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PER INCURIAM LENT 2018

MINI-PUPILLAGE EXPERIENCE An insight into the Criminal Bar

SHOULD LAW FIRMS EXPAND INTO CHINA? Nikhil Mohindra weighs up the facts


LENT 2018

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Editor’s Message

PRESIDENT’S WELCOME

EDITOR’S MESSAGE

DEAR READERS,

DEAR READERS,

Welcome to the Lent 2018 issue of Per Incuriam!

Welcome to the Lent 2018 issue of Per Incuriam, the Cambridge University Law Society magazine!

The team at Per Incuriam have put together another wonderful magazine for you, full of interesting articles on a wide range of legal issues, both theoretical and practical. And of course, in this issue is a great selection of Tripos essays to aid you in your studies.

Lucia Azzi | President

I hope you have had an enjoyable holiday season, and on behalf of the team here at Per Inc, I would like to wish you a fruitful and fulfilling term and 2018.

Yukiko Kobayashi Lui | Editor-in-Chief I would like to say a warm thank you to the CULS committee for their tireless work over the last year and congratulate Gabriel Wang, Rachel Lodge, Vishnu Patel and Katherine Williams on their elections to the CULS executive committee. I am delighted to be passing on the mantle to them and know they will do amazing work for CULS in the year to come. Good luck for Lent term! All the best, Lucia Azzi CULS President 2017-18

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In this issue, we are delighted to publish a piece by Jefferi Hamzah Sendut on monism in international law. We hope this will be interesting reading for those taking the International Law paper this year, as well as anyone interested in human rights and governance in the contemporary political landscape. In addition, we have an article by Nikhil Mohindra which explores the expansion of international law firms into the Chinese legal market. Finally, Charmaine Clubb shares her mini pupillage experience with us.

Rabin Kok | Deputy Editor

As always, we are also proud to publish a number of Tripos essays, some of which achieved Starred Firsts. We hope these essays will be helpful to you in your work this term. The tide of media has turned definitively to the digital and with that in mind I am excited to report back that our online sister publication, Per Incuriam Online, has been publishing creative, insightful pieces on topical legal issues every week. Per Inc Online is quickly developing into a wonderful resource for legal analysis from students at this University, and I urge all those interested to have a read through our archive of fantastic articles. Happy reading! Yours, Yukiko Kobayashi Lui Editor-in-Chief

Tatiana Kurschner | Deputy Editor

If you are interested in contributing to Per Inc, drop us a line at per-inc@culs.org.uk. We accept articles from all, whether you are an academic, professional, or current student, including people from all universities.

Keep in touch! ‘Like’ our Facebook page for the latest legal developments and updates on Per Inc. Facebook: fb.com/CULSperincuriam Contact: per-inc@culs.org.uk

We also welcome First Class Tripos essays. Please send them typed, and with their respective year, question number, and marks indicated, along with your name, College and alternate email address.

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Contents

Global Excellence

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CONTENTS ARTICLES

THE CASE FOR MONISM: INTERNATIONAL LAW DOMESTICALLY APPLIED Jefferi Hamzah Sendut | St John’s College

SHOULD LAW FIRMS EXPAND INTO CHINA? Nikhil Mohindra | Peterhouse

MINI-PUPILLAGE AT 2 BEDFORD ROW Charmaine Clubb | Peterhouse

6-7 10-11 12

ESSAYS

CONSTITUTIONAL LAW Jared Kang | Wolfson College

CRIMINOLOGY, SENTENCING AND THE PENAL SYSTEM Sim Jing En | Wolfson College

INTERNATIONAL LAW Yenjean Wee | St John’s College

LABOUR LAW Azfer A Khan | Magdalene College

ADMINISTRATIVE LAW Jane Lu | Peterhouse

EQUITY Andrew Ng | Wolfson College

FAMILY LAW Helen Taylor | Fitzwilliam College

INTELLECTUAL PROPERTY LAW Ben Lock | Trinity Hall

EU LAW Gareth Goh | St Catharine’s College

14-15 16-17 18-19 20-21 22-23 24-25 26-27 28-29 30-31

clearygottlieb.com 5


LENT 2018

Articles

The Case for Monism: International Law Domestically Applied

THE CASE FOR MONISM: INTERNATIONAL LAW DOMESTICALLY APPLIED Should international law be directly applicable and enforceable by domestic courts? The question is a key aspect of the theoretical debate between adherents to monist and dualist schools of thought. This piece argues that due to the practical necessity of binding and effective international law, it must be answered in the affirmative. Jefferi Hamzah Sendu | St John’s College THE THEORETICAL DIVIDE IN OUTLINE Simply put, adherents to monism regard the international and domestic legal orders as one and the same - both varieties of legal rules occupy the same united ‘juridical reality’1. Kelsen reaches this conclusion on the basis of logical deduction from his premise that the validity of any legal rule stems from a ‘basic norm’2. He reasoned that since international law delimits the scope of States’ domestic law, where a conflict arises, international law must prevail3. Lauterpacht’s monism instead stems from a belief that the common purpose of all law is to protect basic human dignity - the rule of law demands that international law supersede domestic law where necessary to fulfil this aim4. By contrast, dualists such as Anzilotti5 see international law as juridically distinct from domestic law. The former is binding on the international stage, as the latter is on the domestic level. Where a conflict arises, domestic law broadly prevails - a rule of international law must be transformed into a rule of domestic law to be applied in court.

THE DOMESTIC RECEPTION OF INTERNATIONAL LAW IN PRACTICE In reality, the legal systems of States do not readily conform to monist or dualist theory. For instance, the Austrian, German and Italian legal systems accord

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automatic precedence over domestic law to customary international law, but not to treaties. UK courts have held that treaties6 require statutory enactment for domestic enforcement, but have maintained that unenacted treaties can be construed to ‘for the purpose of determining a person’s rights or duties under domestic law’7. Customary international law is regarded as a ‘source’ of the common law, which can be drawn upon subject to constitutional constraints8. China rejects the monist-dualist distinction in favour of a ‘dialectical model’, which regards international and domestic obligations as inevitably reconcilable9. Notwithstanding, theoretical analysis remains valuable insofar as it sheds light on what a normatively desirable position might look like.

INTERNATIONAL LAW AND SOCIAL NECESSITY The remarks of International Court of Justice (ICJ) Judge Bedjaoui in his Declaration issued in addition to the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion are an apt starting point. Commenting on the development of international law which has accompanied massive global change over the course of the 20th century, Judge Bedjaoui expounded on the emergence of ‘an objective conception of international law, a law more readily seeking to reflect a collective juridical conscience and respond

to the social necessities of States organized as a community’10. His emphasis on the issue of social necessity correctly reflects a simple truth: the realities of the modern world require the international legal system to shed resolute positivism and consensualism for an approach more able to control and direct State behaviour. One needs to also bear in mind the approach of Koskenniemi, who states in The Politics of International Law that ‘[a]ny legal rule, principle or world order project will only [ever] seem acceptable when stated in an abstract and formal fashion’11. The application of any ‘world order project’ reshaping international law will be inevitably contestable. This follows from a rejection of a natural law approach - one cannot simply assert the legitimacy of a given legal vision binding on States based on purported incontestable values of humankind. Koskenniemi’s argument is undoubtedly persuasive; the prize of a truly just and sustainable international legal order will be won principally in the political arena. In other words, the case for what constitutes a social necessity in the terms described by Judge Bedjaoui will need to be made out politically, and States will need to alter their conduct in response - the matter cannot be dictated from on high in strict legal terms. Nevertheless, a process of progressive development might be soundly facilitated by creative but measured exercises in interpretation by international courts.

The Case for Monism: International Law Domestically Applied

Regardless, the point still stands that once suitable rules of international law are developed, they must be robustly enforced if the international community is to address existential threats12, as well as prevent the gross human rights abuses so often seen today. This is where the attraction of monism is most clearly illustrated - in service of a ‘world public order’13 vital to the survival and prosperity of States. If States are unable to accept international courts exercising compulsory jurisdiction, the efficacy of international law must be supported through individuals bringing cases in domestic courts.

DEALING WITH CONTEMPORARY REALITIES This may be seen as building on Lauterpacht’s aforementioned justification of a monist legal order centred around

THE PRIZE OF A TRULY JUST AND SUSTAINABLE INTERNATIONAL LEGAL ORDER WILL BE WON PRINCIPALLY IN THE POLITICAL ARENA. safeguarding the dignity of the individual. In this author’s opinion, it is true that, to borrow the language of the Universal Declaration of Human Rights, ‘the equal and inalienable rights of all members of the human family [remain] the foundation of freedom, justice and peace in the world’. And certainly, the emergence of jus cogens norms such as the prohibition of genocide14 and torture15 show that those sentiments have rightly been accorded at least some weight. But the necessity of international law in dealing with contemporary challenges such as climate change or cross-border pollution, is equally, or perhaps even more readily demonstrated to States. Monist domestic legal systems could allow concerned citizens to hold governments to account for violating the international environmental standards they have subscribed to, for example. Conceivably, States would accept litigation driven by their own citizens as both preferable to claims brought by other States, and acceptable as the cost of improved environmental compliance worldwide. Similarly, globalised society requires a greater emphasis to be placed on the impacts which the actions of one State have on the rights and interests of non-citizens. Consider the surveillance and intelligencegathering capabilities of States such as the US. Mass surveillance surely engages the privacy rights of non-US citizens. If the US

legislature validly (under domestic law) grants the executive branch the powers to perform indiscriminate data collection, the only realistic way for non-citizens to be taken into account would be for a higher international standard to be enforceable through the US courts, on the impetus of cosmopolitanminded US citizens or otherwise. Moreover, to embrace a monist approach to the reception of international law by domestic legal systems would be in line with how ‘the [international] system as a whole increasingly permeates state boundaries for the sake of protection of individual and group rights.’16

EXECUTIVE LAW-MAKING?

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coordination between States and a political emphasis on enlightened self-interest20, tied together by a sincere commitment to the respect for the human person.

1

Joseph Starke, ‘Monism and Dualism in the

Theory of International Law’ in Stanley Paulson (ed), Normativity and Norms: Critical Perspectives on Kelsenian Themes (OUP, 1999), 538. 2

Hans Kelsen, Principles of International Law (The

Lawbook Exchange Ltd. 1952), 557-559. 3

Ibid.

