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Vol-12-1.Pdf Cambridge Journal of International and Comparative Law Publication Copyright and open-access policy The Cambridge Journal of International The CJICL is an open-access publication gov- and Comparative Law is an open-access erned by our publishing and licensing agree- publication that is available online at ment. Any commercial use and any form of <http://www.cjicl.org.uk>. Hardcopies can republication of material in the Journal is sub- be ordered on request. Each volume consists of two or more main issues and a special is- ject to the express permission of the Editors sue examining the jurisprudence of the UK in Chief. Supreme Court. Contact information Editorial Policy Cambridge Journal of International and Com- All submissions are subject to a double-blind parative Law peer-review editorial process by our Aca- Faculty of Law, 10 West Road demic Review Board and/or our Editorial Team. CB3 9DZ, Cambridge United Kingdom Submissions The journal accepts the following types of E-mail: [email protected] manuscript: Web: http://www.cjicl.org.uk (i) Long Articles between 6,000 and 10,000 words but not exceeding 10,000 words in- Typeset in Crimson and Gentium Book Basic, cluding footnotes; distributed under the terms of the SIL Open Font (ii) Short Articles not exceeding 5,000 words including footnotes; license, available at <http://scripts.sil.org/OFL>. (iii) Case Notes not exceeding 3000 words in- cluding footnotes; and (iv) Book Reviews not exceeding 2500 words including footnotes. Please visit our website for submission dead- lines. ISSN 2050-1706 (Print) ISSN 2050-1714 (Online) © 2012 Cambridge Journal of International and Comparative Law and Contributors This volume should be cited as (2012) 1(2) C.J.I.C.L. DOI: 10.7574/cjicl.01.01.23 http://www.cjicl.org.uk i Editorial Board 2011-12 Editors-in-Chief AndrewSanger RumianaYotova Managing Editors FernandoLusaBordin ClaireSimmonds SidneyRichards SamuelDahan Managing Editor of the UK Supreme Court Annual Review Lorne Neudorf Secretary and Treasurer Yin Harn Lee Editors JastineBarrett AnnaCowan BartSmitDuijzentkunst MariaFanou JamesGoodwin CallistaHarris BesimHatinoglu Hui-minLoh CameronMiles JasmineMoussa KatieO’Byrne ZenaProdromou SahibSingh JamieTrinidad GeraldoVidigalNeto ShonaWilson Press, Marketing and Sponsorship Officer Helen Huang ii Academic Review Board Honorary Member and Senior Treasurer PROFESSOR JAMES CRAWFORD SC LLD, Whewell Professor of International Law at the University of Cambridge and Barrister at Matrix Chambers Members PROFESSOR GEERT DE BAERE, Assistant DR MATTHEW DYSON, College Lecturer in Professor at Katholieke Universiteit Leuven Law at Trinity College, University of Cam- bridge PROFESSOR FREYA BAETENS, Assistant Professor at Leiden University DR MARKUS GEHRING, Deputy Director, Centre for European Legal Studies and Tutor DR JOHN BARKER, Fellow of the Lauter- in Sustainable Development Law, Faculty of pacht Centre for International Law and Fel- Law, University of Cambridge; ad personam low of Hughes Hall Jean Monnet Chair, Faculty of Law, University of Ottawa, Canada; Aff. Lecturer in European PROFESSOR CATHERINE BARNARD, Pro- and International Law, Department of Politics fessor and Jean Monnet Chair of European and International Studies; and Fellow in Law Union Law at the University of Cambridge, and Graduate Tutor, Robinson College, Uni- Co-director of the Centre for European Legal versity of Cambridge Studies and Fellow of Trinity College DR JOANNA GOMULA-CRAWFORD, Fel- DR LORAND BARTELS, University Senior low of the Lauterpacht Centre for Interna- Lecturer, University of Cambridge and Fel- tionalLawandVisitingReaderatQueenMary low of Trinity Hall College, University of London PROFESSOR JOHN BELL, Professor of Law DR TOM GRANT, Research Fellow, Lauter- at the University of Cambridge, Fellow of pachtCentreforInternationalLawandFellow Pembroke College and Editor of the Cam- of Wolfson College bridge Law Journal PROFESSOR CHRISTINE GRAY, Professor DR ANTHONY CULLEN, Research Fellow ofInternationalLawattheUniversityofCam- inInternationalLawattheUniversityofLeeds bridge and Fellow of Trinity College PROFESSOR ZACHARY DOUGLAS, Asso- DRDOUGLASGUILFOYLE,SeniorLecturer ciate Professor at the Graduate Institute in at University College London Geneva and Barrister at Matrix Chambers iii DR GLEIDER I HERNÁNDEZ, Lecturer at DR SOLÈNE ROWAN, Fellow and College the University of Durham Lecturer in Law, Queens’ College, University of Cambridge DR JESSIE HOHMANN, British Academy Postdoctoral Research Fellow, Lauterpacht PROFESSOR PHILIPPE SANDS QC, Pro- Centre for International Law fessor of Law at University College London and Barrister at Matrix Chambers DR DANIEL JOYCE, Lecturer at the Univer- sity of New South Wales MR DANIEL SAXON, York Distinguished