bluuebunny/crossref_metadata_2025 huggingface dataset:
Re Waddington v. Miah
Authors: Mann F A
Published: November 2023

It was recently suggested that the European Convention on Human Rights had a much greater effect upon the law of England than practitioners seemed to realize; that the right of petition granted to individuals provided a remedy against acts committed by organs of government in the United Kingdom; that therefore the Convention ought to influence and even determine substantive English law; and that, consequently, the Convention constituted a Bill of Rights by the standards of which English law had to be measured: The United Kingdom’s Bill of Rights (1972) 122 NLJ 289. In Waddington v. Miah [1974] 1 WLR 683 Lord Reid, with whom Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Simon of Glaisdale, and Lord Salmon concurred, adopted an approach which may be said to be in line with that suggestion.
Oppenheimer v. Cattermole Revisited
Authors: Mann F A
Published: November 2023

Some readers of this Review will remember the decision of the House of Lords in Oppenheimer v. Cattermole [1976] AC 249, for it was one of the few cases in which, as a result of a contribution to this Review published after the argument in the House of Lords had been concluded, the appeal was ‘put back into the list for further argument’ and ultimately decided in a sense opposite to that originally contemplated. The point in issue was whether the appellant whom by a decree of 1941 Hitler had purported to deprive of his German nationality and who in 1948 had become naturalized in this country was in 1953 still a German subject on the ground that, according to a decision in 1968 of Germany’s Federal Constitutional Court, the decree of 1941 was ‘non-law’, that is to say, null and void ab initio.
‘Any Civil or Commercial Matter’
Authors: Mann F A
Published: November 2023

The decision of the Court of Appeal (Kerr, Glidewell, and Ralph Gibson L JJ in Re Anders Jahre [1986] 1 Lloyds R 496 arose from an action instituted in the Sandefjord City Court between the estate of Anders Jahre, a Norwegian citizen, and the Kingdom of Norway with a view to having presently enforceable tax assessments set aside. The application, rejected by the Court of Appeal, Ralph Gibson LJ dissenting, was made under the Evidence (Proceedings in Other Jurisdictions) Act 1975 for the interrogation of two London bankers. The character of the questions to be answered by them is sufficiently exemplified by the first one: ‘Present and previous owner or owners, direct or indirect, of funds and shares in Continental Trust Company Inc.’
The Effect in England of the Compulsory Acquisition by a Foreign State of the Shares in a Foreign Company
Authors: Mann F A
Published: November 2023

IN the course of the last few months two events occurred that render it unavoidable to revert to the Rumasa case [1986] AC 368 which, under the above heading, was reviewed at (1986) 102 LQR 191.

The first concerns that part of the decision of the House of Lords which held the defence unarguable and therefore fit for striking out, although it was argued before Nourse J for seven days, in the Court of Appeal for six days, and in the House of Lords for three days. It is not easy to discover the precise principle of law on the basis of which the House rejected the appellants’ argument that striking out was the improper procedure. Lord Templeman’s remark that the investigation undertaken by the courts ‘was no different from the investigation which would have been involved in the trial of an issue’ (p. 436) is not free from difficulty, as the trial of an issue would have been a trial with all its incidents
The Proper Law of the Contract—An Obituary
Authors: Mann F A
Published: November 2023

The Contracts (Applicable Law) Act 1990 came into force on I April 1991, a day which many lawyers and traders will remember with sadness and resignation so as to render a tribute in the nature of an obituary appropriate.
The Rights of Peoples in Modern International Law
Authors: Brownlie Ian
Published: November 2023

The subject of this article is essentially that of human rights, with particular reference to the rights of groups and indigenous populations. UNESCO, along with other international organizations, universal and regional, has been much concerned with the articulation and elaboration of human rights concepts, and within UNESCO a particular subject of debate has been the Rights of Peoples. It is thus my responsibility to contribute to a process already in being. My position is that of a professional lawyer, not associated with any pressure group, whose role will be that of the chorus in Greek tragedy. That is to say, I shall speak as an ‘interested spectator’, sympathizing with the fortu
The Rights of Peoples: ‘Peoples’ or ‘Governments’?
Authors: Crawford James
Published: November 2023

From the perspective of international law, the key feature of the phrase ‘rights of peoples’ is not the term ‘rights’, but the term ‘peoples’. From a philosophical point of view, no doubt, the term ‘rights’ is itself problematic. But lawyers, including international lawyers, are used to talking about rights, and so long as one accepts Hohfeld’s point that one person’s right must mean another person’s duty, the term seems unremarkable even in the context of peoples’ rights. Moreover, international law is familiar with the notion of ‘collective’ rights. References to the State, the basic unit of international law, involve a reference to the social fact of a territorial community of persons with a certain political organization, in other words, a reference to a collectivity.
The Canadian Charter of Rights and Freedoms: A Feminist Perspective
Authors: Eberts* Mary
Published: November 2023

