Recent governments have introduced a plethora of reforms seeking to decentralise power to local government in England. Invariably, however, these have fallen short of stated objectives, leaving councils at the mercy of central supervision and with insufficient local autonomy. This paper explores the reasons underpinning this concern. It identifies a top-down approach to localism and considers the culture of centralism that persists as a consequence. It then discusses how a bottom-up approach might be achieved, exploring how political and legal mechanisms can protect councils from centralised interference in the future.

This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process.

It is frequently assumed that legal transplants can help law makers in choosing the best ideas from elsewhere in the world. However, this paper suggests that there can also be cases of ‘malicious legal transplants’. It explains why such transplants emerge and how they may be prevented. This discussion fills a gap in the normative debate about legal transplants: while it is valuable to identify good models, it is equally important to understand how the impact of malicious ideas can be prevented.

This paper seeks to relate strategic themes in water resources management to the practicalities of imposing particular regulatory measures on water uses and to protect aquatic ecosystems. Specifically, a contrast is drawn between the global imperative of Integrated Water Resources Management (IWRM) and the sectoral (issue-by-issue) approach to water regulation that has traditionally prevailed in both regional (EU) and national legislation. The intuitive attractions of ‘integration’ are contrasted with the challenges of interrelating this to the diverse purposes for which water legislation is adopted, both for human needs and for ecological purposes. These challenges are well illustrated in the EU Water Framework Directive (WFD) which purports to adopt an ‘integrated’ approach, but is actually concerned with water quality, largely to the exclusion of other water-related concerns. Insofar as the Directive does seek to secure integration between water quality and water quantity concerns in surface water, this is only done in a secondary or incidental way. Water flow becomes relevant only where specified environmental objectives under the Directive are not being met. However, the legally contingent status of flow has been bolstered markedly by recent guidance on ecological flows under the WFD Common Implementation Strategy. The significance of this guidance is discussed and related to the implementation challenges that it raises. In relation to the UK, and particularly England, it is argued that the response to addressing water flow issues arising under the WFD had been dilatory and inadequate. Concluding observations reflect on the global, regional and national challenges to integration of water legislation as they have been illustrated by the discussion of regulating for ecological water flows.

In this paper we explore a case for judicial review brought against the Secretary of State for International Development by an Ethiopian national, Mr O. The claimant alleged that the Department for International Development (DfID) had failed adequately to assess evidence of human rights violations in Ethiopia to which funds provided by DfID had contributed. Warby J ruled that the claim merited a full hearing. DfID is unaccustomed to judicial review: the O case is the first time since the 1995 Pergau Dam case that UK development aid has been reviewed by the courts. We study Warby J's judgment and its implications for accountabiity for aid decisions. We argue that both the wider context for aid and the legal framework governing development assistance have changed significantly in the 20 or so years since Pergau. In particular, we show that despite the UK's new legal commitment, made in 2015, to spend 0.7% of gross national income (GNI) on official development assistance, the existing mechanisms for scrutinising aid decisions are inadequate. We argue that there is an accountability gap in relation to the UK's now considerable development spending and explore the role of judicial review in this context.

The focus of this paper is upon the educational background of academic lawyers in England and Wales and the extent to which qualifications from certain institutions may be seen as acting as a proxy for social class. In recent years higher educational background and socio-economic background have been significant topics of research relating to entry to the legal professions and judiciary in England and Wales. There is a relative absence of such research relating to academic lawyers. The research discussed in this paper aims to close that gap. The paper argues that critiques relating to the elite nature of the traditional legal professions in terms of educational background have parallels within the academic legal community, evidenced by a dominance of those educated at Cambridge, Oxford and other Russell Group institutions, with relatively lower proportions of graduates from other sectors, most notably the post-1992 universities. The paper further argues that economic hurdles to entry to an academic legal career are significantly higher than those for other law related careers, potentially exacerbating issues of socio-economic exclusion. The conclusion drawn is that law schools should engage proactively with measures to expand opportunities for entrants into the academic legal community from candidates from a much wider range of educational backgrounds.

The paper critically examines the consensus among tort scholars that an injured view can never be actionable in nuisance. The consensus, it is argued, is based on a problematic understanding of the permanence of early modern nuisance authority, and a neglect of modernisation in the definition of actionable injury in the nineteenth century, in response to industrialisation, urbanisation and, crucially, suburbanisation. David Sugarman's ‘textbook tradition’ provides a valuable disciplinary explanation for the mismatch between scholarly portrayals of doctrine and authoritative judicial formulations in decided cases.

