The landmark decision of Gillick v West Norfolk Area Health Authority was a victory for advocates of adolescent autonomy. It established a test by which the court could measure children's competence with a view to them authorising medical treatment. However, application of the test by clinicians reveals a number of ambiguities which are compounded by subsequent interpretation of Gillick in the law courts. What must be understood by minors in order for them to be deemed competent? At what point in the consent process should competence be assessed? Does competence confer on minors the authority to refuse as well as to accept medical treatment? These are questions which vex clinicians, minors and their families. A growing number of commentators favour application of parts of the Mental Capacity Act 2005 to minors. In this paper, the limitations of this approach are exposed and more radical reform is proposed.

It is over 10 years since the Court of Appeal confirmed the legitimacy of the public interest defence in copyright law in Ashdown v Telegraph Group Ltd. However, remarkably little is still known about the defence's function and scope. Indeed, acknowledgement of its unfathomability has become something of a commonplace of copyright jurisprudence and scholarship. This situation contrasts sharply with the position in other related areas of law, such as breach of confidence and defamation, in which courts have made dramatic strides in recasting doctrine to protect ‘public interest’ disclosures. Developments in EU copyright law have also plunged the defence into a renewed crisis of legitimacy. The time is therefore ripe for a reconsideration of the role of the public interest defence in UK copyright law. In this paper, an attempt is made to understand its implicit rationale and scope. It is argued that the existing jurisprudence reflects a persistent concern about copyright's potential to subvert policy outcomes generated by alternative regulatory systems and that the defence is to be viewed as a form of pre-emption doctrine, allowing courts to avoid the explicit rules established under the CDPA in circumstances in which their application would frustrate the outcomes of other more appropriate forms of regulation.

This examination of this case from the perspectives afforded by State Papers in the respective National Archives shows the anger felt in British political and official circles reflected in its reaction, strategy and tactics. It illuminates the roles of the Commission of Human Rights in seeking to effect a friendly settlement. The case enabled Ireland at relatively little cost to do, and to be very visibly seen to be doing, something to help the Nationalist minority community in Northern Ireland, thus fulfilling a role as its protector and assuaging an outraged Irish public opinion, while furthering just governance in Northern Ireland and promoting unification by consent.

An initial reading of EU competition law jurisprudence and literature may suggest that there might be a competition-related freedom in the EU, expressed along the lines of ‘freedom of competition’ or ‘freedom to compete’. If competition is to be protected as a ‘freedom’ rather than merely as a ‘policy’, what this freedom involves should be established. It is important to establish the role of ‘freedom’, since it has been argued that EU competition law is a product of or has been significantly influenced by ‘ordoliberalism’. Under ordoliberalism, protecting the ‘economic freedom’ of market actors is the aim of competition policy. This paper examines the entire jurisprudence of the EU Courts to establish the role of ‘freedom’ in EU competition law as perceived by the EU Courts. This inquiry establishes whether ordoliberalism has so fundamentally influenced the jurisprudence that welfare-based objectives cannot be adopted as an/the objective of EU competition law. This is the first such comprehensive study regarding ‘freedom’ in EU competition law. The paper demonstrates that there is little quantitative or qualitative support for the ordoliberal argument when one considers the relevant jurisprudence. A quantitative analysis of the case-law and in particular the historical trend raises serious doubts concerning the validity of the conventional ordoliberal-influence thesis.

The Australian government has launched a consultation on the possible reform of domestic contract law. The Attorney-General's Department is currently seeking stakeholder views on the need to reduce inconsistencies and/or remove outdated rules, and on ways to improve legal certainty generally both for businesses and consumers alike. Its current discussion paper, though open-ended as regards next steps, appears to be talking the language of simplification and coherence that has resonated particularly in the EU for well over a decade. Yet, the ongoing, high-profile project aimed at delivering a more coherent and uniform contract law for Europe's internal market has to date proved controversial, and recent concrete initiatives have generated much adverse commentary, particularly from law-and-economics scholars. The European experience therefore offers a series of signposts but equally a number of hazard markers for the Attorney-General's Department. Indeed, many of the broad assumptions underlying developments in the EU rest on weak foundations. The European institutions have further followed a number of dead ends in the pursuit of ‘coherence’ that ought reasonably to be avoided. This paper explores potential risks underlying the current Australian reform process and offers a number of suggestions on a possible way forward.

