In this paper we outline and critique legal approaches to poor mental health at work in the UK. We argue that the current legal framework is not ‘fit for purpose’. Overall, the existing framework promotes a problematic model that is ineffective because each element, individually and as part of the whole, fails to adequately engage with the nuanced realities of the relationship between undertaking paid work and suffering poor mental health. It is, we suggest, disjointed because it has evolved from a patchwork of provisions, each with different foundations, motivations, ambitions and flaws. The need for a re-focus, and what this might entail, is considered, and the capacity of a model centred on addressing workplace mental health as a manifestation of broader notions of vulnerability is explored.

This paper advances a functional analysis of the UK constitution. It explores how the UK constitution discharges three minimum ‘constituting’, ‘legitimating’ and ‘limiting’ functions that citizens living in modern liberal democracies may legitimately expect all constitutions – irrespective of form – to perform. This functional enquiry breaks with dominant trends in the legal scholarship that remain focused on theorising the constitution's underlying political or legal nature or, likewise, identifying its ultimate source of authority. In addition to offering a richer descriptive account of constitutional practice, this paper identifies, normatively, an institutional responsibility for Parliament to discharge the UK constitution's three minimum functions. Recognising that institutional responsibility unlocks fresh insights into two constitutional conundrums: the legitimacy of judicial review and the status of ‘constitutional statutes’. At the same time, it also exposes deficiencies and tensions in relation to the quality of Parliament's institutional performance on matters of minimum constitutional functioning.

The ‘code adjudicator’ is a new statutory intervention in business-to-business disputes. They are Janus-faced, combining a statutory arbitration function with a regulatory remit. This paper is a detailed critique of the ‘Pubs Code Adjudicator’, which presides over the Pubs Code Regulations 2016 and intervenes in the contractual relationships between the largest pub-owning companies and their tied tenants. Drawing on a sample of interviews with affected tenants, arbitration data, and legal appeals under the Arbitration Act 1996, we argue that – although these ‘new intermediaries’ show promise – there are a series of limitations with both the function of the Pubs Code Regulations and the ‘code adjudicator’ model itself. In particular, our findings demonstrate the use of delaying tactics, the interaction of code adjudication with the parties’ existing contractual relationships, and issues with the application of arbitration ‘burden of proof’ standards to the exercise of duties under the statutory code.

Litigation is a tactical business. The recognition of the tort of malicious prosecution of civil proceedings in Willers v Joyce in 2016, by the barest of majorities, adds to the tactical intrigue, for it is now feasible that failed civil proceedings could be swiftly followed by a counter-suit for malicious prosecution against the original unsuccessful claimant. The tort requires proof of ‘malice’. As a concept, malice may have a 400-year history, but insofar as the new tort is concerned, it has proven to be opaque. In this paper, a critical evaluation of the tort since the Supreme Court gave it the ‘green light’ in Willers is undertaken. As a cause of action, it has been sparsely used, and beset with difficulties and unforeseen consequences. Whilst tort law, as the rubric of civil wrongs, must remain ‘on the move’, it is important that judicial reform achieves desirable and useful outcomes. It is argued in the paper that the tort recognised by Willers has not met that objective to date. However, a detailed law reform study of this and other related torts, leading to a statutory tort of ‘abuse of litigious processes’, would serve to bring order to the present disarray.

The UK has recently adopted a policy of granting digital-only proof of immigration status for certain groups of migrants. More than 4.5 million individuals are reliant on this form of status and the number is growing. In this paper, we argue that this policy, as currently operationalised, is unlawful as a result of its discriminatory impact. If it remains unchanged, the roots of digital discrimination in immigration policy and administration will be allowed to spread, with potentially disastrous consequences.

This paper examines the different regimes of insurer liability under concurrent causation in English law and Chinese law. The analysis shows that neither English law nor Chinese law is satisfactory in terms of the insurer's liability in such cases. It is argued that only one proximate cause should be identified among multiple causes except in the circumstance where an excluded risk and an insured risk concurrently and independently cause a loss of the subject matter insured. Under this exception, the liability in apportionment approach might be an appropriate solution to the question of the insurer's liability under concurrent causation. This approach, however, is not suggested for concurrent causation where an uninsured risk is one of the proximate causes.

