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Nottingham Law Journal NOTTINGHAM LAW JOURNAL 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’[email protected]. 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. NOTTINGHAM LAW JOURNAL VOL 21 2012 CONTENTS v EDITORIAL Helen O’Nions ARTICLES 1 The Administrative Court, the Upper Tribunal and Permission To Seek Judicial Review Sarah Nason 26 The Interpretation of Commercial Contracts: Time for Reform Masood Ahmed 43 Immunity Of Parliamentary Statements Jonathan Steele 54 9/11 And Self-Determination Elizabeth Chadwick 65 A Summary Of The Developments In The Reform Of The House of Lords Since 2005 Mark Ryan Thematic Articles: Restorative Justice 72 Introduction Jonathan Doak 74 The Need For Correctional Logic: Are Punishment And Restoration Mutually Exclusive Imperatives In Criminal Justice? David J Cornwell 86 Restorative Justice And Youth Justice In England And Wales: One Step Forward, Two Steps Back David O’Mahony 107 The Influence Of Legal Culture, Local History And Context On Restorative Justice Adoption And Integration: The Czech Experience Kerry Clamp 121 Restorative Justice As Social Justice Belinda Hopkins CASE NOTE AND LEGISLATIVE COMMENTARY 133 The Impact Of The America Invents Act On The United Kingdom: ‘First To File’ Rules Janice Denoncourt 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 iii 146 Mediation And The Judiciary: Negotiation Is Not Enough! Julian Sidoli del Ceno BOOK REVIEWS 151 Wendy Brown, Walled States, Waning Sovereignty, New York: Zone Books, 2010 Elizabeth Chadwick 154 Boštjan Zupancˇicˇ, The Owlets of Minerva, The Hague: Eleven International Publishing, 2012 John Hodgson 156 Jane Ball, Housing Disadvantaged People? Insiders and Outsiders in French Social Housing, London: Routledge, 2012 Graham Ferris iv NOTTINGHAM LAW JOURNAL VOL. 21 2012 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. DR HELEN O’NIONS v NOTTINGHAM LAW JOURNAL VOL. 21 2012 ARTICLES THE ADMINISTRATIVE COURT, THE UPPER TRIBUNAL AND PERMISSION TO SEEK JUDICIAL REVIEW SARAH NASON* INTRODUCTION 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
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