4

See Hersch Lauterpacht, International Law and

Human Rights (Stevens & Sons Limited, 1950). 5

See Angelo Sereni, The Italian Conception of

International Law (Columbia University Press 1943).

It is worthwhile to address the objection to monism that allowing the direct enforcement of international law in domestic courts lends itself to dangerous executive law-making, undercutting what should properly be the role of the legislature. Reference to Lord Steyn’s dicta in the UK case of Re McKerr is helpful in doing so. Lord Steyn framed the rationale for dualism as based on preventing executive abuses against citizens, and therefore saw the rationale as inapplicable to human rights treaties protecting fundamental freedoms.17 Sales and Clement have called this characterisation of dualism’s policy underpinnings into question, but their objections are largely specific to the UK’s constitutional setting (i.e. that Parliamentary sovereignty that necessitates dualism).18 To the extent that they touch upon other concerns such as the fact that the enforcement of rights arising from the international plane requires public expenditure and warranting legislative intervention19, it is submitted that their objections place insufficient credence on the value of improved safeguards within treaties, which represent the product of State-agreed compromise. The full implementation of these products of compromise seems likely to incentivise future multilateral cooperation between States.

CONCLUSION This piece has attempted to show that international law should be directly domestically applicable and enforceable through domestic courts. Not only would such a position bolster human rights protection, it would also allow the international community to adapt to changing global realities which simply cannot be safely or fairly navigated without more robust enforcement of international law. Achieving what may properly be dubbed a ‘regime’ for the domestic enforcement of international law will require

6

Tom Ginsburg, Svitlana Chernykh, Zachary Elkins,

‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’ (2008) 2008 University of Illinois Law Review 201, 205. 7

Campaign for Nuclear Disarmament v. Prime

Minister [2002] EWHC 2777 (Admin) at [47]. 8

Freedom and Justice Party & Others v. FCO and

Director of Public Prosecutions [2016] EWHC 2010 (Admin) at [166]. 9

Björn Ahl, The Application of International Treaties

in China (Max-Plank Institute 2009), 356. 10

Declaration of President Bedjaoui (translation),

para 49. 11

Martti Koskenniemi, ‘The Politics of International

Law’ (1990) 1 EJIL 4, 31. 12

Runaway climate change or nuclear war, for

example. 13

See Myres McDougal, ‘Law and Minimum World

Public Order: Armed Conflict in Larger Context’ (1984) 3 Pacific Basin Law Journal 21. 14

Armed Activities on the Territory of the Congo

(New Application 2002) (Democratic Republic of the Congo v. Rwanda) (2006) ICJ Reports 6, para 64. 15

Questions relating to the Obligation to Prosecute

or Extradite (Belgium v. Senegal) (2012) ICJ Reports 422, para 99. 16

Bruno Simma, Andreas Paulus, ‘The ‘International

Community’: Facing the Challenge of Globalization’, European Journal of International Law, Volume 9, Issue 2, (1998) 266, 277. 17

Re McKerr [2004] UKHL 12 at [50]

18

Philip Sales, Joanne Clement, ‘International law in

domestic courts: the developing framework’ (2008) 124 LQR 388, 399. 19

Ibid.

20

The January 2018 keynote lecture given by

Professor David Luban of Georgetown University on ‘Nationalism, Human Rights, and the Prospects for Peace’ at the Lauterpacht Centre for International Law, Cambridge, was very helpful in conceptualising similar considerations in this way.

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LENT 2018

Articles

Should Law Firms Expand Into China?

Should Law Firms Expand Into China?

SHOULD LAW FIRMS EXPAND INTO CHINA? The ‘East Asian miracle’, which since 1965 has seen reductions in trade barriers and increases in foreign investment, has appeared to have left behind foreign law firms in mainland China. The lawyers facilitating global deals with Chinese parties, such as Baker & McKenzie, which advised on the US$26 billion merger between two Chinese locomotive manufacturers, CSR and China CNR, have been subject to more regulation by the Chinese authorities than their Chinese competitors. Whether this is rooted in protectionism or a fear of Western influence, it means that any International Law firm wishing to expand into China will be faced with a number of unsettling restrictions. Yet, the scope of opportunity available in 21st-century China is phenomenal; by 2030 another 350 million people will live in Chinese cities1, Hong Kong’s GDP ranks 7th in world2, and China has the world’s largest mobile phone market3. The question, therefore, is this: does it make sense for International law firms to expand into China?

LAW FIRMS CANNOT GUARANTEE, AT LEAST WITH THE SAME ASSURANCES AS IN OTHER JURISDICTIONS, THE SOUNDNESS OF THEIR ADVICE. in China makes expansion a risk worth taking. Helped by the likes of ChemChina agreeing a $43.8bn all-cash deal to buy Swiss agribusiness Syngenta and Anbang Insurance winning a $14bn bidding war against Marriott International for Starwood Hotels & Resorts, Chinese companies have emerged as a dynamic force in dealmaking in a number of sectors. They are transforming the global M&A market, and the potential opportunity for international law firms is immense.

Also, it is likely that international law firms will be able to successfully compete with domestic Chinese law firms. Although many foreign companies remain wary of reports of the Chinese government pressuring lawyers to disclose privileged information to them, the economic pull is undeniable. Furthermore, the reputation of international law firms alone will be a huge advantage. And though they may have to lower fees to remain competitive, the transformed cost structure that some law firms have implemented in their offices in mainland China makes this feasible. For example, whilst first-year associates at major law firms in New York City can expect an average base salary of US$160,000, the same associate in a major law firm in China can expect a base salary of approximately $50,000.7 This ability to cut labour costs, along with the reputation that international law firms have, points to international law firms being able to hold their own against domestic firms and eventually thrive in China.

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CONCLUSION It seems that despite the huge obstacles to operating in China, foreign firms expanding into the country have more to gain than they have to lose. It seems clear, then, that their expansion into China is set to and should continue. 1

http://www.eversheds-sutherland.com/global/en/

where/asia/china/index.page 2

Ibid.

3

Ibid.

4

https://thepractice.law.harvard.edu/article/

foreign-firms-china/ 5

Kilpatrick Townsend & Stockton LLP co-chair of

Asia Practice and partner Gentry Sayad, on http:// d4discovery.com/discover-more/restrictions-oninternational-law-firms-china#sthash.p5pcHL7J. dpbs 6

https://www.ft.com/content/6e7d100a-2641-

11e6-8ba3-cdd781d02d89 7

http://d4discovery.com/discover-more/

restrictions-on-international-law-firms-china

Nikhil Mohindra | Peterhouse THE CONS Today, international firms still face a number of restrictions to their operations in mainland China. For example, Chinese lawyers hired by international firms must suspend their licence to practice law during employment, they face a time-consuming registration process when opening a representative office, and foreign firms are taxed at a much higher rate than their domestic counterparts. In fact, while they can advise clients on how to operate in China, foreign firms are technically prohibited from practising Chinese law. As a result of these restrictions, along with the need to lower fees in order to compete with the more than 19,000 Chinese firms, research conducted by Stern and Li has found that foreign firms’ offices in mainland China may not be able to run a profit, with operating costs being too high4. This is clearly a huge problem; appearing to show that it does not make, at least short-term, economic sense for international law firms to expand into China.

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Moreover, the “inconsistent application of law”5 and similar concerns about governance in the different regions of China creates an additional complexity for lawyers. A simple question by clients on a particular point of law would potentially require more time and resources, and this coupled with how legal precedents do not have the same influence in China as they do in many developed nations leads to an atmosphere of uncertainty. Law firms cannot guarantee, at least with the same assurances as in other jurisdictions, the soundness of their advice: and this leads to questions of whether expanding into China could potentially weaken an international law firm’s perceived brand and reputation.

THE PROS With all of this, it is understandable to assume that law firms have expressed major concern about expanding into China. Yet, in recent years the opposite has been true. The Financial Times6 has attributed this to China’s growing liberalisation, but an argument based simply on international law firms being able to circumvent the restrictions placed onto them by the

Chinese state is equally plausible. They have been able to provide their big clients operating in China with the same service they expect in their home countries by partnering with Chinese law firms. For instance, Baker & McKenzie have recently established joint operations with FenXun Partners in Shanghai’s free trade zone, Hogan Lovells with Fidelity, and Linklaters are set to follow suit. It is very possible for foreign law firms to operate in China despite the restrictions placed on them through regulation. Furthermore, although foreign firms’ offices in mainland China may be experiencing profitability issues, it makes commercial sense for international law firms to expand into China. Most big clients see the term ‘global’ as synonymous with market dominance and competency. A presence in China, one of the world’s largest economies, is a strong indication of a truly global law firm, and can be of incredible value for the part it plays in strengthening a firm’s international reputation. Additionally, whilst short-term profit may be lacking, the enormous opportunity

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LENT 2018

Articles

Mini-Pupillage at 2 Bedford Row

TRAIL

MINI-PUPILLAGE AT 2 BEDFORD ROW

BLAZING.

Charmaine Clubb | Peterhouse It’s a time of austerity at the Criminal Bar and many practitioners in the field have noted a sea-change in morale. Legal aid cuts imposed in 2013 continue to bite, and resultantly, work at the junior end is drying up. In view of such monumental changes in this area of the law, I was keen to see for myself how this played out for barristers on the ground through the experience of a mini-pupillage. 2 Bedford Row is a dedicated criminal set boasting a string of superstar silks. In my time there as a mini-pupil, I spent every day in court and didn’t once set foot in chambers. This perhaps reflects the fact that criminal barristers are ‘on their feet’ more than their counterparts in commercial or chancery sets, for example. To cope with changes to the area, criminal barristers are increasingly diversifying their practice to include some regulatory work. High-profile examples of this type of work include the Hillsborough Inquest and the currently underway Grenfell Inquiry.

CRIMINAL TRIALS: A VIEW FROM THE INSIDE The trial I was put on was a classic regulatory case: an issue of health and safety regarding a man who had been seriously injured in the workplace. I was fortunate enough to be able to witness the full arc of the trial from start to finish. This unique insight was immensely useful for learning about the general procedure of criminal trials and for familiarising myself with courtroom vocabulary. I myself was shadowing the prosecution counsel, whose job it is to prove the guilt of the defendant to the jury. What appeared at the outset to be a relatively open and shut case seemed slowly to unfurl into an increasingly complex web. Issues of evidence and admissibility, late jurors and delays with sub-contracted services (such as interpreters or prison transportation) added to the problems faced by counsel on both sides. As the trial progressed, I began to appreciate the effect of different advocacy styles and the

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favourable impact that an approachable, charming manner with both the judge and the jury could have. As my barrister mentor commented – sometimes it’s just about creating the right mood in court!

