Showing papers in "Modern Law Review in 1999"

Risk and Responsibility

Abstract: level. Risks only exist when there are decisions to be taken, for reasons given earlier. The idea of responsibility also presumes decisions. What brings into play the notion of responsibility is that someone takes a decision having discernable consequences. The transition from external to manufactured risk is bringing about a crisis of responsibility, because the connections between risk, responsibility and decisions alter. This is a crisis of responsibility with negative and positive features, roughly corresponding to the negative and positive aspects of risk. Given the inherently ambiguous nature of most situations of manufactured risk, and the inherent reflexivity of these situations, responsibility can neither easily be attributed nor assumed. This applies both where responsibility means limiting risk (as in ecological risks, or health risks) and where risk is an energising principle (financial markets). Several consequences follow: 1. The emergence of what Beck calls ‘organised irresponsibility’. By this he means that there are a diversity of humanly created risks for which people and organisations are certainly ‘responsible’ in a sense that they are its authors but where no one is held specifically accountable. Various questions then come to the fore. Who is to determine how harmful products are, what side effects are produced by them, and what level of risk is acceptable? How can ‘sufficient proof’ be determined in a world full of contested knowledge claims and probabilities? If there are damages to be paid, or reparations made, who is to decide about compensation and appropriate forms for future control or regulation? Much of the ‘social interrogation’ of risk and responsibility takes place through the prism of external risk and simple modernisation. This is true, for example, of anyone who expects an actuary to predict risk, and therefore assess responsibility, on the basis of past trends; or of anyone who supposes that one can simply turn to experts to provide solutions. Coping with situations of organised irresponsibility is likely to become more and more important in the fields of law, insurance and politics, but this won’t be easy to do precisely because of the rather imponderable character of most circumstances of manufactured risk. The dilemma of scaremongering versus cover-ups is a direct indication of the deep seated nature of the problems involved here. 2. Some say that the most effective way to cope with the rise of manufactured risk is to limit responsibility by adopting the ‘precautionary principle’. The notion of the precautionary principle seems to have first emerged in The Modern Law Review [Vol. 62 8 s The Modern Law Review Limited 1999 Germany in the 1980s, in the context of the ecological debates that were carried on there. At its simplest, it proposes that action on environmental issues (and by inference other forms of risk) should be taken even though there is scientific uncertainty about them. Thus in the 1980s, in several Continental countries, programmes were initiated to counter acid rain, whereas in Britain lack of conclusive evidence was used to justify inactivity on this and other pollution problems too. Yet the precautionary principle isn’t always helpful or even applicable as a means of coping with problems of responsibility. The precept of ‘staying close to nature’, or of limiting innovation rather than embracing it, can’t always apply. The reason is that the balance of benefits and dangers from scientific and technological advance, and other forms of social change, is imponderable. We may need quite often to be bold rather than cautious in supporting scientific innovation or other forms of change. This having been said, variations on the precautionary principle can nevertheless be a significant way of reintroducing responsibility. One variant of the principle, for example, is that firms producing goods should think through the whole product cycle before those goods are released onto the market or relevant technical processes utilised. Thus in the Brent Spar episode, the company putting up the oil platform in the first place had not adequately thought through to the final point of effective and reasonably safe disposal. 3. Situations of manufactured risk shift the relation between collective and individual responsibility in many risk situations. Although in many circumstances individuals cannot be held culpable, this is not the same as non-culpability in conditions of organised irresponsibility. In the latter case, this results from viewing responsibilities through the lenses of external or passive risk. Consider, for instance, health risks. Many people get ill through no fault of their own. But a large proportion of illnesses are related both to lifestyle practises and to wider conditions of the ‘created environment’. It doesn’t make any sense to suppose that liability in these circumstances can remain wholly with the collectivity, whether this be government or an insurance company. The active assumption of responsibility, as in attempts to reduce levels of smoking, becomes part of the very definition of risk situations and therefore the attribution of responsibility. Something quite similar applies to our responsibilities towards future generations. When most risk was external, such responsibility was relatively limited: nature was largely intact. Our responsibilities to future generations now are thoroughly infused with decisions we have to take resulting from our transformation of nature. 4. These considerations are relevant to one of the major political issues of our times, the future of the welfare state. The history of the welfare state in all countries is a tangled one. The welfare state emerged in some part as a means of holding back the aspirations of the poor and of controlling them – it had some of its roots in the political right. In recent years, however, as described earlier, the left has appropriated the welfare state as its own project. The debate around the welfare state has therefore concentrated to a considerable degree upon its role in limiting or reducing inequality. But the welfare state is more correctly seen as a form of collective risk management. The idea that the welfare state should be understood as a ‘safety’ or ‘provident’ state has been raised most forcefully in the writings January 1999] Risk and Responsibility s The Modern Law Review Limited 1999 9 of the French thinker Francois Ewald. The welfare state is tied into the basic suppositions of modernity – that security comes from the ever more effective control by human beings of their material and social environments. The crisis of the welfare state is usually represented as a fiscal one. If the welfare state is in trouble, it is because people won’t pay the taxes needed to fund welfare systems properly. There is some validity to this, but it is more illuminating to see the crisis of the welfare state as a crisis of risk management. The welfare state was built up on the presumption of external or passive risk. If you become unemployed, fall ill, become disabled or lose your home, the welfare state will step in to protect you. Welfare systems must now confront large areas of manufactured risk, shifting the relation between risk and responsibility. It isn’t surprising that there is now a great deal of talk about the need to connect rights with responsibilities. Unconditional rights might seem appropriate when individuals bear no responsibility for the risks they face, but such is not the case in situations of manufactured risk. 5. Where a society hasn’t got effective means of dealing with organised irresponsibility, the result isn’t always that no one is held culpable. On the contrary, the price of manufactured uncertainty is probably closely associated with the emergence of the ‘litiginous’ society. Where a common ‘contract of responsibility’ has broken down, culpability can appear everywhere. Here indemnity has effectively been separated from causality. I might be held responsible, for example, if someone is hurt through slipping on my garden path. 6. The theme of responsibility has to be integrated with a concern for the two sides of risk. The negative and positive sides of risk are still often discussed as though they were separate from one another. This translates into a division between two large bodies of literature. It is a remarkable fact that most of those who write about environmental risk make no reference at all to the literature on financial or entrepreneurial risk, or vice versa. Two of the most influential books to have been written about risk over the past ten years, for example, are Risk Society by Ulrich Beck and Against the Gods written by Peter Bernstein. Yet these books make no reference at all to one another. The fact that risk is often a positive or energising phenomenon is relevant to most of the situations of risk and responsibility discussed above, not just to economic risk. Thus to create a more effective welfare state, it is important that in some situations people are psychologically and materially able to take risks albeit in a ‘responsible’ way. It isn’t a good outcome for the individual or the wider society where a person is stuck on benefits or unwilling to take the risk of plunging into the labour market. The same applies to someone caught up in a dysfunctional or violent relationship. Risk is not only closely associated with responsibility, but also with initiative and the exploration of new horizons – something which takes us back to our starting point when the notion was first developed in post-