Prosecutors play a decisive role in contemporary criminal justice. Their decisions greatly influence the output of the system, as well as the behaviour of other criminal justice institutions. By harnessing the power to filter, select and segment the work of criminal justice, prosecutors provide structure to an otherwise unbalanced field. They thus play a key structuring role. However, the prosecutors’ position and the problems that emanate from it have mostly been studied in terms of their power and discretion. We contend that this approach neglects the core problems and challenges connected to the prosecutorial function in contemporary criminal justice and offer a reconstruction of the formal and informal influences that shape the behaviour of prosecutors in providing for structure.

This paper explores the everyday lives of low-paid, low-skilled EU migrant workers living in and around Great Yarmouth in the East of England both pre- and post-Brexit. It considers the legal problems they face, especially around employment law, and how those problems may be resolved. It draws on the results of quantitative and qualitative research to examine the reach of law into the everyday lives of vulnerable EU migrants. We term our research ‘pragmatic law’ (PL) because our experience is that most legal issues, at least with the groups we are working with, do not enter any formal legal resolution pathway at a community level. They are addressed in the everyday, often by first-tier generalist (and sometimes volunteer) advisers with no formal legal training, who make no express reference to ‘the law’. This access to advice and problem resolution at a street level can be a lifeline to those living at the margins of the workforce.

There has been a transformation in the number and the scope of criminal laws relating to forms of market misconduct. Surprisingly, however, this area of criminal law is not one that has been systematically explored in recent writing about criminalisation. However, concepts such as white-collar crime, or financial crime, which are widely used to describe this area, are poorly defined and offer little analytic clarity. This paper argues that to take market crimes seriously it is necessary to focus on what is distinctive about markets and about market misconduct as a form of wrongdoing. This allows us to see the area as a whole and identify certain common features based on central institutional features of markets and the role that criminal law has played in protecting them – notably ensuring competition, preventing exploitation, and embedding trust. This approach, then, can be a means of raising wider questions about our understanding of the relationship between criminal law and the market in modern society – and the role that criminal law can or should play in regulating those markets.

Unequal voting rights arrangements under dual class share structures are increasingly favoured by entrepreneurs and founders of technology companies, in order to retain a degree of control over the company that is disproportionate to their equity shareholdings. The rise of such share structures around the world has put competitive pressure on the UK Government and the country's financial regulator to relax the one share, one vote principle in the premium listing regime of the London Stock Exchange, to ensure the UK equities market remains world-leading and fit for the future development of the economy. There is, however, a long tradition of institutional investors’ distaste for dual class share structures. In fact, the near extinction of dual class listings in the UK capital markets can be largely attributed to the opposition of large British institutions. Therefore, this paper will critically discuss the conflict between the demands to attract listings from high-tech and innovative companies and concerns of a race to the bottom in the UK context. It rebuts criticisms based on investor protection and argues that if dual class companies were permitted to list in the Premium Segment, the higher level of regulatory protection provided in the premium listing regime would help enhance minority shareholder protection and shareholder engagement. The additional safeguarding measures, as we have seen from other global financial centres, would also help to restrain the potential abuse of controllers’ weighted voting power. Together with the market mechanism, permitting dual class listings in the Premium Segment should be welcomed.

This paper examines the role of apology as a vehicle for shame management in the aftermath of historical institutional abuse (HIA). It draws on extensive fieldwork in Ireland, North and South, including: archival research on public apologies; focus groups with members of the public and with victims; and semi-structured interviews with key stakeholders. It focuses on the complexities of apology in managing ‘shame’ and ‘self-blame’ for those constituencies affected by HIA – survivors, apologisers, institutions and wider society. Drawing on the notions of ‘shame’ and ‘shame management’, it proposes an interdependent model in order to better understand the function and meaning of apology in such contexts. In addressing the multi-layered relational dimensions of shame surrounding HIA, apology is presented as a potential means of invoking: (a) truth for victims; (b) accountability of offenders; (c) leadership of institutions; and (d) the re-imagination of national identity. The paper concludes by examining the additional performative aspects of shaming and the emotional expression of remorse in establishing proximity to historical wrongdoing.

