Current Legal Problems Volumes and Lectures

Current Legal Problems: Lectures 2014-15

The Current Legal Problems (CLP) lecture series and annual volume was established over fifty five years ago at the Faculty of Laws, University College London and is recognised as a major reference point for legal scholarship.

The continuing strength of Current Legal Problems is its representation of a broad range of legal scholarship opinion, theory, methodology and subject matter but with an emphasis upon contemporary developments of law. A particularly important feature of the lecture series that forms the basis of the annual volume is the participation of members of the judiciary who chair the lectures in a convivial and academic environment.

The lectures are held at the Faculty of Law, Bentham House, Endsleigh Gardens, London WC1 from 6-7pm (except the Inaugural Lectures) and are accredited by the Bar Standards Board and Solicitors Regulation Authority for 1 CPD hour (unless noted below). They are public lectures and are free of charge.


Forthcoming Lectures

Thursday 23 October 2014
More than just a different face? Judicial Diversity and Decision-Making

Professor Rosemary Hunter (University of Kent)
Chaired by Rt. Hon. Sadiq Khan MP

About this lecture
This lecture addresses a key question in debates around judicial diversity: what evidence is there that a more diverse judiciary will make a difference to substantive decision-making? The lecture will begin by outlining the range of arguments for a more diverse judiciary, which include but are not confined to making a difference to substantive decision-making. It will then turn to consider the considerable evidence which now exists both to refute and to support the existence of substantive differences in decision-making following the appointment of women and others from non-traditional backgrounds to the judiciary. On the basis of this evidence, it will draw conclusions as to the kinds of differences in decision-making which might be expected, and the circumstances under which different approaches to decision-making are likely to flourish.

About this speaker
Rosemary joined Kent Law School in September 2006, having previously taught at the University of Melbourne (1990-1997) and Griffith University (2000-2006) in Australia. During 1998-99. She worked as a Principal Researcher for the Justice Research Centre, part of the then Law Foundation of NSW. At Griffith she was Director of the Law School's Socio-Legal Research Centre (2000-2002) and then Dean (2003-2004). Rosemary's major area of research interest is in feminist legal scholarship. Within that, she has done work in family law, access to justice, domestic violence, women's employment (including women in the legal profession and women judges), anti-discrimination law, and dispute resolution. She is particularly interested in the interface between law and society, and people's encounters with the legal system. Much of her recent work has taken an empirical approach, or has sought to build feminist legal theory from empirical data. Rosemary's current major research project is the Feminist Judgments Project, which is a unique, imaginative collaboration in which a group of feminist socio-legal scholars have written alternative feminist judgments in significant legal cases. The project was funded by the ESRC. Further information can be found on the project website. She is also looking more generally at the practice of feminist judging.

Thursday 30 October 2014
Patient no Longer? What next in health care law?

Professor Jonathan Montgomery (UCL)
Chaired by The Rt Hon The Lord Toulson (UK Supreme Court)

About this lecture
Jonathan Montgomery’s inaugural lecture as Professor of Health Care Law argues that the ‘patient’ is no longer the main concept that defines the subject and organises its doctrines. His earlier work suggested that focus on the doctor-patient relationship had blinded commentators to important issues and allowed only a partial account of the roles of the law. Recent case law confirms that other paradigms are becoming important. The use of human rights arguments makes the immediate health care context less relevant. This feature is amplified by increasingly common permission for ’intervenors’ to make submissions showing how individual cases are linked to wider issues. This in turn is an example of a wider trend – the increasing use of health care litigation by groups and corporate bodies – which further dilutes the role of the ‘patient’ as an organising concept for the law. In the face of these developments, many of the reasons for traditional judicial protection of clinical freedom in English health care law ebb away. It is therefore not surprising that the courts are seeking to redefine their roles in regulating health care. If the patient is no longer the central concern of health care law, then it is appropriate that judges are less patient with the idea that there might be lowered scrutiny for health professional s compared to those working in other areas.

About this speaker
Jonathan Montgomery is widely recognised as both having redefined his subject area and made a significant contribution to its theoretical understanding. The three principal strands of his approach have been that (a) the subject area is better understood as ‘Health Care Law’ than ‘Medical Law’, (b) the widespread assumption that ‘medical law’ is concerned with subjecting doctors to legal regulation in order to promote ethical goals, misrepresents the practice of law-makers who have mostly sought to integrate professional norms into legal practice and reinforce them rather than challenge them, and (c) that more attention needs to be paid to the need to legitimate legal interventions in health care ethics.