Legal academics and practitioners have engaged in intense elaboration and defence of differing perspectives about the appropriate standard of corporate conduct, and unresolved debates surrounding this contemporary legal issue have proved intractable. The classical scholarship has become ghettoised in self-supporting ecosystems of inflexible exchange. Of necessity, a new conceptual approach has been proposed to address in an affirmative fashion the inevitable penumbra of uncertainty and institutional indeterminacy of corporate law, specifically in regard to stipulating an appropriate standard of corporate behaviour for the myriad of organisational activity. This is the Equitable Maximisation and Viability principle (EMV). This paper focuses on providing for some meaningful enforceable standards that ensure the principle is not precatory. Before this can be undertaken, it considers in a systematic and comprehensive manner corollary questions as to whether substantive private enforcement procedures can, and should, be used to monitor and challenge directors’ decision making. These insights allow the paper to open up the enforcement issue. The principal part of the paper identifies and examines various alternative ways of enforcing the principle and then argues for the use of one credible mechanism.

The public health challenges of moving dangerous substances across jurisdictions have led to a renewed international focus on the importance of the health perspective in the Basel Convention on Transboundary Movement of Hazardous Wastes and their Disposal. This paper systematically reviews the health dimensions of the Basel Convention and the ways in which the Convention can be strengthened. It analyses the limits of the health objective of the Convention in promoting public health and the environment and the potential for optimising it. The paper argues that an examination of the Convention's substantive, procedural, and institutional and implementation mechanisms highlights its failure to fully achieve its potential for health protection. Parties to the Convention have initiated measures to address this issue, but the design and functioning of the Convention itself constrain the full achievement of health goals, which in turn undermines the protection of human health and the environment. To optimise the health promotion, the author argues for an adaptive governance framework by bolstering the governance mechanisms of the Convention and the Secretariat, strengthening health cooperation between international health agencies and improving domestic implementation of the Convention by its Member States.

This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of breach of fiduciary duty in law. Further, this account must however be read in light of the Court of Appeal's decision in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153 which ruled that proprietary relief is only allowed in circumstances where the breach amounts to abuse of the principal's asset. This requirement is particularly difficult to satisfy in the paradigm case of the Pallant v Morgan equity, save in the case of agency. But where there is a relationship of agency, a constructive trust will also arise in accordance with an established agency principle, resulting in duplication in results.

Focusing on a single, uncontested will is unusual within legal studies. And the extensive literature about EM Forster has overlooked the significance of his will. This article endeavours to address these silences and develop a conversation between the two. It first explores the place of inheritance in Forster's life and novels; and in doing so highlights his interest in inheritance as both a concept and a practice. Turning then to his will, it argues that it reveals a reflective personal and political engagement with concerns about kinship, sexuality and intimate citizenship which are central to current debates within socio-legal and sociological scholarship. This reading consequently argues that his will is a text that can be read alongside his other work; that it represents a ‘posthumous publication’. While a close, critical reading of the will of one very particular individual, the article identifies the challenges posed to testators in negotiating the public and private nature of wills and highlights both the rich potential and the difficulties that these texts present for socio-legal, literary and biographical scholarship.

In a recent study, the influential theorist of higher education Ronald Barnett suggests that one way for academics to address the pressures on their professional lives is to embrace a multidimensional concept of working time. Drawing on the analysis of space by the French philosopher/sociologist Henri Lefebvre, Barnett advocates conceiving academic practice as a continuum of interrelated strands rather than a set of discrete packages of activity subject to bureaucratic domination. This paper examines whether this approach can reassert agency on the part of academics and provide a site for resistance to the obsession on the part of managers and policy makers with outputs and the quantification of working hours. It sets Barnett's analysis in the context of other empirical studies in higher education literature on the management and allocation of workloads, particularly on tensions arising from conflicting demands of research and teaching. It also examines synergies between Barnett and other scholarship on the professional lives of law academics on the part of Bradney, Collier and Cownie. The paper concludes that a Lefebvrean analysis of how time and space are constituted by human activity provides a rigorous theoretical framework within which to reconstitute the coherence in academic practice which is sought by many in higher education.

Framed within the broader context of law's engagement with modernism, this paper offers an argument in defence of copyright protection of John Cage's 4′33″ as a ‘musical work’ under the Copyright, Designs and Patents Act 1988. This argument approaches the issues involved analytically and contextually. In doing so, it draws on both legal and non-legal sources. Throughout the paper, the underlying question remains as to whether Cage's 4′33″ really is – or is not – a challenge to law (and to music).

