Per Incuriam Easter 2020

P ER I NCURIAM

CAMBRIDGE UNIVERSITY LAW SOCIETY

EASTER 2020

Respect for individual rights and the limits of States’ power to impose welfare policies upon their citizens: Striking the right balance Who is the judge of Climate Justice: a separation of powers analysis of environmental law

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EASTER 2020

P ER I NCURIAM

CAMBRIDGE UNIVERSITY LAW SOCIETY

E ASTER 2020

EASTER TERM 2020

TABLE OF CONTENTS

06

PRESIDENT'S WELCOME Rebecca McNeill

08

EDITOR'S FOREWORD The Per Incuriam Editorial Team

10

RESPECT FOR INDIVIDUAL RIGHTS AND THE LIMITS OF STATES’ POWER TO IMPOSE WELFARE POLICIES UPON THEIR CITIZENS: STRIKING THE RIGHT BALANCE Despoina Georgiou

14

WHO IS THE JUDGE OF CLIMATE JUSTICE: A SEPARATION OF POWERS ANALYSIS OF ENVIRONMENTAL LAW Chiara Rohlfs

17

LAW OF TORT Samuel Gerrard

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19 INTERNATIONAL LAW Helen Taylor

21 EUROPEAN UNION LAW Jake Seal

23 EQUITY Alex Lordache

25 CRIMINAL LAW Roystan Ang

27 CRIMINAL PROCEDURE AND EVIDENCE Irina Tunca

29 LAW OF CONTRACT Clara Von Thüngen

21 CONSTITUTIONAL LAW Karl Steenson

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

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.

PRESIDENT'S WELCOME

Rebecca McNeill | President

Dear Readers,

Welcome to the latest issue of Per Incuriam. I hope you are all keeping well and staying safe during this difficult time, and that this issue can offer a reminder of the great community we have, albeit scattered across the globe.

By way of introduction, my name is Rebecca, I’m a second year lawyer at Girton, and I am the incoming Cambridge University Law Society (CULS) president for 2020 - 21. I’d like to take this opportunity to introduce the new CULS executive committee, our Vice-President Yasmin Dugdale, Secretary, Chantelle Fard and Treasurer, Simrhan Khetani. A massive thank you goes to the last Executive Committee (Erica, Jake, Aditi and Samuel) and outgoing main committee, who did an incredible job. The last year has seen a massive growth for CULS with our new website, new alumni mentoring scheme and expansion of the non-law department.

Per Incuriam has gone from strength to strength this year, providing insightful commentary on some of the biggest issues facing the legal world, whether it be in the form of an article or a first class Tripos essay. This is thanks to our incredibly hardworking Per Incuriam team: Editor in ChiefAaron and our deputy editors, Christine, Niamh and Alec, along with our in-house designer, Erica.

This magazine is the product of a lot of time, care and effort so if a particular piece ever stands out to you, I definitely urge you to tell the author. Again, a big thanks goes to the team for their hard work this year and I look forward to seeing what this final issue holds.

It seems needless to say but I can’t ignore the fact that we are going through a very strange and unprecedented time right now as we will not be heading back for Easter term. I encourage you to check up on your friends and peers from your course and use this time to read up on things you’ve always wanted to - of which, I hope this issue can spark some curiosity.

For our outgoing finalists - I am so sorry that your final term at Cambridge was taken from you.

However, this does not mean it is the end of the road for your Cambridge experience. A priority for next year will be to ensure that we have some amazing alumni events. We will also be celebrating our 120th anniversary next year, for which we have some very exciting plans in store for all CULS members- current students and alumni alike!

Thank you for your continued support of this publication and CULS as a whole; I hope you enjoy this issue and hope to see you all at our events next year.

Best wishes, Rebecca McNeill CULS President

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EDITOR'S FOREWORD Dear Reader, Welcome to the final edition of Per Incuriam for the 2019/2020 academic year. It is both with a great sense of sadness that we present this latest edition to you in such unprecedented times of hardship, but also with the hope that we as a community will continue to come together to help and support each other over the coming months.

This edition contains a compilation of articles written by current law students and researchers, which explore some of the most topical issues raised by contemporary debates in the fields of Public Health and Environmental law. We hope that you may find these articles an insightful read and that they may inspire you to contribute to these legal debates yourselves. Our first article is written by Despoina Georgiou who explores the implications of rights-based policies to the effective operation of our Healthcare systems. Thereafter, we offer you Chiara Rohlf’s article, which provides a comparative assessment of the different constitutional roles of courts in different jurisdictions in the enforcement of Climate Justice.

Following on, we have a series of essays, which are illustrative of the expected standard of a 1st class piece of work, written under the exam conditions of the Law Tripos. These may provide you with some useful guidance in your revision and exemplify different solutions to help you answer set essays and problem questions.

We hope that you may find some insight, use and enjoyment in this latest issue of Per Incuriam. If you have any comments to make, or wish to submit work, the Editorial Board would be most grateful to receive these at per-inc@culs.org.uk

We wish you strength and safety, The Per Incuriam Editorial Team

Aaron Gan Editor-in-Chief

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Niamh Davis Deputy Editor 08

Alec Thompson Deputy Editor

Christine Carter Deputy Editor

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Respect for individual rights and the limits of States' power to impose welfare policies upon their citizens: Striking the right balance DESPOINA GEORGIOU Introduction

taint our decision-making process, the

the others.[3] Weak paternalism, on the

State

soft

other hand, does not pass judgment on

Health-promoting policies have always

paternalistic measures. Finally, I use the

the worthiness of the various objectives

been a bone of contention between

UK’s criminalisation of smoking in public

but

Liberal and Conservative parties, who

spaces as an example of where the State

intervene to help people achieve their

submit

bioethics’[1]

got the balance between the competing

own goals when the latter are mistaken

frameworks.

principles wrong (part 3).

about which means will achieve the

under

‘population-level different

Indeed,

every

moral

time

a

new

Bill

is

justified

in

adopting

it

considers

it

acceptable

to

desired ends.[4]

is

proposed on mandatory automobile-

1. Theoretical Framework: Paternalism

seatbelts, motorcycle helmets, tobacco-

v Libertarianism

On the other hand, libertarians advocate for

control or social security arrangements,

a

minimal

State.

Under

this

age-old concerns about State-imposed

Traditionally, paternalism is understood

approach, people are the authors of

welfare

The

as the interference with a person’s

their lives, free to pursue whichever

debate often takes the form of a clash

liberty on the basis of reasons referring

goals

between autonomy and beneficence;

to the welfare, good, and happiness of

autonomy of persons and their ability to

between the individual’s right to self-

the

This

act as free agents stipulates that the law

governance and the State’s duty to

definition has two notable features.

should not interfere with their freedoms

promote health amongst its citizens. To

Firstly, it requires that the overriding of a

by trying to save them from themselves.

what extent are State-imposed public

person’s will takes place for his own

Instead, it should respect their choices

health

good,

and

measures

measures

are

revived.

legitimate?

After

person

and

being

coerced.[2]

secondly,

it

involves

they

let

deem

them

act

valuable.

on

their

The

own

and

compulsion; the person may not refuse

preferences in whichever way they see

libertarian theories strike the balance

the proffered assistance. There is much

fit. Otherwise, we have nothing but a

between the conflicting freedoms of

variation in the literature as to the

‘tyranny of the majority’ where public

different stakeholders (part 1), I examine

strictness of the requirements of this

policies

how these principles are applied in the

doctrine.

prevailing

case of tobacco regulation (part 2). More

paternalism, for instance, certain life-

sentiments - a risk against which Mill

particularly, I argue that, as long as

objectives are worthier than others and

warned us more than a hundred years

cognitive

hence, the State is justified in promoting

ago.[5]

presenting

how

fallacies

paternalistic

combined

with

externalities (such as social inequalities)

For

proponents

of

strong

are

determined

societal

by

opinions

the and

those it deems valuable while discarding

[1] Daniel Wikler and Dan W. Brock, “Population-Level Bioethics: Mapping a New Agenda”. In Angus Dawson and Marcel Verweij (eds.), Ethics, Prevention, and Public Health (OUP

2007) 78–94.