THE ROLE OF A MINI-PUPIL When witnessing a trial, you may feel that your work as a mini-pupil may be more observation than actual work. If you find yourself in this situation, there are a few useful exercises that I would recommend carrying out. Firstly, I would suggest attempting to pre-empt and noting down which questions will be asked in crossexamination. Secondly, I would advise closely analysing the performance style of each advocate, paying particular attention to posture, tone and register. Finally, don’t neglect the opportunity to talk to solicitors, civil servants and the like – it’s important to gain an understanding of the way in which individual elements of the justice system fit together to form a coherent whole. It also goes without saying that you should be taking notes on everything and asking your barrister mentor as many questions as possible. Other highlights of the mini-pupillage include chatting to numerous barristers about their experiences at the Bar, relaxing in the advocates’ robing room, and even briefly meeting head of chambers! One downside to the week was the fact that I didn’t get to see 2 Bedford Row itself. It might have been useful to look around chambers and take stock of the overall atmosphere and camaraderie. However, I recognise that this was a small price to pay for the chance to observe an entire trial. In sum, I thoroughly enjoyed my week with 2 Bedford Row and would strongly recommend anyone considering pursuing a career at the Bar to seek out mini-pupillages in their future desired practice area.

HOW CAN I GET A MINI-PUPILLAGE? As most sets simply ask for a simple CV & covering letter, I would advise creating a standard form document of each. This way, you can simply edit certain passages to tailor your applications, and will be able to fire them off much more quickly than if you started each covering letter from scratch.

That’s why we’re the lawyers for tomorrow’s industries.

Remember too that it’s a numbers game in more ways than one! Make sure you send off lots of applications in order to maximise your chances. Although I’ve heard lots of conflicting advice about this, try to get around 3-5 mini-pupillages in the area you eventually wish to practice in. If you want to do more (for example, because you don’t know which practice areas you’re interested in) then leave the surplus off your CV for pupillage applications – it looks overly keen otherwise and won’t be especially relevant if you want to go to say, a construction set, but have mainly done family minis. You should also keep your CV & covering letter or online application form short and sweet, barristers don’t have time to sift through your fluff and will only be put off if you can’t write succinctly. Unlike vacation schemes and other formal internship applications, applying for minipupillage is less so about trying to sell yourself to chambers. Instead, they’re much more interested to hear about what you intend to get out of the experience. So, if you’ve been following a big case that barristers at the set have been working on, say so! Equally, if you enjoyed learning about the academic side of the law and want to see what that area is like in practice, then that’s something to put down too. Finally, throughout the entire process of mini-pupillage and BPTC applications, you need to keep your eyes on the prize and remember that the real golden egg is pupillage.

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LENT 2018

Essays

Constitutional Law

Constitutional Law

CONSTITUTIONAL LAW ‘The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.’ (LORD TOULSON in Kennedy v. Charity Commission (2014)) Is Lord Toulson’s analysis accurate? Does the common law’s capacity to uphold human rights mean that the Human Rights Act 1998 is unnecessary? (An ‘ossuary’, according to Collins English Dictionary, is a ‘container for the burial of human bones, such as an urn or vault’.) Jared Kang | Wolfson College The common law system of protection of human or fundamental rights is a parallel to the Human Rights Act 1998 which continues to be at play even though the HRA exists. As Lord Toulson notes, there has been a tendency to overlook the common law and to turn to the HRA instead. But as recants, the HRA certainly does not turn the common law into an ossuary.

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I will argue that Lord Toulson is correct with regard to the 3 key points he makes – (1) that the common law develops to meet current needs and that this has not stopped with the enactment of the HRA; (2) that the common law has sometimes been overlooked, but not always; and (3) that the common law still plays a role in protecting fundamental rights despite the HRA. However, despite the accuracy of Lord Toulson’s statement, it is not entirely correct to say that the HRA is not necessary

as it affords a different system of rightsprotections which is arguably wider in scope than the common law. Firstly, the common law has always developed to meet current needs of society. Even though the majority of human rights cases since the enactment of the HRA have naturally been brought under its scope, there are still instances of common law protection of rights. For example,

in ex parte Daly, the court considers the claimant’s right to a fair hearing under the common law as opposed to the HRA and ECHR. Similarly, in other cases such as ex parte Pham and Carlile v Home Secretary, the court, in dealing with what they considered fundamental rights, reviewed their breaches on the standard of proportionality. Lord Neuberger even commented that where common law fundamental rights are concerned, the court can take its own view as to whether to apply the proportionality test or Wednesbury unreasonableness. And while proportionality has not been formally adopted into the common law (as noted in Keyu), this shift towards proportionality is arguable to ensure the common law keeps pace with the HRA. As breaches of ECHR rights certainly attract the proportionality review (Bank Mellat (No 2)), keeping review of common law fundamental rights strictly according to the standard of unreasonableness would surely make the common law obsolete as rights would be far less protected under it than the HRA. The protection of rights by the common law sometimes can even be seen to be beyond the HRA, showing that Lord Toulson is correct in saying that the common law remains relevant. In R (Q) v Home Secretary, Lord Phillips went beyond the HRA and enforced the right to asylum protected by Art 14 of the Universal Declaration of Human rights, to which the UK is a party but the UDHR has not been incorporated into domestic law as the ECHR has. This highlights the ability of the common law to take into account wider and more far-reaching considerations than the HRA which is limited by what is prescribed. However, despite the accuracy of Lord Toulson’s statement, as can be noted from the large volume of cases decided on HRA bases as opposed to common law bases, the HRA does offer something more than the common law does for protection of human rights. While it is not “necessary” in the strict sense, there are aspects of it the common law simply cannot replicate. Firstly, the court’s powers under S3 HRA are more extensive than their interpretive powers at common law. Although Allan argues that S3 does nothing more than give the court explicit sanction to do something they already could, this seems to be untrue. While Anisminic may be cited in support of Allan’s position, the court there ultimately did not frame their decision as one based in fundamental rights; the basis of their judgment was that there was ambiguity in the ouster clause. And although Privacy International v IPT

more recently also seems to support Allan’s position as the court made their decision on the basis of rule of law considerations, it should be noted that Leggatt J still said that the ouster clause concerned was ambiguous, which would allow the courts to interpret it to have no effect (although the court ultimately upheld the clause). This

THE PROTECTION OF RIGHTS BY THE COMMON LAW SOMETIMES CAN EVEN BE SEEN TO BE BEYOND THE HRA, SHOWING THAT LORD TOULSON IS CORRECT IN SAYING THAT THE COMMON LAW REMAINS RELEVANT.

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Finally, the S6 powers the court has to strike down unlawful acts of public authorities (PA) is also more significant than under the common law. Under the common law, the courts have ordinary JR and the principle of legality (POL) which they can use to limit wide grants of discretionary power to the executive by Parliamentary legislation where Parliament does not explicitly countenance the possibility of breaching a fundamental right in exercise of that discretion. This was seen in Witham and Simms. However, under S6, even if Parliament expressly countenances the possibility, the courts can still strike down an executive act unless Parliament MANDATES such act. This is clearly more extensive than what the common law can offer in terms of protecting HR violations by the executive.

common law requirement for ambiguity should be contrasted against the S3 power which Lord Slynn in R v A (Sexual History) and Lord Steyn in Ghaidan noted could be exercised even if in opposition with Parliament’s unambiguous intention as long as it does not undermine a fundamental feature of the legislation (Lord Nicholls, Ghaidan). This power has clearly be exercised in such a way as to exceed what the courts can do by common law. Whether such exercise is rightful or legitimate is best left to be discussed elsewhere.

As a brief final point, it is also worth noting that rights protected under the HRA are prima facie a lot wider than under the common law. The common law seems to protect procedural rights as seen in Witham, Simms and in Privacy International. However, it does not protect certain substantive rights clearly protected by the HRA; e.g. art 8 right to privacy (not protected in Malone v MPC), and Art 2 Protocol 1 right to education is not protected by the common law. These are just a few examples.

Secondly, the court also has the power to declare incompatibility when they cannot exercise their S3 powers within the parameters described above. This is effective empirically; only 1 out of 20 declarations made since the HRA was enacted has not been remedied. This power is obviously not available under the common law and while not strictly necessary for HR protection, the common law’s capacity to protect HR cannot make up for this aspect of the HRA.

In conclusion, while I have shown that Lord Toulson is correct and the common law has continued to develop and has the capacity to protect HRs independent of the HRA, this does not mean it can do everything the HRA can. As to whether the protection offered by the HRA is “necessary”, that ultimately requires an assessment of the level of HR-protection desired to be present in the UK.

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LENT 2018

Essays

Criminal Law

Criminal Law

CRIMININOLOGY, SENTENCING AND THE PENAL SYSTEM It is claimed by some commentators that the criminal justice system should treat men and women differently. Is this a valid proposal? If so, why? If not, why not? Sim Jing En | Wolfson College The proposal that the criminal justice system should treat men and women differently is a valid one. Women have different offending patterns and pose overall risks to society. Furthermore, they have complex emotional problems and functions different from men as they have distinctively different needs. Therefore, substantive equality demands that women be treated differently. This is not to say that women should be treated more favourably or imply that women are less culpable. It is purely to recognise that women face very different hurdles in their journal towards desistance and that the CJS (which is dominated by men) should take the requisite actions to address their offending behaviour in an effective manner. However what works for women may also work for men. Viewed from this perspective, arguably the statement is qualified insofar as it is about finding out what works for each individual in their personal circumstances rather than basing different treatment mechanically on gender.

WOMEN HAVE DIFFERENT OFFENDING PATTERNS Firstly, it is clear that women have different offending patterns. As noted by Jameson 1999 and more recently the Corston Report, most crimes committed by women are acquisitive for financial reasons (45%) with very little serious high-risk crimes (3%). This shows that women present overall a much lower risk to society which validates

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the proposal that the CJS should treat women different from men.