Why is food regulated separately from, and differently to, other consumer products? This paper attempts to examine the different regimes for the regulation of food and general product safety, and examines the economic, social and cultural reasons for the separation. Finally, the paper considers whether the separate nature of the regimes is necessary, or whether food should be regulated within a ‘product safety’ framework.

This paper considers the immunity in tort enjoyed by superior court judges in England and Wales. It suggests, first, that the current level of immunity is set too high; secondly, that the reasons traditionally given for this level of immunity are overwhelmingly unconvincing and that, therefore, thirdly, a lesser degree of immunity (which allows judges to be exposed to potential liability under a modified version of the tort of misfeasance in a public office) would be the preferable way to proceed.

This article explores two questions. First, in adjudicating claims under the Human Rights Act 1998 (HRA), should the court defer to the executive or legislature on the ground that the latter two institutions possess superior expertise or information-gathering powers, when such expertise or powers fail to generate persuasive first-order reasons for the court? This article argues that rationality requires courts to defer on these second-order grounds of institutional capacity in situations of judicial uncertainty. Secondly, this article examines an underexplored question in the current literature: when is it justified for courts to consider the government as possessing second-order grounds of institutional capacity that warrant deference? It is argued that rational, impartial and open adjudication in the post-HRA era requires the government to prove its claims of superior institutional capacity, and courts to openly scrutinise such claims by considering a number of factors, including, crucially, the government institution's track record of expertise and credibility.

Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.

For over 300 years, criminal courts have regarded sexual infidelity as sufficiently grave provocation as to provide a warrant, indeed a ‘moral warrant’, for reducing murder to manslaughter. While the warrant has spilled over into diminished responsibility defences, wounding, grievous bodily harm and attempted murder cases, it is provocation cases that have provided the precedents enshrining a defendant's impassioned homicidal sexual infidelity tale as excusatory. Periodically, judges and law reformers attempt to reign in provocation defences, most recently in England and Wales where provocation has been replaced by a loss of control defence that, most controversially, specifically excludes sexual infidelity as a trigger for loss of control. This paper reflects on this reform and its reception, glossing Shakespeare's scathing critique of warrants for murder in Titus Andronicus.

In a wide range of circumstances religious activity and commercial activity may overlap, leading to what may fairly, albeit novelly, be categorised as commercial religion. This overlap is potentially problematic to law, raising as it does the possibility of inappropriate over-regulation of religious activity and religious claims and the possibility of inappropriate under-regulation of commercial activity and claims. One way to solve this problem is to create a binary divide between the commercial and the religious, so that any situation might be categorised as one or the other, and the appropriate legal framework and philosophies applied. This is the preferred route under the European Convention on Human Rights. Such a separation does not, however, address the complexity of regulating commercial religion in practice, as demonstrated by considering the regulation of commercial religion in UK consumer law. There are, however, strategies which may serve to reblend the commercial and religious elements.

This paper explores cases involving disputes between lesbian parents and known donors with whom informal insemination arrangements were made. It observes that the current legal framework for recognising parents following assisted reproduction is incapable of dealing adequately with known donors, notwithstanding a host of recent developments in the law relating to lesbian parenting. As a result, the case-law exhibits judicial uncertainty and inconsistency about the extent of the recognition to which known donors should be entitled. In spite of the difficulties posed by using known donors, the paper argues that there is a strong case for finding an appropriate way of accommodating them within the legal framework for recognising parents. It explores some of the possible legal responses and highlights their potential advantages and disadvantages from theoretical and practical perspectives.

Contemporary settled democracies, including the USA, England and Wales and Ireland, have witnessed a string of high-profile cases of institutional child abuse in both Church and State settings. Set against the broader literature on transitional justice, this analysis argues that there are significant barriers to truth recovery within the particular context of historical institutional abuse by the clergy in the Republic of Ireland. In the main, it argues that the frameworks of the inquiries and commissions into historical institutional child abuse are not conducive to truth recovery or the search for justice in dealing with the legacy of an abusive past. It is the Church–State relationship which makes the Irish situation noteworthy and unique. The Catholic Church and child care institutions are especially self-protective, secretive and closed by nature, and strongly discourage the drawing of attention to any deficiencies in organisational procedures. The nature of the public inquiry process also means that there is often a rather linear focus on accountability and apportioning blame. Collectively, such difficulties inhibit fuller systemic investigation of the veracity of what actually happened and, in turn, meaningful modification of child care policies. The paper concludes by offering some thoughts on the implications for transitional justice discourses more broadly as well as the residual issues for Ireland and other settled democracies in terms of moving on from the legacy of institutional child abuse.

