UN peacekeeping missions operate under the authority of the UN. However, the military personnel that constitute a UN peacekeeping mission remain organs of the states from which they are contributed. Thus, whether unlawful acts committed by peacekeepers can be attributed to the UN is dependent upon whether the peacekeeping force can be regarded as being under the direction and control of the UN. This is a question of fact. According to the ICJ and the International Law Commission, unlawful acts committed by peacekeeping forces will be attributed to the UN only where the UN exercised ‘effective control’ over the commission of the unlawful act. In contrast, the ECtHR has consistently propounded a very different test, asserting that unlawful acts will be attributed to the UN only where the UN retained ‘ultimate authority and control’ over the peacekeeping mission. I argue, however, that neither of these tests provides a suitable legal framework for determining attribution of unlawful conduct in the context of UN peacekeeping missions. After outlining the deficiencies of these tests, I submit that a more suitable approach to determining attribution would be based upon the overall control test as outlined by the ICTY in Tadić.

There are few other areas in family law where incongruence between the legal and social positions is as evident as that concerning parenthood. Recent cases involving lesbian couples and known sperm donors serve to highlight the increasing tension between the respective roles of biology, intention and functional parenting in the attribution of legal parental status. As both legislative and case-law developments have shown, intention is central in some circumstances, but not in others. The main claim of this paper is that this ad hoc approach leads to incoherent and unsatisfactory law: instead of striving to identify a status, what we are really looking to do is to identify the people who assume responsibility for a child. Drawing upon recent case-law, this paper explores how a conceptual reform of the law could result in a principled framework which would place formally recognised intention at the heart of parental status in order to reconnect legal duty with social reality for as many children and parents as possible. Moreover, it would ensure that parental status would not be dictated by the mode of conception of the child (natural or assisted). The analysis identifies the objectives of reform before proposing a new model which, while recognising the social importance of the biological parentage link, would reserve legal status for functional parenthood.

This paper engages with a changing politics of male circumcision. It suggests that various shifts which have occurred in how the issue is debated challenge legal constructions of the practice as a private familial issue. Although circumcision rates have declined in those Western nations which have traditionally practised it, the procedure is now being promoted as a medicalised response to the HIV/AIDS pandemic in sub-Saharan Africa. Such initiatives propose a new biomedical rationale for the practice and have been difficult to confine to the African context or to adult bodies, prompting a resurgence of enthusiasm for neonatal male circumcision on the part of professional bodies in the USA and elsewhere. Although we have reservations about such public health policies, which we suggest downplay risks inherent in the procedure both for the individual and for the advancement of public health, we argue that such strategies have the potential to move debates about circumcision beyond the parameters of traditional ‘medical law’, with its focus on the doctor–patient nexus and the issue of who can validly consent to medical procedures. We suggest that, as with female genital cutting, male circumcision ought to be debated within a paradigm of social justice which gives adequate weighting to the interests of all affected parties (including women whose health may actually be compromised by the procedure) and which renders visible the socio-economic dimensions of the issue. In line with a social justice approach, we argue that public health initiatives must comply with international ethico-legal standards and be attentive to the emergence of an international human right to health. The shift in analytical frame that we propose has the potential not only to make us re-think our approach to the ethics and legality of male circumcision by challenging its construction as a familial decision but also to impact on the need for a broader conceptualisation of health law as rooted in social justice.

During the 1530s Henry VIII remarried twice, each time annulling his previous marriage. The English laws outlining the prohibited degrees of relationship for marriage were changed upon each marriage in the First and Second Succession Acts.¹ These Acts were passed in Ireland by an Irish Parliament in 1536–7 and became part of the Irish statute book.² However, the second Act regulating Henry VIII's marriage to Queen Jane³ (Marriage Act (no 2) 1537) was never published and was unknown to Irish law for centuries. The Act made its return onto the Irish statute book in 2007,⁴ greatly extending the class of relatives prohibited from marrying and potentially annulling many Irish marriages. This paper traces the fate of the lost Act and analyses the consequences of its rediscovery both on Irish marriage law and the legitimacy of the Irish statute book.

While there is a central assumption that charities can be key implementers of Big Society ideals, this paper will consider whether there is compatibility between the political rhetoric of the Big Society and its delivery through the charitable sector. It will be maintained that, while much obvious synergy exists, there are inherent difficulties, at both the practical and theoretical level, for the large-scale involvement of charities and their volunteers in the delivery of the Big Society. At the practical level, it will be seen that some amendments to the legal framework, so as to accommodate the greater use of charities and volunteers within the Big Society, may need to be brought into effect. However, at the foundational level, an examination of the core characteristics of charities and their substantive legal principles reveals some more fundamental impediments to their fulfilling Big Society objectives laid out for them by government.

