewards. But in these circumstances of collaboration and economic integration, to hold each person responsible for only his own actions, as the principle of personal responsibility requires, makes little sense. The defective product is the product of the team, and though the defect may spring from one individual7s carelessness, either in design or execution, it should be the responsibility of the group to establish an organisation which prevents such defects. Accordingly, in the context of economic relations involving a division of labour and vertical integration of production, the common law frames legal responsibility in terms of the group. If e workers are business partners, en e law holds each partner responsible for the acts and omissions of the others. Similarly, one person, the owner of the means of production, often in a corporate form, will be identified as an employer and held responsible under the principles of vicarious liability for the actions of other workers, the employees, which cause harm to others. Instead of purely personal responsibility, the legal principle in the context of productive relations becomes one of the responsibility of the group, the capital unit, the business, or the firrn.

Why Rules Don't Work

Abstract: In virtually all fields of regulation and administration there are large numbers of rules that are regularly ignored or disobeyed. In spite of statutes, regulations and codes, rivers continue to be polluted, discrimination still takes place and many workplaces remain unsafe. Why do rules fail to work? How might rules be designed so as to work more efficiently? What is it that impedes the making of effective rules? These three questions are my central concern. The particular scheme of regulation I look at in detail is that applicable to workplace hazards in Britain. I attempt to draw broad lessons from that study and, in examining the way that rulemakers can and might behave, look at the insights offered by certain approaches to policy analysis. First though, the objects of study should be described. Rules can come in many different shapes and forms. They can also be used in association with a number of different regulatory strategies. These variations should be noted before the limitations of different rules in health and safety regulation are outlined.

The Evolution of the Single Market – Harmonisation or Liberalisation

Abstract: The evolution of the Single Market is both a legal process and a political process. The concept of a Single Market requires the elimination of all barriers to inter-state trade and all national prohibitions on establishment and the ultimate harmonisation of laws and regulations throughout the Community. The political reality is that vested interests, both of national governments' and of trade and professional organisations,' seek to delay the creation of this kind of Single Market. In these circumstances the choice facing the Community may be seen as being that between delaying the Single Market process until these obstacles can be overcome or reaching a pragmatic compromise by allowing the retention, at least temporarily, of some of the existing barriers.3 If it is accepted that some barriers can be retained, the next problem is to identify which these are. Some barriers must be seen as entirely incompatible with the Single Market, whilst others may be regarded as tolerable. In the first instance the European Court of Justice may be called upon to decide which barriers fall into which category.4 It is, though, far from clear that the Court is the appropriate institution to develop an internal EEC Commercial Policy in this way. Fundamentally the task is one which ought to be performed at a political rather than a judicial level. Even if 'legitimate' trade barriers can be identified, there is the further issue of deciding whether these are to be imposed at Community level or whether the decision-making authority is to be delegated to individual Member States, with the inevitable consequence that there will be different regimes in different Member States. This article looks at the ways in which these problems are being approached in a number of different areas of activity and considers whether any pattern can be seen to be emerging in the development of the Single Market. An important theme in this examination is the relative effectiveness of different interest groups in securing the recognition of particular trade barriers as legitimate and in obtaining for themselves the power to determine the content of those barriers. This point is related to the crucial distinction between changes which are intended to make it easier to conduct business on a Community-wide basis (referred to here as 'facilitative legislation'), and changes which are designed to regulate business activity, usually in the interests of protecting groups such as consumers and employees (referred to here as 'protective legislation'). This article proceeds by examining the distinction between lawful and unlawful trade barriers, before considering the ways in which lawful barriers are being treated in the run up to 1992. It will be seen that the interaction of the various interest groups is leading to the adoption of a number of different approaches to these problems.