[2] Gerald Dworkin, “Paternalism” [1972] 56(1) The Monist 65.

[3] Sarah Conly, Against Autonomy: Justifying Coercive Paternalism (CUP 2012); Andrew von Hirsch, “Direct Paternalism: Criminalizing Self-Injurious Conduct” [2008] 27(1)

Criminal Justice Ethics 25.

[4] Dworkin (n 2); Richard Thaler and Cass Sunstein, “Libertarian Paternalism is Not an Oxymoron” [2003] 70(1) University of Chicago Law Review 1159-1202.

[5] John S. Mill, On Liberty and Other Essays (OUP 1859) 84.

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At the same time, it should be noted that

Moreover, there is something to be said

might not be preferable from an ethical

the libertarian plea for individual freedom

about the libertarian presumption that a

perspective.[13] In the UK’s healthcare

is

person knows better what is in his best

practice, for instance, poorly-informed

introduced the ‘harm principle’ as an

interest

it.

consent is prima facie acceptable but

exception to the rule.[6] According to this

Psychological research suggests that the

opens up different avenues for legal

principle,

be

structure of desire is heterogeneous and

action.

justified when it is used to prevent harm

manifold. Individuals often have higher

consensual treatment triggers laws on

to third parties. Morris and Hawkins also

and lower-level desires, to the extent that

‘trespass

contend with this assertion when they say

they might overall wish to dispose of

practitioner’s

that “every man has an inalienable right

certain

could.

patient could make the former liable

to go to hell in his own fashion, provided

According to the Office for National

for negligence. Thus, the fact that

he does not directly injure the person or

Statistics, for instance, 71% of British

consent might be tainted does not

property of another on the way”.[7] How

smokers would like to quit smoking but

justify the use of intrusive interventions

are these ideas applied in bioethics

find it difficult to do so.[9] In these

but instead, strengthens the state’s

governance regulation? More precisely,

instances, Dworkin argues, the law is “not

obligation

how do States strike the balance between

imposing a good on someone who rejects

population.

the two competing theories and their

it”.[10] Instead, it is simply using coercion

underlying rationales?

to enable people to achieve their own

Perhaps,

goals. Hence, under this line of thinking,

consent-based defenses, in relation to

soft paternalistic measures are not based

smoking, is evidence of its addictive

on perfectionist ideas about objectively

nature.

good behaviours but instead are put in

demonstrated that nicotine is highly

place to help people who do not have the

addictive, to a degree similar to or, in

requisite willpower to achieve their own

some respects exceeding, addiction to

ends.

hard drugs such as heroin and cocaine.

not

2.

unconditional.

State

intervention

Application

framework:

Mill

of

the

the

case

himself

can

theoretical of

smoking

regulation

When applying this theoretical framework to tobacco regulation, the deficiencies of the libertarian approach become evident.

Firstly, the libertarian argument that legal intervention

is

unjustified

because

smoking only harms the person who actively takes on the habit, does not stand under sustained reflection. Passive smoke directly harms the health of persons who are

in

the

vicinity

of

the

smoker.

Furthermore, negative externalities are recorded not only on innocent bystanders but also on the society as a whole. When a person’s health heavily deteriorates he becomes dependent upon the healthcare system which bears the cost of the smoker’s recovery. As data shows, the total smoking-related cost to the NHS in 2015 was approximately 1.1. billion pounds; [8] a financial burden that was passed down to tax-payers. Since third parties occur applies,

damage,

the

rendering

‘harm soft

legislation justified.

principle’

paternalistic

and

bad

how

habits

to

achieve

if

they

More

precisely,

to

the

to

ultimately

Multiple

the

inform

better-educate

what

non-

person’,

failure

to

while

the

the

destroys

surveys

have

[14] Thus, the ‘voluntary acceptance’ Furthermore, issues arise regarding the

argument

level of information persons hold in order

information

to be able to make a ‘genuine’ choice.

unreasonably ‘costly’ it would be for

Field research demonstrates that a large

addicts

number of people are either unaware of

desires.[15] As data shows, many people

the

or

start smoking as teenagers when their

underestimate their severity.[11] This lack

consent is invalid and have become

of information poses problems to the

addicted by the time they become

libertarian view that wants the notion of

adults (by which time their consent is

‘consent’ to be central to individual

unsound due to severe dependence).

dangers

autonomy.

For

of

tobacco

Dworkin,

smoke

for

does

to

not

that

stand

under

illustrates

resist

their

how

compulsive

instance,

unless people are fully aware of the

Finally,

dangers and able to “appreciate the

ignores the fact that the environments

the

voluntariness

probabilities of harm in an emotionally

within which people operate are not

genuine manner”,[12] their consent is

‘value-free’.

undeserving of protection. Other authors,

targeted

however, advocate for a less stringent

access to information and cessation

approach. For O’Neil and Manson, for

services act as catalysts that normalize

example, it is hardly ever possible to

harmful behaviours in certain areas,

obtain a fully explicit or fully specific

making

consent and, even if that was feasible, it

susceptible to taking them up. These

External advertising

their

rhetoric

factors and

population

like

unequal

more

[6] ibid, 14.

[7] Norvan Morris and Gordon Hawkins, The Honest Politician’s Guide to Crime Control (Pheonix Books 1970) 2.

[8] Public Health England, “Cost of Smoking to the NHS in England: 2015” (18.07.2017) GOV.UK < https://www.gov.uk/government/publications/cost-of-smoking-to-the-nhs-in-

england-2015/cost-of-smoking-to-the-nhs-in-england-2015> (accessed 29.01.2020).

[9] Office of National Statistics, Smoking Related Behaviour and Attitudes (ONS 2003).

[10] Dworkin (n 2), 20.

[11] Finney Rutten et al., “Smoking Knowledge and Behaviour in the United States: Socio-demographic, Smoking Status, and Geographic Patterns” [2008] 10(1) Nicotine &

Tobacco Research 1559–1570.

[12] Dworkin (2), 30.

[13] Neil Manson and Onora O’Neill, Rethinking Informed Consent in Bioethics (CUP 2007); Onora O’Neill, Autonomy and Trust in Bioethics (CUP 2002).

[14] Tobacco Advisory Group of the Royal College of Physicians, Nicotine Addiction in Britain (Royal College of Physicians 2000).

[15] Jonathan Wolff and Avner de-Shalit, Disadvantage (OUP 2007) 80.

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externalities shape the individuals’ cost of conformity and should

Taking into account the stigmatization, as well as the

be taken into account when assessing whether one is responsible

financial, psychological, and social costs involved in the

for his actions.[16] Empirical research from the WHO also confirms

criminal procedure, the State needs to provide particularly

these assumptions, showing that the most vulnerable people in

weighty reasons for its decision to make the proscribed

society are most prone to taking up these unhealthy habits. As

behaviour a criminal offense. The onus of proof lies with the

data demonstrates, 84% of smokers come from low-income

legislature to show that less intrusive measures (increased

families that live in marginalized areas.[17] Therefore, if our society

taxation, licensing laws, civil penalties, compulsory detox

is one that values equality of opportunity and social justice,

programs

regulatory steps should be taken towards eliminating these

unwarranted behaviour would have been unsuccessful.

inequalities to the advantage of the least well-off.[18]

Thus, even though the ‘harm principle’ could provide

or

anti-smoking

classes)

to

deter

the

sufficient justification for restrictions on personal freedom From the above analysis, it becomes clear that, when applying the

(i.e., smoking in enclosed spaces), a stronger proportionality

libertarian paradigm to smoking regulation, we get a different

assessment is required the higher we climb up the

image of human rationality than the one originally depicted.