WOMEN FUNCTION DIFFERENTLY Secondly, women function differently and have different (and complex) needs. Gelsthorpe & McIvor 2008 argues that women think, learn and behave differently from men; they prefer collaborative settings rather than competitive ones. McIvor 2007 also points out that while men require assistance directed at offending behaviour, women require more holistic practical assistance with underlying mental or emotional problems such as low self-esteem. This shows that due to the different needs of women, differential treatment may be justified. This is illustrated by (Heidensohn & Silvestri 2012)’s criticism that the CJS approach and studies are designed with men in mind. For example, the (Crime & Courts Act 2013) makes it mandatory to impose a fine or penal element in community penalties.

WOMEN PRESENT OVERALL A MUCH LOWER RISK TO SOCIETY WHICH VALIDATES THE PROPOSAL THAT THE CJS SHOULD TREAT WOMEN DIFFERENT FROM MEN.

are in prison for < 6 months which is unacceptable given their disproportionate pains of imprisonment.

TREATING WOMEN DIFFERENTLY FROM MEN However, it may not be entirely right to say that women should be treated differently from men absolutely. For example, while women are more likely to be child carers or have emotional or mental issues, it is clear that men may suffer from such socio-economic factors as well (PRT 1991). To claim that women should be treated differently from men on these grounds invites criticism of unfairness from men. Instead, as Gelsthorpe argues, it is better to let the claim for differential treatment rest on the fact that women have different offending patterns and poses less of a risk to society, which is grounded in incontrovertible evidence and validates the proposal for differential treatment.

SOLUTIONS ARE NOT MUTUALLY EXCLUSIVE It is further noted that solutions which work for women are not mutually exclusive. Breaking the Cycle 2010 argues that similarly that methods which have proved effective for women may similarly be applied to men (e.g. using affirmative sentences such as community penalty to custody). This accords with Padfield who argues that it should not be assumed that what is used for men is currently working well. Therefore, while the proposal is valid, care should be taken to avoid a zero-sum approach; instead, if methods are equally applicable to specific groups of men with equal circumstances, the CJS should not mechanically differentiate based on solely gender alone. This is supported in the sentencing context by Daly and cases such as Pittman v Anderson and Bishop 2011 which focuses on the circumstances of the individual rather than the gender. This is further supported by Hedderman & Gunby

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2013 who argues that while magistrates cannot apply different sentencing guidelines to women, the mitigating circumstances allow usually a different approach to be used anyway and such circumstances are available to men as well.

CONCLUSION It is argued that the proposal for the CJS to treat men and women differently is a valid one, but that proposal should be grounded in incontrovertible evidence that women have different offending patterns and pose less of a risk to society. Claims of socioeconomic factors which line the pathways to crime should be dealt with for both men and women equally. Moreover, where methods may similarly apply for men in similar circumstances, gender should not be a mechanical factor preventing such groups of men to be treated differently but substantively fairly. Having said that, maybe gender is just a convenient but rebuttable category to place individuals having similar needs and is by itself not indispensable.

However, most women commit acquisitive crimes for financial reasons and the onerous fines would only exacerbate existing problems leading to a vicious cycle of criminality (Gelsthorpe). Another example is Transforming Rehabilitation which argues that short prison sentences should be a gateway to support, which goes against the post-Corston trend that women should be diverted from custody. This further validates the proposal that men and women should be treated differently because equal treatment is not substantively fair â&#x20AC;&#x201C; rather, treatment as equals Wedderburn et al is preferred. Although Player 2014 argues it goes against just desert principles, Gelsthorpe & Sharp 2015 deftly reconciles both by proposing a difference in form of punishment rather than level of punishment. This reasoning further validates and justifies differential treatment by showing that it is not substantively unfair to men. Furthermore, women deals disproportionally with approaches catered to men, such as prisons. The best example to illustrate this is the fact that women are more likely to sole carer of children (66%) as compared to men (19%) (Corston Report). As there are few women prisons, they are located in geographically far places which threaten and destroys the fragile relationship between mother and child. As Farrington 2008 notes, such children normally themselves fall into the vicious cycle of criminality. This further justifies the differential treatment between men and women, given that most women

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LENT 2018

Essays

International Law

International Law

INTERNATIONAL LAW ‘During the conflict in Syria certain powerful states tried to widen the right of self-defence far beyond Article 51 of the UN Charter, while pretending that this right represents well-established customary international law.’ Discuss.

‘ARMED ATTACK’

Yenjean Wee | St John’s College The conflict in Syria has both revived old debates about the use of force and generated new ones. Given the manifold new challenges faced by the international community, existing norms have unsurprisingly come under strain, especially from powerful states like the US and UK. This essay will argue that such states have indeed tried to widen the right of selfdefence far beyond the text of Article 51 of the UN Charter, through making a wide claim to collective self-defence based on the ‘unwilling or unable’ doctrine put forth by the US, asserting a right to anticipatory self-defence with a stretched conception of ‘imminence’, employing a broader definition of “armed attack” to include non-state actors (though this was already seen before the Syrian conflict), and finally through the use of targeted killings (by the UK). While this raises the broader question of whether Article 51 is itself exhaustive of the customary right to self-defence, these states have also not always explicitly sought to justify their actions based on “wellestablished customary international law”, but rather sometimes argue instead that international law must evolve to face new challenges effectively.

THE ‘UNWILLING OR UNABLE’ DOCTRINE It was previously accepted that collective self-defence was legally legitimate if the usual conditions for self-defence were satisfied and the state under attack both declared itself to be under attack and explicitly requested for external help – requirements emphasised by the ICJ in Nicaragua in rejecting the US’ collective self-defence argument in that case. In

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definitively on in Nicaragua, Wall, etc.), the requirement of ‘imminence’ which is necessary to keep that right within strict confines has been stretched by the US State Department Legal Adviser Brian Egan’s recent attempt to widen the notion of ‘imminence’ such that the invoking state no longer has to be able to point to an attack in the immediate future, but rather can consider an attack ‘imminent’ based on a range of factors like the likelihood of an attack and the probable scale of destruction, and also asserted that attacks can be regarded as ‘ongoing’ such that ‘imminence’ is not required before each and every use of force. Once again, this has not commanded support from states, and Russia and China continue to oppose the US’ attempts to widen the right of self-defence as it has been customarily understood. Thus, while Brian Egan himself claimed in his speech that such a right was long accepted, it is far from clear that that is actually true.

the conflict in Syria, the government of Iraq has indeed requested via a letter to the UN that the US lead a coalition to provide military support to its forces to help it defend its borders against attacks from ISIS. The US responded positively, and the use of force in Iraq’s territory is not too controversial (apart from the fact that it is against a non-state actor, which will be discussed later), but the issue of whether the US can legitimately use force in self-defence of Iraq on Syria’s territory is much more dubious, especially since Syria has explicitly and repeatedly denounced US military action on its territory as a flagrant violation of its sovereignty and territorial integrity, and has stated that cooperation with the Syrian government is a prerequisite. However, the US (Samantha Powers) has sought to justify its intervention in Syria on the basis of the ‘unwilling or unable’ doctrine – it alleges that Syria is unwilling and unable to effectively curb the threat of ISIS and

THIS WIDE CLAIM TO COLLECTIVE SELFDEFENCE IS THUS NOT ONLY FACTUALLY QUESTIONABLE BUT ALSO UNSUPPORTED BOTH BY THE TEXT OF ARTICLE 51 AND CUSTOMARY INTERNATIONAL LAW UP TO THIS POINT. thus US force is necessary. However, this is questionable since – apart from the US,

Canada, Turkey, and Australia – no states have put forward an ‘unwilling or unable’ test, and even the UK has not supported it. Corten also argues that such a test is unlikely to ever be accepted by states since it is fundamentally incompatible with the multilateralism underlying the UN’s institutional arrangements for centralising the use of force. Even if this test was part of customary international law, it has been clear since September 2015 and Syria’s response that Syria is not unwilling and unable – on the contrary, it has “fought indefatigably” against ISIS, and (as Bannelier-Christakis and Henderson note) it is rather the US that has refused any substantive cooperation with the Syrian government. This wide claim to collective self-defence is thus not only factually questionable but also unsupported both by the text of Article 51 and customary international law up to this point.

More fundamentally, the states in favour of intervention in Syria (especially the US and UK) have also asserted that an ‘armed attack’ that can trigger the right to self-defence under Article 51 can be by a non-state actor (ISIS). However, this

departs from customary international law as stated in Nicaragua and by the majority in Wall, which required an armed attack to be “by or on behalf of the state”. However, the extent to which this has changed in customary law is unclear post9/11, after which states supported the US’ Operation Enduring Freedom against non-state actors and the terms of Security Council Resolutions 1368 and 1373 did not actually limit its authorisation of force to state actors. Based on this, some states (as well as Judges Higgins and Kooijmans in Wall) have argued that the use of force against non-state actors in the fight against terrorism is now permissible. While there is not yet enough supporting state practice, especially given protests by some states, the US et al may be slightly more justified in extending the right of self-defence in this respect, since it seems to have a slightly firmer basis in customary international law and is not prohibited by the terms of Article 51 itself.

TARGETING KILLINGS Finally, it should also be noted that the UK has carried out targeted killings in the purported exercise of its right of individual self-defence – it carried out a precision

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airstrike killing an individual involved in plotting an attack on the UK. As Professor Gray has observed, targeted killing is itself controversial, and the continued opposition of Russia, China, and other states further militates against this being a legitimate exercise of the right – customary or Charter-based – of self-defence.

CONCLUSION In conclusion, the prohibition on the use of force enshrined in Article 2(4) is a fundamental underpinning of our international legal system, and Article 51 – as the main exception to it – should not be too liberally construed. While powerful states have indeed recently sought to widen the right of self-defence in Syria in ways that generally cannot be securely justified based on Article 51 or customary international law, the evolving nature of international law and the serious new challenges posed by the conflict in Syria and by ISIS – a “global and unprecedented threat” (UN Security Council Resolution 2234 on France in 2015) – may prompt future developments in customary international law to legitimise these extensions; but for now, their legality remains unclear.

