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«General Editor Dr Helen O’Nions, LLB (Middlesex), LLM (Leicester), PGDip HE Assistant Editor Ms Andrea Nicholson, LLB (Buckinghamshire), LLM ...»

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VOL. 21 2012

General Editor

Dr Helen O’Nions, LLB (Middlesex), LLM (Leicester), PGDip HE

Assistant Editor

Ms Andrea Nicholson, LLB (Buckinghamshire), LLM (Durham)

Advisory Board

The Rt Hon the Lord Saville of Newdigate Prof Stephen Weatherill, University of Oxford Judge Bostjan Zupancic, the European Court of Human Rights The Rt Hon Sir Philip Otton Prof Mark Findlay, University of Sydney Prof Conor Gearty, London School of Economics Mr Jonathan Griffiths, Queen Mary, University of London Prof Michael J. Gunn, University of Staffordshire Prof Martin Hunter, Essex Court Chambers & Nottingham Prof Geraint Howells, Lancaster University Law School Prof Peter Jones, Nottingham Trent University Mr Roger Leng, University of Warwick Prof Robert G. Lee, Cardiff Law School Mr Gary Watt, University of Warwick Miss Helen Milgate, Solicitor Prof Neil Peck, Attorney, Snell & Wilmer, Denver, Mr Christopher Muttukumaru, Director of Legal Col, USA & Nottingham Law School Services, Department of Transport Prof Barry Rider, University of Cambridge Prof John Peysner, University of Lincoln Mr Paul Smith, Partner, Eversheds Prof Mary Seneviratne, Nottingham Law School Mr John Snape, Warwick University Mr Marc S. Stauch, Leibnitz University, Hannover Dr Kim Stevenson, University of Plymouth Prof Adrian Walters, Nottingham Law School Dr Christian Twigg-Flesner, University of Hull Editorial Board Development: Mr Simon Boyes, LLB (Hull), LLM (Hull), PGCert HE Nottingham Matters: Mr Graham Ferris, LLB (Nott), Solicitor Book Reviews: Ms Janice Denoncourt, BA (McGill), LLB (W.Aust.), LLM, Solicitor Case Notes: Miss Kay Wheat, BA (Reading), Solicitor Administrative Assistant Ms Carole Vaughan The Nottingham Law Journal is a refereed journal, normally published in Spring each year. Contributions of articles, case notes and book reviews to the Journal are welcomed. Intending contributors are invited to contact the Editor for a copy of the style

sheet, which gives details of the format which submissions must follow. Submissions and enquiries should be addressed to:

Dr Helen O’Nions, Nottingham Trent University, Burton Street, Nottingham, NG1 4BU. Telephone 0115 941 8418. Ms O’Nions can also be contacted on the following e-mail addresses: helen.o’nions@ntu.ac.uk. Style notes and further details about the Journal are available on request.

Intending subscribers should please contact Ms Carole Vaughan at the above address. Intending subscribers in North America are advised to contact Wm W Gaunt & Sons. Inc, Gaunt Building, 3011 Gulf Drive, Holmes Beach, Florida 3417 2199.

The citation for this issue is (2012) 21 Nott L J.

ISSN No. 0965–0660 Except as otherwise stated,  2012 Nottingham Trent University and contributors. All rights reserved. No part of this Journal may be reproduced or transmitted by any means or in any form or stored in a retrieval system of whatever kind without the prior written permission of the Editor. This does not include permitted fair dealing under the Copyright, Designs and Patents Act 1988 or within the terms of a licence issued by the Copyright Licensing Agency for reprographic reproduction and/or photocopying.

The authors of material in this issue have asserted their rights to be identified as such in accordance with the said Act.