Company Law and the Myth of Shareholder Ownership

Abstract: competitiveness of different versions of capitalism and the corporation. As company lawyers are well aware, diverse opinions have emerged, with some advocating the adoption of a legal model of the company based around so-called stakeholding principles akin to those said to be found in Germany and Japan, while others seek to reinvigorate the traditional, shareholder-oriented, Anglo-American model." Despite these differences, however, there is widespread agreement that shareholders have an important role to play in ensuring good governance. For some, good governance requires a restoration of shareholder supervision and control.3 For others, including many supporters of 'stakeholding', it should not be judged purely in terms of maximising 'shareholder value' but still requires more 'committed' ownership by shareholders, if only to eradicate the danger of 'shorttermism'.4 In keeping with this, the Labour government has recently asserted the need for more active and less fickle shareholding and has for some time been toying with the idea of making voting at company general meetings compulsory for institutional investors.5

Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights

Abstract: The incorporation of the European Convention on Human Rights (ECHR) by the Human Rights Act 1998 raises many interesting questions concerning how deeply it will penetrate the United Kingdom's domestic legal orders.' However, perhaps the most central is how British judges will respond to the interpretive challenges posed by broadly-drafted Convention rights and, in particular, the need to determine limits to those rights. Like most rights documents, the rights conferred by the ECHR are not absolute. All but four2 may be restricted in specified circumstances.3 First, certain rights are subject to what may be termed 'express definitional restrictions', limiting either their content,4 the circumstances in which they apply,5 or the persons who are entitled to them.6 Second, according to Article 15, all except the absolute rights may be suspended 'in time of war or other public emergency threatening the life of the nation' provided this is 'strictly required by the exigencies of the situation'. Most controversial, however, are those Articles which contain general exceptions allowing states to interfere with rights in pursuit of other legitimate purposes, primarily of a collective nature.7 This category differs from the other limitations in requiring case-by-case judgments as to whether priority should be given to individual rights or to public interest goals.