ANTICIPATORY SELF-DEFENCE AND ‘IMMINENCE’ In addition, the US’ attempts to broaden the right of anticipatory self-defence is also questionable. It should first be noted that anticipatory self-defence should itself not be regarded as “well-established customary international law” – it is not supported by Article 51 (which requires an “armed attack” to have occurred), and was not met with general acceptance even before Syria. Indeed, some states argued that the condemnation of Israel’s attack on an Iraqi nuclear reactor in 1981 represented a rejection of anticipatory self-defence generally, rather than just on the facts. However, even if anticipatory selfdefence was customary international law (which the ICJ has declined to pronounce

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LENT 2018

Essays

Labour Law

Labour Law

mandatory requirement, but that the TUA merely gives the government the authority to conduct a review (Dukes and Kountouris). While the government has repeatedly given verbal assurances that it will occur, the current postal system is substantially outdated, and the refusal to embark conclusively on e-balloting forthwith implies a lack of modernization on the part of the government. Moreover, the characterization of trade unions has been one where they bully weak and timid members into submission and that trade union leaders are ‘dictators’ imposing their whims on members (Ford and Novitz 2016). This is straightforwardly not true. Trade union leaders cannot take action against any members who refuse to take part in industrial action, and are democratically elected: to what extent can they be authoritarian?

LABOUR LAW ‘The Trade Union Act 2016 represents the latest step in the long journey of modernization of trade unions begun in the 1980s, and represents muchneeded protection of union members and the public from disruptive and undemocratic strike action.’ Discuss. Azfer A Khan | Magdalene College The Trade Union Act 2016 (TUA) has come into force and represents a culmination of the Conservative Government’s attempt to ‘reintroduce’ democracy within Trade Unions. The quote in question is a classic statement by a policy maker or one of the consultation papers – in so far as it is misleading and flatly wrong. The first misstep is in the assertion that there was a long journey of modernization – this is false since ‘modernization’ here does not mean enhancing or updating procedures, but instead, introducing roadblocks, hurdles and cumbersome procedures to reduce the efficiency of trade unions. The second misstep is painting a picture of the interests of unions as standing in opposition to that of union members and the public. I argue on these two bases, that the TUA is likely the first step in completely clamping down on trade union freedom, that it is a representation of the ‘authoritarian’ and anti-liberal stance of the government (Bogg 2017) and that it is likely a pre-emptive strike against trade unions in light of proposed budget cuts and fiscal tightening (Ford and Novitz 2015).

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THE IMPETUS FOR CHANGE - INHERENTLY FLAWED We must start with the aim of the TUA, as espoused by the Government. It has repeatedly cited ‘fairness’ and ‘democracy’ as the guiding ideals of the reform to collective labour law (BIS Consultation Paper 2015). But even before that, these changes were presented in a right-wing think-tank called Policy Exchange’s paper: ‘Modernizing Industrial Relations’. Bogg 2016 rightly points out that the similarities between these proposals and the ones initiated by the government are too similar to be a coincidence – the problem here lying with the fact that the paper fundamentally misconstrues the purpose of trade unions (as merely being vehicles to reduce transaction costs) when in truth their purpose is to regulate employeeemployer relations (Dukes and Kountouris): and this is confirmed by taking a cursory glance at TULRCA s1(a). Moreover, the Impact Assessment conducted by the Government and the reports it relied

on have been roundly criticized by the Regulatory Policy Committee (RPC) for failing to give any sustained reasons for the policy changes or any strong evidence in support of them. Moreover, it made heavy use of the Carr Review 2015 to introduce changes to picketing, but Mr Carr QC himself has stated that it was not so much as evidence than one-sided complaints and opinions that he was asked to record down. The point is here is this: there seems to be no meaningful reason why the changes are being introduced (Ford and Novitz 2015): at least the Thatcher-era winter of discontent had underlying policy reasons that encapsulated a coherent objective. Ultimately, the views of the government must be taken with suspicion since the evidentiary basis of any of its assertions is unsatisfactory to say the least.

AIMS, CHANGES AND MISMATCH If democracy was the primary concern for the government, it is unclear why e-balloting was not introduced as a

The changes of the TUA are six-fold: (i) the introduction of a 50% turnout requirement, (ii) a 40% voting in favour requirement out of all those eligible to vote for essential services, (iii) Certification Officer reforms, (iv) opting in of union funds, (v) picketing requirements and union supervised picketing and (vi) notice of industrial action changed to two weeks. Moreover, draft regulations have been published that will allow employees to hire agency workers in replacement of the striking workers. Taking a look at these changes as whole, it is not surprising that Frances-O’Grady has said that this will ‘essentially end the right to strike’ for public sector unions. These changes have been argued to be in breach of the UK’s international obligations and this lends further credence to the argument that the changes are not straightforwardly meant to serve the purposes of ‘fairness’ or ‘protection’; the balloting restrictions are likely to manifestly hinder the steps unions can take and hence breach Art 11 (Demir, Gernigon et al 2000, Ewing and Hendy 2015), the opting in of funds is likely to be a breach of FoA as well (Ewing and Hendy 2015), the picketing requirements a breach of the freedom of expression under Art 10 (Ford and Novitz 2015) and onerous notice requirements are likely to be a breach under Art 6 ESC obligations as noted by the European Charter Special Committee in 2007. If such wide-ranging criticism can be made of the Act on human rights grounds, one must inspect the changes and their likely effects in detail. Firstly, as Bogg 2016 rightly points out, the government rhetoric of ‘a right to expect services the public rely on’ does not exist in international or domestic law. Secondly, it is not clear why, if the government intended

to promote the interest of workers and the public, the government then refused to consider a minimum service requirement for essential services, instead of giving non-voters such a key role in determining whether strikes can occur at all. As Darlington and Dobson state (2015): the intended reform will only render 50 out of 90 of the strikes in the past 10 years lawful: the impact of the changes of the balloting requirements should not be understated. A minimum service requirement for example, would be a better alternative that balances the rights of workers and the rights of the public. Moreover, as Ford and Novitz 2015 gravely note, the requirements of calling a strike are more stringent than electing an MP, and as Dukes and Kountouris note, if the same requirements had been applied to the Brexit vote, then the UK would remain a member of the EU. It is therefore very telling that the government’s stance against trade unions is too strict and unlikely to be targeting simply the ‘undemocratic’ nature of unions: a claim which is evidently not on all fours.

THE PROTECTION OF RIGHTS BY THE COMMON LAW SOMETIMES CAN EVEN BE SEEN TO BE BEYOND THE HRA, SHOWING THAT LORD TOULSON IS CORRECT IN SAYING THAT THE COMMON LAW REMAINS RELEVANT. Changes to the picketing requirements are wholly unnecessary: as Bogg 2016 rightly notes, the requirements in TULRCA are peaceful picketing per s220 – anything more is already a criminal offence. Gall 2016 further notes that pickets are rarely the suit of injunctions, and hence the introduction of union supervised picketing is merely an administrative hurdle: firstly because the union may not find enough supervisors and secondly because members may not want to be easily identifiable, especially in light of the recent blacklisting scandal. Lastly, the major criticisms of the TUC is with regards the two weeks’ notice requirement in addition to the Regulations for having agency workers: this will minimize the effect a strike or industrial action will have, and the employers will hence feel less pressured to bargain collectively. The underlying notion of collective bargaining rests on the belief that employers are more powerful than employees (Kahn-Freund, Lord Wedderburn), strikes therefore form part of the countervailing power

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(Gailbraith 1956) that employees can assert against the employer. Reducing its effectiveness ultimately hinders the effectiveness of collective bargaining. It may therefore be a breach of Art 11, since collective bargaining is an essential part of the freedom to associate (Demir).

THE WAY FORWARD RMT v UK decided that the State has a wide margin of appreciation with regard to strike action and restrictions under Art 11(2), contrary to Barry 2013 who argued that the discretion should be limited. It is unlikely that challenges before the ECtHR or CJEU will succeed. The underlying essence of strike action is meaningful collective bargaining and I agree with Ewing and Hendy 2017 that the State should pay a role in introducing facilitative legislation and hence play the auxiliary role that Kahn-Freund so valued. But I suggest that alternatives also exist: we could turn to the examples of Singapore and Sweden to recognize compulsory arbitration that may supplant the need for disruptive industrial action altogether. Though the political history of the modern UK is dominated by industrial action (Taff Vale, Miner’s Dispute, recent Tube Strike), there may be a change on the horizon. This will require labour lawyers to work with the government to ensure that rights of workers to bargain and be heard are effectively secured.

CONCLUSION Nobody likes a strike (Khan 2017) because it causes economic loss for the employer, is a hassle to organize for trade unions, and places employees in overtly antagonistic position vis a vis their employer. I suggest that following from Cameron’s White Paper ‘Fairness at Work’ the relationship between employer and employee can be recognized to be mutually beneficial, not overtly antagonistic – but this requires change. And although the notion of undemocratic and unfair union action is misguided, there may be some sense in looking for alternatives in light of the changes brought about by the TUA. Finally therefore, I argue that Ford and Novitz 2015 are likely to be correct in suggesting that the underlying rationale of the TUA is a pre-emptive strike to reduce trade union power in light of austerity measures, and that the reasons given by the government are unconvincing if not incoherent.

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LENT 2018

Essays

Administrative Law

Administrative Law

ADMINISTRATIVE LAW ‘Final conclusions on a number of interesting issues that arise in this area must await a case where they can be more fully explored. These include whether irrationality and proportionality are forms of review which are bluntly opposed to each other and mutually exclusive; whether intensity of review operates on a sliding scale, dependent on the nature of the decision under challenge and that, in consequence, the debate about a “choice” between proportionality and rationality is no longer relevant; whether there is any place in modern administrative law for a “pure” irrationality ground of review ie one which poses the question, “could any reasonable decision-maker, acting reasonably, have reached this conclusion”; and whether proportionality provides a more structured and transparent means of review.’ (KERR) With these questions in mind, how do you think the law of substantive judicial review of administrative action should evolve in the coming years? Jane Lu | Peterhouse In light of the concerns raised by Kerr, I argue that proportionality and irrationality (Wednesbury unreasonableness) are not mutually exclusive and fundamentally boils down to the same principles due to a sliding scale of intensity. As a result, looking forward, a “choice” is no longer relevant. In coming to this conclusion, I will examine the following (i) whether proportionality provides a move structured and transparent means of review, (ii) whether there is any grounds of “pure” irrationality review, (iii) and whether there is a sliding scale of intensity of review. Lastly, (iv) I will also offer critiques of Taggart’s alternative visions of substantive review.