1992 was the tenth anniversary of the coming into force of the Constitution Act 1982, containing the Canadian Charter of Rights and Freedoms. The Charter is not the first measure to provide entrenchment in the constitution of basic rights guarantees: the Constitution Act 1867 provided certain assurances of minority language and denominational school rights, as part of the constitutional bargain at Confederation.
The Impact of a Bill of Rights on the Role of the Judiciary: An Australian Perspective
Authors: Brennan Sir Gerard
Published: November 2023

Since the abolition of the last avenues of appeal from the Australian Courts to the Privy Council, we have broadened our focus of interest in the laws and Courts of countries in the common law tradition. The heritage of the common law allows each country to draw on the experience of others, especially when their societies are similar in culture and their constitutional institutions are comparable. Australia therefore has a particular interest in the Canadian experience of the last decade or more, when the Courts of Canada have been administering the Canadian Charter of Rights and Freedoms. Not only is Canada a Federal democracy operating under a system of representative and responsible Government; it was, at the time when the Charter came into force, a society whose legal institutions operated in much the same way as do Australian legal institutions.
Turkish Intervention and its Aftermath
Authors: Necatigil Zaim M
Published: November 2023

The main danger to the survival of Makarios and the independence of the Republic came from the Greek army officers brought by him to Cyprus for the expressed purpose of defence against Turkish ‘invasion’. Their barracks habitually displayed the emblems and Hellenic slogans of Greece.1 Enosis propaganda was rife. Early in 1969 a new threat to stability came with the rise of the National Front, an armed organization headed by a former EOKA leader and based in Limassol. The capture of Limassol Central Police Station by one of its branches exceeded in scope and military skill anything ever attempted by EOKA against the British.
An Evaluation of the lntercommunal Talks
Authors: Necatigil Zaim M
Published: November 2023

In his reports to the Security Council about his m1ss1on of good offices, the UN Secretary-General has many times expressed the conviction that the intercommunal talks present the best available means for achieving an agreed, just, and lasting settlement of the Cyprus problem. However, the inter communal talks have encountered a number of difficulties and stumbling blocks. All through the process of the intercommunal talks conducted under the auspices of the United Nations since 1975, the Greek Cypriot side assumed that a unitary ‘Government of Cyprus’ still existed and that the Greek Cypriot administration was that ‘Government’.
Towards Declaration of Statehood
Authors: Necatigil Zaim M
Published: November 2023

On 18 October 1981, Mr A Papandreou, the new Greek premier, was quick to declare that his government would give stronger support to the ‘Republic of Cyprus’. He said that the current talks between Greek Cypriots and Turkish Cypriots, under United Nations auspices, were of little value. The Greek Cypriot side was in effect negotiating with Turkey, whose ‘forces occupy the northern part of the island’, rather than with the Turkish Cypriots themselves.
Statehood and Recognition
Authors: Necatigil Zaim M
Published: November 2023

It was often asserted that the formation of a new state was a matter of fact and not of law This proposition was thought to follow from the fundamental premise of the so-called ‘constitutive’ theory of recognition, which held that ‘a State is, and becomes an International Person through recognition only and exclusively It is through recognition, which is a matter of law, that such new State becomes subject to International Law. As soon as recognition is given, the new State’s territory is recognized as the territory of a subject of International law, and it matters not how this territory is acquired before the recognition.
Developments after the Summit of 1985
Authors: Necatigil Zaim M
Published: November 2023

After the failure of the summit the Turkish Cypriot side proceeded towards consolidation of the independent Republic. The Constitution was adopted by the Assembly on 12 March 1985. A referendum was held on 5 May 1985. The Constitution was published in the Official Gazette on 7 May 1985. On the other side of the ‘Green Line’, Mr Kyprianou faced strong opposition. The communist AKEL party of Mr Ezekias Papaioannou and the Democratic Rally (DISI) of Mr Glafcos Clerides accused him of being responsible for the failure of the summit. On 22 February 1985, AKEL and DISI parties joined forces in the Greek Cypriot House of Representatives in securing a resolution that censured Mr Kyprianou for his handling of the Cyprus problem and called on him to abide by the views of the majority or else proclaim early presidential elections.
Administrative Law
Authors: Zamir Itzhak
Published: November 2023