In addition to his academic work, he has undertaken a number of significant public service roles. These currently include Chair of the Nuffield Council on Bioethics (the nearest the UK has to a national bioethics committee), Chair of the Health Research Authority (which protects and promotes the interests of participants, patients and the public in health research and aims to streamline its regulation) and being a member of the panel of advisers to the Morecambe Bay Investigation, due to report in late 2014.

Previous national chair roles include the Advisory Committee on Clinical Excellence Awards (2005-14) and the Human Genetics Commission (2009-12). He served on local NHS boards in Hampshire and the Isle of Wight for over twenty years up to March 2013 (fifteen as a chairman).. He chaired the UK Clinical Research Collaboration Working Party on a Strategy for Brain Tissue Banking, was a member of the Committee on the Ethical Aspects of Pandemic Influenza and the Organ Donation Taskforce (for its work on presumed consent in 2008). He has contributed to a wide range of professional guidelines and was a member of the Medical Ethics Committee of the British Medical Association from 2003 to 2008.

His publications include a previous Current Legal Problems lecture ‘Time for a paradigm shift? Medical law in transition’ (2000) 53CLP 363-408 and ‘'Hidden law-making in the province of medical jurisprudence' (2014) 77(3) Modern Law Review 343-378 (with C Jones and H Biggs). He was consulting editor for Volume 30(1)Medical Professions of Halsbury’s Laws of England (5th ed 2011) and has been one of the General Editors of the Butterworths Family Law Service since 1996.

Thursday 27 November 2014
Pay (in)equity and agent (dis)incentives

Dr Marc T. Moore (University of Cambridge)
Chaired by Professor Charlotte Villiers, Bristol


About this lecture
It is trite that recent decades have seen an explosion in levels of senior executive remuneration in public companies, both absolutely and relative to ordinary worker pay. A conspicuous corresponding trend over recent years, though, has been the development of a range of countervailing regulatory tools designed to mitigate this disparity within various national environments. These include regulatory pay ratio caps, bonus bans, and mandatory pay ratio disclosures. Notwithstanding these salient developments, prevailing legal and economic debates on executive and worker pay remain rooted in the dominant principal-agent paradigm of corporate governance, which consistently disputes the relevance of equitable or distributive fairness concerns to the essentially functional challenge of determining effective agent incentives. In this lecture I will take issue with the orthodox principal-agent perspective on pay equity, by demonstrating the centrality of equitable concerns to effective agent-incentive design, both at senior executive and ordinary worker levels.

About this speaker
Dr Marc Moore is a Reader in Corporate Law at the University of Cambridge. Marc, who studied law at the University of Glasgow and obtained his PhD from the University of Bristol, has significant experience of teaching and researching corporate law at a number of academic institutions. Dr Moore is coming to Cambridge from University College London, where he was Senior Lecturer in the Faculty of Laws. Previously, he taught at the University of Bristol and was in 2011 visiting lecturer in the Adolf A. Berle, Jr. Center on Corporations, Law & Society based at the Seattle University School of Law. Dr Moore's principal research interests relate to Anglo-American corporate governance, capital markets, law & economics, and theory of the firm. In 2012, he was awarded a prestigious Philip Leverhulme Prize in recognition of his substantial and acknowledged contribution to his field of study. In 2013 Dr Moore's book, Corporate Governance in the Shadow of the State was shortlisted for the SLS Peter Birks Prize for Outstanding Legal Scholarship.

Thursday 4 December 2014
Rethinking 'economic' derogations and justifications under the EU's free movement rules: Proposals for a new approach and a taxonomy

Professor Sue Arrowsmith (University of Nottingham)
Chaired by Professor Paul Craig, Oxford


About this lecture
The European Court of Justice has stated in many cases a general principle that “economic” aims do not fall within the explicit derogations from the Treaty’s free movement rules, and also cannot constitute mandatory requirements or imperative reasons in the public interest that can justify measures that hinder trade. This general principle has since been invoked in practice by the Court in dealing with measures that have a wide variety of different aims.

It is contended, however, such a general principle is not appropriate for many of these cases and also is not appropriate for dealing with other types of aims (not yet considered by the Court) that could be termed as economic in a broad sense. Rather, a principle that economic aims cannot be used at all as justification for state measures should be applied only to certain very limited types of economic aims, of a kind that were addressed in the Court’s early case law on this subject – mainly measures directed at securing a market advantage (whether temporary or permanent) for national industry that is not competitive. Based on the historical evidence this, it is contended, is what was envisaged when the principle regarding economic aims was originally laid down by the Court.