The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?

Abstract: The extent to which the Human Rights Act (HRA) will have any 'horizontal effect', that is, impact on the legal relations between private juristic persons, has already been recognised as perhaps its most problematic aspect.' It is also of course an issue of potentially great importance. If the more maximalist interpretations of the Act's horizontal effect so far put forward are accepted by the UK judiciary, the effect on private common law2 could be drastic: as La Forest J put it in relation to the same issue under the Canadian Charter in the seminal case of Dolphin Delivery,3 whole areas of settled private law would have to be re-opened.4 In the literature this debate has so far generated, a consensus seems to have emerged that the inclusion of the courts within the definition of public authorities which are bound not to act incompatibly with Convention rights5 is crucial in this regard. It is the contention of this article that the meaning of this admittedly key provision has so far been subject to insufficiently detailed analysis, nor considered in the context of the Act as a whole. This is partly because, as will be suggested, its meaning has

The Human Rights Act and Parliamentary Democracy

Abstract: The Human Rights Act 1998 is the culmination of an aggressive campaign for the incorporation into domestic law of the European Convention on Human Rights, a campaign in which the judges joined forces with other political activists. Variously described as 'brilliant';' 'a masterly exposition of the parliamentary draftsman's art';2 and even 'a thing of intellectual beauty',3 the Act has also been greeted as an 'ingenious compromise' between the 'maximalists' and 'minimalists', the former supporting a judicial power to invalidate legislation, as is the case in Canada.4 But although it is purported to reconcile in 'subtle' form the protection of human rights with the sovereignty of Parliament (a claim even more credible after an important but unsung Commons amendment), the Act also represents an unprecedented transfer of political power from the executive and legislature to the judiciary, and a fundamental re-structuring of our 'political constitution'.s As such it is unquestionably the most significant formal redistribution of political power in this country since 1911,6 and perhaps since 1688 when the Bill of Rights proclaimed loudly that proceedings in Parliament ought not to be questioned or impeached in any court or any other place. In the words of Baroness Williams of Crosby, we have crossed our 'constitutional Rubicon',7 at least to the extent that the courts may now declare a statute incompatible with Convention rights. The enactment of the Human Rights Act 1998 was marked by an unusually high quality of debate, particularly in the House of Lords, with powerful performances by the Lord Chancellor and Lord Lester of Herne Hill. The performance of the latter on one occasion was too much for Lord Campbell of Alloway, unaccustomed it seems to cerebral rather than ceremonial contributions in their Lordships' House. Lord Campbell was heard to protest (in a manner dubbed 'offensive' by Lord Ackner)8 about 'these escoteric lectures on law at this time of night', having 'never heard anything like this after dinner' in the 18 years he had been in the Lords.9 He had better get used to it: the law and the lawyers are about to dominate all the debates, at all times of the day and night, before and after every meal time. Indeed in the Second Reading Debate on this Bill in the House of Lords 'full of

Theorising Utility Regulation

Abstract: The Department of Trade and Industry Review of Utility Regulation marks a final recognition that the debate on such regulation is here to stay and will not disappear with the development of further competition or reforms of competition law.1 Within the European Union a similar debate is taking place with the liberalisation of utility markets, especially telecommunications.2 Utility regulation has also been controversial worldwide; in the United States, long regarded as its natural home, the relationship between deregulation and new regulatory techniques is now being reconsidered and many of the problems faced earlier in the UK about how to liberalise markets are being faced within a culture which has given a much greater role to identifiably regulatory institutions.3 Finally, many other countries (for example in Central Europe) are, as the result of their privatisation programmes, having to grapple with the creation of regulatory institutions in cultures not necessarily sympathetic to the concept of relatively independent agencies. In this article I will not attempt to deal in detail with reform proposals such as those in the Review, important as they are. Instead, I wish to suggest that the theoretical underpinnings implicit in much of the debate are unsatisfactory. In particular, two possible theoretical approaches to regulation are inadequate to bear the weight of understanding, or reforming, regulatory practice. These are a bilateral or contractual model of regulation in which the primary relationship is between regulator and regulated firm; a variant of this can be found in the economist's favourite critical model of 'capture theory'. The second approach (which indeed appears in the Review) is that of stakeholder theory with the regulatory agency seen as the centre of a web of relations in which the firm may be only one interest out of many, and this has something in common with the proceduralism popular in some legal writing. I shall attempt to suggest, using material primarily relating to UK utility regulation, that neither of these approaches can capture the complexity of the regulatory task, either for explanatory or prescriptive purposes. I shall conclude by speculating as to how a more successful approach to studying regulation can be developed by returning to political and constitutional theory and adopting a rights-based approach to regulation.