In Israel, administrative law is, in a sense, more than just administrative law. It accounts for many of the norms and values which make Israel a free society governed by the rule of law. In many countries this may be attributed to constitutional law. In Israel, however, in the absence of a written constitution,1 basic principles such as the rule of law, individual freedoms, equality before the law, and fair government originated in administrative law, mainly through judicial review of administrative action.
Protecting Fundamental Rights in Israel without a Written Constitution
Authors: Zysblat Allen
Published: November 2023

For the first forty-five years of its existence, Israel lived without a written constitution or any other written statement of the basic rights and freedoms of its citizens. The decision of Israel’s Knesset to postpone the attempt to forge a legislative balance between public authority and individual freedoms1 meant that the task of safeguarding the basic liberties in Israel-as in England-was left to the courts.2
The New Basic Laws on Human Rights: A Mini-revolution in Israeli Constitutional Law?
Authors: * David Kretzmer
Published: November 2023

Until the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty were enacted in 1992 Israel had no bill of rights. Pursuant to the 1950 Harari Resolution, according to which Israel’s formal constitution would be drawn up in a piecemeal fashion by a series of basic laws, basic laws were enacted covering virtually all aspects of Israel’s constitutional system. However, these basic laws did not include a basic law on civil liberties or human rights.
Basic Law: Human Dignity and Liberty
Authors: Zamir Itzhak , Allen Zysbla T
Published: November 2023

Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.1
Conflict of Interests in the Public Service
Authors: Zamir Itzhak , Allen Zysbla T
Published: November 2023

‘It is a fundamental rule in our legal system that a public servant must not be found in a situation of conflict of interest.’ Thus held Barak J in the landmark judgment in the ‘Likud’ Faction case. The rule had already been embodied in legislation and in judicial decisions regarding various public officials, but only in the Likud decision did the rule receive a thoroughgoing theoretical framework.
Administrative Procedure Amendment (Statement of Reasons) Law 1958
Authors: Zamir Itzhak , Allen Zysbla T
Published: November 2023

In the cases referred to in subsection (b), the public servant shall notify the applicant in writing as soon as possible, but not later than three months from the date of receipt of the application, for which of the said reasons he refrains from replying in time, and shall bring the notification to the knowledge of his superior. Where the reason is one of those mentioned in paragraphs (2) and (4) of subsection (b), the notification shall also indicate the time allotted for the reply or consideration; and where the reason is that mentioned in paragraph (3) of subsection (b), the notification shall give details as far as possible.
Administrative Offences Law, 1985
Authors: Zamir Itzhak , Allen Zysbla T
Published: November 2023

The Minister of Justice may determine by regulations that an offence against a provision enacted by any of the Laws enumerated in the Schedule or by regulations under any such Law, other than a felony, shall be an offence for which a fine may be imposed administratively (hereinafter referred to as an ‘administrative offence’). The determination may be general or subject to conditions or restrictions.
Administrative Contracts and Promises
Authors: Dotan Yoav
Published: November 2023

As in other areas of Israeli administrative law, the basic principles governing administrative contracts were inherited from the English legal tra¬dition. The law in England limits the power of any administrative authority to create contractual obligations involving its governmental powers. I The rationale for this rule is that contractual promises by an administrative authority as to its public functions would unlawfully fetter future executive action.
Major (Res.) Yehuda Ressler, Attorney and others v. Minister of Defence
Authors: Shamgar P , Ben Porat DP , Barak J
Published: November 2023

Is the deferment of military service for yeshiva students lawful? This ques­tion-which has been submitted to this Court in the past-now arises before us again for renewed consideration. Should we examine this case on its merits or should the petition be rejected on the ground of lack of stand­ing or non-justiciability? And if we address the merits-is the deferment of military service lawful?
Public Imprisonment By Private Meanss
Authors: Mcdonald* Douglas C
Published: November 2023

Although privately operated imprisonment facilities were commonplace in previous centuries in England and the United States (Holdsworth 1922-4: 397; Crew 1933: 50; McKelvey 1977: 197-216; Feeley 1991), by the twentieth century, governments had assumed responsibility for nearly all imprisonment and most other criminal justices functions. Indeed, the principle of public responsibility for the administration of justice---and especially for imprisonment--has become so well established that imprisonment is seen by many as an intrinsic function of government (American Bar Association 1989: 3; Dilulio 1990: 172-7; Robbins 1988: 44; Howard League for Penal Reform 1990: 3). Beginning in the mid-1980s, however, a debate emerged in the United States, Britain, and in some other English-speaking countries over the propriety of governments contracting with private firms to operate and even own prisons, jails, and other places of imprisonment.
Racial Disproportion In Us Prisons
Authors: Tonry* Michael
Published: November 2023

