The closed material procedure (CMP) – ever since its introduction to English law – has been subjected to a very significant amount of academic criticism. But over time, the CMP has become increasingly settled as a fixture in English law. Whilst the existence of the CMP per se in English law seems settled, the extent of its deployment is not. Given this development, it seems important and constructive to examine whether – and the conditions under which – a CMP can ever be normatively justified, all things considered. Two propositions will be made. First, a common argument for the CMP – the maximising argument – does not demonstrate that the CMP is normatively justified, all things considered, for it does not sufficiently mitigate the two main objections to the CMP, based respectively on the principles of natural justice and open justice. Secondly, where the clear advantage variation is deployed – ie when a CMP allows the excluded party to make use of material that: (a) clearly advantages him; and (b) would otherwise be unavailable for the court's consideration – both objections are sufficiently mitigated. In such a case, the CMP is normatively justified, all things considered. This constitutes a limited normative case for the CMP.

The paper reports the findings of over a decade of pioneering, award-winning fieldwork which has explored how workplace experience, if embedded successfully in different stages of legal education, can accelerate the ‘speed to capability’ and skills development of early career lawyers. The benefits from initial experiments of graduate-level work placements carried out by the authors since 2008 are presented. The paper then explores the findings from almost 10 years of creating year-long work placements for law undergraduates, assessing student skill growth, and the impact of the work placements on degree results and employment outcomes, before and during the Covid-19 pandemic.

The interpretation of administrative policies is of great importance in contemporary public law. The correct approach to policy interpretation has, however, been subject to insufficient academic scrutiny. The effect of policies is to provide guidance: not only to decision-makers, but also to stakeholders in the decision. Obvious stakeholders include the applicant or the individual who is the subject of the administrative decision, but the scope of potential legitimate stakeholders may go far beyond this. In matters of general interest, the broader public may be guided by policy (for instance, whether to object to a proposal during a consultation exercise, or on what basis to object). When considering how policy should be interpreted, the court should have regard to the extent of the appropriate audience of the policy, specifically considering how the least expert reader of the policy would interpret it. This ‘least expert reader principle’ will assist in answering difficult questions, such as whether the court should have regard to the underlying evidence base when interpreting a policy. The courts should rely upon, and express their reasoning by reference to, the least expert reader principle, in order to increase the transparency of judgments in the field of policy interpretation.

This paper considers the relationship between litigants in person (LiPs) and conspiracy theories and seeks to answer two questions: how, and why, do some LiPs come to be conspiracy theorists? The majority of LiPs, of course, do not become conspiracy-minded. There is also no evidence that LiPs are more likely than anyone else in legal proceedings to be conspiracists, only, perhaps, that it is more obvious when they are. But there continue to be individuals who have conspiracist explanations for difficulties or failures they experience throughout legal proceedings. And while it is widely held that some LiPs hold eccentric beliefs about the law, there has been little attempt to understand how and why LiPs may come to acquire or articulate these beliefs. This is presumably because it has not been considered important to interrogate the views of people already often assumed to be ‘difficult’ or eccentric. This paper contends, however, that trying to understand how and why these conspiracist beliefs are acquired matters very much. This is because conspiracy theories can give us a critical insight into how negative experiences of litigation can result in a loss of faith or trust in legal institutions.

Austerity measures and the cost-of-living crisis have led to rising poverty rates and violations of socioeconomic rights in the UK and Europe. However, there are limited routes of redress for these violations in many European countries. Claims using Article 3 of the European Convention on Human Rights (ECHR) to address violations of socioeconomic rights are suggested but not fully described in the academic literature. The European Court of Human Rights has found violations of the Convention in very limited circumstances caused by poverty and destitution. These circumstances include violations of the ECHR in cases of insufficient food being provided to those detained by the state. This paper considers possible violations of Article 3 ECHR in relation to food poverty. It argues that hunger is a violation of human dignity and provides tangible evidence of degrading treatment. It identifies benefit caps, the two-child limit, and benefit sanctions as policies that can lead to food poverty and, as a result, could amount to degrading treatment. For some living in food poverty due to these policies, Article 3 ECHR may provide a route of redress.