Privacy, Confidence and Press Freedom: A Study in Judicial Activism

Abstract: One interesting and as yet unremarked feature of the House of Lords' decision in A-G v Guardian Newspapers Ltd (No 2)' is the unexpected support it lends to a case which passed relatively unnoticed earlier in the year and yet which signalled a development more significant for press freedom than even Spycatcher itself. It now appears that a substantial shift in the balance between privacy and press freedom is in prospect. Such a shift may well be beneficial in curbing the excesses of 'exposure journalism' in the tabloid newspapers. However the extended judicial role of policing the boundaries between the private and public interest made necessary by this shift may appear decidedly sinister to some. The development is also important on quite another level. It affords us a fascinating glimpse of how doctrine is 'constructed' rather than simply developing organically to meet novel circumstances. It provides another example of how the mechanical neutrality of precedent can mask the most dramatic doctrinal changes. It presents us with the topical problem of the nature of legal obligations and how they may be differentiated from moral obligations, and raises the question whether the decision has blurred unacceptably the dividing line between the two. The case is Stephens v Avery,2 and the facts were as follows: The third defendants, a Sunday newspaper, published information disclosed by the plaintiff to Mrs Avery, the first defendant which related to a lesbian relationship between the plaintiff and a Mrs Telling. The background facts were that Mrs Telling was unlawfully killed by her husband apparently as a result of finding her and the plaintiff together in a compromising position. This information had been imparted by the plaintiff to the first defendant, allegedly in confidence. The plaintiff alleged further that, in breach of that confidence, the information was given to a newspaper journalist who worked for the third defendants. The plaintiff claimed damages for breach of confidence, alleging that the second and third defendants had published the information knowing that it was imparted to the first defendant in confidence and that the plaintiff had not authorised publication. The defendants applied to strike out the statement of claim on the ground that it disclosed no cause of action. Master Barratt refused the defendants' application. On appeal to the Vice-Chancellor, counsel for the defendants submitted, inter alia, that the law does not protect information relating to the sexual conduct or proclivities of an individual save to the extent that such conduct takes place between married parties. He submitted further that the circumstances of the communication were not such as to raise a duty of confidence, in that it was necessary to establish either a legally enforceable contract or a pre-existing relationship (e.g. marriage) for such an obligation to arise. In response to these submissions the Vice-Chancellor addressed himself to the principle established by the Court of Appeal in Saltman, summarised by Megarry J. in Coco v A.N. Clark (Engineers) Ltd.3

From Peeping Behind the Corporate Veil, to Ignoring it Completely

Abstract: The subject of 'Lifting the veil' is well known in the literature on company law. The problem which authors face is how to explain the judgments which deviate from the strict rule of the separate legal entity of the company. Notwithstanding much endeavour, no conclusive answer has yet been given to the question of when the courts will lift the veil. Indeed, the plea is often made, both by judges' and jurists,2 that the legislature should lay down definite rules.3

Corporate Control: Markets and Rules

Abstract: It is likely that the impact of statutes on transactions in corporate control in the United Kingdom will increase in the near future, whether as a result of recent scandals or because of the introduction of legislation to harmonise rules within the EEC For these reasons it is appropriate to consider again the interests of those who are affected by the operation of the market for corporate control Traditionally, comment on, and regulation of, take-overs has focused on three issues: (1) the maintenance of proper balances between managerial and ownership interests within companies which are the targets of take-over attempts, (2) the maintenance of a balance between the interests of predators and shareholders in the target company, and (3) the protection of the public interest The first issue can be traced to the identification by Berle and Means of a potential conflict between the interests of owners and the interests of controllers of large corporations Since Berle and Means, much of the literature about corporations has concentrated on whether constraints on corporate managerial power are necessary in order to protect the interests of shareholders2 One of the most significant constraints on corporate managerial power seems to many commentators to be the market for corporate control, and the threat of displacement which it poses to corporate managements3 The idea of the market for corporate control seems to have originated with Berle and Means,4 but has since been refined5 The second issue arises out of the concern of regulators that predators should not profit at the expense of target company shareholders,6 and some of the refinements of the corporate control theory are relevant to this issue In practice, the third issue, the protection of the public interest, usually involves questions of competition policy7 These three issues all have different origins, but economic theory is relevant in all cases, as it suggests that markets operate in the public interest, except where there is market

Disqualification of Directors: A Plea for Competence

Abstract: and subpoenas duces tecum are the compulsory instruments by which the courts secure the evidence necessary for the determination of the truth. It is no answer to a subpoena to say that one is bound in contract or in honour not to tell what the court wants to know. Legal professional privilege entitles lawyers and their clients to keep their communications to themselves. They are thus immune from compulsory process.25 However, once the material has got out, it should not be kept out of court on account of its confidential nature any more than would any other confidential information. Confidence as such has never conferred an exemption from testifying or from producing relevant documents.