Outside the United States, probably the best known characteristics of America’s correctional system are that capital punishment continues in use and that American incarceration rates are four to 15 times higher than those in other developed countries. Within the United States, the most notable characteristics are the absolute numbers in confinement and that they are disproportionately black. Blacks in 1991 made up 12 per cent of America’s population but 48 per cent of both prison and jail inmates. Forty per cent of the occupants of ‘death row’ on 31 December 1991 were black. In public juvenile facilities in 1989, 48 per cent were black. Americans of Hispanic origin, by contrast, America’s second largest minority group, in 1991 constituted 9 per cent of the general population, 13 per cent of the prison population, 14 per cent of the jail population, and 8 per cent of the death row population.
The International Covenant on Economic, Social, and Cultural Rights
Authors: Craven Matthew C R
Published: November 2023

Despite their formal legal recognition in a number of international instruments since 1945, economic, social and cultural rights have long been marginalized and ignored as a category of human rights. This is particularly apparent with respect to the International Covenant on Economic, Social and Cultural Rights alongside its sister covenant `The International Covenant on Civil and Political Rights’. This study represents the first detailed examination of the origins and development of the ICESCR, drawing in particular upon the work of the United Nations Committee on Economic, Social and Cultural Rights. The author addresses in detail particular aspects of the Covenant such as the role of the Committee in the supervision process, the nature of state obligations, the principle of non-discrimination, and the rights to work, to join and form Trade unions, to housing and to food. This original and scholarly work offers a timely examination of an increasingly significant human rights instrument, and will be of value to all those interested in Human Rights and International Law.
The Right to an Adequate Standard of Living
Authors: Craven Matthew C R
Published: November 2023

Article 11 is one of the most wide-ranging and general of the articles in the Covenant, encompassing a host of concerns that are usually addressed in the context of State ‘development’. There is no doubt that the right to an adequate standard of living, including the rights to food, housing, and clothing is of paramount importance not least because at minimum levels it represents a question of survival. It is also true to say that the right to an adequate standard of living has been violated ‘more comprehensively and systematically than probably any other right'.1 That the realization of the right is overlaid by issues of economic development, agrarian reform, prin­ciples of nutrition, international trade, and aid (to name but a few) poses a challenge to the Committee that may serve as an acid-test of its effective­ness as the principal supervisory body to the Covenant.
The Authority to Establish and the Need for International Administrative Tribunals
Authors: Amerasinghe C F
Published: November 2023

While it may be established that a real and binding legal system, namely the internal legal system of each international organization, governs the relations between staff members and the international organization which employs them, the question may be raised whether there should not be some binding form of judicial settlement of internal disputes arising from the employment relationship within an international organization. This, in turn, raises the issue whether international organizations have the authority to set up and establish internal courts, such as administrative tribunals, to settle employment-related disputes and what is the source of this authority. It should be recognized that judicial settlement is different from other forms of decision or settlement by administrative or legislative organs of international organizations, since judicial settlement by its very nature is supposed and likely to be non-partisan, impartial, and stamped with the mark of independence. Indeed, without judicial machinery it is unlikely in general that these objectives could be achieved.
Equity
Authors: Amerasinghe C F
Published: November 2023

There are many senses in which the term ‘equity’ or ‘equitable’ may be used. First, in a very technical sense equity denotes the parallel system of justice associated with Anglo-American law which was originally intended to supplement the common law. Though this sytem is no longer administered in separate courts, the rules or principle emanating therefrom are still described as equitable. Such rules and principles are, nevertheless, rules and principles of law and may be applied by international administrative tribunals. But when this happens, rules and principles of equity in the narrow sense become applicable as general principles of law, though they may be found to exist in the Anglo-American system of equity. Generally, they will become applicable, because they are parallelled in essence, at least, if not exactly, in other systems of law as well, and are not confined to the Anglo-American legal systems.
Termination of Appointments for Unsatisfactory Service
Authors: Amerasinghe C F
Published: November 2023

The termination of an appointment, particularly a permanent, regular, or indefinite appointment, in an international organization, for unsatisfactory service, can be a matter of serious concern to the staff member affected, as it means that a hoped-for career is brought to an end and in some cases, because of the reasons underlying the termination, the staff member may find it difficult to find alternative employment. On the other hand, the international organization by which such a staff member has been employed would certainly like to have the unfettered power to terminate a staff member’s appointment for unsatisfactory service in the interest of the efficient working of the organization. Considering the serious implications of a termination of employment of a permanent nature in an international organization, it is surprising that the total number of cases brought by affected staff members before international administrative tribunals in which staff members of international organizations have complained of unlawful termination of their permanent, regular, or indefinite appointments on the grounds of unsatisfactory service is small. There have also been only a few cases brought before tribunals where other kinds of appointments have been terminated.
Disciplinary Measures
Authors: Amerasinghe C F
Published: November 2023

