The Pupil - Volume 6

Page 1

The Pupil Vol. 6 TT22

Oxford Bar Society Magazine

The Pupil TT22 Table of Contents Articles 2. Japan's Rape Laws: Fundamentally Flawed Daisy Whymark 3. Londongrad: Crime, Commerce & Corruption Joe Murray 5. The Right to a Clean, Healthy and Sustainable Environment Katherine Wood 7. A Dissection of Nationalist Legislation in an Authoritarian India Harsimran Kundi 9. Killer Robots and Responsibility Gaps: How Should We Allocate Responsibility for Lethal Autonomous Weapons? Imogen Rivers 11. Does the Current Law of Defamation Silence Victims of Sexual Harassment? Yuming Chen Interviews 13. Sir Jack Beatson 15. Rosalind English 17. Daniel Barnett 19. Marcus Cleaver

Editor's Note TT22 I am very excited to welcome you to the Trinty Term 2022 edition of The Pupil. It has been an honour to edit the magazine this term, and I have relished the opportunity to read student articles and interview brilliant legal minds. In this issue, we have a pertinent analysis of the influence of Russian dirty money on England's legal system; a vital review of Japan's rape law and a judgement on whether defamation law has a chilling effect on victims of sexual harassment amongst many other fascinating articles. As editor, I was able to pick the brains of some of the UK's top legal thinkers. I chose to focus on individuals who inspired me to pursue a career in law: Rosalind English with her accessible and thoughtful Law Pod UK, Daniel Barnett's practical Employment Law Matters and Marcus Cleaver's reliable UK Law Weekly. I also had the pleasure of speaking to Sir Jack Beatson about his brilliant new book, The Rule of Law and the Separation of Powers. Lots to put on your summer reading and listening list! A big thank you to the students who contributed pieces, and the interviewees for so generously giving their time. Beatrice Munro Editor of The Pupil

Japan’s Rape Laws: Fundamentally Flawed

deriving from the notion of self-control


Daisy Whymark

The 2017 Penal Code updated elements of

The state of Japan’s rape laws is derisory. It fails to protect victims, and reflects deeply-entrenched societal values regarding female subordination. Although updated in 2017, the law remains outdated, failing to tackle the abuse that goes unreported and unprosecuted. The law is antiquated, and in dire need of reform.

the 1907 law, removing the limitation that only women can be victims of rape. This is a satisfactory change, as although rape remains a gendered crime across the globe, recognizing that it can occur to and be perpetrated by all is a step towards normalizing reporting. But, the Penal Code also altered the name of the crime from the “crime of rape” to the “crime of forceable sexual intercourse”. This weakens the crime socially, as the power of naming is substantial. Rape labels an action that of abuse, rather than merely violence: ‘[n]ames provide social definition, make visible what is invisible, define as unacceptable what was accepted; make sayable what was unspeakable’. This name-change is not conducive to the social change that needs to occur in order to tackle rape.

The most striking element of Japanese rape law is that consent does not feature. In contrast to the UK’s Sexual Offences Act 2003, where consent forms the backbone for not only rape but also other sexual offences, it is a concept alien to Japanese rape law. This has to be qualified, however. It is acknowledged that Japan sets the age of consent at 13: the youngest of any developed nation. The relevance of the lack of the concept of consent is in determining a desire to have sexual intercourse above this age. Consent it not required: instead, following the 1907 law which is still in effect today, the prosecution must prove that violence or intimidation was used, which left the victim “incapable of resisting”.

Underlying Japan’s rape laws is the entrenched belief in the distinction between public and private spheres of life. The state is not considered to be valid in intervening in the lives of its citizens, reflected in the saying ‘there is no need

for law in the family’: ‘ho wa uchi no

Such a conception of rape limits the

naka ni wa iranai’. The arms of the state

autonomy of victims, as they are not required to say yes, but must be proven to have said no in the most extreme of terms. This reflects a traditional 20th century attitude that it is a woman’s duty to protect and even fight for her chastity,

display a similar attitude, with police having been quoted as stating that ‘fufugenka wa inu mo kuwanai’: ‘even dogs are disinterested in domestic disputes’.11 The public-private distinction is often advanced in Western debates, but it ultimately reveals itself to be a liberal fantasy predicated on androcentric


privilege. In Japan, this false dichotomy only perpetrates a reluctance for victims to speak out.

Londongrad: Crime, Commerce & Corruption Joe Murray

Finally, the procedures which implement

Sergei Magnitsky was a Muscovite lawyer who diligently and proficiently worked for Hermitage Capital, a London-based firm which was – at the time - the largest investment firm in the Russian Federation. With the blessing of Hermitage Capital’s owner, Bill Browder, in 2007 Magnitsky uncovered that Russian bureaucrats had fraudulently obtained a tax rebate from the Russian State worth $230 million. In return for Magnitsky’s whistleblowing, the Kremlin arrested him for spurious claims of tax evasion. After repeatedly being denied medical treatment, Magnitsky died at the hands of the Russian State, aged 37.

Japan’s flawed rape laws also require reform. When a rape is reported (which is extremely unlikely), the system followed is one of ‘prosecutor justice’, where an investigation is conducted behind closed doors. The aim of this is to obtain a confession and detailed statement which aligns with the investigators’ pre-existing theories. Considering that the Prosecutor’s Office states that one of its considerations when deciding whether to pursue a case is shakai tsunen (community standards) it is unsurprising that very few rape cases go to trial. Moreover, in the unlikely event that they do, these same community standards are often followed by the judge, producing injustice and further deterring victims coming forward. The procedure of rape trials is deeply flawed.