This paper analyses the EU proposal for a carbon border adjustment mechanism (CBAM) and a recent US proposal for the establishment of a border carbon adjustment (BCA) as examples of ‘defensive’ policies, broadly informed by an economic level playing field and an environmental level playing field rationale. From an environmental law perspective, the CBAM's narrow focus on price-based policies, distortions of competition and trade intensity is unsatisfactory; however, the EU CBAM is more feasible in practical terms and overall more likely to be WTO law compatible than the US proposal for a BCA. An environmental level playing field perspective is associated with several practical problems: these relate to the determination of environmental equivalence, the identification of appropriate remedies, and the demarcation of the scope of application of the relevant regulatory arrangements. Further, measures informed by an economic level playing field rationale can be easier to justify under WTO law. Taking stock of these findings, the paper concludes that practical obstacles and structural legal constraints push towards a narrower focus on an economic level playing field, as a matter of regulatory design.

The Covid-19 pandemic highlights the pressing need to address common challenges faced by all countries and, in particular, provide special support to developing countries through international cooperation. Taxation, in particular Value Added Tax (VAT), is a key area for strengthening international cooperation because of its critical role in financing the Covid-19 crisis and supporting global recovery. This paper proposes the adoption of VAT treaties based on two considerations. First, there exist, in the interplay between states’ VAT laws, over-taxation and under-taxation that can be more effectively addressed by treaties than by unilateral state actions. Secondly, unlike income tax treaties, VAT treaties would distribute more benefits from cooperation to developing countries than to developed countries, leading to normatively attractive distributional consequences. The proposed model offers a new approach to taxing cross-border transactions under VAT and could form part of a coordinated response to a sustainable post-pandemic recovery.

The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wales means inherent indeterminacy characterises decision-making in the Court of Protection (CoP), not least regarding conflicting values and the weight that should be accorded to competing factors. This paper explores how legal professionals frame and influence the MCA's deliberative and adjudicative processes in the social space of the courtroom through a thematic analysis of semi-structured interviews with legal practitioners specialising in mental capacity law and retired judges from the CoP and the Courts of Appeal with specific experience of adjudicating mental capacity disputes. The concept of the ‘human element’ offers important new insight into how legal professionals perform their roles and justify their activities in the conduct of legal proceedings. The ‘human element’ takes effect in two ways: first, it operates as an overarching normative prism that accounts for what good practice demands of legal professionals in mental capacity law; secondly, it explains how these professionals orientate these norms in the day-to-day conduct of their work. The ‘human element’ further presents challenges that demand practical negotiation in relation to countervailing normative commitments to objectivity and socio-institutional expectations around professional hierarchies, expertise, and evidential thresholds.

Since 2019, Irish judicial education has been undergoing major structural change. Prior to the legislative establishment of the Judicial Council in that year, formal training for judges in Ireland was almost non-existent. Innovation in this area was limited to the holding of judicial conferences that occurred annually from the mid-1990s onwards. This paper places the training of Irish judges in its international context and analyses the reflections of 22 judges on how they learned the skills of judgecraft prior to the creation of a formalised system of judicial education and training. The data demonstrates that members of the judiciary engaged in a range of largely informal learning activities and provides insights into a hitherto unexplored aspect of Irish judicial culture. The data is also of broader significance in highlighting organic and unofficial aspects of judicial education, which can be overlooked in jurisdictions with highly-developed, formalised structures for training the judiciary.

This paper examines the law of fixtures and chattels which governs the circumstances in which items of personal property that are attached to land become part of that land. Whether a chattel has become a fixture is crucial in a range of contexts including when land is sold or mortgaged. However, the law of fixtures has long garnered a reputation for complexity and obscurity; a position that endures today. Through examination of historical accounts and decided case law, this paper explores the reasons for this reputation; identifies the central deficiencies and defects inherent in the law and argues that the existing approach is anachronistic, inconsistent and incoherent. Building on this, the paper concludes by proposing a new framework for rationalisation and reform which would bring long-overdue certainty and clarity to the law in this area.