International organizations are generally empowered by their written law to take disciplinary measures against staff members in case of misconduct. Most Staff Regulations and Staff Rules have fairly detailed provisions relating to such measures. The Staff Regulations of the UN provide in Article X that: Regulation 10.1: The Secretary General may establish administrative machinery with staff participation which will be available to advise him on disciplinary cases. Regulation 10.2: The Secretary General may impose disciplinary measures on staff members whose conduct is unsatisfactory.
Remedies: The Error in Lister v. Stubbs
Authors: Millett Sir Peter
Published: November 2023

An agent who receives a bribe or secret commission in breach of his fiduciary duty is accountable in equity to his principal for the benefit which he has received. The principal has a personal remedy. The question which it is proposed to consider in this paper is whether, and if so in what circumstances, the law should also give him a proprietary remedy. From the principal’s point of view, such a remedy has several advantages. It avoids the need for what in some cases could be difficult and costly accounts and inquiries; and enables the principal to recover not only the amount of the bribe or secret commission but the increased, value of any property in which it has been invested, follow it into the hands of a subsequent recipient, or where the fiduciary is insolvent recover it in full in priority to his creditors.
The Principal Questions
Authors: Cornish W R
Published: November 2023

The subject under consideration appears to stand at two frontiers of liability: (i) it raises questions about the appropriateness of using the machinery of civil litigation as a deterrent against dishonest and otherwise improper conduct of a particular sort; and (ii) it poses issues about the proper scope of restitutionary claims to remedy wrongs, particularly in respect of proprietary remedies. Sir Peter Millett’s paper is concerned with the second of these frontiers, being a spirited argument in favour of proprietary as well as personal remedies to undo bribery and secret commissioning in private transactions. Professor Birds, by looking at a range of recent cases, has drawn attention to aspects of both questions. To my mind, the first question is the more profound and difficult. What one thinks about the second may in the end follow from one’s position on the first. I shall accordingly address them in that order.
Introduction
Authors: Eeckhout Piet
Published: November 2023

In the course of 1985 and 1986 the institutions of the European Communities (hereafter ‘Community’) devised and set in motion a programme to complete the Community’s internal market by 31 December 1992. Much has been said about this programme, but its most important stages should nevertheless be very briefly reviewed.
International Trade in Services and Community Law
Authors: Eeckhout Piet
Published: November 2023

This chapter serves as a general introduction to the three following ones, which deal with the external dimension of the completion of the internal market in three specific services sectors. It is necessary to include such an introduction, because otherwise a number of general issues would not stand out sufficiently.
Transport Services: The Test Case of Civil Aviation
Authors: Eeckhout Piet
Published: November 2023

From the perspective of international trade, the transport sector is in economic terms one of the most important services sectors. The regulation of transport activities in the Community is also an important segment of the internal market programme. The question of how the Community defines the external dimension of the internal transport market therefore arises almost automatically. One could examine this question for all the different transport modes, namely by sea, by air, by road, by train, and by inland waterways. However, that approach is not followed here. If it were, one would quickly discover that the Community has until now developed only a few external policies relating to transport. That is not illogical in view of the fact that it took a lot of time, in spite of the fact that the EC Treaty envisages a Common Transport Policy, before the Community started to regulate even the intra Community provision of transport services on a comprehensive scale.
Public Procurement
Authors: Eeckhout Piet
Published: November 2023

Governments are, in all their branches, important buyers of goods and services. It has been calculated that within the Community public procurement amounts to 15 per cent of GDP. At the same time, there are strong indications that governments continue, in this field, to use their purchasing power in order to favour domestic undertakings, often creating so-called national champions, and thus to discriminate against imports. In spite of the existence of a common market within the Community since the end of the transitional period (1970), entailing free movement of goods and services, this observation is equally valid for the procurement policies of the Member States. One need not be an accomplished economist to realize that such discriminatory policies generate a significant ‘cost of non-Europe’. The fact that domestic undertakings are being preferred as government suppliers, to the detriment of lower-cost imports, increases government spending.
Rules and Regulation
Authors: Baldwin Robert
Published: November 2023

This and the following chapter consider how governmental rules can be designed and enforced, particularly in the sphere of regulation. The focus is on experience in regulating workplace health and safety but more general lessons will be drawn from the case study described. This chapter amounts to a description of how mistakes in rule design can occur. It looks at the evolution of the present system of regulating health and safety at work and notes especially the development of a particular approach to governmental rules. An assessment of that approach is offered. Chapter 6 examines the enforcement of health and safety regulation on the ground and considers the importance of rule-design in enforcement. It asks why it is that rules often fail to work, how effective rules can be designed, what it is that impedes the making of effective rules, and how securing compliance is linked to producing desired results. Finally, I consider how values other than efficiency can be reflected in designing rules.
Rules and Economic Appraisals
Authors: Baldwin Robert
Published: November 2023

Is there a case for using assessments of costs and benefits to appraise not the drafting of a rule but the broad justification for introducing a rule? Is there, moreover, a governmental role for such assessments in spite of arguments for satisfying values other than efficiency?