The European Court of Human Rights in

Magnitsky and Others v. Russia App no 32631/09 and 53799/12 (ECHR, 27 August 2019) held that Kremlin had violated Art.2, Art.3, Art.5(3), and Art.6(1-2) of the European Convention on Human Rights in its treatment of Magnitsky. Despite this, the kleptocracy which plagues the Russian State has not ended its crusade to subvert of the rule of law. On the 24th of February 2022, Russian commenced its invasion of Ukraine. In doing so, Russia breached international law, acting contrary to Art.2(4) of the United Nations Charter. However, this criminality and corruption has spread beyond the confines of the Kremlin’s defensive perimeter. Elite neighbourhoods in the Royal Borough of Kensington and Chelsea have become a Russian oligarch’s playground, and the City of London has become a laundromat for Russian money. Recently Transparency

To conclude, social, legal and procedural barriers stand in the way of rape victims achieving justice. In the case that they do succeed in their trial, the minimum sentence their abuser might receive was only in 2017 increased from three years to five.

Sadly, it is possible that the haji (shame) that the victim receives from their community may outweigh any closure they gain from a deeply patriarchal legal system.


International identified over 2,000 companies registered in the UK or British Overseas Territories and Crown Dependencies involved in 48 cases of Russian money laundering. In total, it amounted to over £82 billion circumventing the law. But the mood is changing.

courts. Fundamentally, lawyers advise their clients on the law, regardless of who they are or what they have done. If there are issues with the outcomes that the law is producing, it would be more productive for the Government to close the facilitating loopholes, than criticise lawyers for upholding access to justice for all.

London’s Historical Hospitality

Legislative Endeavours

The door to Russian oligarchs was inadvertently firmly ajar with the UK’s Tier 1 (investor) visa. Permanent residency was granted so long as the applicant agreed to invest £2 million or more in the UK’s economy. As a result of the Home Office turning a blind eye to the murky money tail, Transparency International has estimated that, at a minimum, £1.5 billion of British property is owned by Russian individuals alleged of financial crime or of having links with the Kremlin. The City of London offers a façade of legitimacy that oligarchs crave. From large City law firms advising on tax or real estate to one leading London chambers’ stating that they offer “wide-ranging expertise and specialist counsel at all levels for litigants from former Soviet countries”, the prestige of the English common law is often considered to be a tool to protect dirty Russian money.

Admittedly, the fast-tracking of the Economic Crime (Transparency and Enforcement) Act 2022 through Parliament is a testament to the Government’s desire to reform the law. The war in Ukraine has catalysed Parliament to act. Most crucially, s 3 mandates for the introduction of a register of overseas entities and s 12(2)(a) requires that ‘reasonable steps’ must be taken to identify the beneficial owner of the entities. S 39 sets out that a failure to register identities could result in severe financial penalties or a prison sentence, as contained contrary to s 15. This ought to prevent oligarchs from utilising agents to hide their true ownership and launder their dirty money in the London machine. Furthermore, Part 2 of the 2022 Act strengthens the power of imposing unexplained wealth orders (UWOs), which were originally introduced in the Sanctions and Anti-Money Laundering Act 2018. Now, UWOs can target those who hide true property ownership in a trust or other murky ownership structures. In addition to the developing sanctions issued by the Government, it seems that Londongrad is no longer the haven it once was for Russian oligarchs.

A Changing Tone Nevertheless, Western law firms are in exodus from their offices in Russia and the UK Government is threatening to ‘name and shame’ firms which maintain links to questionable Russian individuals or entities. In response to the Government’s pressure, the Law Society President, Stephanie Boyce, has stressed that the job of a lawyer is “to represent their clients, whoever they may be, so that the courts act fairly”. This distinction is why Russians and kleptocrats across the world turn to legal London for dispute resolution instead of opting for their own domestic

Reconciling Law with Lawlessness Corrupt kleptocrats are drawn to London precisely because of its prestige. London is a global financial centre, home to some of the best lawyers the profession can offer. In contrast, the Russian Federation is a


The Right to a Clean, Healthy and Sustainable Environment

land where the rule of law is a catchphrase used to subvert institutions of state for corrupt interests and criminality. Russian laws are substantively meaningless. It is Putin who sets a precedent, not the judges. In the UK, the rule of law epitomises the brilliance of the English common law system. The harsh reality is that Magnitsky would not have been prosecuted in the UK, and neither would the Russian opposition leader, Alexi Navalny, have been unlawfully imprisoned for being critical of the British Government. The Kremlin decides a case’s outcome before the Russian equivalent of

Katherine Wood In this green and pleasant land, it is difficult to imagine our health being affected by environmental degradation. However, anthropogenic pollution is putting our lives at risk. In December 2020, a landmark inquiry found that ‘air pollution’ had directly contributed to the death of 9-year-old Ella Adoo-KissiDebrah, and little has improved since. This year, reports have found that 97% of UK households are exposed to air pollution above WHO guidelines, and that the UK’s rivers are a ‘chemical cocktail’ of sewage, agricultural waste, and plastic. Meanwhile, work continues on such projects as the Silvertown Tunnel, set to open in 2025, which experts say will increase air pollution in some of London’s poorest areas.

a barrister (an advocatura) receives their bundle. Thus, it is a dangerous risk to be critical of lawyers for doing their job. A solicitor or barrister representing a Russian oligarch is not supporting the corrupt regime of Putin. Neither is a solicitor or a barrister in a criminal case supporting murder by representing their client. Justice is only served when lawyers on both sides argue that the law favours their client. The only answer to closing the London laundromat is reforming the law and closing the loopholes.

