For much of the second half of the twentieth century, HM Seervai was a leading advocate of the Bombay High Court. He argued some of the most important constitutional cases decided by the Supreme Court of India and eventually resolved in 1970 to write his Constitutional Law of India. It became the leading text on Indian constitutional law. It is still in widespread use. Many instances of recent citations are quoted. But it is not the usual commentary on the text of the Indian constitutional and case law. Instead, the book contains a running discussion on the shifts in direction as well as sharp criticisms where Seervai felt that the courts had strayed from correct constitutional doctrine. Seervai died in 1996 as the fourth edition was just completed. In this paper, originally given as a lecture in Mumbai in 2007 on the centenary of Seervai’s birth, the author questions Seervai’s testamentary prohibition on posthumous editions of his text. He urges that a new edition should be produced to keep Seervai’s legacy alive not only in India but in other constitutional democracies where Indian judicial authority is increasingly cited.

In a previous paper in this journal I responded to Professor John Keown’s criticisms of the British Medical Association guidance on withholding and withdrawing life-prolonging treatment, arguing that the sanctity of life principle he endorses is indefensible as a juridical and moral guide. Professor Keown replied recently, also in this journal, alleging that I wrongly caricatured the sanctity of life position he supports, which continues to illuminate the proper decision-making path in relation to the withdrawal or withholding of life-sustaining medical treatment. In this present paper it is submitted that Keown’s riposte is misconceived and disguises the true nature of the sanctity of life stance, which both rests upon unconvincing premisses and tends towards unacceptable repercussions, thus leading to its inevitable and rightful rejection.

This paper, which is based on a paper given at a seminar held at the University of Glasgow in November 2005, discusses the sovereignty of Parliament in the light of the decision of the House of Lords in Attorney General v Jackson, which considered the question of whether the Parliament Act 1949 and the Hunting Act 2004 were valid Acts of Parliament. The paper begins by explaining the background to the litigation, before going on to summarise the decision. Next, it briefly analyses the preliminary issues of standing and jurisdiction involved in the case, before going on to consider how the political background and political practice affected the decision of the House of Lords on the key questions in the case. The major part of the paper is devoted to a discussion and analysis in the light of constitutional theory of the extensive dicta in the case on the principle of the sovereignty of Parliament, which contrasts positivist and Dworkinian perspectives, and considers the question of whether the orthodox view of sovereignty is likely to be displaced in the foreseeable future by the view that Parliament’s legislative power is subject to legal constraints. The paper concludes that such a change in the rule of recognition is unlikely to come about merely because the judges change their view of the content of fundamental doctrines; changes of this nature require the assent of the other institutions of government.

In England and Wales, rape complainants currently receive little by way of pre-trial support and preparation. This stands in sharp contrast to prosecutorial practice in the USA where prosecutors meet with complainants prior to trial with the specific aim of preparing them for the unfamiliar process of testifying in criminal proceedings. This paper considers the case for adopting similar arrangements in rape cases in England and Wales. This is assessed primarily from an evidentiary perspective although due consideration is also given to the need to protect vulnerable complainants from the risk of secondary victimisation within the criminal trial process.

The distinction between primary and secondary victims confirmed by Page v Smith has caused major problems in English psychiatric damage law. The House of Lords has suggested that the search for principle has been called off, and that the only sensible strategy is to say ‘thus far and no farther’. This paper suggests that one way forward is to recognise that it is not only persons who are physically proximate to an ‘accident’ who should be put in a special category: any case in which there is some sort of pre-existing relationship between claimant and defendant should be regarded as different from the standard secondary victim scenario. The relationship concept, first recognised in the USA and now adopted by the Court of Appeal, can be found in embryo form in the early cases.

This paper considers whether there should be the power to summon bilingual juries in criminal trials in Ireland and Wales. It will examine the relationship between jury service as an obligation and privilege of citizenship, and the eligibility for jury service of Irish and Welsh speakers as a linguistic group. It will also demonstrate the relationship between the citizenship argument in its collective context and the rights and interests of individual speakers of these languages within the criminal jury trial process. In doing so, it seeks to emphasise that this is a multidimensional issue which requires an evaluation from a combination of perspectives, both collective and individual. It is this combination of perspectives, taken conjunctively, that supports the case for bilingual juries. Moreover, this particular debate has a particular relevance to the wider debate on European citizenship and how Europe views the concept of multilingual citizenship within its constitutional framework. Indeed, it raises fundamental questions about how Europe manages its diverse cultural and linguistic heritage and how speakers of minority languages are integrated on a basis of equality and respect towards their cultural and linguistic autonomy. The paper also addresses the objections to bilingual juries and will explore how the advent of bilingual juries could continue to preserve the random selection principle (the primary objection to bilingual juries) sufficiently to bring about fair, impartial and competent tribunals.

