In the last decade in Australia and the United Kingdom, the review of immigration decisions in tribunals and courts has been marked by constitutional conflict between the executive and the judiciary; a crisis of confidence; and continual change. This thesis explores what this tumultuous story of immigration review tells us about the law — as a social practice, as an institution, and as a linguistic genre — in these jurisdictions, in these times. This thesis argues that the story of immigration review is explained best not through the conventional story of a battle between the executive and the judiciary, but rather as a story of the fundamental challenges immigration poses to the social, institutional, ideological and linguistic dimensions of law, and of the attempt by judges and the legal community to defend their different conceptions of the legitimacy of the law from those challenges, in different ways. Four fundamental challenges are identified. First, immigration challenges the coherence of the legal framework, as it exposes tensions within and between the different legal regimes. Second, the more reductive language used in legal contexts competes badly with more complex, and more socially powerful, discourses about immigration. Third, immigration challenges the capacity of law to perform the functions of resolving disputes and regulating behaviour. Fourth, immigration challenges our deepest concepts of legality. The thesis examines these challenges, and the responses they provoke, by drawing on the insights of migration studies, contemporary political philosophy, language and the law, and regulatory theory, as well as examining important case law in detail. In doing so, it aims both to capture the story of immigration review more fully, and to illuminate some of the complexities of, and limits to, the contemporary social practice of law.

The current UK prohibition against the giving of financial assistance for the acquisition of shares by a third party (applicable to transactions involving a public limited liability company) was founded upon a misconception. Although the original rationales for the prohibition’s inception have been gradually eradicated and its scope restricted, new rationales have been moulded to justify its continued application. By analysing its early development and modern case law application, this thesis identifies the scope of the prohibition – including interested parties who may be impacted by its operation. Previously, there has been neither a comprehensive enquiry into the commercially beneficial transactions which may be impeded by operation of the prohibition nor a determination of the types of abuse which may arise out of transactions involving the giving of financial assistance. Historically, company law reviews of the prohibition in the UK have identified some of the aforementioned impacts but failed to undertake either a thorough assessment of the alternative safeguards available to protect interested parties or the level of protection afforded by those safeguards. This thesis accomplishes these points - identifying the unnecessary duality of protection provided by the prohibition and thus its redundancy. This thesis also analyses how other jurisdictions have dealt with the giving of financial assistance in order to assess their relative advantages and disadvantages and, accordingly, the desirability of the UK and/or European Union member states adopting one of those alternative approaches. On the basis of this wide-ranging enquiry, four recommendations logically emerge which are capable of immediate, or progressive, implementation and which have the ultimate objective of abolishing the prohibition as it applies to the giving of financial assistance for the acquisition of shares by a third party in a transaction involving a public limited liability company.

The objective of this thesis is to answer the question, “does the ethics committee review process in Malaysia provide meaningful protection to mentally incapacitated adults who enrol in clinical research trials?” This question is answered by examining three important aspects of the ethics review process. First, the quality of the deliberations of ethics committees is examined by looking at the underlying principles that are meant to guide ethics decision-making. Second, the thesis looks at the current regulatory framework under which ethics committees operate and considers the adequacy of these guidelines in protecting human subjects. Finally, this thesis considers the notion of conflicts of interests in the clinical trials arena and calls into question the independence of the ethics review process and how this impacts on the interests of human subjects in general and mentally incapacitated adults in particular. The conclusion reached at the end of this thesis is that the ethics review process in Malaysia fails adequately to provide meaningful protection to mentally incapacitated adults. While the reasons for this are many, several factors are particularly significant, namely, the creation of a globalised clinical trials market, the lack of formal and systematic training of ethics committee members and the institutional structures of ethics committees. Although the main focus of this thesis is the Malaysian ethics review process, many of the comments and discussions put forward in this thesis are highly relevant to the ethics review processes in other jurisdictions given the international regulatory scheme that currently governs the conduct of clinical trials in many parts of the world.