It is clear, then, that threats to the environment are threats to our lives, and particularly to the lives of the most vulnerable. Despite, this, the government has been reluctant to support a ‘right to a clean, healthy and sustainable environment’. This is a mistake. The UK has shown that it can lead in protecting the environment through legislation such as the Climate Change Act 2008 and the Environment Act 2021. Now, to maintain this position, the government must take its upcoming opportunities to endorse the right to a clean and healthy environment, both on an international level and as part of a domestic Bill of Rights. What is the right? While over 150 countries refer to a right to a healthy environment in their national law, the right has only recently been discussed on an international level. Its recognition stems from the increasing ‘greening’ of human rights, the tendency for human rights claims to be brought on


risk now, particularly in the UK. So far there hasn’t been enough political impetus to ensure that other rights, such as the right to life, are utilised to protect against this threat. The recognition of the new right can counter this in three ways.

environmental grounds. For example, in Portillo Caceres v Paraguay (2019), the UN Human Rights Committee held that the failure to enforce pesticide regulation was a breach of the right to life, privacy, family and home. Similarly, in Urgenda v Netherlands (2019), the Dutch Supreme Court found that the government’s failure to reduce emissions infringed on the right to life and family life. In 2021, in Sacchi v Argentina, Brazil, France, Germany, Turkey it was claimed that insufficient emissions reductions were a violation of the UN Convention of the Rights of the Child. Such cases have shown an increasing recognition of the centrality of environmental protection to the protection of other rights.

First, the new right might itself trigger political change. The right articulates a specific problem facing humanity and underscores the foundational importance of a clean and safe environment to human life. This may begin to change the public’s perception of environmental degradation and start a process of political action, leading to the further greening of other human rights and more government action to counter environmental damage. Secondly, the certainty of the right’s content may prompt more legal action, as potential claimants need not struggle to present their environmental claim as falling within the ambit of an existing right. Instead, victims of environmental damage have a clear ground on which they can bring a claim. Moreover, the new right removes any debate that might otherwise arise during litigation about whether environmental factors are relevant. For example, while it might be debatable that dangerous pollution breaches a right to family life, there is no doubt it breaches the right to a healthy environment.

In response to this trend, in 2012, the UN appointed John F Knox as an Independent Expert and later Special Rapporteur on Human Rights and the Environment. His 2014 Mapping Report laid out the procedural, substantive and antidiscriminatory obligations through which States could uphold the right to a clean and healthy environment, including the establishment of environmental standards; remedies for violations; protections for those most at risk; and public participation. In 2018, the Framework Principles on Human Rights and the Environment were presented to the General Assembly, and in October 2021, the UN Human Rights Council recognised the right to a clean, healthy and sustainable environment as an essential human right. Later this year, recognition of the right is set to come to a vote before the General Assembly. Do we need this new right?

Finally, the right is particularly easy to enforce. One argument levelled against human rights is that, due to their vague descriptions, states can claim to be upholding rights without substantively doing so. This is less likely in a technical field such as pollution since it can be said with certainty when environmental degradation poses a health risk. This scientific aspect may also make the right an attractive one for more countries, including those with dubious human rights records. Providing a clean and healthy environment is a technical issue, not an ideological or political one.

It may seem that, with the gradual ‘greening’ of other rights, there is no need for this new right to a clean, healthy and sustainable environment. However, the greening of other human rights is happening too slowly to protect people at


What should the UK government do?

A Dissection of Nationalist Legislation in an Authoritarian India

So far, the UK government has been cautious in supporting the new right on an international level. Although it voted in favour of the UN Human Rights Council’s recognition of the right, the UK Ambassador for Human Rights was quick to emphasise that ‘human rights resolutions are not legally binding instruments’ and that the vote ‘is without prejudice to the position to be taken by the United Kingdom in future.’ The government must adopt a more proactive approach when the vote is put before the UN General Assembly, and if it chooses to pursue a British Bill of Rights. In promoting this right, it will show a true commitment to the health of its citizens and the health of the planet.

Harsimran Kundi On the 15th March 2022, the High Court of the southern Indian state of Karnataka ruled in favour of a governmental ban on the wearing of headscarves in schools and colleges. The case was brought to trial after hijab-wearing Muslim students were denied entry into classrooms on the basis of not adhering with the dress code. The students argued this was a violation of their religious freedom, as guaranteed under article 25 of the Indian constitution which states that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion”. The judgement relied on something dubbed as the “essentiality test” – whether a practice is essential to a religion. In this particular case, the debate centred around if the hijab is an essential Islamic practice - a legal and theological debate that has had several different answers throughout India’s legal history dependent on the time-period and state. The 3-judge bench eventually found that it was not essential. For Indian Muslims, the landmark Karnataka ruling not only impedes their religious rights and acts as a barrier to education, but also contributes to the disturbing trend of Hindu nationalism which seems to be on the rise in recent years. Hindu nationalism, or Hindutva, refers to a political ideology that equates “Indianness” with “Hindu-ness”. Hindu nationalism has been a key theme within the current political ruling party of India – the Bharatiya Janata Party (BJP), led by Narendra Modi. A key piece of discriminatory legislation passed by the BJP which caught media attention was the citizenship amendment act 2019 (CAA). This bill changed fast-tracked citizenship by naturalisation for persecuted minority immigrants from Afghanistan, Pakistan,


and Bangladesh, but excluding Muslims. The bill drew widespread criticism from international organisations such as the UN and Amnesty International on the basis of religious discrimination in a constitutionally secular country. Strikingly, the bill failed to recognise persecuted Muslim populations such as the Ahmadiyyas and Hazaras from Pakistan and Afghanistan. The bill also failed to provide refuge for other persecuted minorities such as Tamil Sri Lankans, Tibetan Buddhists, and Rohingya Muslims. The introduction of the bill in early 2020 resulted in protests around India, with many at universities and a notable peaceful sit-in protest at Shaheen Bagh, Delhi, which blocked a major highway.

neglect of the north-eastern states. And it is not limited to just these laws, or laws in general. The problem of Hindu and Muslim conflict is one that stretches throughout the history of India, exacerbated by the Colonial British strategy of ‘divide and conquer’. Appropriate and inclusive legislation is one way to help subdue the rise of Hindu nationalism, but what it really requires is a swift change in the way those at the top of the political ladder think about minorities.

