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The work of the late Professor Peter Birks and of Professor Andrew Burrows QC has had a profound impact on the development by the courts of a new branch of English private law, namely the law of unjust enrichment (sometimes called the law of restitution). This branch was first officially recognised by the highest court in the United Kingdom in 1991 and it is now widely viewed as being an important and independent part of the law as is, for example, the law of contract or the law of tort. Every citizen and institution is potentially affected by it, most obviously where payments are made by mistake. The particular contribution of Birks' and Burrows' research has been in assisting the courts to identify, clarify, and refine the leading principles of this new branch of the law. Their work has made what was previously obscure and under-developed, intelligible and accessible, thereby enhancing the quality of decisions made by the courts and offering guidance to counsel. Their doctrinal and theoretical writings on this subject are among the works most cited in the English courts. As the Times put it, `a mere footnote in a Birks article proved to be the subject of several paragraphs of reasoning in the speeches of the law lords.'
This research has made a sustained and continuing impact on the development and application of the substantive criminal law, including mens rea and general defences, and especially in the areas of complicity and homicide, in terms of
i) development of the law by the appellate courts;
ii) application of the law by practitioners; and
iii) government policy as to the reform of the law of murder and complicity.
Influential work on insurance law by Professor Rob Merkin led directly to the repeal of the outmoded and increasingly unpopular Third Parties (Rights Against Insurers) Act 1930. With its predecessor criticised for its demands on time and costs, a new Act made it simpler, faster and cheaper for a third-party claimant to recover compensation from an insurer without instituting proceedings against the insured. Merkin not only drew policymakers' attention to the old Act's defects but provided a detailed basis on which to formulate its successor, which earned Royal Assent in 2010.
Professor Alldridge's research rethinking the theoretical underpinnings of the law of bribery has had a direct influence on the recent reforms of the British law of bribery. With the coming into force of the Human Rights Act 1998 and the OECD's Paris Convention on the Bribery of Foreign Public Officials in 1999, the UK government was required to reform the law of bribery. A Bill was drawn up in 2003, based on a report from the Law Commission, which included a defence of consent (this allowed defendant employers to argue that they could not be prosecuted for bribing foreign customers, where the bribery had been effected by one of their employees and the defendant employer had consented to this). The Commission saw bribery not as anti-competitive behavior, but a crime against loyalty, a conception that turned upon the existence of prior duties (to act impartially, in good faith and to be in a position of trust). Through his membership of the Law Commission Bribery Advisory Group, Alldridge was able to show in 2008 that some of these duties could only be found in contracts. As such, they could also be altered by contract, and where this occurred, it would create a defence of the consent of the principal. As a result of Alldridge's research and related membership of the Advisory group, the 2009 Bill was amended, and the Act passed in 2010 did not allow such a defence. The UK now has a reformed law of bribery, which complies with the OECD convention and has been put on rational foundations.
Two particular examples of impact on legislative change and legal practice are described: impact on the parliamentary process and impact on mental health practice and procedure. The first example describes contribution to debate during the parliamentary process for the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill and contribution to the decision to reject rushed emergency legislation. The research team's response to the consultation by the Justice 2 Committee was widely referred to by organisational representatives and individuals in the debates. The second example focuses on the impact from a key text, which has been used by both sides and judges in Sheriff Court appeals. The impact here is in its verifiable effect on the practice of law in courts and in the making of legal determinations.
Professor Enonchong's research has had a direct and significant effect on the development of the law relating to economic duress in Singapore and the Commonwealth. Prior to the relevant impact, the law relating to lawful act duress was in a state of flux. The High Court of Singapore relied directly and exclusively on Enonchong's research to extend the scope of duress in a completely novel way, so as to encompass a threat to do an act that is lawful. The beneficiaries of the impact are all those (such as courts, arbitral tribunals, lawyers and their clients) who rely on the law of Singapore, which is influential throughout the Commonwealth, particularly as currently there is no decision on the point in other Commonwealth jurisdictions.
Professor John Finnis has been engaged in a programme of research in legal and constitutional theory. His work on the legal and political responsibilities of UK ministers when acting to affect the law of a British Overseas Territory played a pivotal role in the decision of the House of Lords to reverse the Court of Appeal`s interpretation of the Colonial Laws Validity Act 1865 (CVLA). The Court of Appeal had held that UK ministers could not properly legislate in the interests of the UK as a whole (including its dependent territories), but only in the interests of the particular territory itself. Relying on Finnis`s arguments, the House of Lords changed that precept. Finnis`s work also persuaded members of the House of Lords to express doubts about a central holding of an earlier decision, which concerned the capacity in which ministers acted in legislating in dependent territories. Finnis`s arguments have been relied on in legal argument in later cases, and have been recognised and reaffirmed in subsequent Court of Appeal and Supreme Court judgments. In this way, they have helped to change fundamental constitutional principles affecting not only all citizens in the UK, but also those in its Overseas Territories around the world.
Judith Freedman's research on tax law and policy helped shape anti-avoidance provisions of the Finance Act 2013. Freedman had proposed a statutory general anti-avoidance principle combined with a statutorily created administrative framework to limit the exercise of discretion by revenue authorities, thus reducing manipulation whilst achieving reasonable certainty in UK tax law. This research directly informed debates among tax professionals, officials and the public. The 2011 Aaronson study group (of which Freedman was a member), commissioned by the Exchequer Secretary, produced proposals embodying her approach. The government acted on these proposals in the Finance Act 2013, introducing into UK law an overriding statutory principle, to which other tax legislation is subject, together with an administrative framework (the General Anti- Abuse Rule (GAAR) Advisory Panel) in which consensus around the concept of tax avoidance can be pursued between the taxpaying community and revenue authorities. The new anti-avoidance approach informed via Freedman's research is now law throughout the UK, affecting every taxpayer.
Essex research on false self-employment in the construction industry has informed the Labour Party's policy on this issue, both in government and opposition. Professor Mark Harvey's 2008 report, The evasion economy, commissioned by the Union of Construction, Allied Trades and Technicians (UCATT), informed the Prosperity and Work section of the second `Warwick Agreement', formed by the TUC and the Labour Government. The Labour Government's budget of 2009 made explicit reference to eradicating false self-employment, which led to the circulation of a consultation document that cited Harvey's report. Whilst in opposition, the Party has taken measures to prevent false self-employment and two members of the Shadow Cabinet have explicitly acknowledged Harvey's research.
Professor Adrian Keane's research relates to the law of criminal evidence, that body of law which regulates the means by which facts can be proved in criminal trials. His publications on the subject have effected change and benefited the awareness, capacity, performance and understanding of the subject on the part of:
(i) the judiciary in the UK and internationally, in reaching decisions at both first instance and at appellate level; and in giving directions to juries on evidential issues that are as clear and consistent as possible
(ii) legal practitioners
(iii) law academics and students (an impact that extends significantly beyond the submitting higher education institution)
(iv) legislators in the People's Republic of China.
The most significant impact stems from participation in a project in Beijing that led directly to a revised Criminal Procedure Law that has improved the quality of the administration of Chinese criminal justice. Specifically, it has rendered criminal trials fairer to the accused and reduced the potential for miscarriages of justice, especially in relation to offences carrying the death penalty.