The barristers' profession of England and Wales no longer relies on its special reputation to attract the next generation of practitioners. Today, the Bar deliberately sells itself to prospective members. This activity is designed to construct and communicate an appealing self-identity, and to tacitly sort out desirable recruits. It is a significant component of the Bar's enduring status ‘project’. Nonetheless, these processes take place within a complex wider environment, one which calls on the Bar to be competitive and distinct, as well as rational and inclusive. This paper is a unique, qualitative examination of the ways in which the barristers' profession markets itself within this context. It is the product of an investigation of the recruitment initiatives of one of the Inns of Court, targeted at law students. This paper identifies four main strands of the Bar's professional identity at this stage of entry: the Bar as traditional community; profession of excellence; inclusive profession; and a group facing certain challenges to its commanding position. The analysis shows how these multiple, sometimes conflicting, and often ambiguous themes are conveyed and handled. In the process, it reveals areas where the Bar is taking advantage of the current climate, and others where serious fault-lines in the Bar's identity have emerged. Finally, this analysis identifies the sorts of demands these images make of potential members if they want to be accepted into this old and sought-after profession.

For almost as long as there have been elections, their outcomes have been disputed. Disgruntled candidates have tried many different avenues to right the wrongs of an election they consider they should have won. For several hundred years, jurisdiction over disputed elections was exercised by the Monarch personally, then by the courts, and then by Parliament until finally, in the 1860s, Parliament ceded its power to the courts in the form of the election petitions jurisdiction. This paper considers that history, examines the current system of election petitions, and proposes a number of reforms to this crucial aspect of British democracy.

This paper argues that adverse publicity can fulfil two crucial roles in consumer protection law and policy. First, it can operate as an effective regulatory sanction in its own right; secondly it can play a vital role in helping consumers to exert market discipline by making informed choices about suppliers. However, there are significant risks to using adverse publicity to achieve these ends and it is imperative that any regulatory regime addresses these. Studying this topic now is particularly important for three main reasons. First, there has been widespread recognition that the regulatory offence, typically backed up with fines, is not the most effective form of sanction. More flexible, targeted and responsive options are required. Secondly, there is now ample evidence that regulated information, for example in the form of mandatory disclosure, frequently fails to help consumers to make fully informed choices. Finally, there are some highly significant very recent examples of enforcers using publicity in ways that can be viewed both as a sanction and as an information tool. The need to sanction responsively and to bolster consumer sovereignty demonstrates the potential for adverse publicity as a tool of consumer protection policy.

The paper examines the controversial issue of referral fees for personal injury claims. It looks at the function of referral fees in the civil justice system, their relationship to the guarantees of access to court and the right to seek legal assistance in ECHR Art 6, and the debate about promoting access to justice or a litigious society. It examines the experience of the referral fees market in England and Wales, where the costs of referrals have risen dramatically and there is concern that referrers are auctioning their customers to the highest bidder rather than helping them find competent lawyers. Sir Rupert Jackson recommended banning referral fees in his report on the costs of civil litigation, and the Government has announced it will implement this recommendation. The paper considers the potential effects of a ban on competition in the legal services market and its compatibility with UK and EU competition law. The paper argues that a combination of better regulation of the industry and proper regulation of costs rules is a better and more proportionate way of controlling legal costs and the quality of legal services than an outright ban. While referral fees have not delivered all the benefits one would expect from a for-profit independent referrals service, they can help people obtain information about their legal rights, and competent lawyers to enforce them. This service is particularly valuable given that the state has substantially cut public funding of the civil justice system in recent years.

The study of criminal justice policy making is generally approached from the perspective of structural variables (eg social, cultural or economic), or, if inclined towards agency-led approaches, on the policy making activities of ‘elites’. The potential of practitioners to shape policy has been relatively neglected. This paper explores a striking example of practitioner-led criminal justice policy transformation: the decline in the use of custody for juveniles in England and Wales in the 1980s. The focus of the study is on the communicative origins of a philosophical turnaround in youth justice localities through the empowerment of youth justice practitioners. Drawing on empirical sources (including reflective interviews with key participant-observers) the paper explores, in depth, the occurrence and the meaning of local structural transformations. It is argued that the emergence of trust relations between participants in local youth justice processes was the key development behind the transformation of the state of penal culture towards one of ‘communicative rationality’ which, in turn, enabled the dramatic reduction in the use of custody. It is suggested that proponents of more moderate penal policy could draw valuable lessons from this episode.

This paper argues that climate change litigation is an important component of the governance framework that has emerged to regulate how states respond to climate change at the global, regional and local levels. The paper examines climate change-related cases from selected jurisdictions, including Australia and the EU, and proposes a theoretical framework to shed light on the use of litigation as a regulatory response to climate change.