VOL 21 2012

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107 The Influence Of Legal Culture, Local History And Context On Restorative Justice Adoption And Integration: The Czech Experience Kerry Clamp

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136 The Court Of Justice Of The European Union Rules That Non-Dutch Residents Should Get A Proper Cup Of Coffee, But No Pot! Karen Dyer 143 Caging The Green-Eyed Monster – Restrictions On The Use Of Sexual Infidelity As A Defence To Murder Helen Edwards and Jeremy Robson

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156 Jane Ball, Housing Disadvantaged People? Insiders and Outsiders in French Social Housing, London: Routledge, 2012 Graham Ferris

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EDITORIAL I am pleased to introduce the new, improved annual edition of the Nottingham Law Journal which features a series of thematically linked articles in addition to several, erudite submissions on themes of contemporary legal interest. Our thematically linked pieces derive from the Restorative Justice Conference hosted by Nottingham Law School in 2011 and are introduced by Professor Jonathan Doak. Jonathon was a founding member of Nottingham Law School’s Centre for Conflict, Rights and Justice and I would like to take this opportunity to wish him every success in his new post at Durham Law School.

Volume 21 also includes illuminating articles on principles of judicial review, commercial contracts, immunity in the European parliament and House of Lords reform. We are delighted that so many authors who have previously submitted articles to the Journal for consideration continue to make the Nottingham Law Journal their chosen publication. Although a small team, we work hard to ensure that the reviewing process is both thorough and timely so that authors can be assured that their work is given the attention that it deserves.

This is a challenging time in higher education and the end of the teaching year sees the start of a particularly busy research schedule for many academics. All three research centres at Nottingham Law School have busy programmes ahead. The Centre for Legal Education will be formally launched on 3rd May with contributions from members of the legal profession, former students and academics. Under the new direction of the NLJ’s former editor, Tom Lewis, the Centre for Conflict, Rights and Justice will shortly be hosting Professor Barry Mitchell’s seminar examining mandatory life sentences for murder convictions. As we go to press, NLS is hosting the Dignity In Donation Conference providing a forum for healthcare professionals, policy-makers, lawyers and academics to critically consider the general nature and significance of dignity and its actual and potential influence on organ donation law, policy, and practice. Our third centre, the highly acclaimed Centre for Business and Insolvency Law, will be co-hosting the INSOL Europe Academics Forum conference ’’Too Big to Fail?

Large National and International Failures Under the Spotlight.’’ For further details of this event and others please see our research centre web pages at: http://www.ntu.ac.uk/ nls/research/centre_corporate/news_events/index.html I would like to take this opportunity to sincerely thank all our contributors, subscribers and reviewers for the vital part they play in supporting the journal. This year our call for papers led to an unprecedented number of submissions which, I believe, indicates that the journal is going from strength to strength. Finally, I must thank the rest of the editorial team and extend special thanks to the indispensable Carole Vaughan for reasons that are too numerous to list.


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The constitutional function of Administrative Court judicial review is to craft and apply legality standards derived from constitutional values such as the rule of law and respect for fundamental rights. However, these legality standards are increasingly being applied by bodies other than the Administrative Court based at the Royal Court of Justice (RCJ) in London. The RCJ’s historic monopoly over judicial review litigation is breaking down for a number of reasons. One reason is the establishment of four new regional Administrative Court Centres outside London. Another more significant reason is the statutory delegation of judicial review type functions to other inferior courts and tribunals such as the statutory jurisdiction of the county courts in homelessness cases and the judicial review jurisdiction devolved to the recently established Upper Tribunal. On the one hand it can be argued that this fragmentation of legality review threatens to undermine the constitutional authority of the High Court’s supervisory jurisdiction exercised by the Administrative Court. On the other hand, the common law has always been pluralist and fragmented in nature, particularly with its emphasis on remedies rather than causes of action.1 The centralisation of administrative law legality review within a single highly specialised court is a relatively recent development. Its origins lie more in policies aimed at dealing with the influx of asylum and immigration litigation than in constitutional principle.

In two recent Judgments the Supreme Court has examined the constitutional status of the new Upper Tribunal, in particular the susceptibility of its decisions to judicial review in the Administrative Court and supervision by the Scottish Court of Session.2 In these cases the Supreme Court was inevitably commenting upon the constitutional status of those two higher courts. The case of Cart and MR provided the Supreme Court with an opportunity to clarify the unique role of Administrative Court judicial review in light of the increasing fragmentation of legality review, the breadth of administrative justice, and changing perceptions of the constitutional role performed by the Administrative Court.

* Darlithydd yn y Gyfraith/Lecturer in Law, Prifysgol Bangor University.