Both the British and the Dutch Government have expressed their intention ‘to ensure that the human rights implications of legislation are subject to proper consideration before the legislation is enacted’. The question asked in this thesis is how then consideration is given to the human rights compatibility of parliamentary legislation? The thesis concentrates on the institutional legislative processes of both countries, with their formal procedures and formal institutions. In Part I, it describes and analyses these processes at governmental and parliamentary level, and examines how and by whom bills are scrutinized for human rights compatibility. In Part II, the British and Dutch processes are compared. And in Part III, the thesis is advanced that moments of accountability, which form a web, and which are anticipated by the various legislative actors, provide that consideration is given to the human rights compatibility of legislation. In answering the research question, the thesis considers of course ministers and parliamentarians. But the interest lies more with bodies and people that support these actors in their legislative roles. For The Netherlands these are draftsmen, the Division for Constitutional Policy, the Policy Sector for Legislative Quality, staff of the Council of State, and parliamentary Clerks. For the United Kingdom they are the Human Rights Division, the Attorney General’s Office, the Office of the Parliamentary Counsel, and staff of the Joint Committee on Human Rights. Generally, these institutions and their role in considering human rights aspects of legislation have been under-researched. Substantive human rights reasoning in parliamentary documents or case law is not studied. The research method is comparative. The aim is to achieve a better understanding of the workings of both legislative processes. The selection of jurisdictions was for functional and subjective reasons. The Netherlands has a seemingly longer-standing experience with the European Convention. The Convention has been part of its domestic legal order since 1953, while the United Kingdom incorporated the Convention in 2000. A comparison with The Netherlands has the benefit of comparing two constitutional archetypes: the UK has an adversarial constitutional culture and The Netherlands a consociational one. The subjective reason, which is considered a principle of comparative research methodology, is that this author has the linguistic skills and the understanding of both societies to perform this research. The research is also empirical and socio-legal. Interviews with over 25 civil servants, Clerks, and other parliamentary staff form a major source of information for this thesis. This provides new material on the workings of both legislative processes.

It is generally agreed by policymakers and scholars alike that corruption is a form of misconduct which merits criminalisation. But definitions of corruption vary widely and there is no consensus on what constitutes corruption. Theorising about corruption is therefore a valuable exercise because it promotes greater understanding of this important concept. For example, it enables us to clarify the issues for debates about criminalisation, it assists with fair labelling of wrongdoing, and it helps in establishing coherent penalty regimes through accurate identification of the harms involved in corruption. But in order to theorise about corruption, we must have a complete picture of the harm which results from such conduct, and this in turn requires us to identify the interests being set back and their relationship to the wrongdoing involved. The scholarship on corruption is defective in this respect because it fails to provide a complete account of the harm which results from corruption. The dominant bodies of non-legal literature tend to argue that corruption results in remote harms to public interests. They assume but fail to provide a detailed account of the primary and indirect harms suffered by those innocent actors who are not engaged in corruption. By contrast, the legal literature has tended to focus almost exclusively on the wrongdoing in corruption. But this approach is incomplete because it not only fails to acknowledge that corruption harms innocent actors by setting back their interests, it also fails to emphasise the connection between such harming and the wrongdoing which also results from corruption. This thesis addresses these omissions by articulating a coherent theory of the harm in corruption. Using a three-part analytical framework, it analyses a number of core cases of corruption, and uncovers the harm and wrongdoing caused by such conduct (particularly to those innocent actors who are not engaged in corruption).

This thesis investigates the philosophical assumptions which underpin established theories of the British constitution, paying particular attention to the influence of traditional (and sometimes outdated) theories of legal positivism. I attempt to identify, analyze and challenge these assumptions, exploring how recent developments in legal theory can inform and enrich our approach to British constitutional theory. Drawing, in particular, on the anti-positivist theory of Ronald Dworkin, I contend that an understanding of the British constitution must begin with an understanding of the principle of legality: that is, the principle that government may only exercise coercive force in accordance with standards established in the right way before that exercise. The principle of legality (properly understood as reflecting the value of integrity), I argue, shapes or controls the many other principles that underpin British constitutional practice, principles such as the separation of powers, democracy and individual human rights. Once it is appreciated that each and every fact about British constitutional practice must be justified by arguments of political morality, there is little difference, I argue, between the so-called ‘unwritten’ British constitution and the ‘written’ constitution of, say, the United States. In particular, there is no plausible philosophical basis for ascribing unlimited legislative powers to the Westminster Parliament. The extent of Parliament’s legislative powers (and the extent of the powers of the executive branch of government), I suggest, must depend on how we conceive of the legal principles that justify Parliamentary power, most notably the principle of democracy. Democracy, properly understood, I argue, means that Parliament (or government) has a duty to treat each member of the British community as an equal; or, to state the right which corresponds to that duty, democracy means that individuals have a moral right against government to be treated as an equal.