‘intervention ladder’.[23] Since the British government did

Cognitive defects concerning the harmfulness of tobacco smoke

not

combined with its addictiveness have an impact on peoples’

regulation would have been insufficient, I hold that the

ability to reason about what is in their best interest and how to

proportionality criterion was not satisfied in this case, and

achieve it. These shortcomings might not be by themselves

hence the UK ultimately struck the wrong balance between

enough to legitimize the use of hard coercive measures by the

the competing principles.

sufficiently

explain

why

less

intrusive

forms

of

State but, when they lead to social inequalities making people Conclusion

take risky and irrevocable decisions, they can justify the use of soft paternalistic measures.[19]

Overall, from Bhutan’s complete ban on tobacco use to 3. Striking the right balance: an example from the UK

Cameroon’s lack of legislation on the topic,[24] there is a wide range of interim measures a State could adopt to

As it was shown, public health regulation constitutes a complex

mitigate the problem. While it is true that sometimes the

matter and States often struggle to strike the right balance

legislature gets the balance wrong, I hold that light

between paternalistic and libertarian policies. An example of such

restrictions to individual rights could be justified as long as

a failed attempt is the UK’s 2006 prohibition on smoking in public

there is a robust proportionality justification for the

spaces. Article 7(2) of the relevant Health Act made smoking in

measures adopted. The ‘harm principle’ and the fallacious

public a criminal offense.[20] Was that measure justified?

normative assumptions of extreme libertarian theories, render soft paternalistic legislation justified. In these

Criminal legislation is traditionally employed for acts that demand

instances, lightly intrusive health-promoting policies not

serious condemnation. Indeed, criminal proscriptions do not aim

only work towards helping people to achieve their own

merely to deter unwanted or undesirable conduct, but to label

goals

the behaviour, and thus the person responsible for it, as

inequalities. Failure to intervene only works to the expense

‘blameworthy’.[21] According to Husak, there are four criteria that

of the already worse-off, the needy, and the vulnerable,

could justify the criminalisation of an act: a) it has to cause harm

further hampering their societal position.[25] Hence, under

or risk endangerment; b) has to be regarded as ‘wrong’; c) the

this line of reasoning, soft paternalism does not stem from

State must have a substantial interest in regulating the behaviour;

ideas about State-imposed legal moralism[26] but instead

and

it is inspired by theories of fairness, distributive justice, and

d)

the

prohibition

must

be

lato

and

stricto

sensu

proportionate.[22]

but

also

towards

eliminating

grave

societal

compassion that work to the advantage of the least well-off.

[16] Richard J. Arneson, “Egalitarianism and the Undeserving Poor” [1997] 5(1) Journal of Political Philosophy 327-350.

[17] World Health Organization, WHO Framework Convention on Tobacco Control (WHO 2004).

[18] John Rawls, Political Liberalism (Columbia University Press 2005).

[19] Anthony Ogus, “The Paradoxes of Legal Paternalism and How to Resolve Them” [2010] 30 (1) Legal Studies 68.

[20]

UK

Health

Act

2006,

Chapter

28,

Part

1,

Chapter

1,

Article

7

–

‘Offense

of

smoking

in

smoking-free

place’.

Available

at:

<

http://www.legislation.gov.uk/ukpga/2006/28/pdfs/ukpga_20060028_en.pdf > (accessed 27/02/ 2017).

[21] Carol Steiker, “Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide” [1997] 85(4) Georgetown Law Journal 775.

[22] Douglas Husak, Overcriminalisation (OUP 2008).

[23] Nuffield Council on Bioethics, Public Health: Ethical Issues (Nuffield Council on Bioethics 2007) 42.

[24] Rick Kelsey, “Smoking Bans: How They Vary Around the World”. At: < http://www.bbc.co.uk/newsbeat/article/32958975/smoking-bans-how-they-vary-around-the-world>

(accessed 28/02/2017).

[25] Richard Arneson, “Joel Feinberg and the Justification of Hard Paternalism” [2005] 11(3) Legal Theory 276.

[26] Patrick Devlin, The Enforcement of Morals (OUP 1965); Herbert. L. A. Hart, Law, Liberty and Morality (Stanford University Press 1963).

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Who is the judge of Climate Justice: a separation of powers analysis of environmental law CHIARA ROHLFS INTRODUCTION

that European Convention on Human

external standards in legal norms.[4] In

Rights

Dutch

this case, the 25% reduction target was

Around the world, people are calling for

government under a positive obligation

contained as a scenario in the 2007 IPCC

courts to compel governments to take

to protect the right to life (Article 2

report[5]

action against climate change. Up to

ECHR) and the right to respect for

“common ground” because both the

date, there have been 1,442 climate

private and family life (Article 8 ECHR) to

UNFCCC and the EU have taken it as a

lawsuits[1]

more

ensure that “climate change does not

reference point.[6]

governmental action to cut greenhouse

push its citizens across a threshold of

gas emissions. Yet a lack of judicial

harm”.[2] The Court of Appeal had said

Eric Wiebes, Minister of Economic Affairs

response

to

that “it is appropriate to speak of a real

and the Environment has said in a

whether the courts really are equipped

threat of dangerous climate change,

statement that the government will now

with

to

resulting in the serious risk that the

aim to reach an emissions reduction of

the

current generation of citizens will be

25% by the end of 2020 and, in late

confronted with loss of life and/or

January, the government intends to

the

respond

calling

begs

the

powers to

the

for

question

and

as

resources

demands

of

claimants.

THE

DUTCH

CASE:

A

LANDMARK

SUCCESS FOR CLIMATE JUSTICE

The most famous exception to the general

ineffectiveness

of

climate

lawsuits is the Urgenda case in the

(ECHR)

placed

the

disruption of family life”.[3] It ordered

the government to reduce its GHG emissions by at least 25% by the end of 2020. The courts could read this target into

the

positive

obligations

under

Articles 2 and 8 by relying on the “common ground” method expressed in

Netherlands which won its final victory

Demir and Baykara v Turkey, Öneryildiz

before the Supreme Court on the 20th

v Turkey which allows the courts to

of December last year. The Court upheld the reasoning of the Court of Appeal ;llthat

determine the content of the positive obligations

by

taking

into

account

present comply

and

a

transformed

package

with

the

of

into

measures

Supreme

a

to

Court

decision. [7] Whether or not this time sensitive target is reached, the Urgenda Foundation proudly states that the case was the first in

the

world

in

which

“citizens

established that their government had a legal duty to prevent dangerous climate change” and that “[t]he Climate Case [...]

external

[1] According to Michael Gerrad, director of the Sabin Center for Climate Change Law at Columbia University as qt in John Schwartz, ‘In “Strongest” Climate Ruling Yet, Dutch

Court Orders Leaders to Take Action’, The New York Times, 20 December 2019, https://www.nytimes.com/2019/12/20/climate/netherlands-climate-lawsuit.html.

[2] Suryapratim Roy, ‘Is Climate Change an Issue of Human Rights?’, The Irish Times, accessed 1 February 2020, https://www.irishtimes.com/opinion/is-climate-change-an-issue-

of-human-rights-1.4050155.

[3] State of the Netherlands v The Urgenda Foundation (The Hague Court of Appeal 9 October 2018).

[4] Dr. Ingring Leijten, ‘Dutch Supreme Court Confirms: Articles 2 and 8 ECHR Require a Reduction of Greenhouse Gas Emissions of 25% by 2020’, Strasbourg Observers (blog),

23 January 2020, https://strasbourgobservers.com/2020/01/23/dutch-supreme-court-confirms-articles-2-and-8-echr-require-a-reduction-of-greenhouse-gas-emissions-of-25-by2020/.