Whilst the protests failed to alter the piece of legislation, a tangible uptick in politically-incited hatred and communal violence was seen in response to them. The 2020 Delhi riots provide a key example of this. On the 23rd February 2020, a 6-day riot ensued in response to an anti-CAA protest. The riot resulted in the death of 53 people and over 200 were injured. The majority of these deaths, 40 people, were Muslim. Several BJP leaders attracted criticism after the riot for inciting violence. This included Delhi’s own cabinet minister, Kapil Mishra, who stated just days prior to the riots that he would take matters into his own hands if police failed to disperse protestors. Police too were seen by several witnesses not only to fail to disperse the riots and establish peace, but instead purposefully helping Hindu gangs. These pieces of legislation when integrated with the discrimination and violence that ensues after their implementation represent a growing systemic problem in India – one of intolerance for diversity. This has been seen in politicians attempting to instate Hindi as the national language, and in the


Killer Robots and Responsibility Gaps: How Should We Allocate Responsibility for Lethal Autonomous Weapons?

committed with either “intent and knowledge” (Rome Statute: arts.30(1)30(3)) or with “recklessness” (ICRC Commentary 1987: 994). But a fortiori no agent in WH intentionally, knowingly or recklessly causes the outcome. On the other hand, in certain cases, a superior P may be held indirectly responsible for a subordinate Q’s crime. There are four requirements: (i) Q must bear direct responsibility for the crime; (ii) P must exercise “effective…control” over Q’s actions (Rome Statute: art.28(a)); (iii) P “knew or had reason to know” of Q’s actions (ICTR Statute: art.6(3)); (iv) P “failed to take the necessary and reasonable measures” to prevent or punish Q (ICTY Statute: art.7(3)). But none of these requirements seem to be satisfied in WH: (i) fails since LAWs do not satisfy the mental elements for direct responsibility; absent any human in the decision-making loop, (ii) fails; moreover, when evaluating (iii) and (iv), tribunals tend to apply something akin to a gross negligence standard, which involves “reckless disregard of a legal duty” (Bryan 1999: 1057; Cassese 2013: 53). But no individual exhibits such disregard in WH. Thus, the RGP: LAWs may cause wrongful harms for which no individual may be held responsible under IHL.

Imogen Rivers “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” - Judgment of the Nuremberg International Military Tribunal 1947 §1 The Responsibility Gaps Problem The imminent proliferation of lethal autonomous weapons systems (LAWs) in modern warfare—viz., of AI-based “weapons system[s] that, once activated, can select and engage targets without further intervention by a human operator” (US Department of Defense (DoD) 2012)— raises the Responsibility Gaps Problem (RGP) in international humanitarian law (IHL): how should we allocate responsibility for wrongful harms perpetrated by LAWs in cases where no individual wilfully caused the outcome? For example, consider Wrongful Harm (WH): a tried-and-tested LAW bombs enemy soldiers who have clearly surrendered. This is neither a mechanical malfunction nor did any human intend or foresee it; rather, it results from the LAW’s algorithmic selection-and-engagement process.

§2 The Partial Responsibility Solution There are two main classes of response to the RGP, which share the underlying intuition that certain individuals involved in the production and deployment of LAWs bear some moral responsibility for their consequences (Himmelreich 2019; Robillard 2018). On the one hand, some seek to expand the requirements for indirect responsibility to accommodate cases like WH (Amoroso and Tamburrini 2021; Corn 2014; Burri 2018). The trouble with such approaches is that they attribute full criminal responsibility for the outcome to individuals (e.g.

Had a human being committed the act, they would be charged with a war crime; how, though, should we allocate responsibility for the bombing when no individual intended or foresaw it? Under IHL, there are two central ways to attribute individual responsibility for war crimes: directly and indirectly. On the one hand, direct responsibility obtains when the material elements of an offence are


§3 Responsibility in War

programmers, commanders) who contribute only minorly to the bombing. On the other hand, others defend a “war torts” regime according to which states bear civil responsibility for wrongful harms perpetrated by LAWs (Crootof 2016). But this attributes no criminal responsibility for the outcome to those who contribute minorly to its production, something which doesn’t seem right either.