This chapter considers developments in the cost-benefit and compliance-cost testing of rules in the USA and in Britain. It reviews the theoretical and practical issues raised and assesses the possible contribution of economic appraisals to questions of rule choice.
The Scottish Procurator Fiscal Service: The Reluctant Sentencers
Authors: Fionda Julia
Published: November 2023

The Scottish criminal justice system has enjoyed the advantages of a public prosecution system, with independent prosecutors working in the public interest, for a good deal longer than England and Wales. The term ‘procurator fiscal’ dates back to early feudal courts where it referred to the representative of the local Lord, in a court presiding over civil matters. In criminal matters, the Sheriff originally acted as prosecutor and judge, but some time later his role was separated and the term ‘procurator fiscal’ was used to describe the prosecutorial part of the role.1 It was the Sheriff Courts (Scotland) Act 1876 which gave prosecutors the full responsibility in law for the prosecution of all criminal offences, but Moody and Tombs (1982) suggest that, in practice, these functions were delegated to fiscals, by the Sheriffs, considerably earlier than this.2 Hence the office of public prosecutor has been developing gradually in Scotland over the last century, and the fiscal service which exists today presents a very different picture to that of the Crown Prosecution Service of England and Wales, set up comparatively recently in 1986.
The Right of Self-determination
Authors: Mccorquodale Robert
Published: November 2023

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its means of subsistence.
Immigration and Freedom of Movement
Authors: Mole Nuala
Published: November 2023

Consideration of any country’s compliance with international standards concerning freedom of movement should always begin by recalling that nowhere in international law is there to be found a general right to move freely across frontiers or for persons to enter or remain on the territory of a state of which they are not a national. A key attribute of sovereignty is, and always has been, the right to grant or refuse aliens access to one’s territory.
Freedom of Expression
Authors: Feldman David
Published: November 2023

This chapter examines the extent to which the law of the United Kingdom complies with the requirements of Articles 19 and 20 of the ICCPR. Article 19 is a general provision which brings together the autonomy-related approach to individual rights under the Covenant with the participation related approach: freedom of expression and its associated rights to obtain and to impart information allow people both to hold and assert their own views and attitudes, as an exercise of the autonomy of the individual, and to participate in a worthwhile way in the processes of politics and government. Article 20, by contrast, is a response to a particular problem, that of nationalism and incitement to hatred of ethnic and religious groups, which had been current for many centuries but which was particularly obvious in the light of the Nazi horrors perpetrated by Hitler and his followers during Germany’s Third Reich. This chapter first examines the extent to which the United Kingdom meets the requirements of Article 19. This involves considering the extent to which restrictions of freedom of expression are justifiable by reference to the objectives set out in Article 19(3). Finally, the chapter evaluates the United Kingdom’s compliance with Article 20, and the relationship between the state’s obligations under Article 20 and people’s rights under Article 19.
Landlord and Tenant Issues
Authors: Cardwell Michael
Published: November 2023

Since milk quotas, from their inception in 1984, have been critical to the profitable operation of dairy enterprises and, moreover, quickly acquired an economic value, there can be little surprise that they have thrown landlord and tenant issues into sharp relief.2 Indeed, it may be seen as inevitable that tension should arise between the competing interests of the landlord, to whose land the milk quota is ‘linked’, and the tenant, who as a rule will be the occupier and registered producer. For example, a landlord will be eager to preserve that link. He will also share with the tenant concern as to the effect of quota on the rent - and this consideration is thrown into sharp focus where the tenant overtly turns the quota to account by means of temporary transfers. However, arguably the greatest source of conflict arises on the termination of the tenancy. In accordance with the general principle the quota in the United Kingdom reverts to the landlord or other incoming occupier and the tenant must look to compensation through statute or agreement for the protection of his interest.
Introduction
Authors: Anderson Malcolm , Boer Monica Den , Cullen Peter , Gilmore William , Raab Charles , Walker Neil
Published: November 2023