Statutory Sentencing Principles: The 1990 White Paper

Abstract: The Government has published its plans for a far-reaching reform of the English criminal justice system in its White Paper, Crime, Justice and Protecting the Public.' There can be no doubt that it is an important document.2 It is appropriate to say from the outset that this set of proposals, unlike a number of earlier ones emanating from the same Government, is distinguished by the enunciation of a set of reasonably clear basic principles, notably the acceptance of 'desert'3 or proportionality as being the appropriate guiding principle for sentencing. Explicitly, deterrent thinking is rejected as a means of determining the incidence and duration of custodial sentences.4 There is also a new willingness to address issues of consistency and fairness within the criminal justice system, rather than presenting a rag-bag of proposals which reflect short-term considerations and have little inherent coherence.5 We find ourselves

The European Community's Charter of Fundamental Social Rights of Workers

Abstract: On December 8-9, 1989, the Member States of the European Community gathered together in the European Council at Strasbourg, solemnly declared, with the sole dissent of the United Kingdom, a Charter of Fundamental Social Rights of Workers.' The development of the 1992 programme carried with it increasing concern about the social consequences of the creation of the single internal market. The social policy of the Community, as developed over its first 30 years, did not seem adequate to the task.2 An attempt to overcome the stalemate preventing the Council approving many Commission proposals on social policy was made by the launching in 1985 of the Val Duchesse 'social dialogue' between the European level trade union and employers' organisations (ETUC and UNICE),3 reinforced by the provision in Article 118B of the Treaty inserted by the Single European Act. But this effort did not satisfy the perceived need for the formulation and implementation of a comprehensive social dimension for the 1992 programme. Building upon the Belgian Presidency (the Labour and Social Affairs Council of May 1987) and an Opinion of the Economic and Social Committee (the Beretta report of November 1987),4 a working party of the Commission in 1988 proposed a body of minimum social provisions.5 Thereafter, the development was very rapid: following an Opinion of the Economic and Social Committee in February 19896 and a Resolution on Fundamental Rights of the European Parliament in March 1989,7 a first draft of a Community Charter of Fundamental Social Rights was published by the Commission in May 1989, a second draft was produced in October 1989 and the December summit approved the final Charter.8 Shortly before that summit, the Commission had produced a communication concerning its Action Programme relating to the implementation of the Community Charter.9

The Implementation of the Community Charter of Fundamental Social Rights

Abstract: The Community Charter of Fundamental Social Rights of Workers' provides a framework of principle for the future development of a European 'social dimension,' a 'social space,'2 possibly even a 'social State.'3 The achievement of any of these grand designs depends not only upon political will, but also upon the methods now chosen to implement the twelve categories of 'fundamental social rights' set out in the Charter, both at Community level and at national level. The implementation of the Charter presents a unique opportunity to 're-regulate' European labour markets in ways which are significantly different both from the current model of 'deregulation' in certain countries (notably the UK), and also from the pre-existing welfare-state and labour law systems.4 If the process of 'implementation' is effective, one may expect the 'fundamental social rights' themselves to have a dynamic character, moving from their present anaemic state towards a full-blooded system of individual rights within a framework of freedom of association, collective bargaining and industrial democracy. From this viewpoint, the most crucial part of the Charter is Part II, which envisages implementation at both national and Community levels. Article 27 casts responsibility on the Member States to guarantee the fundamental social rights in the Charter and to implement the social measures 'indispensable to the smooth operation of the internal market as part of a strategy of economic and social cohesion.' The main methods prescribed by Article 27 are 'legislative measures or collective agreements,' 'in accordance with national practices.' The preamble refers, as well, to 'existing practices at the various appropriate levels' requiring 'in many spheres the active involvement of the two sides of industry.' Article 28 invites the Commission to submit initiatives 'which fall within its powers' with a view to the adoption of legal instruments for effective implementation, as and when the internal market is completed, 'of those rights which come within the Community's area of competence.' The Commission responded promptly to this invitation by publishing

