Northern Ireland Legal Quarterly

The challenge of effective ‘corporate purpose law’ reform

2025-01-09T10:51:41+00:00

Company law commentary is again considering the company’s purpose. Mayer has argued that corporate purpose law in the United Kingdom (UK) should change with an ‘embarrassingly simple policy’ – requiring companies to state their purposes. The aim of this article is to demonstrate how difficult it would be to enact such a change to UK company law. The UK has no overt corporate purpose law: the most direct provision is hidden in the content of duties owed by directors. Yet, if the reason for corporate purpose law reform is that companies are run too much in the interests of their shareholders, then additional changes to company law are needed to remove the ability for shareholder pressure to be applied following corporate purpose law reform. The result is that changing corporate purpose law requires a number of further incidental changes to company law (indirect corporate purpose law), which necessitates a fundamental rewrite of UK company law. Partial reform is undesirable as it will allow the same dynamics to funnel through alternative routes, will present a veneer of change and will use up legislative bandwidth. Changing corporate purpose law in the UK is hard and involves a fundamental rewrite of company law. Alternative methods of regulation, to achieve the same ends, are more readily available.

Investment arbitration and the autonomy of the EU’s legal order: a rule of law perspective

2024-06-26T10:44:37+00:00

Steps taken by the European Union (EU) towards putting an end to intra-EU investment arbitration have attracted much criticism, which ranges from accusations of legal imperialism to observations that the notion of autonomy of the EU’s legal order, which is the primary tool weaponised against intra-EU arbitration, is politically malleable. Nevertheless, those supporting the EU’s position argue that in a legal community like the EU, it is expected to litigate against state authorities before national courts. This article informs the debate from a rule of law lens – it contends that the concerns for the EU’s legal order with respect to intra-EU investment arbitration resonate dual standards and undermine article 2 of the Treaty on European Union (TEU). First, it analyses the inconsistencies of the European Commission’s position considering its failure to protect judicial independence in the EU. Then, it explains why the politicisation of the principle of the autonomy of the EU’s legal order in the Court of Justice of the European Union’s case law, which reflects the court’s commitment to self-increasing its jurisdiction and to prioritising procedure over substantive human rights, leads to tension with article 2 TEU. After shedding light on concrete cases illustrating why the EU’s stance on intra-EU investment arbitration hampers investors’ rights, it contemplates what solutions could be envisaged to ensure more adequate investor protection in the EU.

Sentencing policy reform in post-conflict Northern Ireland: charting a distinctive response to penal populism

2025-04-08T10:41:37+00:00

Northern Ireland’s sentencing policy, while sharing commonalities with other Anglo-American jurisdictions, remains distinct due to its complex socio-political history and post-conflict legal framework. In response to evolving public expectations, the Department of Justice has recently undertaken a comprehensive review of sentencing policy, resulting in proposed reforms that reflect the unique challenges of a small jurisdiction with a legacy of sectarian violence. This article provides a socio-legal analysis of these reforms, critically evaluating their contextual drivers, practical implications, and potential long-term impacts. A central theme of this analysis is Northern Ireland’s restrained approach to penal populism, which has set it apart from significant parts of the common law world, including the United States, Great Britain, and Australia, where punitive attitudes have led to escalating incarceration rates. Drawing on the concept of ‘penal populism’ developed by Bottoms and Pratt, this article explores how Northern Ireland has, to date, resisted the widespread adoption of punitive rhetoric in criminal justice policymaking. However, recent trends suggest a shifting landscape, including a rising prison population and an emerging ‘tough on crime’ public discourse. This article examines key proposals from the sentencing review, including the introduction of formal sentencing principles and purposes and the decision to reject a sentencing guidelines council in favour of enhanced judicial discretion through the Court of Appeal. It argues that these reforms reflect both caution and inadvertent radicalism as policymakers attempt to balance increasing demands for harsher sentencing with the enduring complexities of Northern Ireland’s legal and political environment.

Fantasy legal exhibitions

2025-06-03T15:41:26+00:00

This article explores the potential of ‘fantasy exhibition’ as a novel, speculative and prefigurative, legal research method. What might legal scholars gain, and what might they lose, from asking what if, and then acting as if, they were to exhibit some aspect of their research? It draws on insights from a design-driven, experimental academic workshop, held across multiple locations in central London in 2023. We place the concept of fantasy exhibition in the context of wider trends in legal research and museum practices; detail the designerly methods that we deployed to prompt and facilitate our participant collaborators to engage in fantasy exhibition; present the prototype exhibitions that emerged from the project; and identify lessons learned along the way. We draw throughout upon insights from our participant collaborators.

Views from the coal face: the development of international commercial mediation

2025-07-17T13:21:23+00:00

Mediation use in the international commercial area has been the subject of some research and discussion over the past two decades. In the past five years, however, a number of significant changes have resulted in an increased focus on the use of mediation to resolve international commercial disputes. One significant area of potential change has resulted from the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation, New York, 2018). Apart from this change, domestic commercial mediation has increased in a number of jurisdictions as a result of an increased domestic focus on mediation and, in some instances, mandatory requirements to use mediation that are fostered by legislative instruments or contractual requirements. This article explores the potential and actual use of mediation from the perspective of international commercial mediators, their perceptions of barriers to use and ways to expedite growth as well as discussing the perceived benefits and concerns about what has been referred to as the juridification of mediation.