Co-operation over law enforcement in Europe has been on the international agenda for more than a century. The problems addressed at first were of a relatively small scale, as they concerned smugglers, itinerants and political anarchists. But improved means of transport and communication significantly widened the scope of criminal activities and of law enforcement initiatives. Although public concern about international terrorism has weakened some what since the 1980s, general alarm about organized crime, drug trafficking and illegal immigration now pervades sections of all West European societies. The governments of the West European states have been under increasing pressure to design an international co-operative machinery through which (organized) cross border crime could be combated effectively and efficiently. The European Community (EC) came to be thought of as a suitable vehicle for the various international law enforcement initiatives. This perception was reinforced by the prospect of abolition of internal border controls. This book analyses the development of a police facility for the European Union (EU) and the establishment of new forms of law enforcement co-operation for a ‘borderless Europe’. Although the problems associated with this development appear at first sight to be technical and administrative, closer examination shows that it lies at the very heart of the process of European integration and concerns crucial dimensions of state sovereignty. The permanent alliance and the integrated command structure of NATO, established in the post-1945 period, represented a remarkable shift away from the unfettered independence of state action in the military realm. Stable and institutionalized police co-operation, which is now emerging, offers the medium-to-long-term prospect of an equivalent change in the authority of the state in the domain of internal security.
The Political Theory of European Police Co-operation
Authors: Anderson Malcolm , Boer Monica Den , Cullen Peter , Gilmore William , Raab Charles , Walker Neil
Published: November 2023

In the present chapter, we broaden our perspective m order to address the macro-political context of European police cooperation. Our aim is to examine the nature of the relationship between, on the one hand, new transnational and supranational initiatives in the police sector, and on the other, macro-political trends towards integration within the EU and the more general reconfiguration of international relations. The analysis of the relationship between political integration and law enforcement co-operation within the EU contributes to a wider theoretical debate. It raises the general question of the relationship between the forms of policing and the forms of political life. To what extent, and in what manner, are policing arrangements within any society informed by, and informative of the broader institutions, practices and ideas in terms of which that society constitutes itself as a political entity? When social scientists and social theorists conduct this inquiry, they usually do so in either historical or counter-factual terms. They may engage in retrospective analysis of the manner in which the unfolding forms of political life within different societies have become interwoven with the development of a policing function (Robinson and Skaglion 1987). Alternatively, they may proceed by means of hypothetical discussion, attempting to gain insight into the broader significance of policing institutions by asking what difference it would make to the wider polity if such institutions had not evolved in their present form (Bittner 1971; Cohen 1985; Klockars 1985). Both methods have their short comings.
Controlling European Police Institutions
Authors: Anderson Malcolm , Boer Monica Den , Cullen Peter , Gilmore William , Raab Charles , Walker Neil
Published: November 2023

Police officers in police forces throughout the world are held accountable to internal supervisory officers for their conduct with respect both to the law and to organizational procedures and disciplinary standards. This internal monitoring is uncontroversial in principle. By contrast, the issue of external accountability to the courts and to other public agencies is much more complex and politically sensitive. As Reiner asserts, the question of who should guard the guardians, and how, ‘is one of the thorniest conundrums of statecraft’ (Reiner 1993: 1). In recent years, the external account ability of domestic policing systems has become a matter of considerable public debate in many Member States. This may be related to a more general erosion of confidence in national police institutions, for as Brogden et al. argue, ‘police accountability becomes an issue when there is public concern that the arrangements for ensuring the police perform satisfactorily any part of their role are not working’ (Brogden et al. 1988: 153). The aim of the present chapter is to examine the extent to which accountability is also at issue at the European level, and to evaluate the effectiveness of the mechanisms which presently exist for holding European police institutions to account. A brief critical overview of the current position is first provided. Next, an attempt is made to explain why these co-operative arrangements have emerged and continue to develop in such a limited form, leaving great uncertainty about how, to whom, and for what these organizations are accountable. In the light of this assessment, the chapter concludes by examining how the accountability of the developing network of European policing institutions might be improved.
Ministers of the Crown
Authors: Brazier Rodney
Published: November 2023

In the first work of its kind, Brazier successfully tackles the Herculean task of describing and evaluating contemporary Ministerial life and how it is affected by the law, constitutional convention, and political practice. Ministers of the Crown provides a detailed and concise description of the legal and political position of Ministers, and of their work within the contemporary British governmental system. It covers the daily work of Ministers in their departments and collectively in government; their benefits and pay; as well as how politicians prepare themselves for office and the legal and other qualifications which are required for appointment. Detailed coverage is given to Ministers as legislators, how Ministers are required to exercise their legal powers, and the position of Ministers as plaintiffs and defendants. Finally, the loss of office, and its consequences, is considered. As a detailed assessment of Ministerial life this book is invaluable, but Brazier's capacity to bring the Ministerial world to life using a wealth of contemporary and fascinating detail, transforms a potentially dry subject.
Ministerial Qualifications
Authors: Brazier Rodney
Published: November 2023