European Community Environmental Law: Legislation, the European Court of Justice and Common-Interest Groups

Abstract: European Community (EC) environmental law and policy has come a long way since the Council of the European Communities (Council) approved the first EC Action Programme on the Environment in 1973,' following a declaration on the environment by the Heads of State and government of the nine members in October 1972. Since then the EC has adopted three further Action Programmes on the Environment2 and more than one hundred and fifty acts of secondary environmental legislation.3 It now seems possible to imagine as an emerging legal reality a Single European Environment, recognising the physical reality that EC Member States share a common environment which transcends national boundaries.

The Privatisation of the Public Interest in Children

Abstract: The public-private dichotomy is a pervasive theme in legal writing and has been viewed by some as central to an understanding of the role of law in family life. Others have doubted the validity of a rigid demarcation between public and private spheres of activity and in particular the existence of a private, largely unregulated, area of family life.2 They point out that the so-called private realm is heavily influenced by structures external to it and that its boundaries are drawn up by the State. Thus, it is not naturally preconstituted or beyond legitimate State regulation. The far-ranging and radical reform of both the public and private law affecting children, which will be brought about by the Children Act 1989 (hereafter 'the 1989 Act'), provides a timely opportunity for considering the place of children in this public-private discourse. Those who believe in a clear divide between the public and the private view the family as a largely unregulated area beyond the reach of law, 'the last outpost of Gemeinschaft'.3 There can be no doubt, at least in theory, that the nature of family privacy imposes significant legal and political constraints on state intervention. Mnookin4 has explained how, in the United States, there is broad agreement between Liberal Democrats and Conservative Republicans that there are limitations on the power of the Government to intrude into the family and that certain 'private' actions should be presumed to be beyond legitimate governmental control. The consensus there breaks down only when it comes to the definition of which activities should be considered to fall within this private sphere. Liberal Democrats would include within it a broad range of personal activities concerning, inter alia, sexuality, marriage and child-rearing. Conservative Republicans, in contrast, emphasise the importance of the family for the stability of society and therefore regard it as a primary social institution appropriate for legal regulation. Although there may be sharp political disagreement about where the boundaries of the public and private are to be drawn, the concept of family privacy is itself entrenched and legally protected under the constitution. Parents and children have constitutional rights not to be subjected to unwarranted state interference in their family life.5 In Europe, similar interests are protected by the European Convention on Human Rights. Article 8(1), in particular, upholds the individual's right to 'respect for his private and family life, his home and his correspondence.' In the English domestic context, this meant

Competition Policy after 1992: The Next Step

Abstract: This demand was made by the Economic and Social Committee ('ECOSOC') in its Opinion on the EC Commission's Seventeenth Report on Competition Policy. The Opinion called for a competition policy that is predictable and precise in the interests of transparency and legal certainty. Further, ECOSOC warned that if the basic principles of competition policy are too removed from the 'everyday concepts of the people of Europe' it will lose its ability to create a genuinely internal market.2 The Opinion of ECOSOC raises important questions concerning the nature and development of competition policy in the post-1992 era:

Sterilisation of mentally handicapped people: judges rule ok?