1 See for example, Dawn Oliver, ‘‘Public Law Procedures and Remedies – do we need them?’’ [2001] PL 91.

2 R (Cart) v. The Upper Tribunal and R (MR (Pakistan)) (FC) v. The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28, Eba v. Advocate General for Scotland [2011] UKSC 29.

12 Nottingham Law Journal

The Tribunals Courts and Enforcement Act 2007 (TCEA) created the Upper Tribunal to stand at the apex of a new structure designed to systematise tribunal justice. The TCEA describes the Upper Tribunal as a ‘‘superior court of record’’.3 Prominent commentators assumed that this designation would endow it with constitutional authority equal to that of the High Court, therefore rendering its decisions unsusceptible to judicial review.4 The TCEA contains no specific clause purporting to oust judicial review and so the matter was left for the courts to determine. In Cart and MR the Supreme Court considered whether the Administrative Court could judicially review a certain type of un-appealable Upper Tribunal decision. Namely, where the Upper Tribunal refuses permission to appeal to itself and the TCEA excludes any further right of appeal to the higher courts. In Eba the Supreme Court examined the same issue with respect to the supervisory jurisdiction of the Court of Session. In both Judgments the Supreme Court concluded that access to judicial review should only be granted if the second-tier appeals criteria are satisfied. These are that the claim would raise an important matter of legal principle or practice, or there is some other compelling reason for the appellate court to hear it.5 The application of these criteria signalled the Supreme Court’s significantly non-interventionist approach to external judicial supervision of the Upper Tribunal.

It was said that these criteria provide a proportionate balance between the right of access to justice and the need to ensure the fair allocation of scarce judicial resources.

The resource concern in England and Wales was the likelihood of the Administrative Court being overwhelmed by supposedly unmeritorious asylum and immigration claims in which the Upper Tribunal had already refused permission to appeal. In Eba’s case the second-tier appeals criteria were applied to the Court of Session despite the fact that there were no significant judicial resource concerns in Scotland. Appeals from the Upper Tribunal to the Court of Session were already subject to second-tier restrictions.

The Supreme Court concluded that it would be inconsistent with Parliament’s intent if Court of Session judicial review of un-appealable Upper Tribunal decisions were more readily accessible than legal appeals to that same judicial body. The upshot of the Judgments in both Cart and MR and Eba is the implicit assumption that in some circumstances judicial review may be constitutionally indistinguishable from a secondtier appeal on a point of law. The argument of this paper is that whilst the second-tier appeals criteria may have provided a useful pragmatic solution in the context of judicial review of the Upper Tribunal, particularly in the asylum and immigration field, the Supreme Court missed the opportunity to clarify the unique constitutional status of Administrative Court judicial review within our constitutional system. The focus of this paper will be on the law of England and Wales, though the Scottish situation will be referred to where illuminating.

Following the Supreme Court’s Judgment in Cart and MR, the second-tier appeals criteria now effectively supplant the current judicial review permission test in England and Wales, the ‘‘arguable case’’ criterion, as far as judicial review of the Upper Tribunal is concerned. The ‘‘arguable case’’ test has been criticised in light of ever declining permission success rates and inconsistent judicial decision-making, inconsistency which early indications suggest has been exacerbated by regionalisation of the Administrative Court.6 3 Tribunals Courts and Enforcement Act (TCEA), ss 1(3) and 3(5).

4 Sir Andrew Leggatt, ‘‘Tribunals for Users: One System, One Service’’ (Her Majesty’s Stationery Office 2001) [6.3], SA De Smith, Lord Woolf and Jeffrey Jowell, Judicial Review of Administrative Action (6th edn, OUP 2007) [1–093], HWR Wade and CFF Forsyth, Administrative Law (10th edn, OUP 2009) 780. There was no similar assumption with respect to judicial supervision by the Court of Session, as the epithet ‘‘superior court of record’’ is not operative in Scots law.

5 Civil Procedure Rules 52.13.

6 Sarah Nason and Maurice Sunkin, ‘‘The Regionalisation of Judicial Review: Constitutional Authority, Access to Justice and Legal Services in Public Law’’ forthcoming.

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