This paper examines the processes whereby students may bring complaints against higher education institutions. It stresses that a right to redress of grievance is fundamental to the relationship between students and universities. It focuses on internal complaints procedures and discusses the findings from a survey of a representative sample of institutions of which nearly two thirds (25 in total) responded with statistical and other data on the grounds of complaint, the ethnicity and other characteristics of complainants, and the outcome of adjudications. It reveals areas of commonality and divergence in practice and raises concerns about the fairness and accessibility of the procedures. The paper also includes discussion of the process for the external adjudication of student complaints established under the Higher Education Act 2004 and the way that complaints progress to it. The paper discusses the case for reform of higher education institutions’ student complaints procedures, which are surprisingly unregulated, including the introduction of a more independent element such as ‘campus ombudsmen’.

In the Republic of Ireland nearly all primary schools are state-funded but the vast majority of these schools are owned and managed by religious bodies. There is no system of state-run schools. This paper discusses the protection of freedom of religion within this unique system of schooling. In particular, it examines the notion of ‘the integrated curriculum’ whereby all schools in receipt of state funding are legally obliged to ensure that a religious spirit informs and vivifies the whole work of the school. The paper identifies the international human rights standards relevant to the teaching of religion in schools. Through empirical evidence based on interviews with parents, teachers and pupils, an assessment is made of how far Irish law and practice respect these standards. The outcome of this evaluation of the use of religious bodies in non-state service provision is discussed.

The Anti-Social Behaviour Order (ASBO) is one of the best known measures used to tackle anti-social behaviour. In keeping with the popular conception, the order is frequently used against young people. Of all ASBOs issued in England and Wales up to the end of 2005, roughly 40% were imposed on under-18s. This paper begins with a brief outline of the three principles at the heart of the celebrated Scottish children’s hearings system. With reference to these principles, and to the provisions which govern the use of the order against 12–15 year olds north of the border, the paper then discusses five areas of concern about the use of ASBOs against young people in England and Wales: the readiness to resort to ASBOs; the forum for ASBO applications; the terms of ASBOs; publicising the details of ASBOs; and custodial net-widening. The paper ends by suggesting reforms to the ASBO regime in England and Wales insofar as it is used against young people.

English law has recently recognised a tort of misuse of private information through the development of the tort of breach of confidence. This paper considers the conceptual issues that arise in the particular context of cases contesting the privacy of information exchanged in an intimate relationship. The courts have said that the purpose of protecting privacy through the tort is the promotion of individual autonomy. Examining what is entailed in this approach, it is argued that cases involving shared privacies can only be understood as involving the indirect promotion of autonomy through the protection of certain socially sanctioned relationships. A framework of analysis is developed under which the underlying issues are laid bare and through which the reasoning of the courts may be understood and criticised.

The work of carers is too often unvalued and unrecognised. This paper seeks to demonstrate some of the ways in which law and traditional medical ethics overlook the interests of carers and the importance of their work. It argues that this is, in part, due to the individualistic ethic that has come to dominate legal and ethical discourse about medicine. It recommends an approach based on an ethic of care that seeks to promote and protect just relationships of care, rather than an individualised model of rights.

Jeremy Bentham’s constitutional writings are innovative and radical. Unlike constitutional arrangements that sought to attain virtue though the institutional complexity entailed by the doctrine of Separation of Powers, Bentham’s constitution was socially dynamic and designed to facilitate constant and efficient interaction between amorphous public opinion and officials. Furthermore, it was in constant and free interaction between public opinion and officials that Bentham envisioned the determination and effectuation of constitutional limits, namely both the justification and limitation of coercion. The paper begins by outlining Bentham’s principles for a good constitution. It then discusses in detail Bentham’s proposals for incorporating public opinion into legal proceedings through radical reform to the jury. Such incorporation, he believed, would intensify and help to focus public gaze by which officials’ aptitude, and as a result a good government, would be attained with the minimal expense. The proposed institutionalisation of public opinion enabled Bentham to entrust the judiciary with a constitutional role. Judges were conceived as the interface between officialdom and focused manifestations of popular sovereignty. So entrusted, judges could determine constitutional limits, thus protecting against abuse of power. The reforms discussed in this paper are a testimony of the extent to which Bentham saw virtue both in the people and in free public debate.