This thesis examines the purpose and function of international law on torture from both a normative and legal perspective. It seeks to re-examine the scope, justifiability and purpose underlying the current international prohibition of torture from both a philosophical and legal point of view, and do so in light of recent state counter-terrorism efforts. The thesis begins by setting out a historical narrative of the development of the prohibition on torture versus the state practice of ill-treatment, describing the gap that has persistently existed between law and practice since the widespread European abolition of torture. The thesis then goes on to examine the moral dimensions of a prohibition on torture and to ask whether prohibiting torture is always morally desirable. From there, the thesis engages with the issue of whether or not torture should be legalised in certain circumstances, so as to avoid the charge of hypocrisy that some scholars claim exists when a prohibition of torture is maintained despite the gap between the law on torture and state practice of torture. The thesis finds that ultimately, while there are conceivable situations in which torture may be morally necessary, and while it is possible to construct a law that would regulate the use of torture in a manner that is more transparent and accountable, that the risks in institutionalising torture are too substantial to implement such a law safely. However, the thesis argues that the charge of hypocrisy can be avoided and the gap between law and practice minimised by improving the structural elements of the current prohibition, in particular its definition of torture and the ways in which states adopt the prohibition domestically.

No description available.

This thesis is concerned with a critical evaluation of English personal insolvency laws. A thematic approach to debtor treatment is adopted as the central core of this work. The discussion focuses on a number of themes that are prevalent in insolvency law and policy, both in the modern context but also in a historical context. The purpose of this thesis is to show how these policy themes and debates are in no way novel throughout bankruptcy history - Plus ça change (plus c'est la même chose). The core themes chosen for elucidation in this thesis which feature recurrently in debtor treatment in a modern and historical context are: (1) Stigma; (2) Compositions & Moratoria; (3) Liberalisation & Amelioration; and finally, (4) Discharge. The acronym SCAMLAD encapsulates these core themes. It is against this moniker that divergent debtor treatment is tested in the early-modern period and the present day. In addition to the recurrent theme demonstration, two further theses are tested. First, it is argued that the treatment of insolvent debtors in the early-modern period was more liberal and foresightful than has hitherto been suggested (‘liberalisation thesis’). Secondly, it is argued that recent legislative changes engendered in the Enterprise Act 2002, in relation to discharge, have not caused additional redress to the bankruptcy procedure, but that the changes in the legislation were accompanied by an increase in consumer credit availability generally and that this led to a natural increase in debt related failure and therefore recourse to the bankruptcy laws (‘credit generosity thesis’).

This thesis poses the research question of whether it would be desirable and feasible to articulate common ethical standards for counsel. It conducts original research into the issues arising from the nascent process of professionalisation of advocacy before international courts and tribunals. Its methodology includes: historical narration, comparison between national standards, detailed examination of the procedures and practices of international courts and analysis of international codes of conduct. Its research sources include: national and international rules and cases, published secondary sources, interviews with judges and advocates and unpublished archival materials. The thesis first sets out the theoretical and historical framework in which the research question is situated. It defines key conceptual terms such as 'advocacy', 'professionalisation' and 'procedural integrity' in placing the problem of common ethical standards within the sociological context of the wider international judicial system. It describes the historical origins of advocacy, compares the ethics of major national jurisdictions and sets out the historical evolution of international advocacy. It then examines the procedural architectures and practical experiences of the International Court of Justice, European Court of Justice and International Criminal Court in a comparative study. In seeking to determine whether the articulation of common ethical standards would be desirable, it identifies areas of commonality and difference amongst three distinct international courts. Finally, it addresses the question of whether the professionalisation of advocacy through common ethical standards would be feasible. It considers the competence of international courts to prescribe and enforce such standards as well as early efforts to articulate common ethical standards. It analyses whether an international bar of centralised regulatory authority is feasible and the potential consequences of professionalisation. In answering its research question, the thesis argues that common ethical standards are both desirable and feasible. It suggests that the rationale for such standards is the protection of the integrity of judicial proceedings. It contends that such standards are feasible through a coordinated process that involves carefully articulated principles by senior counsel with the involvement of national bar authorities and judges.