[5] IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate

Change [Core Writing Team, Pachauri, R.K and Reisinger, A. (eds.)]. IPCC, Geneva, Switzerland, 104 [6] André Nollkaemper, ‘A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case’, EJIL: Talk! (blog), 6 January 2020,

https://www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/.

[7]https://www.rijksoverheid.nl/binaries/rijksoverheid/documenten/kamerstukken/2019/12/20/kamerbrief-met-reactie-kabinet-op-uitspraak-hoge-raad-cassatieberoep-

urgenda/Kabinetsreactie+uitspraak+Hoge+Raad+cassatieberoep+Urgenda.pdf (accessed 22/01/2020)

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EASTER 2020

made climate change a major political and

would only be able to review the actions

In this regard, the court also referred to

social

taken by the legislature to discharge its

the order in Urgenda to reduce emissions

obligations

by 25%. However, as Professor Bernhard

issue

transformed

in

the

Netherlands

domestic

climate

and

change

policy.”[8] The UN High Commissioner for

if

these

were

‘entirely

unsuitable or completely insufficient’.

Wegener illustrates, this higher reduction

Human Rights has released a statement

is merely the result of an accounting trick

saying that “the decision confirms that the

The claimants were three families of

as a result of phasing out the dirty

Government of the Netherlands and, by

organic farmers, chosen by Greenpeace,

industries of East Germany after the

implication,

[11] who believe that they are already

reunification in 1990. These differences effectively

binding

other

legal

governments

obligations,

have

based

on

experiencing

law,

to

change through economic harm caused

reduction targets is a task that is too

undertake strong reductions in emissions

by alternating heavy rains and droughts.

complex for the courts.[17]

of

[12] Their argument was primarily based

international

human

rights

greenhouse

gases.”[9]

The

of

climate

policy

agenda set in 2007 to reduce emissions

climate

development. Indeed, this last victory in

by 40% in comparison with 1990 levels by

human rights?

the

certainly

2020.[13] The government now concedes

empowering for citizens around the world,

that the target will be missed. Estimations

hoping to follow in Urgenda’s footsteps.

show that the reduction will roughly be

However, cases in other countries seem to

32%.[14] The claimants had argued that

indicate that courts elsewhere cannot

this policy agenda had the status of an

necessarily reach the same conclusions. In

unwritten

legally

enforceable

norm

particular, the order to reduce emissions

because

the

government

has

by 25% may not be easily replicated in

acknowledged it on different occasions,

other jurisdictions.

such as in cabinet decisions.[15] Moreover, they argued that the government had

THE GERMAN CASE: BALANCING THE

protective

RESPONSIBILITIES

fundamental rights guaranteed by the

BETWEEN

THE

duties

derived

from

the

that

determining

Separation of powers: who is to set

on

was

government’s

show

change is a human right is an encouraging Court

German

effects

acknowledgment of the court that climate

Supreme

the

the

polices

which

respect

our

Each case represents a distinct approach to the separation of powers: In contrast to the Dutch court, which sets a minimum emissions-reduction target, the German court

deferred

overarching

the

setting

climate

policy

of

the

goals

to

Parliament and the government. These different approaches to the separation of powers

and

illustrate

the

the

role

of

the

fundamental

courts

question

behind climate litigation: who is to decide

COURT AND PARLIAMENT

German constitution (Grundgesetz).

In comparison, the first German climate

The government argued that the case

targets or the democratically legitimated

relates to a political policy agenda which

legislator?[18] It is argued that while most

was not legally binding.

courts are well suited to determining

the climate policy in a country? Should the courts be able to decide on climate

case, inspired by the Urgenda decision in 2015,

was

dismissed

by

the

Berlin

whether laws fail to protect fundamental

Administrative Court in October.[10] Not different legal standards but rather different

takes

on

the

factual

considerations resulted in this outcome.

The Court declared climate cases generally admissible positive

and

viewed

human

conceivable.

rights

But

it

violations

of

obligations

as

paid

particular

attention to highlighting the large scope of action

(Gestaltungsfreiheit)

that

the

legislature has in this matter. The court

Unfortunately, in contrast to Urgenda, the

rights and then declaring laws to be in

court sided with the government and

violation of human rights commitments,

held that it was within the government’s

setting the specific emissions reduction

discretion to set the policies required to

targets should remain in the prerogative

act on climate change which the court

of the legislator. Thus, leaving the courts

needs to respect.[16] The court could only

with the role to carry out a softer form of

review the actions of the government if

review.

they

were

“entirely

unsuitable

or

completely insufficient”. However, on the

The Courts in the Urgenda case argued

facts, this was not the case as Germany

that they were merely setting a minimum

would still reach a reduction of 30%.

would

emissions

reduction

level,

relying

on

science

[8] ‘The Urgenda Climate Case against the Dutch Government: Landmark Decision by Dutch Supreme Court’, Urgenda (blog), accessed 1 February 2020,

https://www.urgenda.nl/en/themas/climate-case/.

[9] ‘OHCHR | Permanent Sovereignty over Natural Resources’, accessed 1 December 2019, https://www.ohchr.org/EN/ProfessionalInterest/Pages/NaturalResources.aspx.

[10] “Klimaklage” (Urt. V. 31.10.2019, Az. 10 K 412.18) [11] Dr. Markus Sehl, ‘Bio-Bauern scheitern mit “Klimaklage”’ Legal Tribune Online (31 October 2019) <https://www.lto.de/recht/hintergruende/h/vg-berlin-10-k-412-18-klima-klage-

umweltschutz-bauern-greenpeace-bundesregierung/> accessed 1 February 2020.

[12] ‘Klimaklage von Greenpeace gegen Bundesregierung: Urteil steht fest’, Merkur, 26 November 2019, https://www.merkur.de/politik/klimaklage-von-greenpeace-gegen-

bundesregierung-urteil-steht-fest-zr-13183500.html.

[13] “Klimaziel 2020” [14] ‘Klimaklage: Verwaltungsgericht weist Klage zurück’, Süddeutsche.de, 31 October 2019, https://www.sueddeutsche.de/wirtschaft/greenpeace-klimaklage-deutschland-

1.4663539.

[15] ‘Klimapolitik vor Gericht’, Greenpeace, accessed 1 February 2020, https://www.greenpeace.de/klimaklage-aktuell.

[16] ‘Klimaklage’.

[17] Bernhard Wegener, ‘Urgenda III: Die Niederlande als Modell richterlichen Klimaschutzes’, Verfassungsblog (blog), 21 December 2019, https://verfassungsblog.de/urgenda-iii-

die-niederlande-als-modell-richterlichen-klimaschutzes/.

[18]

Ingrid

Leijten,

‘The

Dutch

Climate

Case

Judgment:

Human

Rights

Potential

and

Constitutional

Unease’,

Verfassungsblog

(blog),

19

October

2018,

https://verfassungsblog.de/the-dutch-climate-case-judgment-human-rights-potential-and-constitutional-unease/.

PER INCURIAM

15

EASTER 2020

science and common ground, as opposed to a reasonable emissions level.[19] They held that such a protective measure was necessitated by the State’s violation of human rights.[20] Moreover, it was not an “order to create legislation” because it does not require the government to “adopt a certain policy” [21] (District Court) and it is now left to the government to decide how it intends to comply with the order. However, constitutional law scholars have heavily criticized the Urgenda judgments.[22] They argue that the courts overstepped the boundaries between the legislature and the judiciary which is necessitated by the Dutch system of separation of powers (trias politica). The judgement seems to generously expand what the Dutch constitution envisioned in Article 94. Indeed, even ordering specific legislative measures already requires the court to take into account varying policy considerations that require political judgment which falls outside the competences of the court. For instance, meeting this emissions target will necessarily require the government to shift money from its household budget away from certain policies towards measures that contribute to reaching this target.