This paper examines how English courts have responded to the contract problems generated by the Covid-19 pandemic and considers what this tells us about future contract law development. In relation to consumers, the case law on pandemic-affected contracts, though limited, indicates that traditional contract doctrine does not necessarily produce beneficial outcomes for consumers. This further diminishes the importance of the common law in the consumer contracting context. In the commercial sector, contracting parties were encouraged by government and other organisations to co-operate with one another and act in good faith during the crisis, but this has not influenced the courts applying contract law in the pandemic aftermath. The emerging case law suggests that contract law has retained its commitment to certainty, freedom of contract and sanctity of contract, notwithstanding the extraordinary circumstances around the outbreak and its unpredictable effects on contracts. The unalloyed application of formal contract law in the post-pandemic case law augments the position of relational norms as extra-contractual in English law, putting the further judicial development of relational contract principles in doubt. The paper concludes that despite the considerable social and economic upheaval caused by the pandemic, its impact on contract law development is likely to be minimal.

The purpose of this paper is to examine the contours of evolving jurisprudence on offensive expression and negative messages, and to suggest that it can best be understood by reference to the concept of stigma. At the European Court of Human Rights, there appears to have been an increasing willingness to recognise the harm of offensive expression through an interpretation of Article 8 of the European Convention on Human Rights, but the reach of this case law remains uncertain. In particular, while some cases associate negative expression with negative stereotyping, not all of these cases do, and there are potential conflicts with freedom of speech. In the domestic context, these issues recently arose in a significant case from the Court of Appeal, R (Crowter) v Secretary of State for Health and Social Care. In this case, the appellants argued that a legal provision sends a negative ‘message’, through the negative stereotyping of disabled people, but this ‘message’ is implicit, rather than explicitly articulated. While these developments raise important questions about the future evolution of case law, we propose that a focus on stigma can more clearly highlight the harms involved.

It is estimated that there are in excess of eight million unfit homes in England and that one in five excess deaths are attributable to poor housing conditions, costing the NHS some £1.4bn per year. While the policy focus tends to be on housing supply, it is the private rented sector (PRS) that is a key vehicle for provision. The pandemic has given rise to some unexpected outcomes, not least in regulating that sector. This paper will consider how strategies have changed and generated new modes of regulation in the sector, which may have important longer-term effects for the relation between tenant and landlord. Using the frame of vulnerability and risk theories as a starting position, the paper will critique the role of law in allocating landlord rights and responsibilities. It will look at the implications of moving towards an appreciation of the relational, as opposed to physical aspects of housing provision in regulating landlord behaviour and the attendant risks of so doing. It will be argued that the literatures of vulnerability and risk only make sense if a further element is added in this case: the notion of hope.

This paper explores the use of mindset material in terrorism cases. Mindset material is a broad category of evidence, including social media activity and internet search histories, relied on to infer or imply that the accused is affiliated or aligned with terrorists. Although mindset material plays a central role throughout the justice process in terrorism cases, no work to date has explored and discussed its use in depth. In this paper I draw on doctrinal and empirical findings, including interviews, to examine how and why it has come to play such a central role in terror cases. While mindset material is a well-intentioned tool used to selectively enforce broadly drafted and vaguely defined terrorism offences, it is also a blunt tool, and sees great emphasis placed on the accused's inferred status as terrorist (or not). In this paper I explore and problematise the use of mindset material and the inferences drawn from it, specifically in relation to to fantasists, the merely curious, and young autistic defendants. I posit that mindset material is symptomatic of a need to revisit the substantive law and to rethink the proper role of the criminal law in preventing terrorism.

