THE Legal Services Board, tasked with the supervision of approved regulators of persons carrying on legal activities, granted an application (by the Bar Standards Board, Solicitors Regulation Authority, and ILEX Professional Standards Board) for approval of alterations to their regulatory arrangements to give effect to the so-called Quality Assurance Scheme for Advocates (“the decision”). The Scheme provides for judicial assessment of criminal advocates in England and Wales: only those deemed “competent” would gain full accreditation for upper levels of criminal work. Judicial review had been sought, unsuccessfully in the courts below, by barristers practising criminal law. The question in R. (on the application of Lumsdon and others) v Legal Services Board [2015] UKSC 41; [2015] 3 W.L.R. 121 was whether the decision was contrary to Regulation 14 of the Provision of Service Regulations 2009 (SI 2999/2009), which implemented Directive 2006/123/EC (O.J. No. L 376, p. 36). Regulation 14 requires that any authorisation scheme cannot be set unless, inter alia, the need for such a scheme is “justified by an overriding reason relating to the public interest” and the scheme's objective “cannot be attained by means of a less restrictive measure” (see Regulation 14(2)).

SECTION 3(2) of the Immigration Act 1971 requires the Home Secretary to lay down Immigration Rules regulating “entry into and stay in the United Kingdom” by “persons required by this Act to have leave to enter”. The rules are glossed by voluminous, extra-statutory, internal guidance and Immigration Directorate Instructions (hereafter referred to as “guidance”) drawn up in the Home Office.

IN Collins v Secretary of State [2016] EWHC 33 (Admin), the High Court refused to declare that Criminal Justice and Immigration Act 2008, s. 76(5A) – the so-called “householder's defence” – was incompatible with the right to life enshrined in Article 2 of the ECHR, in that it failed to protect the lives of attackers sufficiently. Section 76(5A) was inserted into the 2008 Act by Crime and Courts Act 2013, s. 43, and came into force in April 2013.

CRIMINAL complicity has been dramatically changed by the combined decisions of the UK Supreme Court and the Privy Council in Jogee; Ruddock [2016] UKSC 8; [2016] UKPC 7; [2016] 2 W.L.R. 681. At least since the Accessories and Abettors Act 1861, it has been settled that a person (S) who has intentionally assisted or encouraged another (P) to commit a crime has been liable to be tried, convicted, and punished as if S was a principal. For decades, there has also been a much-debated, additional form of complicity where the accomplice was “parasitically” liable for further crimes committed by P beyond the scope of a common criminal purpose shared by S and P. For that kind of liability, the accomplice need not have assisted or encouraged the further crime but need only have foreseen that it was a possible incident of the common purpose. The effect of Jogee and Ruddock is that this further form of complicity, first recognised explicitly in the Privy Council decision of Chan Wing-Siu [1985] A.C. 168 and later endorsed by the House of Lords in Powell; English [1999] 1 A.C. 1, has been shorn off the criminal law. As a result, Chan Wing-Siu directions will no longer be given to juries.

LIKE the interpretation of the express words in a contract, the implication of terms in fact is traditionally explained as a way of the court giving effect to what the parties intended, judged objectively. So the two processes have something in common at a high level of generality. Much more controversial is the suggestion, made by Lord Hoffmann giving the opinion of the Privy Council in Attorney General of Belize v Belize Telecom Ltd. [2009] 1 W.L.R. 1988, that the process of implying terms is merely an aspect of interpretation: “There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?” This analysis, which generated intense academic debate, had not been considered by the Supreme Court until the recent decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd. [2015] UKSC 72.

COX v Ministry of Justice [2016] UKSC 10; [2016] 2 W.L.R. 806, and Mohamud v Wm Morrison Supermarkets plc. [2016] UKSC 11; [2016] 2 W.L.R. 821 expand the reach of vicarious liability. In Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 56; [2013] 2 A.C. 1 (“CCWS”), Lord Phillips had declared vicarious liability “is on the move”. Lord Reed stated in Cox “it has not yet come to a stop”.