I wish to conclude by noting three interesting connections between my proposal and wider discussions in the literature on responsibility in war. Firstly, my argument reflects a systemic problem in how the law deals with causal contribution: “what the criminal law should recognise—what…it currently fails to recognise—is the role of degrees of causal contribution in our attributions of individual responsibility” (Kaiserman 2021a: 154-155; Gardner 2007). Secondly, many authors believe that the jus in bello principle of discrimination— according to which there is an important legal distinction between attacks on military and civilian targets—is justified on the basis of a stark difference in the degree of causal contribution which combatants and civilians make to wartime threats (Frowe 2014; McMahan 2004; Fabre 2009). But since both civilian and military agents contribute in important ways to their development and deployment, the advent of LAWs may blur the normative distinction between combatants and civilians, which undermines the principle of discrimination. This would radically reshape the physical and normative boundaries of warfare (cf. Kaiserman and Beebee 2019). Finally, there is a prevalent assumption that, if LAWs were sufficiently sophisticated to bear moral responsibility for their own actions, the exculpation of human agents who participate in the development and deployment of LAWs would somehow follow (Burri 2018; Robillard 2018; Sparrow 2007; HRW 2015). This assumption is false: it is standard within the causation literature to recognise cases of overdetermination in which multiple elements fully cause the same outcome. It therefore follows that, even if LAWs were sufficiently advanced to make them bearers of moral responsibility, this would not itself suffice to exculpate those

I propose a novel, third way of allocating individual responsibility for breaches of IHL, one which reflects each agent’s degree of causal contribution to the outcome’s production. Cases such as WH involve lots of individuals contributing to a collective causation of a grave violation of IHL; each therefore seems to bear partial not full responsibility for the outcome. I suggest that we introduce a new set of crimes, whose actus reus is causal contribution to a grave violation of IHL. This solves the RGP: certain individuals (e.g. programmers, commanders) in WH bear partial responsibility for the outcome in virtue of their culpable contributions to the production and deployment of the LAW. At the same time, my proposal avoids either over- or under-criminalising through ensuring that responsibility is proportional to an individual’s degree of causal contribution. For example, P’s degree of causal contribution to the outcome may be defined as the fraction of all possible worlds at which the bombing happened where P acted as she did; other things being equal, her degree of responsibility for the outcome is then proportional to her degree of causal contribution (Kaiserman 2016). Partial responsibility would also be reflected in sentencing decisions: “the larger the degree of contribution, the longer the sentence, all other things being equal” (Kaiserman 2021a: 151-152).


humans who caused or contributed to causing their production and deployment. LAWs, I submit, will therefore never permit humans to abdicate their responsibility for grievous breaches of IHL.

Does the Current Law of Defamation Silence Victims of Sexual Harassment? Yuming Chen The law of defamation is carefully balanced to safeguard both the right to private life and freedom of expression, both of which are important human rights protected under the ECHR. However, given that in common law a statement can be held as defamatory despite being true, the law is not immune from abuse. In Wilson v Mendelsohn it was held by the High Court that posting descriptions of the defendant’s behaviour which the claimant considered to be harassment on social media was defamatory to the defendant’s reputation. The impact of this decision is yet to manifest, but it is not hard to fathom how it could open the floodgates for future retaliatory lawsuits against accusers in sexual harassment cases. Perhaps the most difficult part in suing for sexual harassment is the gathering of evidence, especially when the alleged behaviours took place in a private or domestic scenario. A significant merit of the #MeToo movement is the granting of a voice to victims of sexual offences, so that they don’t have to go through costly and time-consuming lawsuits to expose the perpetrators. However, court decisions like Wilson v Mendelsohn will undoubtedly have a chilling effect on these public participations, stifling the voices of victims with the possibility of being counterclaimed by defamation.

LAWs exist and more are coming. It is therefore imperative that we develop and implement a regime for allocating individual responsibility under IHL which accurately reflects the culpable contributions of all those who participate in the production and deployment of LAWs. This article is my contribution to that project.

Moreover, a victim of sexual harassment might not always be legally able to defend themselves when being sued for defamation. Truth is a well-known defence to defamation claims. According to s.2 of the Defamation Act 2013, if the defendant is able to establish the imputation conveyed by the statement complained of is substantially true, the defamation claim will fail; nevertheless, the burden of proof rests with the defendant in raising that


be awarded to them, with the possibility of punitive or exemplary damages. • Stay of Proceedings: Pending resolution of the anti-SLAPP motion, all disclosure obligations should be suspended so that the SLAPP claimants cannot abuse this process to cause nuisance for the defendant.

defence. It is worth noting that the standard of proof in showing that a statement is substantially true is that of the ordinary civil standard, i.e. the balance of probability, as per Mr Justice Warby in Theedom v Nourish Training Ltd. Arguably, this is a higher threshold in comparison to the required standard of proof for sexual harassment claims outlined in s.136 of the Equality Act 2010, which involves a two-stage test. In the first stage the claimant needs to prove facts which would allow the court to find that an unlawful act has been committed by the defendant; and if the claimant surpasses this stage, the burden of proof will shift to the defendant to show that the alleged act did not occur. The intention of this burden-shifting approach is to take the pressure off the victim’s shoulders, but the defamation claim might become a secondary tool for perpetrators.

Given the current state of the law regarding defamation, as discussed above, the suggestions made by the UK AntiSLAPP Coalition should be taken seriously lest the statute should be used as an instrument of oppression.

Other jurisdictions have tackled this problem with anti-SLAPP legislation. SLAPP refers to Strategic Lawsuits Against Public Participation, i.e. lawsuits which intend to silence critics by burdening them with the cost of a legal defence. 30 US states have anti-SLAPP laws that keep cases with little or no merit out of the courts, protecting the defendants from these vexatious suits. A report published by the UK Anti-SLAPP Coalition in 2020 outlined several suggestions on how to stop SLAPP suits from further exploiting the UK law system, by introducing antiSLAPP laws which contains the following features: • Accelerated Procedures: any lawsuit targeting acts of public participation should be subject to a merits test (for example, the probability of success) at the earliest possible stage in proceedings. • Sanctions: where the defendant is successful, full legal costs should


Interview with Sir Jack Beatson Former Lord Justice of Appeal, arbitrator

The trends are the different techniques increasingly used by the executive to bypass or to attempt to bypass Parliament.

and academic.