The Company Director’s Duty of Care and Skill: The Case for an Onerous but Subjective Standard

Abstract: Recent years have witnessed an intense interest in questions of corporate governance' the mechanisms by which companies are managed and regulated. Much of this interest has concentrated on issues of efficiency and competitiveness, and on ensuring that those charged with corporate management display appropriate levels of effort and expertise.2 As the breadth of the governance debate amply testifies, there are very many strategies which might be employed to secure these managerial qualities. Lawyers, however, have unsurprisingly tended to focus upon the various legal duties, and in particular the duty of care and skill, to which directors are subject,3 a focus that seems set fair to continue following the recent publication of the Law Commission's Consultation Paper on company directors.4 That duty, however, seems to be held in remarkably low esteem, with many critics but few friends. Those critics point out how little the duty has, at least in its

‘Racist Crime’: Racially Aggravated Offences in the Crime and Disorder Act 1998 Part II

Abstract: The introduction of racially aggravated offences in Part II of the Crime and Disorder Act 1998 (the Act) represents a major shift in the state response to violence and harassment of minorities in the United Kingdom (UK).1 It comes at a time when 'racial violence' is increasingly recognised as a persistent social problem. High profile incidents such as the Stephen Lawrence enquiry have ensured that the debate about the relationship between racial violence, crime and law enforcement agencies in the United Kingdom has taken on greater urgency.2 Previous governments resisted pressure to introduce a specific criminal offence of racial violence and harassment. In 1994, the Home Secretary, Michael Howard summarised this approach in setting out the Government's objection to the Home Affairs Committee's call to introduce such an offence in its report on Racial Attacks and Harrassment: 'All violent crimes, regardless of motivation, can already be dealt with properly under existing legislation'.3 In a sharp contrast to this approach, the Labour Party election manifesto stated that 'Britain is a multiracial and multicultural society. All of its members must have the protection of the law. We will create a new offence of racial harassment and a new crime of

Standards of Proof in Civil Litigation

Abstract: It is well known that the standard of proof in a civil case is proof on the balance of probabilities, and that this means that the party bearing the burden of proof must prove that her case is more probable than not. Indeed, the civil standard of proof appears to be one of the simplest concepts in the law of evidence, requiring little explanation or illustration. But scratch the surface of this most basic of evidentiary notions and an altogether more complex picture is revealed: the case law provides a range of conflicting interpretations of what the civil standard of proof requires in different contexts. When an area of the law is this confused, one starts to suspect that the problem lies in more than a failure by the appellate courts to resolve conflicting authorities and to lay down clear guidance (though this has certainly added to the difficulties in this area); one is drawn instead to the conclusion that the confusion lies at a deeper, conceptual level and that it is driven by the lack of a clear understanding of the basic building blocks of forensic proof. In the first section of this article, I describe a simple set of conceptual tools for analysing the civil standard of proof. With this foundation in place, I then survey and evaluate the various approaches to the civil standard of proof that have been developed in the case law. The final section of the article is more ambitious: I discuss three situations in which judges have held that variations on the basic civil standard of proof are required and assess whether or not some variation is justified. The analysis in this final section may prove controversial, but whether or not readers agree with it, I hope that the preceding sections will, at least, have provided some common ground on which debates about these matters can take place.

Reconsidering Disgorgement for Wrongs

Abstract: Nobody should be permitted to profit by wrongdoing: this sentiment has compelling intuitive appeal. Despite this, profits disgorgement' (or stripping the defendant of illgotten gains) turns out to be a remedy with surprisingly limited application. This may soon change. Both the Law Commission2 and the judiciary3 have indicated support for wider recognition of the remedy; so too have academics.4 However, few would suggest the remedy ought to be available for all profit-generating wrongs,5 and here lies the difficulty. As yet no theory satisfactorily explains which wrongs should give rise to disgorgement and which should not. Sometimes the focus has been on the character of the wrong; at other times it has been on the moral culpability of the wrongdoer. More importantly, and more worryingly, no theory explains when the remedy should strip the defendant of every penny of the ill-gotten gain and when something less generally 'expenses saved' or 'use value' should suffice. This article re-assesses existing law and suggests that an alternative analysis may provide some answers. Put briefly, this article makes two claims. The first is based on an examination of existing case law. It is that true disgorgement (stripping the defendant of every penny of an ill-gotten gain)6 is available only when the defendant has breached an obligation of 'good faith or loyalty'.7 These obligations form a class which is conceptually distinct from obligations arising in contract, tort or unjust enrichment.