Law has traditionally viewed emotions as the enemies of rationality and reason, irrational and potentially dangerous forces which must be suppressed or disregarded. This separation and enmity has been mirrored within undergraduate legal education in England and Wales, with its rigid focus on seemingly impartial and objective analysis and notions such as the ubiquitous ‘thinking like a lawyer’. This paper will argue that attempts to disregard or suppress emotions within the law school are both misguided and destined to fail. It will explore the integral part emotions play within effective legal learning, the development of legal skills, and the well-being of both law students and legal academics. It will also consider how developments in legal scholarship and the evolving climate of higher education generally offer some potential, but also pitfalls, for the future acknowledgment and incorporation of emotions within undergraduate legal education in England and Wales. Bodies of literature relating to not only legal education, but also education generally, psychology and philosophy will be drawn on to demonstrate that emotions have a potentially transformative power within legal education, requiring them to be acknowledged and utilised within a more holistic, integrated form of law degree.

During the early and middle decades of the twentieth century, a number of jurisdictions introduced specific laws to deal with the crime of infanticide, following the English approach to this offence which allowed for a reduced conviction and flexible sentence in cases where women killed their babies aged under 12 months whilst in a mentally disturbed state. Taking the Irish experience, this paper explores the role of social norms in the criminal justice response to infanticide. It is argued that, irrespective of the existing legal framework in place, implicit shared social norms about the ‘appropriate’ outcome in cases where women killed their babies played a crucial part in how this crime has been dealt with by the courts. The criminal justice response will be assessed against shifting legal and social environments, in particular, the enactment of a specific Infanticide Act in 1949, and Ireland's transition from a conservative to a liberal society during the last decades of the twentieth century. In particular, the role of social norms in the interpretation of the medical rationale for this law is explored, and the impact of Ireland's social and cultural liberalisation on the criminal justice response to infanticide is examined.

Genetic information is relevant not only to the patient, but also to their family. Where a patient refuses to share that information with family members, then their legal rights may conflict. This paper focuses on that conflict between the rights of individuals and the rights of third parties. We first examine the nature of the duty of confidence as it applies in these circumstances, and the extent to which it can appropriately accommodate the familial nature of genetic information. We then consider the situations in which a healthcare practitioner might owe a third-party family member a tortious duty of care. We conclude that in most cases, there will be no duty owed to third parties, but that in certain limited circumstances, a duty of care should arise.

This paper draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision making capacity laws by those with psychological disabilities.

The purpose of this article is to examine the interaction between the court and alternative dispute resolution (ADR) in the legal administration of civil justice. It addresses the following questions. What is the relationship between ADR and the concept of justice? How do we make sense of the anti-ADR views, in particular the serious threat to the rule of law? What role does, and should, the court play in alternative processes? It argues that integrating ADR into the court system broadens the notion of justice and its access, and that, under the rule of law, judges should play a more central role to ensure the use, quality and integrity of alternative processes. This paper extends our understanding of the relationship among justice, ADR and the court from an internal perspective. It also points out the need to expand the case management responsibilities of judges, and their delegates in the Online Court, on ADR.

This paper assesses the current state of the war prerogative, specifically focusing on deployment decisions. It outlines the constitutional position over troop deployments, scrutinises recent reform efforts and problematises the rationale underpinning those reforms. The paper proceeds along one simple normative claim: that against the backdrop of frequent interventions, the publication of the Iraq Inquiry and a series of Bills that have sought to statutorise deployment decisions, less use-of-force is better than more use-of-force, and constitutional arrangements ought to reflect this. The paper begins with an exegesis of the most recent attempt to bring deployment decisions onto a statutory footing, focusing on: (a) the difficulties and concomitant problems in defining ‘conflict decisions’; and (b) whether it could make deployment decisions reviewable. The paper then seeks to examine the rationale for reform, arguing that the main impetus behind the series of efforts has been to democratise the process of troop deployments when instead they should focus on use-of-force reduction.

Unlike England and Wales, Ireland has not yet moved from the traditional common law rejection of prenuptial agreements. Nevertheless, similar policy concerns continue to be debated in both jurisdictions, particularly regarding the balance between autonomy and fairness concerns, and gender equity. In 2007, an Irish ministerial Study Group recommended limited recognition of prenuptial agreements, foreshadowing similar proposals by the Law Commission for England and Wales in 2014. However, the Irish recommendations were never implemented, despite sustained lobbying. This paper draws on relational theory to scrutinise the Study Group's proposals, identifying its core assumptions and their implications. The paper contends that Irish courts dealing with spousal agreements have tacitly accepted liberal conceptualisations of autonomy, which may lead to injustice. Furthermore, the Study Group's recommendations have been overtaken by events. Recent decisions on spousal agreements emphasise respect for party autonomy, without interrogating what this means. This could be problematic if applied to prenuptial agreements. Accordingly, the paper suggests modifications to the Study Group's proposals, to address relational concerns. In this regard, the paper speaks to the broader debate on family autonomy, and draws on comparative perspectives, including the recommendations of the Law Commission for England and Wales, and the Canadian experience.