Abstract: In the field of comparative law, it is always wise to temper cross-cultural comparisons of legal developments with a keen awareness of the contrasting legal, political, social and philosophical heritages of different States and legal systems. This caveat applies equally in the field of medical law where many Western legal systems of both the Common law and Civil law families have been confronted with a broad common complex of moral, social and legal issues generated by the ever increasing use of medicine and medical technology. Strikingly different solutions to similar social problems are often adopted: there is, for instance, no consensus among judges, legislators and other policy makers on recourse to or rejection of nonconsensual sterilisation as an appropriate technological response to the social 'problem' of sexual activity by those unable by reason of mental disability to conform to the norms and demands of modem society; the divergence of responses to the issues thrown up by the development of reproductive technology offers another example of the differential operation of conditioning factors such as religion, family formation and gender politics. There is, nonetheless, much to be gained by transnational comparisons of approaches to medical law issues, since they offer an unrivalled opportunity to throw the domestic experience into broader perspective and to widen the perceived range of available policy options. It is the primary purpose of this note to examine the House of Lords decision in Re F on the legality of nonconsensual sterilisations of mentally handicapped adults. However, where appropriate, comparisons will be drawn with legislative developments in the Federal Republic of Germany. It aims to contrast the statutory framework for such medical interventions currently before the West German Bundestag for debate, with the ad hoc judicial law-making which has occurred in the United Kingdom. Although some steps towards broadening the arena of debate have been taken in the Federal Republic, neither legal system has succeeded in shedding all traces of deep-rooted discriminatory assumptions about mentally handicapped people; it is implicit throughout this article that effective solutions to the perceived problems of sexuality will be of a social and political nature, not a legal one.

The MP's Complaints Service*

Abstract: Over the last year, [X], your Member of Parliament, has tried to help thousands of people with their problems, who have either been to see him at his surgeries, come to the House of Commons, written or telephoned him. Local Conservative Party Pamphlet, 1986.

Evaluating Alternative Dispute Resolution: Measuring the Impact of Family Conciliation on Costs†

Abstract: The increasing use of alternative non-judicial methods of dispute resolution has been a widespread phenomenon in recent years. Some, for example administrative tribunals, ACAS, small claims ‘courts’ and the ombudsmen, have resulted to a greater or lesser extent from governmental initiatives; others, such as arbitration and family conciliation, have emerged more as a response to decentralised demand. Most of the ‘first wave’ literature on the alternative dispute resolution movement was vociferously enthusiastic for it, the claims being that it reduced costs and delays and generated outcomes which, in general, were more satisfactory compromises than the ‘all-or-nothing ’ solutions incorporated in judicial decisions.2 Subsequently, commentators adopted a more critical stance: settlements reached by the alternative systems lacked the ‘legitimacy’ of authoritative judicial decisions (a dimension of particular importance in some areas of the law); participants might be pressured into accepting less than their full entitlement; and that the handing down, and publication, of judicial decisions constitutes a valuable ‘public good’, since it provides information about what can and cannot lawfully be done.3 The problem with this set of arguments is that they apply also to negotiated settlements of traditional legal actions4 and thus should be directed equally against any system of justice like the English5 which encourages such settlements. For policy purposes, the crucial question is whether the alternative procedures are superior in terms of costs and/or satisfactory outcomes to traditional processes.6

Continuity and Change in British Food Law

Abstract: At last the Government has served up the nouvelle cuisine of U K food law. The Food Safety Act 1990 is leaner and less generous in its proportions than its post war predecessors. It is rather more easily digestible. But, while promising much, it delivers very little and the gourmet, having digested the changes in the new Act, is left wondering whether she has had a meal at all. Modern food law has had as its two principal stated concerns the protection of public health and the prevention of unfair trade practices harmful to the economic interests of both consumers and fair traders. I The tendency towards complexity in food technology has shaped the response to these concerns. Such complexity makes it more difficult for the consumer to identify what it is she is eating and when it is unsafe. The limited expertise of consumers has therefore been bolstered by protective legislation permitting consumers to rely to a greater extent on the traders to produce safe, nutritious food, which is informatively labelled. The framework for modern food law was developed between 1860 and 1955 and, until recently, has remained substantially unchanged since. The Food Act 1984 consolidated the Food and Drugs Act 1955 with the amending measures passed in the interim period. The 1984 Act, however, was regarded as distinctly creaky when it was passed and has largely been overtaken by provisions in regulations made under the Act which have addressed issues raised by new food technologies, new methods of analysis and control, and compliance with the extensive obligations of membership of the European Community. So while the ostensible focus of the 1984 Act is on a number of criminal offences connected with food quality and safety, in fact the heart of the modem law is now contained in the more hidden subordinate legislation. The most conspicuous added ingredient to food law in the Food Safety Act 1990 is the addition of ‘safety’ to the title. Much of the surface appearance of the new Act is directed towards greater safety. Nevertheless, this change is not reflected in the underlying texture. Like its predecessor, the Food Act 1984, the 1990 Act is concerned with many aspects