The criminal justice system of England and Wales has been subject to a series of essentially ad hoc reforms that depart to a significant degree from its adversarial heritage and represent a threat to fair trial rights under Art 6 of the European Convention on Human Rights. Far from moving closer to the European ‘inquisitorial’ model, as has been suggested by some commentators, criminal procedure is becoming increasingly dominated by managerialist concerns. Intolerance to litigant control is motivated by the desire to increase efficiency and reduce cost, although the replacement of party autonomy in terms of control over the conduct of the case by state power over process corresponds to some degree to the descriptions, in the work of Mirjan Damaška, of the system favoured by ‘activist’ states. However, the financial crisis facing the new government means that the situation is unlikely to be alleviated should the extent of government activity be reduced.

Throughout the world, the corporate group structure has long proved troublesome to the creditors, and particularly the tort creditors, of undercapitalised subsidiary companies. In the wake of Australia's James Hardie asbestos compensation inquiry, Senior Counsel assisting the Jackson Special Commission, Mr John Sheahan QC, called for the Commission to ‘recommend reform of the Corporations Act so as to restrict the application of the limited liability principle as regards liability for damages for personal injury or death caused by a company that is part of a corporate group . . .’. Following this call, in May 2008 the Corporations and Markets Advisory Committee released a report on long-tail liabilities, making various recommendations for reform. Separately, legislation was passed making pooling available for insolvent group companies in Australia. This paper examines the long-tail liability suggestions and the 2007 pooling amendments. It will be argued that neither of these is adequate for the proper protection of tort creditors of insolvent subsidiaries. It then considers international alternatives which might satisfy Mr Sheahan's appeal for reform.

Alan Watson's theory of legal transplants was pioneering and innovative. It moved comparative law beyond ideas of legal families and legal systems by providing both a tool and a metaphor for examining hybrid, or mixed, legal systems. However, socio-legal comparativists in particular criticised his approach because of its failure adequately to acknowledge the importance of legal culture in transplant theory. As a hybrid legal system Japan provides an operative laboratory of comparative law. This paper examines jury trial to evaluate Watson's theory. It concludes by offering a new threefold categorisation of legal transplants.

The ‘elusive’¹ concept of ‘impairment’ was introduced into the General Medical Council's Fitness to Practise Procedures in 2002. Its function was ostensibly to bring all forms of fitness to practise allegations against doctors under a unifying concept and thereby reduce procedural complexity. This paper strives to illuminate the application of ‘impairment’ of fitness to practise with reference to a year of fitness to practise decision making by the General Medical Council (GMC). It concludes that impairment has brought with it a redemptive style of resolving matters of professional discipline which brings significant benefits to doctors, the patient population and society as a whole, but which can also encourage a contrived exchange of remorse, insight and remediation with further implications for professional integrity and truth.

In law and discourse, it has typically been assumed that the religious freedom of state-funded religious schools must trump any competing right to non-discrimination on grounds of belief. For example, the Irish Constitution has been interpreted as requiring the broad exemption of denominational schools from the statutory prohibition on religious discrimination in school admissions. This stance is mirrored in the UK Equality Act 2010. Thus, religious discrimination in the public education context has been rationalised with reference to a ‘liberty-equality dichotomy’, which prioritises the integrity of faith schools' ‘ethos’, as an imperative of religious freedom. We argue that this familiar conceptual dichotomy generates a novel set of absurdities in this peculiar context. We suggest that the construction of religious freedom and non-discrimination as separate and antagonistic values rests on a conceptually flawed definition of religious freedom itself, which overlooks the necessary dependence of religious freedom on non-discrimination. Furthermore, it overstates the necessity, to religious freedom, of religious schools' ‘right to discriminate’. We argue for an alternative ordering of the values of religious freedom and non-discrimination – which we locate within the neo-republican theory of freedom as non-domination.

In 2009 the legislature, judges and Director of Public Prosecutions (DPP) each turned their attention to issues around assisted suicide. The legislature decided not to change the law. The judges decided the existing law was insufficiently clear and required the Director to clarify it. The Director flirted with reforming the law, but then drew back from such a legislative role. His published prosecution policy has been considered as a contribution to the regulation of death and dying, and as such has been found wanting. However, considered in the context of the proper roles of Parliament, courts and prosecutors, and seen as an exercise in constitutional restraint, the Director's approach should be appraised rather differently. From this perspective, the decision of the Judicial Committee of the House of Lords in R (Purdy) v DPP¹ raises significant concerns for the legitimacy of decision making in the contested moral issues that arise in healthcare ethics. In our democracy, courts should be wary of usurping legislative authority in areas where the Parliamentary position is clear. They should be reluctant to take sides in the protracted war over access to a ‘good death’.