The story of the woman judge as one of exclusion and isolation plagued with allegations of bias is well documented. Interestingly, despite significant differences in time and place, a common theme unites these tales: the woman judge is a dangerous outsider, a threat to the aesthetic norm. The judicial climate, at least in most of the common law world, is somewhat chilly: reactions to her presence on the bench vary from the largely indifferent to the downright hostile. Why is this? After all, most people, perhaps acknowledging the political and democratic gains underlying calls for a more representative judiciary, would wish to encourage – or at least not discourage – judicial diversity.

Taking the stories of the woman judge as its starting point, this paper contends that underlying these tales is an image of the judge that is as much intuitive as it is reasoned; that our understanding of the judge and judging is as much derived from the imagination as from what is conventionally considered as rational thought. Thus, the paper deploys the narrative strategies of fairy tales in an attempt to disrupt the imaginative hold of familiar yet particular images that infuse and distort current discourses on adjudication. It suggests that despite the Department for Constitutional Affairs’ ongoing quest to increase diversity within the judiciary, current initiatives do not confront fully these instinctive images. As a result, their narrative of inclusiveness and difference fails. In response, the paper appeals to the imagination as a route toward engendering new conceptions on the judge and judging, the possibility of truly diverse judiciaries and, perhaps, a fairy tale ending to the woman judge’s story.

In Campbell v MGN Ltd, the House of Lords endorsed an expansive interpretation of the breach of confidence action to protect privacy interests. The scope and content of this transformed cause of action have already been subject to considerable judicial consideration and academic discussion. This paper focuses on the remedial consequences of privacy breaches. It undertakes an analysis of the principles which govern awards for pecuniary and non-pecuniary loss, the availability of gain-based relief, in particular an account of profits, and exemplary damages.

Even in its traditional scope, the monetary remedies for breach of confidence raise complex issues, mainly resulting from the fact that this doctrine draws on multiple jurisdictional sources such as equity, contract and property law. The difficulties of determining the appropriate remedial principles are now compounded by the fact that English law also aims to integrate its obligation to protect the right to privacy under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into the conceptual framework of the breach of confidence action.

The analysis provided in this paper supports the contention that not only the scope of the cause of action but also important remedial issues are likely to remain in doubt until the wrong of ‘misuse of private information’ is freed from the constraints of the traditional action for breach of confidence. A separate tort would be able to deal more coherently and comprehensively with all wrongs commonly regarded as privacy breaches.

This paper examines the government’s reform of the current system of clinical negligence litigation in England, focusing on an analysis of the redress scheme for low value claims to be established under the NHS Redress Act 2006. The Act establishes a scheme to provide a package of redress to patients in circumstances where they have suffered harm as a result of negligence during the course of medical treatment provided by the NHS. One of the British Government’s central aims in embarking upon reform in this area was to provide a low cost, quick and genuine alternative to the current clinical negligence litigation system. This paper critically analyses this reform of the current system by reference to an examination of what constitutes a just redress scheme in the circumstances. Such analysis shows that the government has missed a golden opportunity to establish a scheme which truly ‘makes amends’ to patients who have suffered harm through medical treatment in the NHS. Instead, the scheme is likely to operate in practice as an administrative scheme for low value claims that serves the institutional and financial interests of the NHS, and therefore fails to address longstanding patient concerns over the provision of redress arising out of harm suffered through medical treatment. As a result, patient confidence in the scheme is likely to be undermined in the long term.