Harmonisation of Technical Standards: Reculer Pour Mieux Sauter?

Abstract: This article will examine the harmonisation of technical standards in the light of the free movement of goods rules of the EC Treaty and the Community's attempts to create a single European market by the end of 1992. It does so from the perspective of the manufacturer and distributor of goods who is faced with a confusing and conflicting array of legal and semi-legal norms. The rules which will determine such a manufacturer's behaviour come from a variety of sources; they include domestic legislation, treaty rules as interpreted by the European Court of Justice, decisions taken jointly by fellow manufacturers under the auspices of British and European standards institutes and cognate legal rules relating to product liability. The manufacturer will find that the world of the free movement of goods is one in which there is conflict between the economic liberalism of the European Court of Justice which is expressed in abstract legally formal decisions and the interventionism of the European Commission. These two institutions, whilst perhaps sharing the ultimate desire to create a common market, approach the free movement of goods rules from entirely different perspectives. For the manufacturer who wishes to sell goods in the single market the rules seem fairly clear. Article 30 EEC prohibits, amongst other things, quantitative restrictions on imports and all measures having an equivalent effect. In the context of this paper, the key prohibition is that on measures having equivalent effect to quantitative restrictions. As Steiner says '[The prohibition] has been interpreted very generously by both the Commission and the Court, to include not merely overtly protective measures or measures applicable to imports or exports ("distinctly applicable" measures) but measures applicable to imports (or exports) and domestic goods alike ("indistinctly applicable" measures), often introduced (seemingly) for the most worthy purpose." The Court of Justice, in its famous Cassis de Dijon judgment, introduced a test to identify what national measures were permissible under Article 30.2 In this case, the Court held that certain national measures will not breach Article 30 if they are necessary in order to satisfy 'mandatory requirements' relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. In the case of

The Mental Health Act Code of Practice

Abstract: The Mental Health Act 1983 makes provision for the treatment of mentally disordered patients by allowing for the informal admission of patients who do not resist treatment which is deemed necessary in their best interests, and for the detention of those who would refuse such interventions. The term 'informal' does not mean the same as voluntary, since there are in psychiatric hospitals many informal patients (especially profoundly mentally handicapped and elderly people suffering from confusional disorders) who lack the capacity validly either to consent to, or to refuse, admission.' In practice, the vast majority of patients are admitted informally. Out of over 200,000 admissions in 1986, approximately 7 per cent took place under compulsory powers.2 The rest were informal. Because the exercise of the powers to detain and treat in the 1983 Act entails achieving a delicate balance between respect for people's civil liberties and the protection of their welfare or that of other people, the Act sets safeguards by requiring that before a person can be detained they must be suffering from mental disorder, and the mental disorder must be of a nature or degree which warrants detention in the interests of the health or safety of the patient or for the protection of others. Furthermore, detained patients have the right to appeal against detention to a Mental Health Review Tribunal, and to make complaints about treatment or other matters to the Mental Health Act Commission (the Commission), the independent multi-disciplinary body set up to oversee the operation of the consent to treatment arrangements in the Act and to protect the rights and welfare of detained patients. In addition to these safeguards, the Act puts a duty on the Secretary of State for Health to prepare and revise a Code of Practice for the guidance of mental health professionals in relation to the admission of patients to both National Health Service and private psychiatric hospitals, and in relation to the medical treatment of all patients suffering from mental disorder.3 Since medical treatment for the purposes of the 1983 Act includes 'nursing, care, habilitation and rehabilitation under medical supervision,'4 this was an extremely wide brief.