Responsibility and Resignation in the European Commission

Abstract: The European Commission imploded in ignominy and mass resignation on 15 March 1999. It was the most dramatic week in the forty-two year history of the European Community. It was reported across Europe to mark a watershed, a cultural revolution, Parliament's coming of age, and the ending of the democratic deficit. And yet, as Europe went to the polls three months later, Santer's Commissioners remained in office. This note addresses two issues: why did these astonishing events occur, and what do they mean for the future of European governance? The first question is easier to answer than the second. The Commissioners resigned because of the damning conclusions reached in the first report of the Committee of Independent Experts. Those conclusions were, most notoriously, that 'it is becoming difficult to find anyone [in the Commission] who has even the slightest sense of responsibility' (para 9.4.25).1 The directness, force, and sheer unambiguity of this now famous sentence is perhaps unique in the vast documentation of the European Union. In a world of endless translation and of the lowest common denominators which are the essence of international diplomacy this single sentence is shocking indeed. How did the Commission come to sink so low?

Rights Brought Home for Children

Abstract: The incorporation of the European Convention for the Protection of Human Rights and Fundamental Freedoms into domestic law was described, albeit unsympathetically, as a measure which would have 'a seismic impact on the people of this country. It is part of the bulldozing of the constitutional landscape of the United Kingdom'.' The object of this article is to consider the extent to which children will benefit from this change. The government's plan to make the European Convention on Human Rights part of our domestic law, marks a radical change of approach to traditional thinking on how best to protect the rights and freedoms of British citizens. The view was formerly that our innate freedoms were properly protected by a democratically elected parliament and that they existed unless and until they were expressly abrogated by common law or legislation. Furthermore, it was considered that to adopt a written constitution, as in France and the USA, would endanger underlying liberties, since only those listed would gain recognition.2 Now the government considers that it is not enough merely to assert the theoretical existence of citizens' fundamental liberties. Instead, their constitutional rights require formal guarantees and direct modes of protection.3 The United Kingdom's erstwhile refusal to incorporate into domestic law any list of rights has meant that although successive governments have ratified many international human rights treaties, these have had no direct effect on English law. Nevertheless, the list of rights embodied by the European Convention has already become a relatively familiar one. Indeed, despite its not being part of English law, it has had considerable influence on the development of law here. This was partly because the courts have been entitled to assume, when interpreting domestic legislation, that the legislature had not intended it to be inconsistent with any of the United Kingdom's obligations under the Convention.4 Of greater significance however, was the existence of a powerful mechanism for the Convention's interpretation and enforcement. Since 1959, when the European Court of Human Rights was established, individuals have had a means of obtaining redress for domestic

The Future for Financial Regulation: The Financial Services and Markets Bill

Abstract: A draft Financial Services and Markets Bill (FSMB) proposing a significant reorganisation of regulatory responsibility in the financial sector in the United Kingdom was published by the government in July 1998. Following consultation' undertaken by the Treasury and pre-legislative scrutiny undertaken by a joint committee2 of the House of Commons and the House of Lords, the Bill was introduced into the House of Commons on 17 June 1999.3 It provides for the transfer of almost all regulatory functions in the financial sector to the Financial Services Authority (FSA) and it also proposes some changes in the powers available to the regulator. The Bill is unlikely to become law until early in the year 20004 but substantial progress has already been made in preparing the regulatory response to its introduction: the FSA has issued 20 detailed consultation papers and the Treasury is consulting on several draft Orders to be made under powers provided by FSMB. When the Bill is passed it is likely that the new regulatory structure will already be in place in terms of regulatory personnel, rulebooks and enforcement procedures. This note examines the major changes introduced by FSMB with the objective of assessing whether they can remedy the shortcomings which have became apparent within the regime established by the Financial Services Act 1986 (FSA 1986).