In contrast, the court in Berlin ruled that the government’s emission reduction goal was merely a policy agenda from which the government may depart as opposed to a legally binding target (rechtlich verbindlicher Akt der Außenwirkung). The presiding judge, Hans-Ulrich Marticke, almost apologetically asked for appreciation that it is not within his authority to set climate policies because they are the prerogatives of the government and the Bundestag. Wegener, agrees with this reasoning, arguing that requiring the courts to set climate policies or to determine their outer limits extends the competence of the courts. He believes that the claimants should use the avenues of the political process to effect more stringent climate targets. The courts would then be required to enforce these democratically made decisions . Such separation of competences in relation to emissions targets seems the best way to ensure that far-reaching fiscal decisions are made by democratically elected leaders who have mechanisms through which they can appreciate the calculation complexities, the fiscal cuts and different interests inherent in setting specific emission targets.

Human rights: granting courts with the legislative mandate to venture out of their comfort zones?

If the role of the courts is confined to enforcing the previously set climate policies, then how can courts ensure that these policies are sufficient to respect the human rights of its citizens? Fundamental rights, such as the right to life, health, occupation and property may be infringed by the effects of climate change. Applying ECHR human rights falls squarely within the courts’ responsibilities and the recognition that human rights can be violated by the dangers of climate change is one powerful takeaway from both cases. Even if it is left to the legislator to put a number on the emission-reduction targets envisioned, it remains for the courts to evaluate whether the targets agreed violate the state’s human rights obligations. In other words, the courts should be present to make clear what must be achieved to respect human rights. But how this is done should left to the government.

It Urgenda, it can be questioned whether the specific order of the court can really be inferred from Article 2 or from Article 8 ECHR. It requires a rather wide stretch of imagination to infer such a specific target from these rather general positive obligations. Instead, Leijten suggests that the decision would be more in line with ECtHR jurisprudence if the court had required “more generally that sufficient measures must be taken (the what), and to leave it to the state, and to politics, to determine the how, being the exact targets (percentages aimed at for achieving this goal)”.[24] This seems to be the better way to ensure that fundamental rights are upheld while also respecting the competences that each organ of the state enjoys because even setting a target for the overarching framework of the state’s climate policies to uphold human rights still involves numerous policy considerations that should be made by democratically elected representatives through the political process.

At the end of the day, decisions in climate change litigation are reached on the peculiarities of the particular national law. Some jurisdictions will be more comfortable with judges making policy considerations, while others will require a very strict separation of powers even in human rights cases. But overall, it seems to be better if courts would confine themselves to declaring that climate policies are incompatible with fundamental rights and merely legally requiring that governments set more ambitious targets to ensure that human rights are respected. Such judgements would still have a clear signaling function to the voter and also compel governments to take their positive obligations under human rights law into account when creating climate policies. Indeed, it will serve to further embolden climate justice activists in their political engagement and increase media pressure on the democratically elected government.

[19] Ch W Backes, ‘Comparative Law — Climate Change — Hague Court of Appeal Requires Dutch Government to Meet Greenhouse Gas Emissions Reductions by 2020. — Hof’s-

Gravenhage 9 Oktober 2018, AB 2018, 417 m.Nt. GA van Der’, HARVARD LAW REVIEW 132 (10 May 2019).

[20] Backes.

[21] Para 4.101, cited by Johannes Fahner, ‘Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics’, EJIL: Talk! (blog), 16 November

2018, https://www.ejiltalk.org/climate-change-before-the-courts-urgenda-ruling-redraws-the-boundary-between-law-and-politics/.

[22] As cited by Laura Burgers and Tim Staal, ‘Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v the Netherlands’, in Netherlands

Yearbook of International Law 2018: Populism and International Law, ed. Janne E. Nijman and Wouter G. Werner, Netherlands Yearbook of International Law (The Hague: T.M.C. Asser Press, 2019), 223–44, https://doi.org/10.1007/978-94-6265-331-3_10. Also see: Ingrid Leijten, ‘The Dutch Climate Case Judgment’. André Nollkaemper, ‘EJIL: Talk!’

[23] Professor Berhard Wegener, Klimaklage vor Gericht: ‘Sollen Gerichte über die Klimapolitik entscheiden?’, ZDF heute.de, 31 October 2019, https://www.zdf.de/uri/d8da4917-

052c-4e02-bf26-91e916cc5c44.

[24] Ingrid Leijten, ‘The Dutch Climate Case Judgment’.

PER INCURIAM

16

EASTER 2020

Law Tripos 2019, Law of Tort, Question 6.

LAW OF TORT St Alfreda’s College, Oxbridge hosted an Easter egg hunt during the Easter vacation, for the children of staff and fellows, in which the children were to hunt for foil-wrapped chocolate eggs in the college’s extensive gardens. A notice was displayed in the main entrance to the college, which stated, ‘Warning: St Alfreda’s College accepts no liability for any death or personal injury suffered by anyone on these premises!’

When the excited children assembled ready for the hunt to begin, the organiser made an announcement, warning the children to be careful going down the steps that led to the gardens.

Unfortunately, Bryan, a fellow of the college, tripped on a wobbly, uneven step and fell down – he had been concentrating on his 4-year-old son Clive and forgot about the unsafe steps (of which he was aware, as a fellow of the college). Bryan hit his head and was knocked unconscious; he tragically died after a month in a coma, leaving his long term (unmarried) partner Diane to care for Clive alone.

The previous week, the college had commissioned Eezyspray Ltd, gardening contractors, to apply chemical fertiliser treatment to certain flowerbeds, instructing Eezyspray to avoid the areas which were going to be used to hide eggs. Unfortunately Eezyspray’s worker, Florence, muddled up her instructions and sprayed fertiliser on beds where eggs were subsequently hidden. Gigi (age 5) got fertiliser on her hands when collecting eggs; she experienced a painless but permanent discolouration of the skin on her hands. Doctors were baffled, as this had never happened before.

The college gardens contained a pond. The college’s portable fence, usually used to fence off the pond whenever an event was held in the gardens, had been stolen the week before. The college could not afford to replace it, so it decided to tell parents that their children were not to go near the pond. Hector, a 10-year-old child who lived across the road, sneaked into the college uninvited during the egg hunt and decided to dive into the pond. His expensive mobile phone was ruined, and he swallowed pond water, which gave him a nasty gastric infection.

Advise the parties of their rights and liabilities in tort.

SAMUEL GERRARD 1. D/C - A

the purposes of OLA 1957, s 1(1). This

c) Visitor?

D and C may have claims on behalf of

means that it fell within the occupancy

B was certainly a visitor on the premises,

their family member B under the Law Reform (Miscellaneous Provisions) Act

duties

of

the

occupier

(Fairchild

v

Glenhaven Funeral Services Ltd).

there.

1934; the claim would be brought under the Occupiers’ Liability Act 1957.

as he had express permission to be This

satisfies

the

‘visitor’

requirement under OLA 1957, s 1(3). b) Occupier?

A is an occupier for the purposes of OLA

d) Common Duty of Care?

a) Occupancy vs Activity Duties?

1957,

a

A owed B a duty to take such care as in

Although easter egg hunting is an

sufficient

the

all the circumstances was reasonable to

activity on the land, B’s harm was still

college grounds (Wheat v E Lacon & Co

ensure B was reasonably safe (OLA 1957,

caused by the ‘state of the premises’ for

Ltd), which are clearly ‘premises’ for the

s 2(2)). The fact that A made a warning

purposes of this subsection.

must be considered (OLA 1957, s 2(4)(a)).

