The Lord Chancellor's Advisory Committee

The Qualified Lawyers Transfer Scheme (QLTS) is a comprehensive assessment for lawyers from other jurisdictions and barristers from England and Wales to qualify as solicitors in England and Wales. Three new assessments have been developed which make up the QLTS, in part drawing on testing experience in medicine and in other jurisdictions: the multiple choice test (MCT); the objective structured clinical examination (OSCE) which involves assessment of oral skills (interviewing and advocacy) and which uses Standardised Clients; and the technical legal skills test (TLST) which involves assessment of written skills (legal research, writing and drafting). Some of the assessment methodologies used in the QLTS are discussed, including the use of standardised clients. An explanation is given of how reliability and accuracy of the assessments are calculated and how pass marks are set. The paper presents and reviews the very encouraging statistics from the first major delivery of the three assessments, including success by jurisdiction, ethnic group, gender and disability, and routine quality statistics on reliability and accuracy, as well as a statistical review of the use of standardised clients. QLTS reflects the regulatory aims of the SRA and is a radical departure for assessment of law in England and Wales. It is to be hoped its assessment methodologies will have a substantial influence on the future.     

Lord Cottenham and the Court of Chancery

Lord Cottenham was a significant legal figure in nineteenth-century Britain. He was a Lord Chancellor and Keeper of the Great Seal in both Lord Melbourne's and Lord Russell's administrations. Yet compared with his peers he has faded into obscurity, because his contribution to the reform of the Court of Chancery and the development of the law, particularly equity, has not been fully appreciated. It will be argued that Lord Cottenham was not as successful as his successors in reforming Chancery because his attempts to do so were flawed by the view that incremental reform would redress the problems which beset the Court. However, he made some highly significant contributions to equitable doctrine, sometimes taking a practical approach to judicial decision-making and laying the foundation for some modern doctrines.     

衰亡还是重生——英国大法官的历史演进

每一个历史事件实际上都蕴含着丰富的社会、政治和文化内涵,因此真正深刻理解一定的历史事件,总能让人从中获取启示。所谓读史可以使人明智,其道理就在于此。2003年英国大法官的撤销,对英国的政治和司法制度来说无疑是一个具有深远历史意义的重大事件。胡健之文捕捉到了这个历史事件命题,对其中所蕴含的历史、社会、政治和法制信息进行了有资料、有分析且有见解的阐释议论。特别是作者对英国大法官历史演进过程中几次重要的角色性质转换所做的分析立论,更应能引起许多法律学者和实务工作者的兴趣。文章对于英国大法官演进过程中行政官员司法化、神职法官世俗化、中立人员政治化的阐释与分析,清楚地揭示了其每次角色转换其实都是特定的历史背景、社会状况和政制形态的折射。不仅如此,社会历史的发展必将还会造就大法官新的历史角色。虽然这个过程刚刚开始,结局尚未最后明朗,但这个悬念确实给人以思考的时间与空间,甚至能给人以角色转换应取方向的提点。因为就已经考察的英国大法官历史演进规律而言,大法官的职能只有在脱离王权、神权乃至党权的前提下,方能实现其应有或正当的使命。     

The nisi prius Trial Notes of Lord Chancellor Hardwicke

The trial notes of Chief Justices William Mansfield and Dudley Ryder have proved to be rich sources for the study of common law judicial process in the decades after 1750. Equally valuable, but hitherto unanalyzed, are the trial notes of Philip Yorke, Lord Hardwicke, compiled when he was Chief Justice of King's Bench in the mid-1730s. This study provides an account of Hardwicke's notes, comparing and contrasting their style and substance to those of Mansfield and of Ryder, thereby enlarging our appreciation of the character and treatment of civil litigation in the royal courts under George II and George III.     

A Retreat from Pepper v Hart? A Reply to Lord Steyn

This article shows how the House of Lords has, in recent years,embarked on a retreat from its landmark decision in Pepper vHart which had relaxed the rule prohibiting courts from usingministerial statements made in Parliament for the purpose ofinterpreting statutes. This development was initiated by a lecturegiven by Lord Steyn in May 2000 and subsequently published inthis journal. The article attempts to refute the reasons advancedin support of the retreat. In addition, it sets out to showthat the alternative solution proposed by Lord Steyn createsboth conceptual and practical difficulties. As a result it arguesfor a reversal of the retreat.     

Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn

This Note is intended to stand as a short supplement to thecompelling article by Stefan Vogenauer entitled, ‘A Retreatfrom Pepper v Hart? A Reply to Lord Steyn’ published inthe Journal at the end of 2005.¹ In his article, Professor Vogenauercalls in question the argument advanced by Lord Steyn in hisarticle in the Journal, entitled ‘Pepper v Hart: A Re-examination’.²In that article, Lord Steyn called for a retreat from the decisionof the House of Lords in Pepper v Hart³ concerning the circumstancesin which reference may be made to Hansard as an aid to statutoryconstruction and for a reinterpretation of the decision in linewith a theory that a Minister speaking in Parliament who givesan explanation of the meaning or effect of a clause in a Billshould be taken to create a binding legitimate expectation thatthe executive will apply the provision, once enacted, in thatsense. In this Note, I express my agreement with Professor Vogenauer’sargument, and seek to support it with some additional pointsunder three heads: (1) the proper interpretation of Pepper vHart and its status as authority; (2) the basis in principlefor adhering to that interpretation; and (3) conceptual difficultiesattached to Lord Steyn’s legitimate expectation thesis.     

周公作诗传说的文化分析

《诗经》中,有七篇作品被战国秦汉学者指实为周公所作,但后人颇多争议,驳论之说多可成立。秦汉时代流传的《诗经》本事偏重于道德之善,而相对忽略事实之真,多为战国时人臆造。清华简所载《蟋蟀》本事当是后人拟撰附会。     

Wills,Trusts and Trusting from the Statute of Uses to Lord Nottingham

Medieval feoffments to the uses of a last will provided, in effect, a power to devise freehold land, otherwise generally impossible at common law. The Statute of Uses 1536 put an end to this mechanism, and in 1540 the Statute of Wills provided, within limits, a substitute power to devise. But conveyances inter vivos upon trust for the performance of wills continued to be made after 1540; and the distinction in practice between such trusts and wills was less clear than might be supposed: wills under the statutory power were understood as conveyances; executors were frequently trustees in a narrow sense; and the perception that executors were, in a broader sense, trusted, had substantive effects. In understanding wills, trusts and trusting after the Statute of Uses, distinctions between those who are ‘trustees’ and those who are not, or between conveyances upon trust and wills, may be an essential starting-point in bringing order to the sources, but cannot fully reflect the complexity of contemporary arrangements.