Visiting Fellow, University of Cambridge and DR FRANCESCO MESSINEO, Lecturer at Visiting Fellow, Wolfson College the University of Kent DR ANAT SCOLNICOV, Fellow and College DR MARKO MILANOVIC, Lecturer at the Lecturer in Law at Lucy Cavendish College, University of Nottingham University of Cambridge and Deputy Direc- tor of the Centre for Public Law DR ALEX MILLS, Lecturer at University Col- lege London DR JILLAINE SEYMOUR, Fellow and Col- lege Lecturer in Law, Sidney Sussex College, MS EVA NANOPOULOS, College Teaching University of Cambridge Officer, Sidney Sussex College, Cambridge PROFESSOR MALCOLM SHAW QC, Pro- MS PENELOPE NEVILL, Tutor at King’s fessor of International Law, Senior Fellow of College London and Barrister, 20 Essex Street the Lauterpacht Centre for International Law and Barrister at Essex Court Chambers DR SARAH NOUWEN, University Lecturer, University of Cambridge and Fellow of Pem- MS MARIE-CLAIRE CORDONIER SEG- broke College GER, Visiting Professor at the University of Chile, Affiliated Fellow of the Lauterpacht DR ROGER O’KEEFE, University Senior Centre for International law, and Director of Lecturer at the University of Cambridge and the Centre for International Sustainable De- Deputy Director, Lauterpacht Centre for In- velopment Law ternational Law PROFESSOR JOHN SPENCER QC LLD, DR TIINA PAJUSTE, Research Associate at Professor of Law, Co-director of CELS, Uni- the Lauterpacht Centre for International Law versity of Cambridge and Fellow of Selwyn College DR KATE PARLETT, Associate, Freshfields Bruckhaus Deringer, Paris MR CHRISTOPHER THOMAS, Lecturer in Law at the London School of Economics and Political Science iv DR KIMBERLEY TRAPP, College lecturer in PROFESSOR GUGLIELMO VERDIRAME, law at the University of Cambridge and Fel- Professor of Law at King’s College, University low of Newnham College of London DR SOPHIE TURENNE, Neil Allam/Clifford DR MICHAEL WAIBEL, University Lecturer Chance Lecturer in Law, University of Cam- bridge and Fellow ofMurray Edwards College at the University of Cambridge and Fellow of Jesus College DR ISABELLE VAN DAMME, Référendaire at the European Court of Justice DRRALPHWILDE,ReaderatUniversityCol- lege London v Volume 1 C.J.I.C.L. [2012] Issue 2 Special Issue: The UK Supreme Court Review Table of Contents Editor’s Introduction 1 Lorne Neudorf Foreword 3 Marie Deschamps Part I: Commentary and Reflections Obituary, Alan Ferguson Rodger (1944–2011), Lord Rodger of 6 Earlsferry Rosa Greaves The Birth and First Steps of the UK Supreme Court 9 Nicholas Phillips The High Court of Australia and the Supreme Court of the 13 United Kingdom: The Continued Evolution of Legal Relationships K. M. Hayne Comparative Law in the Supreme Court 2010–11 20 John Bell The Supreme Court and the New Judicial Independence 25 Lorne Neudorf The Media and the UK Supreme Court 44 Joshua Rozenberg Instruments of Law Reform: The Supreme Court and the Law 47 Commissions of the United Kingdom Julien du Vergier vi Part II: Thematic Analysis Children and the Family 55 Katie O’Byrne and Sahib Singh Criminal Evidence and Procedure 66 Zena Prodromou and Shona Wilson European Dimensions 74 Bart Smit Duijzentkunst and Maria Fanou Foreign States before the Supreme Court 86 Callista Harris and Cameron A. Miles Social Welfare 94 Anna Cowan and Besim Hatinoglu Part III: The 2010–11 Legal Year in Overview Overview: Administrative Law 102 Jamie Trinidad Overview: Constitutional Law 105 Hui-min Loh Overview: Criminal Law 108 Jastine C. Barrett Overview: Economic and Safety Regulation 111 Hui-min Loh Overview: European Law 117 Jamie Trinidad Overview: Family Law 120 Jasmine Moussa Overview: Human Rights Law 123 Jasmine Moussa Overview: Immigration Law 127 Geraldo Vidigal Neto Overview: International Law 129 Geraldo Vidigal Neto Overview: Local Government Law 132 Jastine C. Barrett vii Overview: Private Law 135 James Goodwin Overview: Tax Law 139 James Goodwin Part IV: Composition and Statistics AppendixA:CompositionoftheSupremeCourt 141 AppendixB:Statistics 142 viii DOI: 10.7574/cjicl.01.02.45 Cambridge Journal of International and Comparative Law (1)2: 1–2 (2012) Editor’s Introduction Lorne Neudorf* In the second year of its existence, the Supreme Court of the United Kingdom decided 58 cases that touched upon a wide range of legal matters. This issue continues the ground-breaking work of last year’s inaugural Annual Review by providing insightful analysis and commentary on both the institution of the Supreme Court and its jurisprudence throughout the 2010–11 legal year. The founding of the Cambridge Journal of International and Comparative Law as the successor to the Cambridge Student Law Review reflects our renewed commit- ment to examining the Supreme Court from an international and comparative perspective.
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