Certain conditions must be satisfied before a person may be appointed as a Minister. Typically of so many parts of the British constitutional system, these conditions are a blend of legal rules and conventional practices. Some of them will completely dis qualify a particular individual from joining any Government; a few will bar certain people from specific ministerial posts. As was seen in the previous chapter, Labour politicians face additional hurdles which they must clear before they may become part of a Labour Government; those requirements will not be repeated here. The purpose of this Chapter is to examine the other qualifications and disqualifications which govern appointments to ministerial office in Britain today.A Minister is a layman in his department. As a result, Ministers who are suddenly appointed to an office, or who are switched to departments, of which they know nothing would entirely understand Sir Edward Carson’s quip which he made on becoming First Lord of the Admiralty in 1916,4 when he said that ‘my only qualification for being put in charge of the Navy is that I am very much at sea’. A Minister brings political (and occasionally administrative) skills to his work, together with the policy objectives of his party and. any manifesto commitments which are relevant to his departmental work.
Ministers In Their Departments
Authors: Brazier Rodney
Published: November 2023

The purpose of this Chapter is to describe and analyse the position of Ministers within their departments. The Chapter outlines the ministerial relationships within a department, and there is a thumb-nail sketch of a ministerial day. The ways in which a departmental Minister receives advice are examined, with the emphasis on the constitutional functions of civil servants in relation to Ministers.
Ministers In Court
Authors: Brazier Rodney
Published: November 2023

Legal disputes are bound to arise between, on the one hand, the Government or government departments and, on the other hand, individuals, companies, and foreign states. As the political head of the department concerned, a Minister will have a role to play in many of those disputes. But Ministers are citizens, too: they may find themselves sued, or they may wish to sue, in their personal capacities, and they might face prosecution for breaches of the criminal law. A politician does not cease to have legal problems which beset other people just because he joins the Government, and indeed during the lifetime of the 1979 Conservative Administration several Ministers used the courts in order to assert their private rights. Such actions raised questions about the circumstances in which Ministers should, or may. obtain legal advice from the Law Officers, and about the use of public funds to meet legal costs. Ministers are expected to behave in their governmental and personal lives in a manner which is beyond reproach. They must obey conventional rules which aim to ensure that their personal affairs are beyond criticism. If they fall below those standards to a significant degree they may have to pay the political price of loss of office. But even a Minister who conducts himself impeccably in his private life will find himself or his department in the courts to defend actions brought against them by aggrieved persons or bodies for alleged wrongs.
Migrant Workers and their Families as Aliens: Development of International Law and Applicability of Universal and Regional Human Rights Instruments
Authors: Cholewinski Ryszard
Published: November 2023

The situation of aliens or foreigners seems ... to be one of the most serious, and at the same time most widespread. departures from the principle of the universality of human rights and one of the most manifest signs of intolerance and discrimination in our age. ‘The position of migrant workers and their families in international law is inextricably connected to their status as aliens. Any established international legal rules concerned with the protection of aliens are therefore relevant when endeavouring to gauge the degree of protection migrants may expect to receive. Rudimentary standards regarding the treatment of aliens have developed over time and have become part of the international law of state responsibility. More recently, these standards have been reinforced, elaborated. and effectively superseded by the international community ‘s recognition of rights pertaining to all human beings.
The United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
Authors: Cholewinski Ryszard
Published: November 2023

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) was adopted by the UN General Assembly without a vote on 18 December 1990.1 It is said to be the ‘culmination of [an] evolutionary process ‘ which has seen the development of universal standards protecting the rights of non-nationals. “ This process began, as examined in Chapter 2, with the endorsement of international human rights standards applicable to all human beings, the adoption of the UDHR and its ‘codification ‘ in the two UN Covenants. As observed in the previous chapter, the adoption by the ILO of international labour standards pertaining specifically to migrant workers, particularly Convention No. 143 of 1975, was a further step in this process.The question which begs an answer is whether the ICMW is indeed the culmination of this ‘evolutionary process ‘, or whether it falls short of affording adequate protection for migrant workers and their families. In gauging the extent to which it safeguards the economic, social, cultural, political, and residence rights of migrants, this chapter also seeks to answer the above question by comparing the standards in the ICMW with those of other international instruments examined earlier. References are also made, where appropriate, to some of the European instruments which are the focus of the European case study.