PER INCURIAM

17

s

1(2)

because

degree

of

A

exercises

control

of

EASTER 2020

discolouration (Barnett). However, this However, this warning likely failed to

Since the sign excluded liability for

was perhaps very remote because even

discharge the common duty of care,

death and personal injury, this can have

doctors had never seen this kind of

since it did not specify the danger, i.e.

full effect so long as it was clearly

the steps (Rae v Mars).

harm before (Jolley v Sutton LBC).

displayed and made aware of to the

Therefore,

visitors (Ashdown v Samuel Williams). In The wobbly step can be approached on a

risk-benefit

(Tomlinson

analysis

v

Congleton BC). The size of the risk was

(Bolton

significant potential

harm

v

was

Stone);

also

the

the present case, it is likely that A has satisfied

this

requirement

3. H — A a) Does OLA 1984 apply?

keeping a wobbly step was non-existent

of liability for death would still have

actionability. The wobbly step was also not an ‘obvious risk’, so A can certainly be liable here (Tomlinson).

‘but for’ A’s negligence regarding the steps, B would not have died (Barnett v &

Kensington

Hospital).

Importantly, the death was not an unforeseeable purposes

of

consequence legal

for

causation

the

either

(Wagon Mound No.1).

negligent

have

been

is

a

recreational activity for the purposes of CRA

2015,

s

66(4).

Therefore,

the

restriction contained in CRA 2015, s 65(1), which states that one cannot exclude

here,

as

contributorily the

facts

are

the steps were dangerous as a member

iii) Damages?

Consequently, neither C nor D can claim for either bereavement damages (which would have been £12,980 under the Fatal Accidents Act 1976, s 1) or loss of dependency (FAA 1976, s 1A).

of the college, and this contributed to his harm (Froom v Butcher). Therefore, awardable

may

be

apportioned under the Law Reform (Contributory Negligence) Act 1945.

duty of care using an exclusion notice.

The first question to consider is whether A was a ‘trader’ for the purposes of the Consumer Rights Act 2015, s 1(2), or acting in the course of business for the purposes of the Unfair Contract Terms

visitor, meaning OLA 1957 does not apply. The duty we are concerned with (re the pond) was an occupancy duty (Revill v Newbury) for the purposes of OLA 1984, s 1(1), but the diving into the pond may be seen as an activity duty because this was not an expected use of

b) Common Duty of Care

Assuming it was an occupancy duty, A owes non-visitors the same duty under OLA 1984, s 1(4), as in OLA 1957. The pond was likely a risk A was aware of (OLA

of the fact that people may come into

care, A must expect children to be less careful than adults. In the present case, consideration

points

towards

actionability because G was only five years old (Muir v Glasgow Corp).

the vicinity of the danger (OLA 1984, s 1(3)(b)). The risk of the pond may also be one

that

A

could

be

reasonably

expected to take precautions for (OLA 1984, s 1(3)(c)). However, A need not take precautions

for

obvious

risks

(Tomlinson); risk of swallowing pond water was arguably very obvious, thus pointing away from A’s liability.

b) Breach of Duty

Under OLA 1957, s.2(4)(b), A must also contractors used are competent (Fisher

Under OLA 1957, s.2(1), A may modify his

Occupiers’ Liability Act 1984. H was not a

place in the past. A was also likely aware

satisfy himself that any independent

ii) Exclusion of Liability

H may have a claim against A under the

1984, s 1(3)(a)), since it had barriers in

1957. Under the s 2(3)(a) common duty of

this

on

the land.

G may have a claim against A under OLA

analogous to the case of Stone; B knew

damages

hunting

a) Common Duty of Care

i) Contributory Negligence may

egg

2. G — A

e) Defences?

B

easter

liability for death, does not apply.

This breach evidently caused B’s death;

Chelsea

been permissible under CRA 2015. This is because

fails

was unforeseeable (Wagon Mound No.1).

death (White v Blackmore).

Note: even if A were a trader, exclusion

(Latimer v AEC). This all points towards

likely

successfully excluded liability for B’s

(Paris v Stepney BC); the social utility of

cost of precautions was relatively minor

claim

and

significant

(Daborn v Bath Tramways); and the

the

causation, as the particular type of harm

v Ruislip-Northwood). This means that A

The fact that H was only ten years old makes

little

difference

here;

Lord

Denning in Keown v Coventry NHS said that just because the claimant is a small

may have to perform checks of the work

child does not mean that the defendant

if necessary. Since spraying fertiliser is

is automatically liable. Therefore, the

not a technical task (Haseldine v CA Daw), it is likely that it was expected for

claim by H will likely fail, as there is no breach.

A to check the work to ensure the independent contractor had discharged

Act 1977, s 3(a). A was not acting for the

of

Importantly, even if there were a breach,

purposes relating to its craft, trade,

Hastings). The fact that there is no

the claim would have likely failed due to

business or profession, as A is in an

evidence of this points towards breach

A’s exclusion of liability at common law.

educational facility — not an easter egg

of duty.

Clerk & Lindsell on Torts suggests that

duty

(Woodward

v

Mayor

c) Exclusion of Liability

its

exclusion of liability rules under CRA

hunting facility. This means that neither CRA

2015

common

or law

UCTA rules

of

liability apply.

PER INCURIAM

apply,

so

c) Causation

exclusion

of

The

1977

vexed

2015 and UCTA 1977 apply to OLA 1984 point

here

is

causation.

Clearly, the fertiliser factually caused the

18

too, but common law rules will apply for the same reasons as outlined in Claim 1.

EASTER 2020

Law Tripos 2017, International Law, Question 5.

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

Discuss.

HELEN TAYLOR PER INCURIAM

19

EASTER 2020

The question refers to ‘the conflict in Syria’.

accepted basis of customary law it would

It is not clear what this refers to, the fight

be hard for such states to say that there is

against ISIS or the civil war between

the required imminence for anticipatory

President Assad and the rebels. Given the

self-defence.

focus of the question on ‘the right of selfdefence’ the essay focuses on Western

Legality of the Threat or Use of Nuclear

mention is given to the issue of the arming

Iraq invited states to help with the fight

of the rebels. The essay thus looks at the

against ISIS in Iraq. States such as the UK

justifications put forward, concluding that

who have taken this up are acting

none

in

lawfully in doing so by virtue of consent

customary international law. Moreover, the

(DRC v Uganda). The argument has been

essay looks at further problems with the

put forward, however, that self-defence of

action taken against ISIS – the issue of non-

Iraq against ISIS entails and can justify

state

them

actors

reflect

the

and

position

necessity

and

the fighting of ISIS in Syria. This surely

proportionality – as well as noting that the

cannot be recognised by customary law

widening of Article 51 of the UN Charter has

as on this logic intervention in Syria

not been the only justification used with

would be allowed on the invitation of

regards to action taken in Syria.

Iraq, not the Syrian government. Indeed, the argument can be made that indeed

The scope of self-defence

the

intervention

intervention

constitutes

into

individual or collective self-defence if an

Nicaragua the arming of the Revels in

armed attack occurs against a member of

the civil war against Assad appears to

the UN’. This suggests that the right is only

constitute an unlawful intervention into

allowed if an armed attack has occurred.

affairs. The lack of global outcry is

Following the 9/11 attacks there have been

arguably not as a result of a change in the

suggestions that the true position, however,

law following Nicaragua, but due to

is wider. Indeed, in the Bush Doctrine the US

political opposition to the brutality of the

asserted that international law recognised a

Assad regime.

pre-emptive

aside,

an affairs.