Detecting, Prosecuting and Punishing Benefit Fraud: The Social Security Administration (Fraud) Act 1997

Abstract: Social security fraud is currently estimated at £7 billion per year out of an annual socialsecurity budget of £90 billion. The social security system is hugely bureaucratic andadministrative, leaving it wide open to abuse. Obviously there are individuals keen toexploit such vulnerability, but many innocent claimants also fall foul of its rules, quiteinadvertently. In 1997, the Conservative government declared that its anti-fraudinitiatives would save taxpayers £7 billion over the next three years.2 The main plankin the Conservatives’ anti-fraud strategy, which has now been implemented by theLabour Government, was the Social Security Administration (Fraud) Act 1997,designed to make the detection, prosecution and punishment of benefit fraud moreeffective.3 The aim of this note is to examine the legislation previously used in thebattle against benefit fraud, to identify the rationale for legislative change, and toanalyse the problems which arise from this new legislative position.

The Legal Travails of Kind‐Hearted Gunmen

Abstract: Books reviewed in this article: Sean D. Murphy, Humanitarian Intervention: The United Nations in anEvolving World Order

Religious Beliefs and Teenage Refusal of Medical Treatment

Abstract: More than a decade ago the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority' appeared to grant mature minors the right to make independent decisions. The judgment was widely regarded as a triumph for children's rights and was quickly followed by legislative measures designed to enhance the status of children's wishes and feelings2 and recognise their rights to participate in decision-making.3 Adolescent autonomy in medical matters looked set to become a reality when a series of cases during the 1990s revealed the complexities and uncertainties inherent in the Gillick decision.4 In an apparent 'reversal of fortune' judges proceeded to overrule the medical decisions of older children in favour of the clinical judgments of their doctors. The welfare of the child appeared, superficially at least, to have overruled any newly acquired autonomy rights. Subsequent academic debate sought to analyse the diverse concerns which motivated the apparent retreat from Gillick.5 First, it focused on the socio-legal and medical factors responsible for triggering teenage refusal of treatment6 and, secondly, it sought to unravel the ethical concept of autonomy in relation to young people.7 It is now apparent that cases where legal intervention has been prompted by the young person's refusal to accept treatment fall into one of two categories: (1) the young person concerned has either been mentally disturbed or mentally ill thus rendering the objection to treatment invalid; or (2) the refusal has been prompted by a religious belief which denounces the specific form of treatment. In the former category all the teenagers were afflicted with defects in reasoning and control and lacked the capacity to make a true choice. The

Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom

Abstract: Questions relating to the disintegration and destruction of legal systems or what H.L.A. Hart called the 'pathology of legal systems'" are extremely difficult to confront as questions of law. When political allegiance to one legal system begins to erode, the natural tendency of judges may be to struggle to save the system from collapse, thereby putting at risk the chance of orderly transition to succeeding nascent legal systems. However, just as it is best for a natural person to order his or her affairs and write a will while of sound mind, perhaps a legal system even one with promise and potential remaining should likewise plan for its orderly, and lawful, demise. Indeed, by confronting the unthinkable, perhaps it can (unlike a natural person contemplating eventual death) achieve partial survival, so that in the aftermath of its dismemberment a remnant of the system remains worthy of allegiance from at least some of its citizens. This was, in essence, the task that the Supreme Court of Canada accepted in Reference re the Secession of Quebec from Canada.2 In what the Chief Justice of Canada, Antonio Lamer, described as the most important judgment in the Court's history,3 the nine Supreme Court justices ruled unanimously that the Dominion of Canada is divisible and (by implication) destructible, and that there are legal rules governing such division and destruction. The case arose when the federal government of Canada invoked the advisory jurisdiction of the Court by referring to it three questions, namely: (1) Can the government or legislature of the province of Quebec effect the secession of Quebec from Canada unilaterally under Canadian law? (2) Can the government or legislature of Quebec effect secession unilaterally under international law? (3) If Canadian and international law conflict on this point, which prevails?4 Thus, the Court confronted the same basic legal issue as did the Judicial Committee of the Privy Council in the famous case of Madzimbamuto v LardnerBurke5 with the critical difference that, in that case, the Rhodesian government had

Bargain Justice or Justice Denied? Sentence Discounts and the Criminal Process

Abstract: This article reports the result of an empirical investigation into the operation of sentence discounts in the Crown Court. It focuses, in particular, on the extent to which judges comply with section 48 of the Criminal Justice and Public Order Act 1994 and discusses (inter alia) the relationship between sentence discounts and the nature of the charges faced by the defendant, the strength of the prosecution case and the choice between custodial and non-custodial sentences. It also examines the relative use made of sentence discounts and the nature and relevance of Court of Appeal guidance. The article begins by describing the socio-legal context in which sentence discounts operate and, following description of the research methodology and presentation of the results, concludes with an assessment of the implications of the research for sentencing policy and practice.