Other aims that have been, or could be, termed by the Court as “economic” should be dealt with differently. Thus it is suggested, for example, that some of these should be accepted in principle as falling with explicit derogations or as mandatory requirements/imperative reasons in the public interest (although they may be difficult to invoke in practice), whilst others (certain measures affecting public procurement, such as product quality requirements and award criteria relating to price and quality) should not be regarded as restricting access to the market at all (the doctrine of “excluded buying decisions”): hence no justification will be required.

This paper will propose a taxonomy of the different kinds of measures that are economic in a broad sense, and propose for each different approaches to their treatment under the free movement rules.

About this speaker
Professor Sue Arrowsmith has a first class honours degree in Jurisprudence from Oxford University and a Doctorate in Jurisprudence from Osgoode Hall Law School, Canada. She is currently Director of the Public Procurement Research Group in the School of Law, University of Nottingham, and is also an Adjunct Professor at Copenhagen Business School and a Foundation Professor of the Chartered Institute of Purchasing and Supply (CIPS).

Her numerous publications on public procurement have been extensively cited by courts and in legislative texts in North America, Asia and Africa as well as throughout Europe. Her recent authored books include The Law of Public and Utilities Procurement (Sweet & Maxwell, 2nd ed 2005); (with Linarelli and Wallace) Regulating Public Procurement; National and International perspectives (Kluwer, 2000); and Government Procurement in the WTO (Kluwer, 2003). She is Founding Editor of the first international academic journal on public procurement, Public Procurement Law Review, and in 1996 launched the international and inter-disciplinary series of academic/practitioner conferences "Public Procurement: Global Revolution". She has taught university modules on international and comparative public procurement since 1995, and has presented papers in more than 30 countries.

In 2007 she was awarded the CIPS Swinbank Medal for her contribution to thought innovation in purchasing and supply, the first woman to receive this medal in its 56 year history. She has been involved in procurement law reform for many years as a member (since 1997) of the European Commission's, Advisory Committee for the Opening Up of Public Procurement; as a member of the UNCITRAL Experts Group on Procurement; and as a consultant and trainer for many national and international bodies, including the UK Office of Government Commerce, WTO, European Commission, OECD, EU, European Central Bank, ILO and the Law Commission of England and Wales. She is Project Leader of the European Commission-funded Asia Link project for developing a global academic network on public procurement regulation.

Thursday 11 December 2014
Mapping a new regulatory space: The case of managing water scarcity in the UK

Associate Professor Bettina Lange (Oxford)
Chaired by Professor Maria Lee, UCL


About this lecture
This paper discusses key elements of an empirical socio-legal research project which analyses the legal regulation of water resources in the UK. Climate change is associated with increasingly severe weather events, that give rise to alternating periods of flooding and drought, with these being significant also in the UK, as witnessed during the winter 2013/4 floods and the 2010-12 drought, which affected in particular the South-East of England.

The research project develops a critical analysis of legal regulatory strategies for preventing and managing water scarcity in the UK, and drought specifically. The key objective  is to understand how specific economic and environmental science knowledge  practices, such as cost-benefit analysis and strategic environmental assessment, inform the choice of particular drought management options, such as drought orders and temporary water use bans. The paper argues that we need to map the configuration of the new regulatory space of water scarcity management in order to understand how various knowledge practices become discursive resources that mediate power relationships between actors in the regulatory space. Developing this perspective opens up new ways of thinking about the relationship between legal regulation and knowledges. The search for a regulatory solution to drought is often framed as a matter of understanding how an evidence base enables the strategic and instrumental choice of a drought management option. In contrast to this, a regulatory space perspective informed by discourse ideas enables to understand drought management strategies as embedded in environmental science and economics knowledge practices. 

About this speaker
Bettina Lange joined the Law Faculty and Wolfson College in July 2007, having previously worked in the law departments of Aberystwyth and Keele University, UK. She trained in law and sociology at Warwick University, UK and before that studied for two years law at the Justus-Liebig Universität, Giessen, Germany. Her research examines legal regulation from a socio-legal perspective. She is currently working on a project on the invocation of emotion discourses in the legal regulation of genetically modified organisms in UK agriculture. This project investigates the role that appeals to emotions play in the administrative legal decision-making procedure about the release of GMOs into the environment under UK and EU law. She also works together with Prof. Nafsika Alexiadou (Umea University, Sweden) on a research project which examines different styles of policy learning in open methods of co-ordination as applied to education policies in the European Union. This project examines how the European Union seeks to enhance its governance capacity in relation to education policies in the EU through soft regulatory tools, such as policy learning. Bettina was a Jean-Monnet Fellow at the European University Institute, Florence, Italy from September 2004 to January 2005. She  has conducted consultancy for the Environment Agency in England and Wales and is a member of the Advisory Board of the Centre for Environmental Law of Landmark Chambers. Her core research interests are - EU, UK and German environmental regulation - Qualitative empirical socio-legal research methods, including discourse analysis - The application of new modes of European governance to education policies - Socio-legal theories of regulation, including the role of emotions in regulatory processes. Her research has been funded by the British Academy, the ESRC, the SLSA and the John-Fell Fund. She serves on the editorial board of  Law and Policy, the Oxford Journal of Legal Studies and the European Journal of Risk Regulation.