Shareholder say-on-pay voting allows institutional investors to influence the incentives of managers and, consequently, corporate behaviour. Surprisingly, the preferences of investors on executive compensation have been largely overlooked in the ongoing debates on the role of say-on-pay in corporate governance and the impact of shareholder stewardship on sustainable corporate behaviour. The analysis of investor disclosed explanations of say-on-pay votes in the FTSE 100 companies during 2013–2021 shows that institutional investors rely repeatedly on several dominant themes aimed at improving the incentives of corporate managers and controlling managerial rent extraction. But shareholder interests remain the core focus of say-on-pay votes, with only few investors demanding that companies reward executive directors for protecting the interests of a broader range of affected stakeholders. Additionally, most investors can be grouped into several clusters formed around the voting recommendations of proxy advisers. A group of UK-based institutional investors stands out by taking a more individualistic and diverse approach to the stewardship of executive compensation. These findings highlight the role of local investors in the oversight of executive pay, the growing influence of proxy advisers along with the increasing share of foreign institutional investors, and the influence of best practice governance codes in driving investor stewardship preferences.

This paper analyses legal responses to the problem of debt taken out due to coercion within an intimate relationship. Coerced debt differs from other forms of domestic abuse, as it involves a contractual relationship between the victim and a third-party lender. Legal responses must consider whether the victim should be released from her contractual obligation. The paper employs a theoretical lens of vulnerability and relationality, examining lenders’ duties to combat coerced debt, as well as contractual doctrines of undue influence and duress, which allow victims to have transactions set aside under certain circumstances. The paper argues that victims are being failed by an inadequate legal response. The law views vulnerability as an exceptional state and relationality as a constraint, rather than inherent features of the human condition. Through the social construct of the ‘free market’, lenders are consistently favoured by the law, with little obligation to ensure that transactions are free from coercion. The paper concludes with a call for the state to take greater responsibility for coerced debt and to allocate the risk differently than it currently does. This will promote higher levels of resilience for victims and allow them to escape abusive relational contexts.

Disputes over frozen embryos represent a particularly problematic case, legally and ethically, due to the ambiguity of their moral and legal status and the potential rights-claims which can be made with regard to them. Recent work has contextualised frozen embryos as liminal and suggested a contextual approach to their legal classification. By appeal to personal property law, with a lens provided by Roman law doctrines, and reproductive bioethics, we argue that frozen embryos may be subjects of property rights, providing a more stable framework for dispute resolution. To illustrate how a property approach would work, we reconsider the facts of the influential Evans case and argue that if a proprietary rather than promissory estoppel claim had been pursued, the reverse outcome may have been reached, to the benefit of women who are disproportionately harmed in these scenarios.

From 1948 to 1972 the idea of the environment gained solidity within the sciences and in global politics, as a thing or a concept, which spoke of a need to save humanity from the harms it was inflicting on the natural world. As historians Warde, Robin and Sörlin explain, the idea brought about a revolution in the sciences, casting scientists as environmental problem solvers, fundamentally changing the way they worked. In this paper we connect law and lawyers to this history. We ask, did lawyers contribute new meanings to the idea of the environment when they first presented laws and parts of legal practice as ‘environmental’? Were they mere translators of the scientists’ ideas? And did they envisage the emergence of new environmental legal experts, who might change legal culture? We examine the early environmental law textbooks in five countries (Australia, Canada, England, New Zealand and the US) and devise ideal types to explain the associations, values and choices which underpinned their presentation of the ideas of ‘the environment’, ‘environmental law’ and ‘environmental law expert’. We consider that these types are useful conceptual tools which raise ongoing questions about the relationship between environmental law and its broader context.