The Crime and Disorder Act 1998: Child and Community ‘Safety’

Abstract: The provisions of the Crime and Disorder Act 1998 ('the Act') relating to children and young people came as no surprise to those with academic and professional interests in youth justice and crime prevention, such provisions being based on measures previously outlined in the White Paper, No More Excuses A New Approach to Tackling Youth Crime in England and Wales,1 and in the Audit Commission's Report, Misspent Youth, Young People and Crime.2 However, the scope and significance of those provisions may have escaped more general notice, partly because the title does not suggest a focus on children and young people and also because debate, in Parliament and the media, in the weeks immediately before the Act received the Royal Assent on 31 July 1998, was dominated by controversy around an amendment, which was not enacted, to lower the age of consent for homosexual sex from 18 to 16 years.3 The Act as a whole provides new court orders relating to the prevention and punishment of crime and disorder, amends the criminal law and revises aspects of the youth and adult criminal justice systems. However, the Act's title does not give any indication that so many of the Act's provisions are aimed at minors. Family lawyers, for example, may only now be noting that the Act has provisions which, when implemented,4 will make new orders available to the Family Proceedings Court. Indeed, one might argue that if the Act had been entitled the 'Children and Young Persons' Act' that would not have been so very misleading, given the focus of such a large proportion of the Act5 on those under 18 years of age.6 The many provisions of the Act relating to children and young people have the potential, as had the Children Act 1989, for changing professional philosophies for working with children and families and for influencing how we 'see' children.

Pregnancy Discrimination: Equality, Protection or Reconciliation?

Abstract: Dismissal for pregnancy-related sickness has been justified on financial and administrative grounds for many years. Employers maintained that they should not be burdened with the financial consequences of pregnancy and maternity where this entailed long term incapacity even where subsequent dismissals infringed the principle of equal treatment. Ever since the twin decisions of Dekker1 and Hertz,2 the European Court of Justice has struggled to find an acceptable balance between the equality principle and the demands of a male oriented labour market. Hertz tipped the balance in favour of the latter by ruling that dismissal for absence after maternity leave was not discriminatory even where the illness originated in pregnancy. The Pregnant Workers Directive3 which introduced special protection for pregnant women throughout the pregnancy and maternity period, left the scope of Hertz unclear. The Court has now clarified this vexed area of law in Brown v Rentokil Ltd4 by ruling that it is direct discrimination to dismiss a woman at any time during her pregnancy for absences caused by pregnancy-related illnesses. The Court has not, however, chosen to depart from the limitations imposed in Hertz and followed in Larsson.5 Brown highlights the limitations of the equality concept in dealing with female difference in the workplace, as positive discrimination in favour of motherhood is circumscribed by artificial time limits which are left to be defined under the principle of subsidiarity. This is another pragmatic decision which recognises that, for cost reasons, domestic and work roles must conform with male work patterns outside a narrowly drawn maternity period.

Conditional Fees: The Ethical and Organisational Impact on the Bar

Abstract: Lawyers are currently facing momentous change; a revolution in civil procedure,1 the end of the practising Bar's monopoly over higher rights of audience,2 the possibility of direct governmental interference in the self-regulatory role of the professional bodies;3 the extension of conditional fee agreements ('CFAs');4 and the reform and retrenchment of legal aid.5 Each will have a major impact on the

Representative Procedures and the Future of Multi-Party Actions

Abstract: The Consultation Paper Access to Justice Multi-Party Situations: Proposed New Procedures produced by the Working Party set up by the Lord Chancellor's Department continues the interest in the potential for multi-party procedures to alleviate concerns about access to justice. It anticipates that it is possible to devise a procedure which will serve two primary purposes. The first is to enable recovery where large numbers of people have been affected by another's conduct and the individual losses are so small that individual actions would be economically unviable. The second is to promote more efficient use of court resources resolving common issues in a single proceeding will prevent re-litigation of the same points. The latter objective also serves the goal of consistency in judicial decisions. The Consultation Paper proposes that any new procedure will balance the normal rights of claimants and defendants and the interests of a group in pursuing litigation as a whole.' In proposing a new procedure to achieve these worthy ends, the Consultation Paper does not refer to the representative procedure which was found in the Rules of the Supreme Court2 and, it is assumed, takes the view that it was not suitable for managing group litigation. It is certainly true that that rule is generally perceived to be of limited utility.3 However, the procedures proposed in the Consultation Paper have not, as yet, been incorporated into the new Civil Proceedings Rules, and the representative proceedings rule is retained in Schedule 1 to the new Civil Proceedings Rules.4 This article will suggest some reasons for the restricted use of the representative proceedings rule, and consider whether the procedures proposed in the Consultation Paper address the limitations of the existing rule. Multi-party procedures are intended to accommodate the situation where there is more than one person with the same or similar claims, or potential liability. There are, broadly speaking, two approaches to the multi-party situation. The first approach relies on each person being a party to an action. The court may add a new party to the proceedings if it is desirable in order to enable the court to resolve all the matters in dispute or to resolve an issue involving the new party and an existing