The two Miller cases are striking examples of unsuccessful attempts. The most successful technique are so-called Henry VIII clauses. These statutory provisions allow a minister to amend a statute by subordinate legislation. The justification offered for the exponential growth in their use is that the Parliamentary process can be cumbersome, and Government needs to be able to “future-proof” laws to keep them up to date. But the use of such clauses means that changes to legislation are made with little or no debate in Parliament. Moreover, Parliament can only approve or disapprove a statutory instrument: it cannot amend it.

Why did you decide to write this book in a highly accessible style and format? About 30 years ago, or maybe longer, Paul Craig and I were going to write a book on constitutional law, but we never got round to it because we had other projects. But I remained interested in the rule of law because, as Dicey recognized, the term carries a degree of uncertainty and vagueness. It is criticized for its capacity to be used as a political slogan or as a legal slogan without anybody knowing precisely what it means. After I retired from the Court of Appeal in 2018 I met

Nick McBride [the editor of Hart’s Key Ideas in Law series] asked me whether I

Writing the book in lockdown highlighted striking examples of another technique which may bypass Parliament. It is the use of “soft law” in the form of non-binding government guidance and policies, and ministerial statements as to how their statutory discretion will be exercised. Sometimes the line between such “softlaw” and binding legal rules is blurred. For example, in the early stages of lockdown, the Derbyshire police arrested people for not following guidance. Commentators were very critical of the police, and perhaps with justification. But the way the government announced what they wanted citizens to do made it difficult to tell what was law and what was merely guidance.

would like to write a book for the series and, if so, to think of a topic. My first thought was of key ideas about the judiciary’s relationship with the other branches of the state. Nick suggested that I broaden it out a bit so as to deal with the rule of law and its relation to the separation of powers. Those topics are ones that have interested me for many years from a number of perspectives. First, thatof an academic lawyer, then, while a Law Commissioner, that of a law reformer, and finally that of a judge. The series aims to provide concise introductions to a subject and does not allow footnotes. I found the prospect of writing a very short book without footnotes a challenge, but was attracted to trying to write something accessible. I started writing at the end of 2019, and the first lockdown came in March 2020. Much of the writing was done during periods of lockdown.

These trends are long-standing. Where they make it difficult to know what the law is, they raise rule of law difficulties. Where they do not, they raise separation of powers difficulties. They are aspects of a trend towards what political scientists and others call ‘prime ministerial’ government. Although also not a modern trend, somehow it seems to have been on steroids since the 2016 Brexit referendum and in relation to responses to the covid-

What trends in the development of the rule of law and the separation of powers did you see in the course of writing your book? 13

19 pandemic. In both cases this was partly because there was so much to do that there was a push to centralise control. In the case of implemening the Brexit referendum it was also that after the 2017 election, the minority government faced a Parliamentary logjam.

substantive component is really very difficult and controversial in a democracy, because there are legitimate differences of view as to what values or ideals are fundamental and should be required. Carrying those differences into a definition of the rule of law would mean its formulation would either be controversial or so general as to be unhelpful save as a vague aspiration.

On the separation of powers, the party system has strengthened very significantly. We have always had a tight party system. The government can rely on the support of the large proportion of its MPs who hold offices and backbench MPs are not as independent as that they were in the 19th century. We have seen occasional resignations and rebellions, but ministers are reluctant to resign and MPs are increasingly reluctant to rebel, and generally toe the line. The House of Lords, quite rightly, as a non-elected chamber, has to be circumspect in what it does. It does do things and sometimes it wins.

I think it is preferable to let courts develop the principle of the rule of law in the way that they develop other common law principles, in what Lord Goff described as a crab-like way: step by step taking account of established common law principles and the legislative framework. You take one small step, and then if that does not work, you take a step back. That way, you keep some flexibility within a broad sense of certainty. Writing a definition of the rule of law would not significantly improve upon this position. Moreover, years could be spent arguing about what exactly should be written down. In light of the Daily Mail headline

For these reasons, reliance on the political accountability of the executive to Parliament does not reflect the reality of the way the modern executive operates in the UK. The fact that the Prime Minister thought he could shut Parliament down for five crucial weeks at the end of the Brexit process without justification, reasoning that this was a matter purely for him and the Queen is striking. That reasoning would have enabled him in September 2019 to have prorogued Parliament for much longer: the next election was not due until mid-2024.

“Enemies of the People”, is judicial independence under threat, or are such statements merely aberrations in an otherwise healthy relationship? There have always been strong headlines. We are, however, in a less deferential society. People feel freer to complain in more strident language, and judges and courts cannot escape the consequences of such freedom. There are very sensitive cases and people can legitimately have strong views about such cases. The right reaction to a strong view that the result of a case is wrong is to give reasons for saying so, to appeal, or to get the law changed. But the personal abuse that was

Would a definition of the rule of law help or hinder judges in applying the principle? Defining the principle would probably result in something over- broad which would not help. In my book, I include features such as reasonable certainty and stability, accessibility, non-arbitrariness, access to justice; and the difficult feature: the conformity of the law to fundamental values or substantive ideals. This

heaped on the Miller judges, and indeed on the Recorder of Cardiff who sentenced a sex offender [in a 2006 case], went beyond that. There is a difference between


Interview with Rosalind English

criticism and abuse. Some parts of the press do not really see that.

Host of Law Pod UK created with the barristers at 1 Crown Office Row, editor of the UK Human Rights Blog and former academic.