‘Hate’ crime has attracted intense debate, but surprisingly little has been written on how best to draft and interpret hate crime legislation. The dominant conceptual models derive from US scholarship. Although valuable, they pay insufficient attention to principles of criminal law and to how hate crime law is perceived. This paper explores these problems through a discussion of legal approaches to, and lay perceptions of, racism, as embodied in the racially aggravated offence. It proposes a model which offers a more just alternative.

The UK, as elsewhere, faces new environmental uncertainties, especially from climate change. The sustainability of the UK's existing flood loss indemnity regime in respect of property harm is threatened by factors that include greater ecological awareness on the part of policy makers, pressures to limit public commitments to flood defence, and insurers' increasing technical capacities to differentiate risk exposure across particular locations. The basis of current reliance on the commercial insurance market is called into question, as general levels of insurance availability and affordability come under threat. In turn, differential impacts from more restricted availability or terms of cover are likely increasingly to affect vulnerable individuals and communities, which will further intensify pre-existing take-up problems among particular groups. Key themes relate to issues that arise from this changing law and policy environment, including challenges to the delicate public-private balance that has underpinned the current arrangements, implications both for civil society as well as the insurance industry, and the extent to which alternative approaches might offer solutions.

This paper examines fundamental issues concerning a corporation's right to sue for defamatory attacks on its reputation, the scope of the right and the remedies available. It first outlines the opposed positions in England and Australia, respectively. It also argues that a corporation, save for a government corporation that exercises governmental functions based on markedly different rationales, should have the right to sue in defamation premised on the concept of corporate reputation as property and for the purpose of vindicating its reputation. On the question of remedies, a corporation should be entitled to recover special damages as reparation for damage to reputation provided they are proved. This paper considers, instead of presumed damages, alternative remedies for vindicating corporate reputation. Finally, it examines the business and non-business reputations of both trading and non-trading corporations in relation to claims for damages.

This article considers the implications for higher education (HE) of the removal of the retirement age in 2011. It starts with an exploration of findings from empirical research which looked at the use of the retirement provisions of the 2006 Age Regulations in the UK HE sector. It highlights a number of concerns identified as a result of that research relating to retirement practices in HE and considers how these might apply given the recent abolition of a mandatory retirement age. The article uses a legal empirical approach to explore how the law would apply to any employer in HE attempting to justify continued use of mandatory retirement. It also examines other options such as the use of incentives to retire, the use of flexible working and the increased use of performance management. The article begins with an introduction to the main findings of the research, before turning to consider the current case-law relating to the legality of retirement provisions, including the recent Supreme Court decision in Seldon v Clarkson Wright and Jakes, and the legal implications of alternative options for managing extended working lives.

This paper interrogates the predisposition in favour of informal, low-intervention control styles of enforcement advocated by the ‘better regulation’ movement, and which resonates throughout the Hampton Report recommendations which are currently being implemented in the UK. It focuses on three practices that reflect the trend towards diverting regulatory enforcement action away from the courts in favour of reliance on formal administrative sanctioning powers ranging from ‘hard’ to ‘soft’: the use of negotiated penalty settlements, the acceptance of administrative undertakings (‘enforcement undertakings’) and the provision of firm-specific compliance advice by regulators. Each practice is explored through various analytical lenses which enable the underlying constitutional tensions to be identified and interrogated. In so doing, it demonstrates how the emphasis on bargaining, negotiation and discussions between regulators and those they are responsible for regulating advocated by the UK better regulation movement may antagonise several constitutional values, including transparency, accountability, due process and participation, as well as several values associated with formal conceptions of the rule of law. On the other hand, resort to negotiation and discussion in regulatory enforcement can generate important benefits, largely in facilitating the timely, creative and cost-effective resolution of enforcement disputes while avoiding the formality, delay and hostility associated with formal court adjudication. This ‘clash of logics’ can be traced to inherent differences between bargaining, on the one hand, and adjudication on the other. Bargaining and adjudication represent two quite different and distinct forms of ordering through which disputes can be resolved, and it is these differences that lie at the foundation of their respective virtues and shortcomings when employed to resolve disputes concerning regulatory violations.