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WHETHER PROPORTIONALITY PROVIDES A MOVE STRUCTURED AND TRANSPARENT MEANS OF REVIEW Craig argues that proportionality provides a more structured and transparent means of review. He contends that the proportionality test proposed by Lord Sumption in Bank Mellat No.2 offers a clear framework of tests that must be satisfied. In contrast, the exact criteria of the irrationality test (Wednesbury; GCHQ case) is imprecise on two grounds:

Firstly, without a clear test but just a vague criterion of “so unreasonable that anybody who views the decision will conclude it as unreasonable” (Wednesbury), it is difficult to determine the exact considerations that a judge has to factor in when applying the test. The inconsistent criteria that the case law demonstrates supports this view – in Rotherham, the court took into account normative values such as equality; but in Keyu, Lady Hale came up with a list of criterion (such as benefits of the policy, cost of the policy) that has to be satisfied. Yet, although Craig’s first criticism may be prima facie correct, it can be counter argued by adopting Daly’s position.

Daly suggests that it is possible to draw up a list of factors to be considered under the irrationality test, such as lack of logic, and disproportionate response. In fact, Daly’s argument can be extended to include broader common law principles of good governance, fairness and good administration which help guide the court’s judicial review functions. These principles also guide the court’s reasoning and scope of reasoning when applying the irrationality test. Furthermore, Craig’s assumption that the proportionality test is legally certain due to the explicit criteria can be disputed. The last two limbs of the proportionality test – whether the measure is necessary and the fair balance between claimants’ rights and the policy are equally vague questions. The two limbs are in essence requiring the court to make an ambiguous judgement, and like the term “unreasonable”, the terms “necessary” and “fair balance” can be equally as unhelpful and discretionary. Craig’s second criticism is this: the irrational test is formulated at an extreme, it requires the court to decide whether the decision made is so unreasonable that “anybody” who looks at the decision will think it is unreasonable. In theory, this poses a very high threshold, but in practice, courts tend to adopt a much lower threshold. For example in Hill, the court held that it is unreasonable to require a local council to build a road where other transportation methods available. This case illustrates that on the outset, courts have adopted a much lower threshold, because in this case, the answer to whether the proposal to build a new road is unreasonable is not extremely obvious.

WHETHER THERE IS ANY GROUNDS OF “PURE” IRRATIONALITY REVIEW Craig’s second criticism leads to Lord Cooke’s suggestion of a “pure” irrationality of review test. The question of whether a reasonable decision maker would have reached the same conclusion is a much lower threshold than the test formulated in Wednesbury, and is set at a more realistic standard by theoretically widening the scope of review than the original test that is set at an extreme. Yet, practically, it is doubtful whether Lord Cooke’s suggestion will change much because as Hill illustrates, courts are already adopting such a standard.

WHETHER THERE IS A SLIDING SCALE OF INTENSITY OF REVIEW Another merit of Lord Cooke’s formulation is that it allows a sliding scale of review. It can be argued that what is “reasonable” is dependant on context. This is demonstrated by case law, for instance in Rotherham which concerns a challenge to the allocation of EU funds, the court adopted a less intensive review by giving more deference to the government. This is because the question of how best to allocate funding exceeds the court’s expertise and is a question that is arguably more political in nature than legal due to the complex social, economic and policy concerns and consequences it entails. In contrast, the court adopted a more intensive irrationality review in Brind, which concerns the terrorist’s right to interviews, due to the nature of the decision concerning

LOOKING AHEAD, SUBSTANTIVE REVIEW OF IRRATIONALITY AND PROPORTIONALITY SHOULD NOT BE MUTUALLY EXCLUSIVE BECAUSE A “CHOICE” BETWEEN THEM DOES NOT EXIST. important human rights (right to free speech and expression). The intensive review is demonstrated by the court’s review of the decision making process, the outcome and also the consequences of that outcome. Similarly, a sliding scale can also be adopted in proportionality review. This is demonstrated by contrasting two cases – Belmarsh and Belfast CC v Miss Behavin’ Ltd. In the Belmarsh case, the challenge concerned the balance between the prisoner’s liberty and national security concerns. The high intensity of proportionality review is demonstrated by the courts’ willingness to review despite the concerns of national security which falls under Hunt’s formulation of “spatial” deference. This can be contrasted with Miss Behavin’ Ltd which concerns the right to expression in the context of pornography. Here, the intensity of review is much lower as seen in how the court has displayed doubts over how “fundamental” the right to expression is in terms of pornography

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materials. This shows a sliding scale of review especially in light of the fact that the right to free speech is normally considered as a fundamental right. The sliding scale of review proves Lord Neuberger’s argument, that in substance, both tests are the same; and as the similarities between Brind and Belmarsh demonstrates, both tests reach the same results. The mirrors Daly’s conception of the underlying factors that should be considered under the irrationality test such as logic and proportonate response; and arguably, these are also the factors that the court considers when exercising a value judgment under the last two limbs of the proportionality test. As a result, looking ahead, substantive review of irrationality and proportionality should not be mutually exclusive because a “choice” between them does not exist. It is acknowledged that there is potential overlap between the two tests, but it can be counter argued that substantive review should be merged into a single test embodying both the irrationality factors suggested by Daly and the balancing exercise proposed by the proportionality test.

CRITIQUES OF TAGGART’S ALTERNATIVE VISIONS OF SUBSTANTIVE REVIEW Taggart proposes a rainbow of review where proportionality should be used where human rights or EU matters are concerned, and irrationality should be applied to the other matters. Whilst the approach is theoretically sound since it reognises the complementary nature of the tests, the dividing line between human rights and non-human rights issues is arbitary. As Miss Behavin’ Ltd illustrates, a hierachy of human rights ranging from qualified and absolute rights is present, and the difference in strength of human rights claims is sensitive to the context. Thus, the comparison between Miss Behavin’ Ltd and Brind highlights the flaw in Taggart’s logic, and as a result, Taggart’s rainbow of review should be rejected as it needlessly complicates matters.

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LENT 2018

Essays

Equity

Equity

EQUITY ‘An individual’s clearly expressed intention to devote certain assets to achieving particular aims or benefiting particular groups of people is often thwarted because the relevant laws are so restrictive.’ Describe and critically analyse the relevant legal restrictions and their policy objectives and practical effects in order to determine whether this statement is justified. Andrew Ng | Wolfson College It is indeed true that an individual’s intention to devote certain assets to benefit another is often thwarted because the relevant laws are restrictive. However, this restriction is completely justified in the sense of preventing a fraudulent allegation of trust arising that results in the settlor of transferee from losing their property. These restrictions are then the law’s solution to balancing the interest of the settlor and that of the beneficiary. The most straightforward example of the restrictive laws is seen on the presumption that the transferee would hold the property on a resulting trust (eg Re Vinogradoff) unless proved otherwise. This means that it is possible that a transferor might have intended the transferor but because the transferor did an act that the courts viewed as inconsistent (eg retain the mortgage documents as in Warren v Gurney), the transferee would be deemed to hold the property on resulting trust (RT) for the transferor. This seems to thwart the clear intentions of the transferor.

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However, it is submitted that this is justified in the sense of protecting the transferor as equity is usually suspicious of a gratuitous transfer and it is more likely than not that the transfer was due to ulterior motives (eg defrauding creditors) or undue influence. Equity has kept the orthodox rule but introduced exceptions, ie presumptions of advancement in certain cases where it is likely that the transferor really intended to make a gift (eg husband to wife – Re Eskyn, father to child – Re Roberts). This motley mix of presumptions of advancement as well as the presumption that the transferee holds on RT for the transferor is just Equity’s proposed solution to strike a fair balance between protecting both the transferor and the transferee. Another example are the rules in s53(1) (b) and s53(1)(c) LPA 1925 that arose from the old Statute of Frauds 1677 requiring signed writing. These rules were set in place, as Lord Nottingham in Cook v Fountain (1677) noted to ensure

that no men should lose his estate due to the imagination and fancy of the Lord Chancellor. However, these rules thwart an individual’s clearly expressed intention in the sense that they impose additional hurdles that the individual must meet to effect the transfer. However, the rationale of balancing the interest of the transferor and the transferee is when Equity carves out exceptions to the usually rigid rule. For example, s53(1)(b) LPA 1925 would not apply following Rochefoucauld where the formality requirement is used to perpetuate a fraud (Lindley LJ - received the land as trustee, knowingly and denying the trust to claim it for themselves). In this case, Equity recognises the rights of the transferee and creates this exception to better accommodate this. Another example is the differing results of Grey v IRC (where an oral disposition to trustees to transfer the beneficial interest to another) would fall within s53(1)(c) LPA 1925 while an oral disposition to trustee

to transfer the legal interest to another would not (as in Vandervell (No 1)). While it could be argued that this seemingly inconsistent result was that the House of Lords found Grey’s case as nothing more than a tax evasion that he should not give away with, the better argument is that Equity, in the differing outcomes, is simply striking a balance between transferor and the transferee – that while the transferor might lose his property due to a fraudulent trust in cases involving oral directions to transfer legal title, this result is so important in the commercial world (as Nolan (2002) notes( that the benefits of allowing it outweighs the cost. Grey can thus be explained as the number of such transactions being so infrequent to the extent that Equity would rather protect the transferor (or the beneficiary) since the practical cost of doing so would be lower. Hence, exceptions to the general rigid rule illustrates that these restrictions are nothing more than Equity’s way of balancing the interest of the transferor and the transferee and Equity would alter the balance in certain (as discussed above) scenarios.

to the usual rule and instead grant more protection to the transferee. This result is also seen in T Choithram, where Equity will benevolently construe a words of gift to mean a declaration of trust where the transferor is also a co-trustee (as Doggett (2003) notes), and Curtis v Pulbrook Briggs J characterisation of Pennington as an instance of detrimental reliance. In such cases, Equity intervenes to ensure a balance between protecting the transferor and the transferee and moves away from the orthodox rules (as in Milroy) which favours protecting the transferor.

PER INCURIAM

In conclusion, while it is indeed true that an individual’s clear expression of intention might thwart his aims because it is so restrictive, this is justified due to the need to protect the transferor. However, as discussed above, such rules are put in place to strike the right balance between protecting the transferee and the transferor and the exceptions, albeit inelegant, illustrates Equity’s way of adopting the principle of protecting both parties to different situations.