Trans identities are increasingly subjected to contentious public and political debate in the UK, and this has resulted in resource to the law across various contexts. Against that background, this paper considers trans legal parenthood after the decision in R (McConnell and YY) v Registrar General for England and Wales. This judgment held that a trans man who gave birth was the legal ‘mother’ of his child. The wider consequence is that trans legal parenthood will not reflect trans identities, but birth-assigned sex/gender, regardless of whether the parent holds a gender recognition certificate. Separate from this underlying social and political context concerning trans identities, the paper argues that legal parenthood is a flexible and pragmatic concept, which lacks inherent normative content, and which has previously proved capable of accommodating a variety of different familial and reproductive circumstances. The paper argues that the gendered descriptors of ‘mother’ and ‘father’, while remaining the law's default, are not inherent to legal parenthood. Thus, the paper concludes that, despite the ongoing political and cultural debates concerning trans identities, the existing concept of legal parenthood is capable of properly recognising trans parenthood, without requiring any fundamental changes to the concept itself.

Recent years have witnessed significant developments in medical negligence jurisprudence. In 2015, the Supreme Court in Montgomery v Lanarkshire Health Board famously departed from the House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital by ruling that the professional practice test set out in Bolam v Friern Hospital Management Committee no longer applied to the doctor's duty to give advice to the patient. In particular, the Supreme Court in Montgomery held as follows:

The Attorney General for England and Wales is the Government's Senior Law Officer who, inter alia, initiates certain kinds of legal proceedings. She is also a politician: a member of the House of Commons or the House of Lords and appointed to Government by the Prime Minister. This paper considers the Attorney General's role in initiating contempt proceedings against fellow politicians. I detail a number of cases where politicians have been involved in potential contempts by publication. I argue that, in such cases, the Attorney General's position may amount to an actual or perceived conflict of interest and may breach the principle that justice should be seen to be done.

Immigration measures such as deportation are currently not regarded as punitive and there has been little exploration of this from a legal perspective. This paper will consider this issue in depth, covering little discussed case law from the European Court of Human Rights. It will also explore how this legal position on deportation does not reflect the findings of other disciplines such as criminology and sociology on how immigration measures are used and experienced as punitive. This paper will build on existing literature by demonstrating the significance of a recent development in UK law to this debate. Section 47 of the Nationality and Borders Act 2022 (NBA 2022) introduced a ‘stop the clock’ provision into the Early Removal Scheme for foreign national prisoners. This new provision may prompt the judiciary to revisit the question of whether deportation is punitive in some contexts.

The Irish Constitution contains a pre-enactment abstract review procedure under Article 26 whereby, before signing a Bill into law, the President can refer the Bill to the Supreme Court for a decision on its constitutionality. However, only 16 such references have ever been made. The reason Irish Presidents have been cautious about sending Bills to the Supreme Court for abstract review relates to the fact that if a Bill survives the Article 26 review process, it then acquires an immunity from further challenge under Article 34.3.3. This has sometimes been referred to as a ‘seal of constitutionality’ and the absolute nature of this blanket immunity has been criticised because it means that, in practice, the review process is rarely used. By its very nature, abstract review suffers from the defect that the provisions are being looked at in a vacuum, without the benefit of a concrete factual scenario and it may be that circumstances later arise which could result in an unconstitutionality that was not apparent when the Bill was initially examined. For this reason, Presidents will sometimes decide not to refer a Bill, even one which is considered controversial, for fear of closing off the Bill to potential future challenges; they may feel it is better for challenges to occur organically as situations arise rather than to prevent a situation where a future challenge is blocked by the immunity following the review process. As Hogan has put it, ‘[w]ithout a plaintiff, a court may fail to anticipate side-effects or unintended consequences of the law’. The paucity of occurrences means that when the procedure is invoked, there is a great interest (amongst members of the legal and academic communities at least) in the process and outcome.

A defendant (D) will commit the tort of false imprisonment where, without lawful justification (consent, valid warrant, etc), they intentionally confine a plaintiff (P) to a restricted space. In Blackstone's terms, ‘to constitute the tort of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention’. In GE v Commissioner of An Garda Síochána, Ireland's Supreme Court answered a question about the damages recoverable where Blackstone's two conditions have been met: can P recover substantial (rather than nominal) damages for false imprisonment against D where, had P not been unlawfully detained by D, P could and would have been lawfully detained by D for the same period, under identical conditions?