The British Claim to rule Malta 1800-1813

The question of the nature of the legal authority exercised in Malta by British officials prior to 1813 has been a rich source of debate and controversy. The moment at which the British officials had a legal power to exercise full legislative and executive authority is elusive, despite its prominence as a seminal moment in Maltese constitutional history. Whether legal authority arose because of cession or conquest matters because, as we shall discover, the events on which these alternative possibilities are founded occurred at different times. If, for example, cession explains the legal and constitutional authority of the British Crown in Malta, we need an explanation of the legal source of that authority prior to cession. This is the question upon which this article focuses

Coleridge's Malta

In 1809 when Coleridge was prompted to write about his time in Malta by the death of Sir Alexander Ball, the late Civil Commissioner whom he so much admired, he recorded that he regarded his stay on the Island as “in many respects the most memorable and instructive period of my life”. As those familiar with Coleridge’s history recall, Coleridge had arrived on Malta in May 1804 predominantly to liberate himself from opium dependency. Coleridge impressed Ball, whom he met shortly after his arrival. Given the staffing problems confronting him, Ball eventually made Coleridge the offer of Edmund Chapman’s post as under-secretary during the latter’s absence from Malta on the speculative corn mission, about which more will be ventured below. After an assurance that the work would be “nominal” Coleridge accepted the post because the salary would defray the expenses of his planned journey to Sicily. Coleridge thus began his official tasks as under-secretary to Ball. However, following the death of the Public Secretary and Treasurer, Alexander Macaulay, on 18th January 1805, Coleridge was appointed as a temporary replacement pending Chapman’s return to the Island, albeit that he declined to act as Treasurer. As Acting Public Secretary he assumed a post second in civil dignity to that of the Civil Commissioner, and found himself at the heart of government. The purpose of this article is to outline the legal, political, administrative and economic challenges encountered by the British administration in the period 1800-1809 in which Coleridge had assumed an important role, as well as to venture some comments about the coherence of British policy. Some limited observations on Coleridge’s contribution to the success of British rule at this time will also be advanced

The Doctrine of Consideration: Dead or Alive in English Employment Contracts?

The doctrine of consideration, with its emphasis upon exchange, and its general rejection of 'more for the same', seems inadequate for the modern environment in which flexible rewards may reflect the employer's concern that the importance of individual staff to an enterprise may not remain constant and may alter as the commercial context in which their work is performed fluctuates. Although versions of the classical doctrine have exercised an important influence in English employment law, there now appears to be a noticeable disinclination to use the doctrine as a problem-solving technique. This is especially so in relation to the variation vases as well as those concerned with the enforcement of apparently gratuitous benefits in formal policies, such as equal opportunities policies. It will be argued that the classical doctrine is either falling into desuetude or that it has been substantially revised

A common law agenda for labour law

This article assesses the purposes of a re-contractualisation of the employment relationship. It examines in particular the implied duty to act in good faith, and argues that in developing this and other implied terms the judiciary only extends employment protection to further wealth maximisation. It is argued that the common law sees its contribution to labour law as a device for maximising the efficiency of the enterprise and promoting the creation of wealth for the benefit of the national economy. The article examines this thesis by assessing the manner in which good faith has been employed to aid modernisation and competitiveness, to control conflict, to regulate the manner in which employees are treated by their employers, and how the law is more concerned with the substance rather than the form of agreement. It suggests that employment protection is likely to be extended in regard to what the authors have described as "the environment interest". In the context of industrial conflict terms have been consistently developed so as to enhance managerial prerogative. The article concludes that all facets of the duty of good faith, (and other implied terms) have been developed to promote the public interest in a successful econom

Theories of termination of the contract of employment: the Scylla and Charybidis

The principles governing the termination of a contract of employment are problematic. Decisions both in Australia and England continue to reveal an unresolved dilemma between the 'automatic' and 'elective' theories of termination, the outcome of which can have important practical consequences. It is argued that the courts are not consistent in their application of these theories, and that each lacks coherence. For example, neither properly accommodates the principle that a readiness and willingness to work provides consideration for wages. Accordingly, the general rule that a wrongfully dismissed employee is only entitled to damages representing the value of wages not earned during the contractual notice period needs to be reconsidered. This article proposes that an exclusive reliance on either theory will be misconceived. It is further argued that terms of the contract end according to different rules depending on their nature, and that these rules recognise a role for public policy

Good Faith Performance in Employment Contracts

Traditional principles of contract law are ebbing before a flood tide bearing a more radicalised idea of the contract of employment. Some may identify in this innovation a reaction to the tradition of free market individualism expressed in the ideas of sanctity of contract, the search for agreement and the maxim caveat emptor. Parties to a contract may now be prevented from the pursuit of their selfish interests notwithstanding express terms of a contract which ostensibly appear to justify this. Express agreement may yield to obligations which are imposed by law. Amongst these significant developments is the importation of a duty binding each party to the employment contract to act in good faith,1 a duty which appears to be very different from the long recognised duty of the employee to serve faithfully.2 At present the precise nature of this new duty is elusive. Nevertheless, its importation poses difficult questions about how far the re-alignment of the employment relationship might extend. The authorities appear to establish the concept of an actionable abuse of a contractual right notwithstanding that the relevant conduct ostensibly falls within the express power conferred. But this only poses complex questions. Against what standard is such abuse to be measured? Is the good faith obligation merely a device to allow the court to enforce the contemplation of the parties at the time of contract? Is the proper focus the spirit rather than the letter of the bargain, thus departing from orthodox canons of construction? This note examines some recent decisions which have placed some reliance on the idea of good faith performance