Thursday 22 January 2015
Constitutionalising Labour Rights: Freedom of Association, Collective Bargaining and Strikes

Professor Judy Fudge
Chaired by Professor Diamond Ashiagbor, SOAS


About this lecture
Advocates of labour rights argue that constitutional protection of the freedom of association should be interpreted to include the rights to bargain collectively and to strike. They invoke international and transnational human rights instruments, as well as the observations of the International Labour Organization’s supervisory bodies, as normative resources that can be used by constitutional courts to advance such an interpretation. In a series of decisions beginning in 2007, transnational courts in Europe and Canada’s constitutional court have begun to invoke these international norms when interpreting the freedom of association to include these labour rights. However, not only have these decisions provoked a backlash, they also seem to have reached their apogee. In June 2012, the Employers’ Group, one of the three constituents of the ILO, interrupted the usual proceedings of the annual International Labour Conference (the ‘legislative’ forum) to challenge the right to strike. Both the European Court of Human Rights and the Canadian Supreme Court have retreated from an expansive interpretation of freedom of association that tracks the positions of the ILO’s supervisory bodies. Adopting a forensic, rather than a normative, approach to recent attempts to constitutionalise ‘collective’ labour rights, this paper argues that the problem with this strategy for securing labour’s distinctive rights to bargain collectively and to strike is that it tends to focus exclusively on norms and values, and ignores the institutions and instrumentalities needed to put rights to work.

About the speaker
Judy joined Kent Law School in September 2013. She began her academic career at Osgoode Hall Law School in 1987, where she stayed until 2006, when she became Lansdowne Chair and Professor at the Faculty of Law at the University of Victoria, Canada. Judy has a BA (Hons) in philosophy from McGill University, an MA in philosophy form York University (Canada), an LLB from Osgoode Hall Law School, and a DPhil in law from the University of Oxford. Judy was elected as a fellow of the Royal Society of Canada in 2013 for her contribution to labour law scholarship. 

Judy’s books include Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900 to 1948 (with Eric Tucker); Temporary work, agencies, and unfree labour: Insecurity in the new world of work (with Kendra Strauss); Challenging the Legal Boundaries of Work Regulation (with Kamala Sankaran, and Shae McCrystal); Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (with Fay Faraday and Eric Tucker);Work on Trial: Canadian Labour Law Struggles(with Eric Tucker); and Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (with Rosemary Owens)

Thursday 29 January 2015
Habeas Corpus and the Rule of Law

Professor Michael Lobban, LSE
Chaired by Professor Philip Schofield, UCL


About this lecture
If the rule of law was one of the main pillars of the English constitution in the eyes of Victorian jurists, its crowning glory was the writ of habeas corpus, which ensured that no one could be deprived of their liberty save by law. This paper will explore the various ways in which this was used at the end of the nineteenth and in the early twentieth century. It will seek to shed some light on how Dicey’s contemporaries understood and applied the ‘rule of law’ and will also suggest that a historical analysis uses of the writ may offer some answers to questions which have arisen in more recent cases.

About the speaker
Michael Lobban is Professor of Legal History, having joined the Department of Law in 2013. After finishing his doctorate at Cambridge University, he held a Junior Research Fellowship at St. John’s College, Oxford. From 1991 to 1996, he taught in the department of law at the University of Durham, before moving first to Brunel University (1997-2000) and then to Queen Mary, University of London..

Thursday 5 March 2015
A post-European British Constitution: plus ca change?

Dr Mark Elliott, University of Cambridge
Chaired by Lord Reed, UK Supreme Court

About this lecture
The United Kingdom’s constitution is fast approaching a fork in the road that separates two paths leading to different constitutional futures. The first path represents a continuation of our journey as part of the mainstream of European nations that are parties to the European Convention on Human Rights and members of the European Union. The second path represents the constitutional journey that would be undertaken if the UK were to withdraw from the ECHR or the EU. In this lecture, I will argue that although the fork in the road is one of historic significance, and that choosing the second path would lead us into uncertain constitutional territory, the UK system would nevertheless remain profoundly influenced by the constitutional changes wrought by our long-standing membership of the Council of Europe and the EU. A post-European British constitution would be significantly distinct from its pre-European counterpart, and the normative legacy bequeathed to the UK by its European associations would likely, at least some extent, survive institutional withdrawal. And while the significance of this point will be greater if the non-European path is chosen, it is in fact relevant to our understanding of the British constitution whichever of the two paths represents our constitutional future.