In your book you discuss the rule of law and separation of powers. You briefly touch on parliamentary sovereignty, but does your focus indicate that parliamentary sovereignty is not the key tenet of the UK constitution that Dicey would have law students believe?

What was your route to the bar and why did you decide to go? I read English at Cambridge, and when I graduated I, like a lot of English graduates, thought “I don’t know what to do now”. So, I went straight back to Clare College and did the law conversion course. Before I did pupilage, I was not completely convinced of my route to the bar, so I worked at the BBC World Service as a producer for a few years. That was a lovely job. It was basically being paid to have fun! But it was quite insecure, even in those days, so I lurched from one shortterm contract to another. That was when I decided that I should use my law degree and I did the bar exam. Because I had a background in radio, I thought I would go to a media set, and I ended up going to a defamation set. I just found that the barrister’s life was not for me: I found the prospect of standing up in court terribly stressful and I should have thought of that before! That is why I then went into academic law, where I taught at UCL and Oxford for a number of years. What do you enjoy about working as a

No, I think parliamentary sovereignty is still a fundamental principle. What is not compatible with the British constitution is for things to be done by stealth without Parliament. So, in a sense, some of the critique of judicial activism is actually a critique by people who want more executive power. The criticisms of the

Miller cases is effectively that the executive shouldn’t have been restricted. What the courts were doing in those cases was saying that if parliamentary sovereignty and parliamentary accountability of the executive means anything, then the executive has to be limited. I think parliamentary sovereignty is still very important. How do you reconcile your position as a former member of the judiciary with writing and commenting on the law? What is important is the way one does it. I don’t go on television programs with Piers Morgan. I think hard even when I give an interview such as this one . I am not in the business of writing a political manifesto: I try to focus on facts rather than opinion. Of course, the way one sets out the facts can be a way of presenting one’s opinion. But I try not to conceal factors that support a different opinion. The critique of this is that it may come out as sitting on the fence: “on the one hand X, on the other hand Y”. I try to give both sides of the story and to let readers form their own opinions. I believe that is what former judges should do, provided it doesn’t make it all too confusing.

legal journalist and educator? I have got all my favourite things going at once. What I enjoyed about the Bar and academia was the research. I wasn’t really a dedicated teacher: I didn’t find that teaching was what thrilled me about the job. But I did love getting stuck into research and into particular subjects. What I’m doing now is research, no teaching, where I’m covering a range of completely different, unrelated subjects, because that is what journalism is. Why did you decide to start Law Pod UK?


Is there a particular book that inspires you in your legal work, or made you want to practice law?

I have to say I was a pioneer in this regard: I don’t think there were any law firms or barristers’ chambers in the country who had even thought of putting out a podcast. I thought of the idea in 2015, and we put out our first podcast in 2017. But, I had been listening to podcasts long before podcasts became the thing that everyone listened to. And, being a radio head, I love audio, I love the freedom, without a film crew, to interview people about anything and everything at the drop of a hat, with a relatively low budget. It’s very flexible and you can act quickly. If there has been a big, important judgement released, or we have been doing interviews on the legal implications of the Ukraine war, we can get our copy out over days. A film crew would be much more time and money-consuming.

I have always been a bit follower of the American jurisprudent Stanley Fish. One of his most famous books is ‘The Trouble with Principle’ and he is very realistic and his critique is of high-flying moral statements: statements made in the soaring rhetoric of “citizens’ rights”. He is a very eloquent arguer for pragmatism: in law as in life. I would say that he was quite a guiding light. I am also a great fan of Jonathan Sumption, and I love the way he is able to speak out now that he is not a Supreme Court judge. I think members of the Bar, the judiciary, when they can speak out, they are a very important voice in society, because they are trained to see both sides of the story, and be very vigilant about freedoms and civil liberties.

What are the greatest challenges facing barristers in the future? Money. Resources. I was talking to some family law experts, and every time we cover a subject related to, for example, coersive and controlling behaviour, they talk about the problems of getting evidence before the court without upsetting witnesses. The problem is resources: resources are always being pinched, and obviously there is competition between various areas of the law. Do you have any advice for prospective barristers? As you go into the law, you must be careful not to allow yourself to be boxed in with the kind of work that is reliable and pays very well, but that you’re not particularly interested in. If you allow yourself to get painted into a corner like that, it is very difficult to reinvent yourself later on. Do enough work that you are interested in, even if it is pro bono, because that keeps your options open. 16

Interview with Daniel Barnett and usually some fairly knotty legal issues. Plus, employment lawyers are a great community.

Employment law barrister, host of the Employment Law Matters podcast, website and newsletter.

What motivated you to start your podcast,

What was your route to the bar, and why did you decide to go in the first place?

website, and newsletter? My email newsletter (at

Glamour. It looked like an exciting job, was launched in 1999, to provide short pithy summaries of employment law cases. It now has 33,000 subscribers and sends out about 3 updates a week. I launched it when I moved into employment, largely to promote myself and generate work. I now work with a team of about 20 junior barristers who write the updates. I launched my podcast in 2019 as a hedge

particularly viewed from the outside and through the prism of courtroom dramas on TV and in novels. I took the easiest route in the 1980s/1990s – law at University, and then straight to Bar School and pupillage. And it is exciting. It is also highly lucrative for those who succeed in the right areas of law. What you don’t appreciate when you start is that is precarious, incredibly hard work (although that’s no different from most jobs), and it can be deeply stressful at times. It is also, I think, one of the best jobs in the world. Why did you choose to specialise in

against email (and hence my newsletter) becoming obsolete as a communication method. I initially published an episode every week, with me talking about an aspect of employment law. But that was a lot of work, and there are only so many hours in the day. So I now have two seasons of ten episodes a year, each of which are interviews with prominent employment lawyers. I batch record them over 3 or 4 days every six months, and then one of my colleagues deals with the editing, publishing and promotion. What trends have you observed in

employment law? How does it differ from other practice areas? I loved employment law at University; it was the only subject that inspired me. I spent my first two years of practice doing personal injury in a civil set. But it wasn’t for me. I didn’t want to spend my career advising people on whether their rear-end shunt whiplash injury was worth £1,000 or £1,500, which is what junior personal injury practice looked like back then. So I told my clerks I didn’t want to do any more personal injury, and I wrote individual letters (this was before email, and before mailmerge) to about 100 solicitors, picked from directories, to say I was an expert in employment law and ask if they would instruct me. That couldn’t possibly work today, but back then, it did.