Lastly, the other clear example of this restriction as well as Equity seeking to balance such interest is seen in the rule regarding failed dispositions. The rationale for the orthodox rule in Milroy v Lord and Richards v Delbridge is simply that the transferor should not be compelled o transfer the property simply because he intended, at that point of time, to transfer the asset. The transferor must show that he irrevocably wants to do so (as Fuller

EQUITY HAS KEPT THE ORTHODOX RULE BUT INTRODUCED EXCEPTIONS, IE PRESUMPTIONS OF ADVANCEMENT IN CERTAIN CASES WHERE IT IS LIKELY THAT THE TRANSFEROR REALLY INTENDED TO MAKE A GIFT (1941) notes) before the transfer would occur. However, the exceptions show Equity intervening to alter the balance in certain instances. For example, following Re Rose, Equity would intervene to lift the usual restriction that the transferor had done “everything in his power” (Evershed MR in Re Rose) to effect the transfer. This shows that in specific instances, Equity will not adhere

25


LENT 2018

Essays

Family Law

Family Law

easy for parties to get out of a marriage. Surely forcing people to stay in a loveless marriage takes any “sanctity” out of the marriage – this would truly undermine it! Turning now to ways forward for divorce law, it is telling that the current law which demands that one of the ‘facts’ laid out in the MCA 1973 s1 is proved and for the court to ‘enquire… into the facts’ (s1(3)) is totally undermined by the special procedure which allow undefended divorces to go with hardly any scrutiny. What is needed, therefore, is a move away from the need to prove facts and for the law to become in line with what are effectively the grounds for divorce: divorce wither by mutual consent or unilateral demand. The Commission on European Family Law’s recommendations are thus compelling. These recommend for divorce by mutual consent and divorce by unilateral demand upon a separation

FAMILY LAW

period. Indeed this essay would go further and do away with any need for a separation period, Walked noting that it is patronising to assume that parties have not thought seriously about things before commencing divorce proceedings. Moreover, current law

SURELY FORCING PEOPLE TO STAY IN A LOVELESS MARRIAGE TAKES ANY “SANCTITY” OUT OF THE MARRIAGE – THIS WOULD TRULY UNDERMINE IT! which allows for no fault divorce were there is separation is (as the Law Commission notes) discriminatory as it requires spouses to have the financial means to

PER INCURIAM

live elsewhere (although Hopes v Hopes says technically the spouses can stay in the same household this has been interpreted narrowly and is only if they are leading completely separate lives).

CONLUSION The contrasting approaches of regulation and regularization that should govern marriage and divorce have been advocated for on the basis that this is what is required if it is to be accepted that ‘the state has a legitimate interest’ in protecting the institution of marriage. The gist of the argument is that whilst regulation can serve to protect such a legitimate interest in regards to who can marry, it cannot serve the same purpose in regards to who can divorce. A non-paternalistic divorce law is thus desirable and the law should move towards seeing divorce as a right

‘While the state has a legitimate interest in regulating who can get married, it should not regulate who can get divorced.’ Discuss. Helen Taylor | Fitzwilliam College The essay agrees with the title statement; taking Eekelaar’s regulation/regularization approach, whilst the state has a legitimate interest in who can get married, divorce law should take a less intrusive regularization approach. To further the argument interests of the state in marriage are set out in order to demonstrate that regulation is needed, however it will be shown that whilst these interests are also pertinent to divorce, a regulatory approach is not desirable and indeed current divorce law is too paternalistic.

MARRIAGE Herring has noted that the state has a legitimate interest in marriage. In line with this, possible interests of the state are set out in order to make the point that some regulation is needed with regards to who can marry. One often cited reason for the importance of marriage relates to its religious, social and cultural significance. Indeed in Wilkinson v Kitzinger and Valliantos v Greece the ECtHR has been at pains to stress the important cultural place of marriage. From this point of view the state may be justified in regulating who can

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get married in order to preserve marriage’s traditional connotations. Linked to this is the viewpoint that marriage is and should be about love. Indeed the same argument applies to civil partnerships and goes some way to explaining with the Burden sisters were not allowed to enter into a civil partnership. It follows that it is justified for there to be provisions in the MCA 1973 stipulating that marriages ‘within the prohibited degrees of relationship’ (s11(a) (i)) may be void. On the issue of nullity, other provisions guarding against children getting married (s11(a)(ii)) are justified as individuals should have the capacity to understand the rights and duties attached to marriage. Other suggested reasons for the importance of regulation is the state’s interest in promoting a stable environment for children and in promoting equality – as the 2013 gay marriage legislation does. Admittedly it is at the very least arguable that cohabiting partners in a stable relationship can equally provide an appropriate environment for the upbringing of children (indeed this is supported by research such as that conducted by Goodman and Greaves). However, if it

is accepted that marriage is to continue to remain important in society this point does not detract from the argument that with regards to who can enter into such a partnership, regulation is needed.

DIVORCE The need for regulation in divorce law is not as pertinent. It is accepted that many of the reasons pointing to a need for marital regulation are also relevant to the area of divorce, however these aims do not necessitate a regulatory approach. For instance, the argument that the state should seek to uphold marriage for the sake of any children involved and to promote stability falls away when considering that any such stability is lost because the marriage has already broken down – as Mears notes, but the time the couple has got to the courts the marriage is most likely past the point of repair. What is needed, therefore, is for the law to facilitate as easy a divorce as possible, not to seek to regulate behaviour. This argument also counters points advanced by Deech that marriage is sacred and is undermined by divorce law making it

27


LENT 2018

Essays

Intellectual Property

INTELLECTUAL PROPERTY Eccentric Edward has inherited a lot of money and wants to upgrade the interior of his house. He asks Brian, a retired art teacher who has worked for Edward several times in the past, to design a truly original wardrobe for him. Since Edward admires Brian’s artistic style, Brian has a lot of freedom in choosing materials and can decide on various decorative features. The main feature Brian suggests is a large wooden mosaic on the wardrobe’s two sliding doors. Edward likes the idea, but asks Brian to leave one of the two doors blank for a portrait photograph, which he considers to be one of his masterpieces. In return he receives £5000 from Edward. Edward shows the finished wardrobe to Arthur, a professional photographer. He asks Arthur to think of a portrait motif that shows him, Edward, in an impressive way. Arthur chooses the background, angle and lighting and takes a photo that shows Edward, sitting in an old armchair with a very firm look on his face. He prints the photo on an expensive metal surface and then mounts it onto the empty sliding door of the wardrobe. Arthur and Edward agree that Arthur will be paid an honorarium of £1000 and that the photo is for Edward’s personal use only. Several months later, Edward’s favourite political party is running for local elections. With his digital camera, Edward takes a photo of the portrait photograph created by Arthur, copies it onto his computer and, with the help of software, cute the image of his own face from the photo. He then integrates that image of his face into a digital photo showing the banner of his political party. The outcome shows his face, with the recognisable firm look, on top of the banner that reads: ‘Enough is enough. No more economic migrants!’ Edward is pleased with the result and uploads the digital image onto his own, personal website www.edward.net. When Arthur hears about this, he is furious. He fears his work could be associated with political campaigns in general and with this - in his view highly discriminatory - message in particular. Edward considers that his activity is protected free speech and that he is merely using a part of the photo. A further three months later, Edward begins to dislike the wardrobe. He carefully removes the metal print of the photograph and then takes several photos of the wardrobe from the front, side and back. He then uploads these photos on eBay where he has created a webpage on which the wardrobe is offered for sale. Brian is disappointed that Edward wants to sell the wardrobe. He asks whether he can rely on copyright to prevent Edward from advertising the wardrobe on eBay.

Advise Arthur and Brian on the copyright issues that arise on the facts above. 28

Intellectual Property

PER INCURIAM

Ben Lock | Trinity Hall The wardrobe in question may be a copyright work and so be protected under the CDPA. Due to the closed list system adopted by that statute, Brian would need to bring it within one of the prescribed categories in s.1. The wardrobe would probably be protected as an artistic work under s.1(1)(a), as s.4(1)(c) includes works of artistic craftsmanship in that category. In George Hensher v Restawile Upholstery, it was held that such items must be judged in themselves to see if they have the virtue or character of being artistic. As the wardrobe has many decorative features, this seems to be satisfied. In Vermaat and Powell v Boncrest it was said that such works were those created by an artist-craftsman, a craftsman being someone who takes justified pride in his handiwork and an artist being someone with artistic skill who creates something with aesthetic appeal. Brian appears to satisfy both of these as he has an ‘artistic style’ and considers the work as one of his masterpieces. As an artistic work, the wardrobe must also be ‘original’ in order to attract copyright protection – s.1(1)(a). In the UK, the traditional test was that the work must be the product of the creator’s ‘skill, labour and judgement’ (Ladbrokes v William Hill), and that is must not be ‘slavishly copied’ from another work (Hyperion Records v Sawkins). In the CJEU in Infopaq, the test for originality was whether the work could be said to be the ‘author’s own intellectual creation’. On the facts both tests appear to be satisfied as there is no evidence that Brian did not originate the wardrobe himself so there is no need to decide between the tests. Having established that the work attracts copyright protection as an original artistic work, the next step is to identify in whom that copyright subsists. S.11(1) CDPA says that the author of a work is the first owner of any copyright in it, and s.9(1) defines ‘author’ as the person who creates the work, so prima facie the owner appears to be Brian. However Edward may argue that he should be considered a joint author under s.10 due to his suggestion regarding the door. This is unlikely to succeed as Brighton v Jones held that although the contribution

of each author need not be equal, each must still be significant, and suggesting one change – to remove an artistic feature – does not seem to satisfy that test. Edward may also argue that Brian was an employee when he made the work, in which case s.11(2) would operate to make Edward the owner. S.178 defines employment as being under a contract of service or apprenticeship. Beloff v Pressdram provides a series of factors to look at, including salary and holiday, none of which apply to Brian, so he is not an employee. Following Robin Ray v Classic FM, it is also unlikely that there would be any assignment to Edward. As the owner of copyright in the wardrobe, Brian has the exclusive right to do the acts listed in s.16(1) CDPA, and subsection (2) makes it an infringement for anyone else to do any of those acts. By taking photos of the wardrobe, Edward may be found to have reproduced a substantial part of it and so be liable for infringement, as s.17(3) CDPA prohibits making 2D copies of 3D works. As the whole of the wardrobe was photographed, there is no need to consider substantiality. Edward may also be liable for secondary infringement by posting the photos on eBay, as they are infringing copies.