Nineteenth-century registers: constituting the market, professions and individuals

2025-07-17T13:26:52+00:00

The nineteenth century saw the introduction of at least 20 registers into English statutory law. These were used as techniques of governance, in a Foucauldian sense, and they reflect the shifts in the changing relationship between individuals and the state at the time. The registers include the better-known systems for voters, births, companies and some professions. Less well-known registers were introduced for industrial property, coalwhippers and for deserters from ships. Deploying the idea of governmentality allows the registers to be seen in terms of the externalisation of aspects of governance, the facilitation of the internalisation of specific practices by those who sought registration and, to a lesser extent, by the competitors of those who sought registration. As such, their introduction represents a move away from the pre-existing juridical mode of governance.

Review of Not What the Bus Promised: Health Governance After Brexit by Tamara K Hervey, Ivanka Antova, Mark L Flear and Matthew Wood

2024-11-06T15:49:21+00:00

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Out of time and out of pocket: The Victoria Square apartments debacle and the (empty?) promise of the Defective Premises Act (Northern Ireland) 2024

2024-12-06T11:24:29+00:00

The residents of apartments housed within the Victoria Square residential complex in central Belfast were ousted from their homes in February and April 2019 due to concerns over the safety of the building structure. In March 2024, the residents launched a joint claim for compensation under the Defective Premises (NI) Order 1975 which was struck out in the High Court by Mr Justice Huddleston applying the Limitation (NI) Order 1989. The judgment became the subject of much media attention in Northern Ireland and ignited a swift call to action by MLAs to align the legal regime here to that in England & Wales. In September 2024, a very short statute in the form of the Defective Premises Act (NI) 2024 came into force and claimants were permitted to appeal the High Court’s ruling to the NI Court of Appeal considering the new legislation. Notwithstanding the possible revival of the claimants’ case, this commentary demonstrates how the 2024 Act falls short in many aspects due to its rushed inception and scant provisions; it is not a silver bullet for these types of claims in Northern Ireland.

Putting participants at the heart of the public inquiry process: insights from the Muckamore Abbey Hospital Inquiry on engaging with vulnerable witnesses

2025-07-17T15:22:11+00:00

This case study examines Muckamore Abbey Hospital Inquiry’s approach to engaging with vulnerable witnesses and participants, including those with severe learning disabilities, developmental disabilities, and mental health needs. It offers detailed insight into the key considerations, adjustments made, and support provided by the Inquiry, and how it seeks to put the needs and interests of vulnerable participants at the heart of its process.
An inquiry chair has a very broad discretion to determine the procedure and conduct of a public inquiry. As a result, a public inquiry is uniquely placed to explore and adopt bespoke and novel approaches to challenges encountered, including addressing the needs of vulnerable participants. Lessons may be learnt to improve future inquiry practice, and comparative lessons may be learnt to inform other accountability processes, such as the criminal and civil justice systems and tribunals. However, currently, there is no central system that records and disseminates details of individual public inquiries’ procedure and conduct.
This case study examines the Muckamore Abbey Hospital Inquiry’s adjustments and support measures, including: its treatment of all witnesses and participants as being potentially vulnerable; its innovative approach to the use of registered intermediaries and communication support in an inquiry context; and its flexible and responsive approach to individual participants’ needs. This research is designed to provide an evidence base to inform future inquiry teams in their procedural decision-making, in the United Kingdom and other jurisdictions that adopt a similar inquiry model, and to inform future research on comparative lessons for other judicial and quasi-judicial processes.

Sentencing: R v Kenneth Clarke & Jamie McConnell (Reference by the Director of Public Prosecutions) [2024] NICA 52

2025-07-17T16:01:45+00:00

Sentencing offenders for multiple offences can be a complicated task with various competing demands placed on the sentencing judge. The principle of totality seeks to ensure that the overall criminality of the offending behaviour is reflected in the ultimate sentence. Judges normally achieve this by making some or all of the sentences concurrent or by reducing the length of each individual sentence. In approaching this task, what role does the ‘headline’ or ‘lead’ offence have and how does it assist the judge to arrive at a ‘just and proportionate’ sentence? This case comment examines the reference brought by the Director of Public Prosecutions (DPP) in the case of R v Clarke & McConnell. In this decision, the Northern Ireland Court of Appeal decided that the wrong headline offence had been identified in the lower court which, in turn, skewed the starting point for the overall sentence. This comment examines the relevance of such a ‘headline’ or ‘lead offence’ and considers its role in the sentencing exercise. With Northern Ireland operating a different sentencing regime to England & Wales, it also considers how such cases are approached by judges in the absence of specific sentencing guidelines.