THE decision in Robb v National Crime Authority [2014] EWHC 4384 (Ch); [2015] Ch. 520 has an ironic aspect. Etherton C. upheld the claims of 71 buyers of off-the-plan properties to be developed in Turkish Northern Cyprus. Robb had defrauded them. They had paid sums to Robb, Robb's company, or Robb's agents. Robb later caused those sums to be transferred into his personal bank account with a London bank, intending to transfer the funds to a bank in Thailand. Since 71 of the investors had rescinded their investment contracts, the Chancellor held those investors entitled to trace their moneys into the London bank account. The irony is that the Chancellor's reasoning would itself unravel the modern doctrine of rescission for fraud.

WHERE claimant C is responsible for discharging a liability of debtor D to creditor X, secured over D's assets, C is sometimes entitled to be subrogated to X's extinguished security interest. Typically, C is a lender, who loaned money to enable D, the borrower, to purchase property or refinance existing borrowing from X, in return for some agreed security. If that security proves defective, the courts commonly find that C is subrogated to X's security, which was paid off via the loan. Where C's loan funded a valid purchase transaction, that commonly entails subrogation to the “unpaid vendor's lien”, which the vendor held as security for payment of the purchase price. Why might C acquire these rights? Banque Financière de la Cité v Parc (Battersea) Ltd. [1999] 1 A.C. 221 suggested a bold new rationalisation: such subrogation is a “restitutionary remedy” which prevents or reverses “unjust enrichment”. The Supreme Court had its first opportunity to explore the implications of this insight in Menelaou v Bank of Cyprus Plc [2015] UKSC 66; [2016] A.C. 176.

IN Eclairs Group Ltd. v JKX Oil & Gas plc.; Glengary Overseas Ltd. v JKX Oil & Gas plc. [2015] UKSC 71, the Supreme Court had a rare opportunity to analyse the rules on directors' exercise of power for improper purposes, and to do so in a context which raised more subtleties than earlier authorities.

IN Vizcaya Partners Ltd. v Picard [2016] UKPC 5, the Privy Council considered an attempt to enforce a New York judgment in Gibraltar. The judgment debtor was not present in New York at the time the New York court assumed jurisdiction, which suggested that enforcement of the US judgment would be refused for want of jurisdiction. However, the argument of the judgment creditor was that an express choice of New York law in the contract, coupled with other factors, was sufficient to imply submission of the parties to the courts of New York (and, accordingly, vest the New York courts with jurisdiction for the purposes of enforcement of the New York judgment). The crux of the case was thus whether the terms of the contract could indicate submission to the jurisdiction of a foreign court, even if that submission was not crystallised in the form of an express contractual provision. The Privy Council held that, while, in principle, it might be possible to imply submission, on the facts, there was no such submission so that the judgment was unenforceable.

The protection of human rights through common law principles and values has a greater potential than has been recognised hitherto. First, the adoption at common law of the proportionality test of interferences with rights shows that, when human rights are at issue, the courts will apply an exigent test, allowing interferences only if, amongst other things, a less intrusive measure could not have been used. Secondly, the principle of legality, along with common law constitutionalism as developed recently by the Supreme Court, now means that there is a common law pendant to the rule in s. 3(1) of the Human Rights Act 1998. Thirdly, in cases where the protection offered by the Act is displaced by obligations under the Charter of the United Nations, there is no displacement of common law rights, which continue to operate. Fourthly, common law rights are more open to the influences of the customary international law of human rights than are Convention rights. These factors combine to mean that the future of common law rights is an auspicious one.