HAVING ESTABLISHED THAT THE WORK ATTRACTS COPYRIGHT PROTECTION AS AN ORIGINAL ARTISTIC WORK, THE NEXT STEP IS TO IDENTIFY IN WHOM THAT COPYRIGHT SUBSISTS. Brian may get an order for delivery up of Edward’s photos under ss.99 and 100. Brian may also claim damages for infringement of his moral right to attribution under s.77, however it does not appear to have been asserted under s.78. He may also use s.96(2) to get an injunction against Edward.

capable of originality as the photographer is able to make free and creative choices in relation to them. The fact that the photo is stated to be for Edward’s personal use only clearly precludes any finding that Edward owns the copyright. The metal surface with the picture on would also be protected as an artistic work. Copying to the computer is clearly an infringement under s.16(2). Arthur may also argue that his moral right to object to derogatory treatment under s.80 has been infringed. The requirement of ‘treatment’ in s.80(2)(a) has been satisfied, but Arthur must also establish that it is derogatory in the sense that it is prejudicial to his honour or reputation. This may be satisfied in the present case as, by analogy with Deckmyn v Vandersteen, Arthur may be able to argue that he does not want to be associated with a discriminatory message. Under s.80(4), Arthur must establish that his work has been dealt with in a particular way. He may succeed in arguing that his work has been communicated to the public, as it was put on Edward’s website, and so was available to a new public Arthur did not take into account (FAPL v QC Leisure) as he only thought it would be for Edward’s private use. Edward may argue against this by saying that only using his face was not a ‘substantial part’ of the copyright work. In NLA v Meltwater, the court held that following Infopaq it was clear that originality rather than substantiality was the test to be applied to the part extracted. It is arguable that Edward’s face was not Arthur’s own intellectual creation, however the fact that Arthur chose the angle and lighting would probably mean that Edward’s defence would fail. Edward probably also cannot utilise any of the fair use defences, as the only one which may apply seems to be quotation, and it is not clear that one can quote from an artistic work, and in any case using the work despite the specific agreement to the contrary arguably makes it ‘unfair’.

Photographs are expressly said to be artistic works in s.4(1)(a) CDPA. In Painer v Standard Verglas, portrait photos were said to be

29


LENT 2018

Essays

EU Law

EU Law

directive (Marleasing). Here, G will want to argue that the directive’s requirement for employers to take appropriate measures to accommodate disabled persons should be interpreted consistently with French national law. It seems that such a claim is likely to succeed as this would not involve interpretation contra legem (as per Impact and Wagner), as the national law does not directly conflict with this term in the directive. Hence, it is likely that a French court will find R to have been in breach of this obligation.

EU LAW

However, G will only be able to recover remedies as against R as laid out in national law; this is because the term in the directive referring to a right of compensation is not directly effective as against R, a private employer.

(Fictitious) Directive 2014/706/EU sets out a framework to combat direct and indirect discrimination on grounds of disability as regards employment. The Directive provides that employers must make reasonable accommodation for disabled persons. The Directive states that this means, in particular, that employers are required to take appropriate measures to enable a person with a disability to have access to, and participate in, employment unless such measures would impose a disproportionate burden on the employer. Finally, the Directive stipulates that victims of discrimination on grounds of disability have the right to effective compensation. The deadline for the implementation of the Directive was 1 January 2016. All Member States, except France and Denmark, have implemented Directive 2014/706/EU. However, there is pre- existing legislation in France that provides that private employers have discretion to decide whether they are able to make reasonable accommodation for disabled persons. Advise the following parties as to their position under EU law: (i) Gabrielle, a French IT technician, who is a wheelchair user and who was offered a job by Rollerfour, a leading French supermarket. Gabrielle arrived for her first day at work on 3 March 2016 and found that the office allocated to her was on the third floor of a large Rollefour supermarket store and that there were no ramps or lifts that she could use to gain access to her office. When she raised this issue with her employer, she was told that it would be too costly to install lifts or ramps in the store and that an office on the ground floor of the store could not be made available to her. As a result, Gabrielle resigned immediately from her position. (ii) The Italian Government, which implemented Directive 2014/706/EU but whose implementing legislation included a clause stating that the obligation to provide reasonable accommodation for disabled persons would not apply to employers who employ fewer than ten workers. Furthermore, the Italian implementing legislation set a maximum limit of 500 Euros in compensation for victims of discrimination on grounds of disability. (iii) Joachim, a Danish civil servant, who has suffered from a long-term mental health condition and who asked his employer to be allowed short periods of rest during his working day. His employer refused to grant his request.

Gareth Goh | St Catharine’s College i) G will have claims against both her employer R and the French government.

CLAIMS AGAINST HER EMPLOYER R is clearly a private employer, and even by the wide scope of the state set out in Foster v British Gas, it is unlikely that R will be characterised as an emanation of the state. Because directives only have vertical

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direct effect (Marshall / Faccini Dori), G will have to have recourse to the judicially developed exceptions to this rule if she wants to bring a claim against R. Because there is pre-existing legislation in France conferring discretion on whether to provide reasonable accommodation or not, G can argue that the doctrine of consistent interpretation will apply

(Von Colson). This requires any relevant national legislation to be interpreted consistently so far as possible with the unimplemented directive. It is also a requirement that the implementation period has expired (Centrosteel / Adelener). The interpretative obligation is a strong one (Pfeiffer) and applies to the whole body of national law, even those that existed prior to the adoption of the

An alternative claim that G can bring against R is that R has breached a general principle of EU law (Mangold). However, this has only previously been applied in the context of age discrimination (Kucukdeveci / HK Danmark), and so may not apply here. But the recent cases of Dominguez and AMS suggest that Mangold is best explained as the direct effect of the Charter itself, irrespective of the directive. If this is so, G may be able to argue that Article 21 of the Charter (non-discrimination of disability) applies horizontally against R.

CLAIMS AGAINST THE STATE G will want to bring a claim in state liability against the French government, which will lead to a remedy of damages (Francovich). The requirements for state liability were laid out in Brasserie/Factortame as requiring a measure conferring rights on the individual, a sufficiently serious breach and a causal link between the loss suffered and the breach. Here, the directive clearly confers a right on the individual, namely that of a safe working environment. The non-implementation of the directive by France is per se sufficiently serious (Dillenkofer). There is also a causal link. If R was under a duty to make reasonable adjustments, G would not have resigned. The award for damages must be ‘commensurate’ (Brasserie) to the loss suffered, though Dougan suggests that Maso and Bonifaci may also allow for non-economic losses to be recovered as well. ii) An individual may wish to bring a claim of state liability against the Italian government due to the way in which they have applied the directive. The requirements are set out in Brasserie, and the issue will be trying to

IF HE DOES SUCCEED IN SHOWING DISABILITY, HE WILL THEN HAVE TO SHOW THAT IT WAS A REASONABLE REQUEST TO TAKE PERIODS OF REST DURING THE DAY. establish a sufficiently serious breach. Here, it could be argued that the terms of the directive are not self-executing or judicial, meaning that national government should have some discretion over its implementation. If this is the case, we need to look at the considerations laid out in BT as to whether the Italian government have manifestly disregarded the limits of their discretion. Here, there is no explicit term in the directive stating that national parliaments should have any discretion, though it can be argued that the term ‘appropriate measures’ and ‘disproportionate burden’ do require some clarification through national implementing legislation. Also, it does not seem like the Italian government have sought intentionally to implement national measures in breach of the directive. Hence, the exception for employers with fewer than 10 workers is unlikely to be impugnable. But with regards to the cap on compensation, an individual may wish to challenge its validity through a preliminary reference under Article 267 TFEU as in Marshall II. It will be argued that the cap of 500 euros is insufficient to secure effective enforcement of the substantive right laid out in the directive (referring not only to the requirement of effective compensation in the directive but also the general principle of effective judicial protection in Rewe). By comparison with the facts of Marshall II, the cap here is much lower (£6000 compared to €500) and we cannot argue that the payout is not compensatory in nature (as in Sutton) or that the cap is reasonable (as in Draehmpaehl). It is quite clear that €500 will effectively deprive any claimant of an effective remedy, hence it is likely that this cap will be set aside by the EU courts. iii) J will have claims against the state and against his employer.

PER INCURIAM

employer (Marshall / Faccini Dori) if the conditions of justiciability in Van Duyn are made out, namely that the directive is sufficiently precise, unconditional and the implementation period has expired. Here, J will be seeking to enforce the obligation on the employer to make reasonable adjustments. It has been held in cases like Linster that even if the national government has some discretion over the implementation of a directive, this will not prevent it from having direct effect through being insufficiently precise. However, other cases e.g. Reiser, have held the opposite. Here, it could be argued that the directive should be capable of direct effect since it would be very difficult to lay down the exact steps an employer can take especially where the range of factual circumstances that may arise are so diverse. However, even if the directive is capable of direct effect, it is not clear that J’s employer has breached it unless we can classify a longterm mental health condition as a disability. If not, then J’s claim against his employer should fail. But if he does succeed in showing disability, he will then have to show that it was a reasonable request to take periods of rest during the day. If J can show this, his remedy will be determined by national law as the term of effective compensation is perhaps insufficiently precise to have direct effect in itself. The alternative claim for breach of a general principle of law (Mangold) may also apply here, as in part (i). If the Charter is indeed capable of horizontal effects, J will need to show that his illness falls within the scope of disability in Article 21 Charter.

CLAIMS AGAINST THE STATE Requirements for this claim are set out in Brasserie. As with part (i), the directive is intended to confer rights and there is a causal link. The failure to implement the directive is sufficiently serious (Dillenkofer). The remedy must be ‘commensurate’ (Brasserie), and may include non-economic loss (Maso / Bonifaci).

CLAIMS AGAINST THE EMPLOYER J is described as a ‘civil servant’, implying that his employer will almost certainly be an emanation of the state under the wide test in Foster v British Gas. This means that the unimplemented directive can be applied vertically by J against his

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Per Incuriam Lent 2018  

This is the Lent 2018 issue of Per Incuriam, the termly magazine of the Cambridge University Law Society.

Per Incuriam Lent 2018  

This is the Lent 2018 issue of Per Incuriam, the termly magazine of the Cambridge University Law Society.

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