Directors’‘Tortious’ Liability: Contract, Tort or Company Law?

Abstract: In recent years authorities in most Commonwealth jurisdictions have accepted that the imposition of personal liability on a director for damage caused to a third party while acting on behalf of the company is constrained by the doctrines of company law.' As the embodiment of the company the director incurs no liability unless and until he assumes personal responsibility. In Williams v Natural Life Health Foods Ltd the Court of Appeal2 also accepted this basic premise, though the majority's application of this principle was widely thought to be wrong.3 Factually, there was little evidence that the plaintiffs had relied upon the director and the Court's conclusion that the director must have assumed personal responsibility because the advice he gave drew on experience gained before the company was formed was quite inconsistent with the need, accepted in previous authority, to restrict personal liability in the case of small and one-man companies. The House of Lords has now reversed that decision.4 However, in holding that the liability of directors under the developing assumption of responsibility tort does not present a special case and that the tort gives effect to a voluntary, contract-like undertaking rather than an imposed duty of care, the implications of their Lordships' decision extend well beyond the facts of the case. The case arose out of a franchise agreement under which the plaintiffs set up a health food shop in Rugby. The franchisor was the first defendant company, formed by Mr Mistlin who had successfully run a similar shop on his own account in Salisbury. Central to the plaintiffs' decision to proceed with the venture were income projections provided by the defendant company. These projections showed favourable income streams with substantial profits after two years. The projections, however, proved to be inaccurate and the plaintiffs were forced to close their shop with substantial losses after only eighteen months of operation. The plaintiffs' claim alleged that the projections were negligently prepared and sought damages from the company, though this claim was not pursued after the company was wound up. A claim was also brought against Mistlin, the founder and managing director of the company, alleging that he owed a personal duty of care in respect of the projections. In the High Court,s Langley J accepted that the projections had been prepared negligently and held the company to be in breach of

Profits from Wrongdoing: Private and Public Law Perspectives

Abstract: In the Bell case, the Attorney-General, in his role as protector of the public interest, investigated whether payment to Ms Bell could be blocked under a recent Court of Appeal case, Attorney-General v Blake,' barring George Blake, the double agent, from receiving ?90,000 royalties from the sale of his memoirs. The Blake case, which is the focus of this comment, develops the law in two important respects. First, it extends the availability of injunctive relief for the protection of the public interest where a breach of contract involves the commission of a criminal offence. Secondly, it extends the availability of restitutionary awards for breach of contract, thereby qualifying the principle that the purpose of damages awarded for breach of contract is simply to cover the losses of the innocent party (rather than to nullify any profit or savings made by the contractbreaker). Although the Court's remarks on this latter (restitutionary) point are strictly obiter, they foreshadow a major revision to the law of contract and invite careful analysis. Before looking at the restitutionary aspect of Blake, however, the circumstances of the case must be explained.

Adolescent autonomy, detention for medical treatment and Re C.

Abstract: Does an adolescent suffering from anorexia have the 'right' to refuse life-saving treatment and have the 'right' to die?' Does she have autonomy in these circumstances the right to grant or refuse medical treatment? Do English courts have the right to authorise that adolescent's detention and the use of reasonable force to effect life-saving treatment? These issues faced the High Court in the case of Re C,2 concerning C, a 16-year-old anorexic girl. It aroused considerable media attention because it was reported as being the first case where a court had ruled that it had jurisdiction to authorise the forcible detention of a child at common law (and therefore outside the Mental Health Act) in order for that child to receive medical treatment. Yet this was not the first such case. In Re W (A Minor) (Consent to Medical Treatment)3 the Court of Appeal had declared (somewhat controversially) that while 16-year-olds could consent to treatment they could not refuse such treatment if the circumstances were such that the court considered them incom-