It might seem counter-intuitive to suggest that the chasm between Europe and her citizens is partially caused by the weakening of constituent power at the national level. Nonetheless, this article contends that the strength of ever closer union depends partly on the resilience of national constituent power. An insight recovered from French constitutional theory – that respect for constituent power is closely related to respect for limits on the power of amendment – is used as a measure of this resilience. Upon examination of judicial decisions in Germany and Spain in which enumerated substantive limits on the power of amendment have not been satisfactorily enforced, and others in Ireland and France in which the existence of essential limits on the power of amendment has been flatly denied, this article concludes that by debilitating national constituent power, ironically treaty ratifications conduce to ever closer remoteness between the peoples of Europe.

This article examines critically the extent to which the availability of Enhanced Consumer Measures (ECMs) created by the Consumer Rights Act 2015 addresses the problems associated with the enforcement of consumer protection law in the UK. The article explains the genesis of the provisions by establishing the limitations of the previous law before moving on to consider the extent to which ECMs are successful in addressing those limitations. The article argues that, while the availability of ECMs will potentially improve the ability of both enforcers and courts to achieve some objectives of consumer protection law, the measures raise some significant concerns. Of particular concern is the extent to which they signal a move away from prosecution in cases in which that would be the optimal response, and so compromise the ability of consumer protection law to achieve some of its most important objectives.

This article explores certain key features of the tort of deceit which, if looked at only superficially, are apt to mislead as to the gist, nature, and province of this tort. In particular, the article addresses three main issues. The first is the way in which the reliance test used in this tort comes apart from a simple (more familiar) test of causation, and why this has important theoretical ramifications. Secondly, the article seeks to reveal the true gist and province of this tort. In this regard, it is argued that it is a mistake – made by many – to suppose that the infliction of economic loss forms the gist of deceit. Instead, it is suggested that the tort is better seen as being rights-based and that, consequently, it ought not to be seen as a specifically economic tort, but rather as one which protects the victim's decision-making autonomy. Lastly, the article unearths the juristic explanation for the curious fact that, in the tort of deceit, the operation of the contributory negligence defence is excluded while the mitigation principle is applied openly. (The incoherence here inheres in the fact that both these principles are animated by the self-same concern: a desire to exclude the recovery of losses that are attributable to an unreasonable lack of self-regard on the part of the claimant.) The juristic explanation I unearth is then subjected to critical analysis in the course of which I suggest that we ought not to confuse explanation with justification. I conclude that there is no sound reason of principle to exclude the operation of the contributory negligence defence in this tort.

English administrative law treats almost all errors of law as reviewable. Concerns that this deprives administrators of their autonomy have led to calls for a distinction to be drawn between jurisdictional and non-jurisdictional errors of law. This was commonplace for much of administrative law's history. Such calls have fallen on deaf ears as courts and commentators express caution towards retreating to an approach which, it is said, led to a “wilderness of single instances”. This article examines the older law to see whether that was really the case, concentrating on the important decision of the Court of Queen's Bench in R. v Bolton (1841).

Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or corrective justice-based view of private law, argue that policy should play no role in the determination of private law disputes, and that courts should instead rely on what they call “principle”. This article will examine both sides of the debate, initially exploring what is actually meant by “principle” and “policy”, and then providing an overview of the primary arguments relied on in favour of both a policy- and principle-based approach to resolving private law disputes. Finally, a compromise between the two approaches, the so-called “pluralist” approach, will be examined.

This article looks at the public disclosure of political donations as a case study to examine the role of transparency in addressing concerns about undue influence and corruption. The article will explore three issues. The first is to understand what it means to say that a political donation is corrupt. There is considerable disagreement on the ethics of political fundraising and this article will show how public opinion has a role in setting the standards expected of politicians. The second issue is what role the public disclosure of political donations plays in deterring and detecting corruption. While the disclosure requirements were introduced to promote greater trust in politics, it will be argued that increases in transparency have fed a growing culture of mistrust. The logic of the transparency requirements also requires the free public discussion of particular political donations and related ethical issues. The third issue is how that process of free discussion can come into tension with rights to privacy and reputation. The article will explore how the attempts to reconcile the different areas of law both reflect and shape the political culture.