About the speaker
Dr Elliott was appointed to a fellowship at St Catharine's College, Cambridge, in 1999 and to a lectureship at the Faculty of Law in 2000. He has taught at Cambridge since then, where he is now Reader in Public Law. He is a member of the Faculty's Centre for Public Law and was the Legal Research Foundation Visiting Scholar at the University of Auckland, New Zealand, in 2011. He is also a Fellow of the Bingham Centre for the Rule of Law, which is part of the British Institute for International and Comparative Law, and the co-convener of a major international conference on public law which will take place in Cambridge in September 2014, bringing together leading scholars from across the common law world. Mark has published across a broad range of topics within the general field of public law, addressing areas including judicial review, devolution, local government, parliamentary sovereignty, judicial control of prerogative power, public sector ombudsmen, tribunals, public inquiries, the constitutional implications of the "war on terror" and the nature and implications of bills of rights. His work is animated by an underlying concern to draw together constitutional theory and public law doctrine in ways that allow each to gain from and feed into the other

Thursday 12 March 2015
Common Law and Statute in the Law of Employment

Professor Alan Bogg, University of Oxford
Chaired by Lord Justice Elias



About this lecture
How should judges develop the common law where Parliament has 'occupied the field' through statutory regulation? This is an important enquiry, particularly given the modern prominence of legislation as a form of law-making in the sphere of labour law. In Johnson v Unisys, Lord Hoffmann controversially invoked constitutional principle to halt the development of the common law of wrongful dismissal in the face of a statutory right not to be unfairly dismissed. In many respects, Lord Hoffmann's reasoning stands apart from an influential thesis that the common law should be developed naturally in the law of obligations, with the onus on Parliament to intervene and reverse common law developments where it is thought appropriate to do so. In this lecture, I argue against that view. Using examples from labour law, it is suggested that Lord Hoffmann's approach in Johnson v Unisys embodies a set of constitutional instincts that generate an appropriate set of attitudes towards common law development in areas where Parliament has legislated. These instincts are sensitive to the distinctive nature of labour law, which sets it apart from the general law of obligations.  

About the speaker
Alan received his undergraduate and graduate education in Oxford, being awarded his BA in Law (first class) in 1997. Thereafter, he was awarded the degrees of BCL (first class) and DPhil. Following a period as a lecturer at the University of Birmingham, Alan returned to Oxford in 2003 to take up his fellowship at Hertford College. Alan's research focuses predominantly on theoretical issues in domestic, European and International labour law. His book 'The Democratic Aspects of Trade Union Recognition' was published in 2009 by Hart Publishing. It was awarded the SLS Peter Birks' Prize for Outstanding Legal Scholarship in 2010. The book has been reviewed in the Cambridge Law Journal, Law Quarterly Review, Modern Law Review, Industrial Law Journal, British Journal of Industrial Relations, International Journal of Law in Context, Industrial Relations Journal (UK), Journal of Industrial Relations (Australia), Osgoode Hall Law Journal, and Canadian Journal of Employment and Labour Law. Additionally, his work in labour law has been published in a wide variety of international journals.

Thursday 19 March 2015
Dishonesty and Information Provision in the bureaucratic state

Professor Jeremy Horder, LSE
Chaired by Professor David Ormerod QC, Law Commissioner

About this lecture
Professor Horder will use an examination of the concept of dishonesty in criminal law as a way of considering a broader issue. This issue is the role of the criminal law in creating and maintaining the ‘bureaucratic’ state. The question is, how should the criminal law be shaped so that the burdens of compliance with bureaucratic state demands are imposed in a fair way?

About the speaker
Jeremy Horder is a Professor of Criminal Law at the LSE. He graduated from the Universities of Hull (1984) and Oxford (1986) before taking up a Research Fellowship at Jesus College, Oxford, from 1987-1989. He then became the Porjes Trust Tutorial Fellow in Law at Worcester College, Oxford, from 1989-2010. He was Chairman of Oxford’s Faculty of Law from 1998-2000. From 2005-2010, he was a Law Commissioner for England and Wales, with responsibility for criminal law reform, before becoming Edmund Davies Professor of Criminal Law at King’s College London, from 2010-2013. He is an Honorary Bencher of the Middle Temple and holds an Honorary LL.D from the University of Hull.