It might seem counter-intuitive to suggest that the chasm between Europe and her citizens is partially caused by the weakening of constituent power at the national level. Nonetheless, this article contends that the strength of ever closer union depends partly on the resilience of national constituent power. An insight recovered from French constitutional theory – that respect for constituent power is closely related to respect for limits on the power of amendment – is used as a measure of this resilience. Upon examination of judicial decisions in Germany and Spain in which enumerated substantive limits on the power of amendment have not been satisfactorily enforced, and others in Ireland and France in which the existence of essential limits on the power of amendment has been flatly denied, this article concludes that by debilitating national constituent power, ironically treaty ratifications conduce to ever closer remoteness between the peoples of Europe.

This paper examines the role of rights and fundamental rights in English public law and private law in recent times. It argues that the idea of fundamental rights has been more significant in the filed of public law and seeks to explain why. It compares the operation of domestic fundamental rights with the rights in the European Convention of Human Rights and suggests a methodology for identifying the existence and scope of the former. The paper considers the possible legal effects which might follow from repeal of the Human Rights Act 1998.

This article examines critically the extent to which the availability of Enhanced Consumer Measures (ECMs) created by the Consumer Rights Act 2015 addresses the problems associated with the enforcement of consumer protection law in the UK. The article explains the genesis of the provisions by establishing the limitations of the previous law before moving on to consider the extent to which ECMs are successful in addressing those limitations. The article argues that, while the availability of ECMs will potentially improve the ability of both enforcers and courts to achieve some objectives of consumer protection law, the measures raise some significant concerns. Of particular concern is the extent to which they signal a move away from prosecution in cases in which that would be the optimal response, and so compromise the ability of consumer protection law to achieve some of its most important objectives.

Risk control clauses are often used in insurance contracts with a view to preventing the assured from altering the risk during the currency of the policy. An insurance warranty is the most commonly used risk prevention clause in practice. Having been subjected to severe criticisms for years, the legal regime concerning insurance warranties and other risk control clauses has recently been revamped by the Insurance Act 2015, which will apply to all contracts of insurance concluded after 12 August 2016. This article intends to elaborate on the appropriateness of the reforms introduced by the 2015 Act from risk assessment and management perspectives. It is also intended to offer a critical analysis on the potential impact of the changes on insurance law and practice.

The European Court of Human Rights (ECtHR) and the Council of Europe have recently recognised “living together” as a legitimate dimension of the rights of others that could justify limitations on various European Convention on Human Rights (ECHR) rights, including the rights to freedom of religion and respect for private life. This article argues that the important, yet still unexplored in human rights law, idea of “living together” stems from the republican ideal of fraternity and supplements the distinctive links between democratic principles and rigorous human rights protection. Even so, its justifiability as a limitation ground depends on which conception of the idea is compatible with core values and functions served by human rights under the Convention. This article distinguishes between two main interpretations of “living together”, grounded on responsibility and conformity. It is argued that, in cases touching on our expressive conduct in public, including cases on the wearing of full-face veils, a conformity conception of “living together” sits uneasily both with firmly established case law of the ECtHR and with certain key functions of rights, such as the exclusion of moralistic majoritarian preferences as grounds for coercive prohibitions.

This article explores certain key features of the tort of deceit which, if looked at only superficially, are apt to mislead as to the gist, nature, and province of this tort. In particular, the article addresses three main issues. The first is the way in which the reliance test used in this tort comes apart from a simple (more familiar) test of causation, and why this has important theoretical ramifications. Secondly, the article seeks to reveal the true gist and province of this tort. In this regard, it is argued that it is a mistake – made by many – to suppose that the infliction of economic loss forms the gist of deceit. Instead, it is suggested that the tort is better seen as being rights-based and that, consequently, it ought not to be seen as a specifically economic tort, but rather as one which protects the victim's decision-making autonomy. Lastly, the article unearths the juristic explanation for the curious fact that, in the tort of deceit, the operation of the contributory negligence defence is excluded while the mitigation principle is applied openly. (The incoherence here inheres in the fact that both these principles are animated by the self-same concern: a desire to exclude the recovery of losses that are attributable to an unreasonable lack of self-regard on the part of the claimant.) The juristic explanation I unearth is then subjected to critical analysis in the course of which I suggest that we ought not to confuse explanation with justification. I conclude that there is no sound reason of principle to exclude the operation of the contributory negligence defence in this tort.

This article critiques the model for implementation of good faith suggested by Leggatt J’s obiter comments in Yam Seng Pte Ltd v International Trade Corp Ltd. He considered that a general term of good faith may be implied as a matter of construction or as a factual implication under traditional implied terms rules; and that further terms might be implied as specific manifestations of the general term. These further terms would reflect “shared values and norms of behaviour”, including the “core value of honesty”. The article contends that the reasoning to support the general implication contradicts the proposition — accepted by Leggatt J — that good faith has not been recognised “as a duty implied by law”; and that, for several reasons, the analysis used to support implication on the basis of shared norms is flawed.

The police do not owe a duty of care to protect victims from the criminal acts of a third party when investigating or suppressing crime save in exceptional circumstances. This is justified as an application of the omissions principle and on several other grounds. The article argues that most of these justifications are unconvincing and it sets outs a positive rationale for the imposition on the police of a duty of care in respect of sufficiently proximate victims of a negligent omission. The scope of this duty can be coherently delimited by re-adjusting the existing framework of negligence liability of public authorities.

English administrative law treats almost all errors of law as reviewable. Concerns that this deprives administrators of their autonomy have led to calls for a distinction to be drawn between jurisdictional and non-jurisdictional errors of law. This was commonplace for much of administrative law's history. Such calls have fallen on deaf ears as courts and commentators express caution towards retreating to an approach which, it is said, led to a “wilderness of single instances”. This article examines the older law to see whether that was really the case, concentrating on the important decision of the Court of Queen's Bench in R. v Bolton (1841).

Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or corrective justice-based view of private law, argue that policy should play no role in the determination of private law disputes, and that courts should instead rely on what they call “principle”. This article will examine both sides of the debate, initially exploring what is actually meant by “principle” and “policy”, and then providing an overview of the primary arguments relied on in favour of both a policy- and principle-based approach to resolving private law disputes. Finally, a compromise between the two approaches, the so-called “pluralist” approach, will be examined.

This article looks at the public disclosure of political donations as a case study to examine the role of transparency in addressing concerns about undue influence and corruption. The article will explore three issues. The first is to understand what it means to say that a political donation is corrupt. There is considerable disagreement on the ethics of political fundraising and this article will show how public opinion has a role in setting the standards expected of politicians. The second issue is what role the public disclosure of political donations plays in deterring and detecting corruption. While the disclosure requirements were introduced to promote greater trust in politics, it will be argued that increases in transparency have fed a growing culture of mistrust. The logic of the transparency requirements also requires the free public discussion of particular political donations and related ethical issues. The third issue is how that process of free discussion can come into tension with rights to privacy and reputation. The article will explore how the attempts to reconcile the different areas of law both reflect and shape the political culture.