The Land Registration Act 2002 (LRA 2002) has effectively curtailed the law permitting the acquisition of title through adverse possession in relation to most types of adverse possessor, including the paradigmatic urban squatter. While the traditional principles for the acquisition of title through adverse possession enabled a squatter to secure rights in land ‘automatically’ after 12 years, under the LRA 2002 an urban squatter seeking to defend their possession of land in this way must now apply to the Land Registry, who will serve a notice on the registered proprietor alerting them to his or her presence. This procedure provides the landowner with an opportunity to recover possession of the property before the squatter’s occupation has given rise to any claim on the title to the land. On the whole, these reforms have been presented as, and accepted as being, wholly justified in the context of a modern regime of ‘title by registration’. This paper argues, however, that the reform of adverse possession also implements a contentious moral agenda in relation to advertent squatters and to absent landowners. While these provisions of the LRA 2002 will have important practical and philosophical consequences, the Law Commission has attempted to close off any prospect of further debate on the subject, without explicit consideration of current social and housing issues associated with urban squatting, or of the matrix of moral issues at stake in such cases.

The paper examines conceptual barriers to incorporation of children’s rights – understood in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child 1989 – in the law of England and Wales. It identifies traditions in law and policy on children and young people, and competing political imperatives which militate against effective implementation of children’s rights to protection and provision, but suggests that participative rights pose fewer problems. It argues that the scope for further judicial development is limited in the absence of substantial changes in the legislative framework. It then examines rights-based reasoning in administrative practice and considers the impact here of ideological differences between the UK Government and the Welsh Assembly Government. It considers the scope for differential implementation within the evolving devolution settlement, and the potential impact of such difference on child law and practice in the ‘single jurisdiction’ of England and Wales. It concludes by arguing for greater attention to executive as well as legislative and judicial functions, and to extra-judicial mechanisms, for promoting rights-based decision making.

This paper explores connections between jurisprudential discussion of pain and violence and the methodology of law and literature. Starting with Robert Cover’s work on law’s ‘field of pain and death’, it argues that the theory on which he relied in rejecting literary approaches to law can equally justify a turn to fiction in understanding violence. It then considers the experiential dimension of Austin Sarat’s and Thomas Kearns’s jurisprudence of violence and argues that interdisciplinary perspectives, including relevant fiction, can assist in engaging with the challenges of capturing such experience in textual form. Situating the argument in relation to broader law and literature rationales, the paper finds relevant illustrations in Joseph Conrad’s Heart of Darkness, The Secret Agent and Under Western Eyes. It argues that Conrad’s stories represent dimensions of pain and violence that might otherwise be irreducible to non-fictional textual discourse, whilst also expressing the limits of that representation.

In 2005, the Law Commissions published a report reviewing unfair contracts legislation in the UK. Where the contract of employment was concerned, the Commissions were of the view that, in short, the status quo should remain. This paper seeks to appraise that position and considers whether an opportunity to bring forward beneficial reforms has been missed. The paper takes cognisance of the legislative scheme in New South Wales, which contains extensive powers where unfair contracts are concerned. It is suggested that, in the UK, the two key issues which need to be addressed are contracting-out and terms which may be substantively unfair.

This paper attempts to contribute to the increasing body of research on the working practices of legal academics and what has been called the ‘private life’ of the law school. It seeks to subject to further empirical investigation the analysis made by Collier, Cownie, McGlynn, Morley, Wells and others that the new corporate managerialism in universities has created a gendered regime of control and target setting. It examines one under-researched aspect of academic practice, namely the award of sabbaticals. The study draws on an examination of the practice of sabbatical leave by academic staff in both pre- and post-1992 university law schools. Although sabbaticals are widely assumed to be necessary for the effective development of research and scholarship, there has been little recent investigation of their operation in English universities. This is in contrast to the USA where a number of studies have been conducted. Sabbaticals are thus an aspect of the ‘donnish dominion’ which, although well covered in campus novels, is missing from researched surveys of university life. The paper reviews the relevant literature on sabbaticals, reports on the results of a study of the published criteria law schools have for awarding sabbaticals and analyses responses to a questionnaire sent to law school heads on the operation of their policies. Particular areas of interest are differing practices between universities, possible gender bias and the relevance of sabbaticals both to the teaching versus research debate and to an understanding of academics’ working lives more generally. The survey results suggest that the practical application of sabbatical policies demonstrates the ambivalent way managerialism operates in universities. Although performance targets are stipulated, the mechanism for enforcement in relation to sabbatical awards is surprisingly light or non-existent. It is argued that the use of sabbatical leave plays a part in defining both the status of university law schools and also the organisation of academic research. It thus impacts on the formation of the professional identities of legal academics. Those who are excluded from this benefit may be marginalised and areas of academic labour considered inappropriate for sabbaticals consequently regarded as secondary. This may entrench already existing areas of inequality.