employment law in general and the employment bar specifically across your career? When I started, employment law was a new area of law (which is how I was lucky enough to break my way into it despite being at a family and PI set). Nowadays that’s not possible; to develop a practice in employment law you have to be at a recognised employment set.

One of the great joys of employment law is how it mixes complex fact and complex law. Employment disputes always have a long backstory, witnesses who passionately believe they are right (and/or ‘wronged’),

Employment rights ebb and flow with governments. Labour governments introduce workplace rights, and then Conservative governments introduce barriers to enforcement as a way of


I read about thirty books a year; a mix of fiction and non-fiction. I’m not really able to identify one book which has inspired me, although it is business and marketing books I get the most benefit from. I am a huge fan of Chris Cardell. Chris is a marketing guru whom I have followed closely for 20 years, and I have attended many of his events. Business and marketing knowledge is an underappreciated skill for a barrister.

reducing those rights without being seen to repeal them. For example, over the last decade, the Conservative government has increased the qualifying period for unfair dismissal from one year to two years, has introduced mandatory Acas Early Conciliation (a procedural hoop to jump through before a tribunal claim can be brought), introduced fees of up to £1,200 for employment tribunal cases (declared unlawful by the Supreme Court and abolished), and introduced a ‘statutory grievance process’ which forbade employees from bringing some claims unless they had gone through an internal grievance first (abolished four years after it came in). If you could, what one law would you change and why? I’m going to pick two. First, I would rip up the absurdly complex rules governing holiday pay, and rewrite them from scratch. Second, I would increase the limitation period for employment claims from three months to six months. Some types of claims – notoriously pregnancy related dismissals – are difficult to bring within three months because the Claimant is understandably focusing on much more important issues. The short three-month limitation period for employment claims was originally introduced in the 1960s when tribunals were speedy methods of resolving disputes, and prompt claims were critical. Now it can take upwards of two years to get to a tribunal hearing, largely due to underfunding of the system. It is simply untrue to say tribunals are there to provide quick justice, which removes the need for a very short limitation period. What book (fiction/non-fiction) has inspired you in your legal practice?


the court took some major steps in this direction under Lady Hale, the current president, Lord Reed, is reining this in and seems to be a lot more conservative.

Interview with Marcus Cleaver Host of UK Law Pod Weekly and former University lecturer in law. What was your route to a career in law,

How has public legal education and

and what made you decide this was the field for you?

awareness evolved in your time podcasting and blogging?

The law operates in a strange area between precision and blurriness. Murder is wrong but what should the punishment be? Benefits are set at a certain amount but who should be entitled to them? When I began studying the law it was because I wanted to understand those grey areas better and make them black or white. Now I understand that this fuzziness is a feature of the law and that there are important debates to be had in this no man's land. I still yearn for that same clarity that I used to but also seek clarity in the debate as well. It is this intellectual pursuit that really keeps me going.

I think that it continues to grow but maybe not in ways that I would ever have predicted! First we had Brexit and everyone and their dog seemed to have an opinion about when to trigger Article 50 and what should be included in the Northern Ireland Protocol! Then, more recently, we have had the coronavirus pandemic and the new rules and restrictions affected everyone. Following the law was suddenly a much more urgent matter of life and death and awareness sadly grew out of fear more than a genuine interest. Looking ahead, what are the greatest

Why did you create UK Law Pod Weekly?

challenges facing prospective barristers? The biggest challenge has to be the cuts

When I was a lecturer I wanted an easy and simple way to convey concepts to my students. Ultimately this led to the creation of my YouTube channel. Eventually I left academia but wanted to continue with my channel. In order to do that effectively I knew that I would have to keep up with the latest developments in case law. It then occurred to me that I didn't have to keep this to myself and could help keep others up-to-date as well by producing bite-sized content. A podcast seemed like an effective way to do that and so UK Law Weekly was born!

to legal aid and other reforms by the Ministry of Justice. Over the past decade the government has continued to undermine the administration of justice and while this might have more of an impact on those entering the criminal bar, I think the overall effect on the rule of law is something that we should all be worried about. What book (fiction/ non-fiction) has inspired you in your legal work? Little Women is my all-time favourite book so I won't pass up an opportunity to recommend that! It's not really a legal book but each chapter is like a little morality tale in and of itself plus the overarching theme is about treating people with kindness and respect which I always try to do in and out of my legal work.

What trends have you observed over the course of doing the podcast? I think it is easy to forget that the UK Supreme Court is a very new body and is still finding its place in the context of the UK's unwritten constitution. In one of my most recent episodes I talked about this trend and how the Supreme Court is still finding its own separate identity. While


Vol. 6 TT22

Issuu converts static files into: digital portfolios, online yearbooks, online catalogs, digital photo albums and more. Sign up and create your flipbook.