Changing Rules, Enduring Structures

Abstract: EC Directive 79/7' requires Member States to implement equal treatment between men and women in social security. It was adopted in 1978 and came into force in December 1984. The United Kingdom (UK) Government acted promptly to implement its provisions. Even before it was adopted, the Government requested a departmental team to investigate how it should be implemented. Most of the legislation the Government considered necessary to comply with the Directive was put in place in 1980. This was given effect by subordinate legislation in 1983. The Goverment's timing was therefore exemplary. Arguably, however, effective compliance requires more than punctuality and procedural propriety. It also requires certain standards to be achieved in the way a directive is implemented. This paper therefore looks at the way Directive 79/7 was implemented in order to assess whether quality of implementation was achieved. It concludes that the UK Government's performance was not quite so exemplary in this respect.

Education by Right? Breach of the Duty to Provide ‘Sufficient’ Schools

Abstract: Is there a legal right to education in England and Wales? At a time of increasing emphasis on consumer rights in the education system, expressed in recent legislation,' this most basic and fundamental of questions has been largely overlooked at least until the recent case of R v Inner London Education Authority ex parte Ali and Murshid2 focused attention upon it. The Ali case is the latest in a series over the past 20 or so years concerned not so much with the right to education as such, but rather with the extent of local education authorities' (LEAs') duty to provide 'sufficient schools' under section 8 of the Education Act 1944 (the 1944 Act) and the scope for judicial intervention in respect of an alleged breach. The broad context to the case is the difficulties faced by LEAs in maintaining an education service in the face of substantial teacher shortages. Throughout the country there have, over the past few years, been repeated incidences of children sent home from school because of the shortage of teachers especially, but by no means exclusively, in the South-East of England, and in inner London in particular.3 The government has instituted various measures to aid the recruitment and retention of teachers. The licensed teacher scheme aims to recruit mature (over 26 year old) persons into teaching.4 Moreover, various features of the new arrangements for teachers' pay and conditions being brought into effect in stages from 1 April 1990 onwards are designed to aid recruitment. There will, inter alia, be an additional 14,400 incentive allowances5 available for allocation, a local

Constitutions and Political Economy: The Privatisation of Public Enterprises in France and Great Britain

Abstract: This article will be concerned with the effects of differing constitutional traditions and constitutional provisions on policy-making and on policy-delivery, as suggested by a comparison of the implementation of the programmes of privatisation of public enterprises in France and Great Britain. This should provide a particularly useful case study for students of comparative law and politics, as both nations adopted extensive privatisation with the ascent to power of governments of the Right; indeed, the earlier British privatisation programme offered an important source of inspiration for France. However, there have been major differences in the nature of the enterprises to be sold, in the means of evaluation and share pricing adopted and in relations with government after privatisation. I will concentrate on discussion of France, referring to Britain for comparative purposes, as material on British experience is more easily available. Indeed, in some ways this article can be seen as complementing earlier work done in this journal by myself and a colleague on the constitutional implications of privatisation on this side of the Channel.' A number of different aspects of the comparative privatisation process will be of interest to lawyers. Thus, for example, the legal forms and instruments adopted have been very different in the two nations, and this raises themes receiving increasing attention in valuable recent studies of law as an instrument of economic policy.2 However, this type of comparison will not be made here.3 Rather, the central theme will be the degree to which the different constitutional arrangements of the two nations have imposed constraints on the freedom of manoeuvre of governments implementing their privatisation programmes, and, in particular, the degree to which they have succeeded in imposing some degree of public scrutiny on the process of policy implementation. In particular, I will examine the role of the written constitution as interpreted by the Conseil constitutionnel in France in imposing structural constraints on the relationship between governmental policy and broader conceptions of public interest and citizenship. In examining this subject, one finds a major theme in the literature of comparative political economy to be that different patterns of economic development in the two nations can be ascribed in part to differences in the role and organisation of the state. Thus Shonfield, in his pioneering and influential study, associates economic liberalism with a particularly British type of capitalist development: