English opportunities regulation is confused about its relationship to the concepts of ownership and property. Recent reform proposals from the Company Law Review Steering Group would have changed English law's dominant regulatory lens: the way in which it thinks about the opportunities problem, from an approach focused on conflicts of interest to one focused on the ‘ownership’ of opportunities. This ownership approach is commonly referred to as the corporate opportunities doctrine. This article argues that the proposal failed as it did not consider the interpretative possibilities generated by changing the regulatory lens. However, the proposal inadvertently makes a contribution to the debate as it directs our attention to the function and meaning of ownership concepts in the opportunities context. Property in the opportunities setting is simply a label for qualified ownership as between the director and the company. However, the article argues that by understanding references to property in terms of traditional notions of property English law and commentary has obstructed the consideration and development of a long-standing English corporate opportunities doctrine.

Sometimes a rule is formally equal, but the people disadvantaged by it are in fact disproportionately of a particular sex, or colour, or religion. They may be able to bring a legal challenge to the rule, on the basis that it discriminates against them indirectly; because part-time workers are disproportionately female, rules disadvantaging part-time workers have been found to be indirect discrimination against women. However, what about the male part-time worker? Can he bring no challenge? It is the nature of indirect discrimination that there will always he such atypical victims. They are persons who suffer the harm of the rule, but cannot claim that it discriminates against persons their sex, or colour, or religion. They might he the straight man disadvantaged by a rule that overwhelmingly hinders gay people, or the Christian suffering from a rule that mostly prejudices Muslims. If these ‘minority discriminees’ cannot sue, while their colleagues of a different sort can, then a new context of discrimination arises. This raises a number of surprisingly complex practical and theoretical legal problems. In the light of new European Community directives dramatically increasing the categories of prohibited indirect discrimination those problems have become more immediate. This article therefore looks at Community law, and UK arid US cases, to answer the question above. It also extrapolates the problem to multiple discrimination situations: what about a rule tending to disadvantage Muslim women, but also harming their few non-Muslim male colleagues?

Pursuit of the proceeds of crime has always been central to the criminal justice agenda of Tony Blair‧s Labour Party. In response to Blair‧s moral imperatives and to wider global forces, legislation has been put in place that targets, in various ways, the proceeds of crime. These efforts reached at least a temporary culmination in the Proceeds of Crime Act 2002. The mechanisms directed against property are backed by widespread reporting obligations, set out in the Money Laundering Regulations 2003, implementing the Amending EU Directive. The increased rate of seizures and growing rate of confiscation under the Proceeds of Crime Act 2002 and a number of decided cases under the Act are evidence of the courts ‘doing their bit’. A large industry is now in place for the delivery of the legal and other services the need for which was generated by the Proceeds of Crime Act 2002.

Smart regulators know that traditional command and control interventions, however tempting to politicians, are not always an effective or efficient form of response; they know that the criminal law tends to do better at defining crime into existence rather than defining it out; they know that private law remedies are of limited impact; and they know that public law control exercised by agency licensing or negotiation is open to the twin charges of being too soft or being too tough. Even smarter regulators know that they can sometimes achieve the desired regulatory effect by relying vicariously on non-governmental pressure (whether in the form of self-regulation or co-regulation by or with business or the professions, pressure exerted by consumers, the activities of pressure groups, and so on) or by relying on market mechanisms; in addition, they know that careful consideration needs to be given to selecting the optimal mix of various regulatory instruments.

This article is an attempt to defend the English rule that an anticipatory breach does not automatically give rise to a right of action for damages unless and until it is ‘accepted’. The article first explores the major arguments for and against the rule and finds that the rule is justifiable on the ground of finality and consistency and that none of its objections are persuasive enough to overturn the rule. The article further observes that the rule must be qualified in two important respects in order to retain its rational force. However, the above rule is currently stated by the courts to the effect that an anticipatory breach is not per se a breach and is only ‘converted’ into a breach when it is ‘accepted’. It is proposed that this statement is historically unwarranted and contradicts sound logic and should thus be discarded.

Drawing on studies in governmentality, this paper considers the ways in which the selection and allocation of households for social housing have been conceptualised and treated as problematic. The paper urgues that the notion of ‘need’ emerged relatively slowly over the course of the twentieth century as the organising criterion of social housing. Yet ‘need’ became established as a powerful tool used to place those seeking social housing in hierarchies, and around which considerable expertise developed. While the principle of allocation on the basis of need has come to occupy a hegemonic position, it has operated it continual tension with competing criteria based on notions of suitability. As a consequence, this paper identifies risk management as a recurrent theme of housing management practices. By the 1960s need-based allocation was proving problematic in terms of who was being prioritised; it was also unuble to resist the challenge ofdeviant behaviour by tenunts and the apparent unpopularity of the social rented sector. We argue that the tramition to advanced liberalism prefaced a shift to new forms of letting accommodation bused on household choice, which have been portrayed as addressing core problems with the bureaucratically-driven system. We conclude by reflecting on the tensions inherent in seeking to foster choice, while continuing to adhere to the notion of need.

The concept of home has attracted considerable critical attention in recent decades across a broad range of social science disciplines. Analysis of ‘home meanings’ provides important evidence of the values which people attach to property that they occupy as a home. This evidence could be utilised to argue that home represents a site of special significance, deserving some additional protection in law, over and above other property types. Where such arguments have been considered in English law, the tendency has been to confer special status on the family home rather than on home per se. This article identifies several weaknesses, both practical and conceptual, with the application of ‘family home’ analysis in the context of creditor/occupier disputes. The article proceeds to consider whether ‘family home’ is sufficiently attractive as a central organising concept in policy discourse to outweigh the specific criticisms outlined. An alternative and, it is argued, more desirable solution would be to approach the issue of security of tenure in the owner-occupied home from a more individualistic, rather than family-centric, perspective.

The Enterprise Act 2002 sought to assist troubled companies by enhancing the rescue-friendliness of the UK insolvency regime. Assessing that regime calls for a focus on: the different roles and control powers of the various parties involved with troubled companies; the essential tasks that a rescue regime has to carry out; and the level of co-ordination that is to be expected between different parties. Key tasks in the furtherance of rescue are: the collectiiig of relevant information; the production of sound judgments and strategies; and the taking of timely actions and decisions. The problems of co-ordination, moreover, vary from task to task. For judges, central challenges in coming years will be not only to protect parties’rights within the new rescue regime but also to use judicial oversight powers to encourage co-ordinated action in pursuit of rescue. An appreciation of the co-ordination issue is central to an understanding of the post-Enterprise Act 2002 regime and the potential of the judges to enhance that regime in its furtherance of rescue.

Research into alternative sources of organs for transplantation, including the use of organs from non-human genetically engineered animals, has occurred since the introduction of allotransplantation in the 1960s. Xenotransplantation is different from other developing genetic technologies because whilst the potential benefit is to the individual, the possible risks are to society as a whole. The risks include the transmission of unknown and currently indeterminable infectious diseases. This article explores whether the current regulator framework is able to address this issue and, in particular, whether ‘first-party’ consent to involvement in a clinical trial is a sufficient to protect third parties from harm. The competence of a xeno-recipient to consent is also considered, and it is suggested that, at the very least, public debate and participation in deciding whether clinical trials should be permitted must occur, because by allowing xenotransplant trials to help an individual, the risks will be borne by all.

This article examines the treatment of pure economic loss claims in England and Canada. The two jurisdictions have much in common. Starting from the same case sources, the common law of each system has struggled to deal with claims for negligently-incurred pure economic loss. Yet, the systems diverged in the 1990s when the Canadian Supreme Court refused to follow the lead of Murphy v Brentwood DC and reiterated its adherence to the Anns two-stage test. It is submitted that, in view of recent developments which suggest the gradual convergence of the two systems, English law should carefully examine the categorisation approach adopted by the Canadian courts. The current English position is far from clear, and the Canadian model is capable of bringing transparency and greater clarity to this difficult area of law.

How does the European Union (EU) affect health law in its member states? Having defined ‘health law’, this article takes a multilevel governance perspective of the EU und its legal order, aid considers, through selected examples, the various modes of governance used by the EU applicable in the health law field. The article presents a spectrum of five different types of effect that the EU has on health law: strong effect from health-specific measures; strong effect from general measures; marginal effect; slow convergence effect; little prospect for effect.

Citizenship laws provide us with models of membership. They define the terms on which strangers and natives belong to political communities, allocating both the benefits of membership and the brutalities of exclusion. Recent legal changes in Ireland, restricting the right to citizenship by birth and limiting the rights of migrant families, highlight the vulnerability of children in migrant families and the limits of citizenship status. Many other states have grappled in recent times with the right to citizenship by birth and the entitlements to family life that come with such a claim. In both the UK and Australia the jus soli principle has been significantly restricted. In the US, Canada and elsewhere, while the jus soli principle continues to apply, citizen children born to undocumented migrant parents are subject to de facto deportations, their right to membership of the nation-state ‘postponed’ because of the legal status of their parents. In challenges to deportation proceedings involving such children, the perspective of the child as a bearer of rights is marginalised, with disputes turning largely on the balancing of states' interests in immigration control against the residence claims made by migrant parents.

The general theme of this lecture was prompted by Ruth Bader Ginsburg, the second woman in the United States Supreme Court. To celebrate my appointment she sent me a fascinating book, Supreme Court Decisions and the Rights of Women. This set me thinking about what a similar book on House of Lords Decisions and the Rights of Women might have to say. My first thought was ‘not a lot, surely’. The two courts are very different. The Supreme Court is a constitutional court under a constitution which guarantees the equal protection of the laws. The appellate committee of the House of Lords is not a constitutional court, although the Human Rights Act 1998 has made it look a little more like one. The judicial committee of the Privy Council, however, has in practice the same composition as the House of Lords.

This article argues that professional codes of conduct cannot perform the important task of ensuring that lawyers uphold high ethical standards. Instead, moral behaviour by lawyers requires the development of fixed behavioural attributes relevant to legal practice - what may be called a lawyer's professional moral character. At the same time, however, along with other factors, professional codes are important in that they can either contribute to or detract from the successful development of professional moral character. If so, it is argued that in order to have the best chance of assisting the character development of lawyers, codes should neither take the form of highly detailed or extremely vague, aspirational norms, but should instead guide ethical decision-making by requiring them to consider a wide range of contextual factors when resolving ethical dilemmas.

When a company enters insolvent liquidation, the liquidator might take proceedings, under s 214 of the Insolvency Act 1986, against one or more of the company's directors on the basis that the director(s) engaged in wrongful trading. If found liable, a director might be ordered by a court to contribute to the assets of the company. This article examines whether subjecting directors to liability for wrongful trading is theoretically justifiable. After briefly explaining the origin, aims, rationale and operation of s 214, the article then rehearses and evaluates the arguments propounded by several scholars against any justification for a provision in the mould of s 214. Next the article investigates some of the reasons given for supporting the provision. Following this some consideration is given to whether it is possible to opt out of s 214, and, if not, whether this should be permitted. It is concluded, inter alia, that while s 214 is not representative of good regulation, some form of prohibition against wrongful trading can be justified on theoretical grounds.

In Spring 2004 the French Parliament agreed to the passing of a Bill named ‘Application of the Principle of Secularity’. The new law was brought into effect on 2 September 2004, banning all ‘ostentatious’ religious symbols in state schools and the enactment denies Muslim schoolgirls the right to wear the ‘hijab’ (or the traditional Muslim headscarf) in French public schools. The new enactment has stirred controversy within the Islamic world where many have considered the law to be an example of ‘Islamophobia’ and the West's intolerance towards the religion of Islam. This article aims to understand the historical background and the rationale of the ban on religious symbols in French state schools and seeks to examine some of the main criticisms of the new law.

This article examines the development, operation and reform of the tribunal system responsible for determining appeals against the refusal of refugee status by the Home Office. Consideration of this particular appellate system is situated within a broader discussion of the criteria and values against which tribunal adjudication systems may be evaluated, By examining asylum appeals, light is shed on the theory and practice of administrative justice with regard to: the problematic nature of ensuring accuracy in tribunal decision-making; the tensions under which appeal procedures operate; the importance of onward appeal rights; and the role of tribunals in policy implementation. The article argues that recent reform of the asylum appeal process, including the introduction of a single tier of appeal, the Asylum and Immigration Tribunal, by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and restrictions on legal aid, has been motivated by political considerations and may increase the dificulties in operating an effective appeal process.

The following scene as recounted by the English writer James Stern occurred in a German town one week after Germany's unconditional surrender in May 1945. A crowd is gathered around a series of photographs which though initially seeming to depict garbage instead reveal dead human bodies. Each photograph has a heading ‘WHO IS GUILTY?’. The spectators are silent, appearing hypnotised, and eventually retreat one by one. The placards are later replaced with clearer photographs and placards proclaiming ‘THIS TOWNISGUILTY! YOUARE GUILTY!’.

Section 58 of the Offences against the Person Act 1861 prohibits the use of means with intent to procure ‘miscarriage’. In Smeaton Munby J held that the administration of the ‘morning after’ pill with intent to prevent the implantation in the uterus of any embryo conceived as a result of sexual intercourse does not contravene s 58. This article respectfully questions the learned judge's decision.

This article examines Stapleton's view that insurance has lacked influence and been no more than a ‘makeweight’ argument in the development of tort liability. Looking at the wider context, the article describes the overwhelming importance of insurers to the litigation system and argues that all cases are affected by insurance practice. It distinguishes the effect of insurance upon judicial fact finding, on the one hand, and the development of common law rules, on the other. It examines the ability of insurers to influence legislation relevant to the tort system. It concludes that, if account is taken of all these areas, insurance has been of vital importance to the law of tort. Without it, the system of personal injury compensation would not have survived. This conclusion is reached even though insurance is largely ignored by the great majority of tort texts.