Incidentally,

of

ISIS

Syrian

Article 51 reads that there is the ‘right of

right

following

2004. However, the right to anticipatory selfdefence where attack is imminent is less controversial and in fact as accepted by this panel in 2004 (the ICJ declining to issue an opinion in Nicaragua).

states’ such as the US have said that intervention in Syria may be justified on the basis of self-defence. There are two key problems with this. First, it is unclear whether there has been an ‘armed attack’ for the purposes of Article 51. Indeed it is doubtful whether countries such as the UK even in light of the Manchester attack last week could claim that there has truly been an armed attack – the blowing up of ships in the Oil Platforms case did not satisfy this

In the Wall advisory opinion, the ICJ said that self-defence was only permitted as a response to an armed attacked by a State. This provides a further problem with any claim of self-defence in regards Admittedly, the Security Council referred to the right of self-defence in response to 9/11, however, the Syria conflict, unlike the Afghan conflict, has not been supported

should

extend

With regards to the civil war in Syria, the UK

in

2013

were

humanitarian

prepared

intervention

to

use

as

a

justification for intervention. The better view, however, is to suppose that this is not

a

well-established

customary

international

basis law.

It

of was

rejected by the G77 in the Legality of the use of Force and thus does not have

universal acceptance. Moreover, it is telling that humanitarian intervention was not used by the US to justify either Operation Iraqi Freedom or Operation Enduring Freedom.

Conclusion

this.

These

are

that

the

international law on the use of force is subject to wide disagreement in the international community and moreover that

this

area

of

law

exposes

the

challenges that international law faces.

Ultimately it appears that states are motivated by domestic policy, political ideology and morality; this may not always be in line with the official legal position.

to

states

willingly

apparent on the facts – the Assad regime does not support ISIS! Moreover, this is probably to be welcomed, academics as

Byers

point

out

evidentiary

would create a disjunction with the law on

has been shown not to constitute an

require

accepted

dependence

20

A word on humanitarian intervention

grounded in authority and is not even

secondly, given pre-emptive self-defence

PER INCURIAM

response to ISIS fulfils this.

harbouring terrorists. However, this is not

problems with this and additionally this

Moreover,

is

suggestions that the right to self-defence

such

(Nicaragua).

It

get around this problem there have been

the Nicaragua case – all turns on the ‘scale effects’

proportionate.

by a UN Security Council Resolution. To

standard, nor did US action in Nicaragua in and

and

questionable whether the bombing in

from

to the conflict in Syria in response to ISIS.

Turning to the situation in Syria, ‘powerful

necessary

illegal. Key conclusions can be drawn

Non-state actor

taken up by other states and was rejected by the UN High-Level Panel of Experts in

Weapons said that self-defence must be

The above suggests that action in Syria is

self-defence.

Nevertheless, this position has not been

Necessity and proportionality

The ICJ in its advisory opinion on The Self-defence of Iraq

states’ response to ISIS, although brief

of

dependence’ (Bosnian Genocide).

state

responsibility a

threshold

which of

would

‘complete

EASTER 2020

Law Tripos 2017, European Union Law, Question 2b.

EUROPEAN UNION LAW ‘The UK has shaped the EU and has attained a very great deal of what has been on its wish list over the years…the UK has also played a major role in shaping the EU as we know it today…The myth that the UK has been put upon as a member of the EU is just that, a myth.’ (CRAIG, 2016) Discuss.

JAKE SEAL PER INCURIAM

21

EASTER 2020

It is clear that the UK has played a decisive role in the shaping of

perceived ‘benefit tourism’ and EU migrants who were taking

the EU over the years, no doubt fuelled by its major economic

jobs from UK nationals. Indeed, the UK Government seemed to

presence

neo-colonialism.

have gained very little in the negotiations in the run up to the

Nevertheless, for all that the EU is supposed to be an alliance of

referendum. The Heads of State Summit and the Draft

equal members, it is clear that some bear the burden more than

Agreement (2016) stated that the UK could impose conditions,

others, particularly the UK in that the fundamental freedoms do

objective of nationality, on benefits. But nevertheless, although

not allow for compromise or a ‘pick and mix’ attitude as

in formalistic terms the UK achieved little on centre stage, the

advocated by some in the EU Brexit debate. This essay will argue

political mood certainly affected Strasbourg.

within

Europe

and

the

era

of

that the UK has had considerable influence over the EU but that this has also come at the price of the burdens of the fundamental

Thus, in a number of ways, from Dano (2014) where benefits

freedoms. It might be said then that the UK has borne a

were denied because the individual did not come within the

disproportionate burden which helped aid the Leave result in the

scope of the Citizens Rights Directive (CRD) or Art 18 TFEU (in

Brexit referendum.

contrast to Martinez Sala), through to Alimanovic and Garcia Nieto the Court has slowly been tightening its grip on benefits

The UK can be seen to have played a pivotal role in the drafting of

so as to reflect the pressure from the UK Government.

the Charter of Fundamental Rights. The UK was particularly wary

Furthermore, in Commission v UK the acceptance by the Court

of the document which would include together both civil and

of the condition set by the UK Government that UK nationals

political rights as well as social and economic rights. Thus, to

would be able to receive child tax credits, whereas EU

alleviate some of the UK’s concerns the drafters designated most

nationals could not, further evidences the UK’s influence on

of the social and economic rights as ‘principles’ and were thus

the CoJ. As O’Brien (2016) noted, the Court was more willing to

designed to be non- justiciable. Indeed in the alleged ‘opt out’

pander to the UK’s discriminatory preferences rather than

contained in Protocol 30 the UK Government, as Barnard (2008)

apply the actual Treaty provisions. It remains to be seen what

notes, revelled in showing to the wider public the influence it had

the Court will do with the Lounes reference (heard 15/05/17)

over the EU- a supposed derogation away from the most

concerning the UK’s decision to refuse family reunification

important Charter written by the EU. However, this was merely a

rights to EU nationals who also hold UK (dual) nationality.

pretence, and really the UK did not secure a tangible opt out but

Perhaps now the UK is set to leave the EU, the Court will be

rather clarified the scope of the Charter which would anyhow

less willing to accommodate its needs.

apply to the other Member States, with or without the Protocol.

There is force in the fact that since the UK voted to leave the However, it would seem that much of the Brexit Leave vote was,

EU, the first immigration statistics released since the UK

as noted by Goodwin and Heath (2016), driven by an anti-

referendum (25/05/17) show a 39,000 increase in EU nationals

establishment sentiment amongst the wider public, the feeling

leaving the UK. Perhaps the UK has finally got its wish to lower

that

oh-so-distant

the immigration figure but this does not circumvent the fact

bureaucracy of Brussels. One of the main factors influencing the

that much of the EU’s imposition of control is a result of the UK

Brexit vote, as Craig (2016) himself notes, was the feeling that the

and other Member States conferring power on them. As

UK was burdened under an unfair share of the disadvantages of

Dashwood (2016) notes, the UK is a much stronger trading

the four freedoms. Thus, many viewed the UK as not being strong

party to the EU than any other state, but it must be willing to

enough in standing up to the EU and trying to stem the tide of

compromise on some ideals.

the

UK

Government

PER INCURIAM

22

pandered

to

the

EASTER 2020

Law Tripos 2019, Equity, Question 4.

EQUITY The development of the substantive principles of common law and equity did not end with the Judicature Acts. There is no reason why courts in shaping principles, whether their origins lie in the common law or in equity, should not have regard to both common law and equitable concepts and doctrines, borrowing from either as may be appropriate.â&#x20AC;&#x2122; (MAXTON) Do you agree?

ALEX LORDACHE PER INCURIAM

23

EASTER 2020

It is unquestionable that the Judicature

Hoffmann’s view in SAAMCO and its

on a power’ (see Lord Sumption in

Acts had a primarily procedural purpose.

sequel, should have been reserved to

Eclairs

They fused the administration of law and

other advisors such as consultants, but

terminology. It would be even better if

equity. In terms of substantive doctrines,

this

of

equity would tidy up the post-Pitt v Holt

it quickly became clear they would

application. The relevance of cross-

remaining distinction between void and

continue to develop as before, subject to

fertilisation remains unharmed.

voidable in equity.

to be resolved in equity’s favour (e.g. the

The broader import of common law

This case-law overview proves that, for

liability of co-sureties). I shall address two

approaches in Target and AIB has had

the

questions: the extent to which cross-

a

The

borrowing from equity into common

fertilisation happens, and whether there

accounting language does not seem to

law and the other way around. Should

is any rationale for it. I conclude that it

be completely dead and, as observed

they? Turner admits you can’t avoid it to

happens on a wide scale and it has been

by Gummow, the results often overlap

an extent and also that, because equity

largely fruitful, so that we need not be

if the principles are applied correctly,

only supplements the common law, it

overly concerned with fusion fallacies

although

there

can’t function as a standalone system.

unless borrowing is done chaotically.

nuance.

For

is

ultimately

a

question

Group)

constitutes

better

some changes related to inconsistencies

more

mixed

reception.

are

differences

example,

in

Gummow

better

or

Nevertheless,

worse,

he

says

that

One of the most prominent examples of

much more clearly in cases where only

difficulties because of equity’s distinctive

cross-fertilisation is the development of

substitute assets are sought, such as

legal reasoning features (more open-

assumption

in

the less valuable charge lower in

ended tests blend into each other,

negligence (Hedley Byrne v Heller) by

priority, than Lord Millett had done in

whereas the common law is more

relying on the earlier equitable cases in

Libertarian Investments. No doubt, the

formulaic).

It

constant

borrowing

without

the

area,

such

as

Nocton

v

Lord

need

to

refine

the

new

is

to

such

tendencies

responsibility

apt

are

emphasises election by the beneficiary

of

are

courts

certainly

produce

true

that

considering

the

some

consequences would be a mistake. Yet,

Gummow and Lehane as an example of a

confusion, but this is inevitable in

as recognised by Worthington, it is

fusion fallacy, but it is unclear whether it

evolving areas of law. Further, provided

simply unrealistic to say today that the

hurts anyone except those preferring

that

applied

legal reasoning process in common law

blind adherence to the law-equity divide

mechanistically (e.g. by allowing large

and equity is so different that they

per se. Expanding duties of care in this

windfalls for the beneficiary), it is

should

way fills the gap in terms of privity of

unclear what we gain by it. Edelman J’s

evaluation

contract and, as subsequently refined

understanding of these cases merely

assessments are made at every step of

(Smith v Eric S. Bush, SAAMCO), is not an

shifts the uncertainty to the point of

the way in tort law proves Turner

unlimited form of liability destroying the

waiver, which is in turn very hard to pin

inaccurate.

unity

down.

Ashburnton.

of

the

This

is

common

criticised

law

by

and

its

approach

has

generated

accounting

is

not

be

kept of

isolated.

how

A

quick

‘reasonableness’

When there is an identified rationale to

certainty.

A more successful instance of double

borrow, borrowing ought to take place

In addition, the developments arising

cross-fertilisation takes place in the

based on that rationale, not on fearing

from this prove Maxton’s contention that

area of reviewing discretionary powers.

fusion fallacies.

borrowing can take place both ways. As

Fraud on a power reasoning, as pointed

pointed out by Davies, it was inevitable

out extra-judicially by Lord Sales, pre-

that after personal liability for breach of

dates the application of Wednesbury

trust started to be approached in terms of

in administrative law and contributed

compensation

than

to the latter’s adoption. This is not an

restoring the fund (Target Holdings v

argument that public law concepts

Redferns,

have

AIB),

for

loss

rather

questions

of

how

to

be

applied

in

equity

extensive assumption of responsibility is

uncritically. In Pitt v Holt, Lord Walker

would arise sooner or later. Indeed, in

correctly admits the rationale is quite

Maine v Giambrone, the very SAAMCO

different: equity will focus on the

point of whether the Italian solicitors had

parties’ relationship, whereas public

taken on liability only for losses arising from their legal advice, or whether they ought to be liable for all the losses flowing from the inopportune transaction in general cropped up. It is questionable whether this was addressed in the most appropriate way on the facts. Davies appears to think the solicitors were fixed with too extensive liability which, in Lord

PER INCURIAM

24

law will give paramount importance, up to the point of seeing it as a presumption,

to

reasoning.

However,

procedure

and

public in

interest

relation

mechanics

of

to the

grounds of review, administrative law developed better and quicker. Thus, few would deny that the now accepted ‘improper purposes’, rather than ‘fraud

EASTER 2020

Law Tripos 2017, Criminal Law, Question 9.

CRIMINAL LAW In the local GP surgery, the following events occur: (i) Kate, an American tourist not entitled to receive any medical treatment for free, seeks a prescription for some expensive medicines. When asked by Ingrid, the receptionist, ‘Are you a UK resident entitled to free treatment here?’, Kate nods. Ingrid doubts that Kate has told her the truth because of Kate’s very strong American accent which she noticed earlier, but she gives Kate the prescription anyway. Kate later collects the medicines without charge from a nearby pharmacy. (ii) Ingrid has long had a crush on one of the patients, Peter. She knows that Peter is extremely interested in blood test results for another patient. Ingrid whispers to Peter: ‘I got hold of the blood test results and I could let you have a look at them if you come round for dinner at my place this evening.’ In fact, Ingrid has not seen the blood test results, nor does she have any intention of disclosing any patient’s blood test results to Peter. Peter visits Ingrid that evening.

As the evening progresses they have sexual intercourse after Ingrid untruthfully told Peter that nothing could happen as she was on the contraceptive pill. In the morning, Ingrid confesses to Peter that she does not have the blood test results. Peter is very angry. He spits in Ingrid’s face, and then bangs the door closed with such force that the door handle breaks off.

Which offences, if any, have been committed?

ROYSTAN ANG Ghosh

(i) Kate (K) may have committed either

the

the

(s. 5(2)). It is likely that this is so, as

fraud by false representation or fraud by

defendant’s act was dishonest by the

although she did not intend to gain

failing to disclose information, pursuant

standards

reasonable

money (she intended to save it), she had

to ss. 2 and 3 of the Fraud Act (FA) 2006

people, and if so, whether the defendant

intended to gain the medicine and the

respectively. Both will be considered in

realised that it was dishonest by such

prescription.

turn.

standards. It is certainly likely that the jury

committed

would find that such an act of obtaining

representation

K had clearly made a false representation

medication for free when she is not

represented herself as a UK resident.

as to her nationality, by stating that she

legally allowed to is dishonest, and that K

was British when she was American; per s.

was aware of this. Finally, she must have

She had also likely committed a s. 3

2(2), the representation is untrue and K

intended to make a gain for herself or

offence, as she had failed to disclose the

knows it. Further, it is likely that this was

cause loss for another (s. 2(1)(b)), and this

information that she was not a UK

dishonest. Dishonesty is determined by

must be pertaining to property or money

resident and was an American citizen. It

PER INCURIAM

25

test, of

which

honest

asks

and

if

Therefore, a

fraud when

K

had

likely

by she

false falsely

EASTER 2020

is likely that there is a legal duty given the

persons. Neither the offence of theft nor

made two conscious deceptions and did not

legal requirements of obtaining free medical

fraud is of such a nature, therefore the

take

treatment, and as mentioned above, she had

Tyrrell exception does not fall to be

misconceptions, per s. 4(2). Therefore, I is likely

intended to make a gain and was likely

considered when determining I’s liability,

to be guilty for committing this offence.

dishonest. Therefore, she is also likely liable

which is unlikely anyway.

any

steps

to

get

rid

of

these

P may also be liable for battery. As Thomas

under this offence. (ii) I may have committed a s. 4 offence

states, the AR is physical touching of another

K may also have committed theft. The Theft

under the Sexual Offences Act (SOA) 2003

person, and his act of spitting may well meet

Act (TA) 1968 states that the AR for theft is

against Peter (P), by getting him to have

this requirement, given that in DPP v K,

the appropriation of property belonging to

sexual intercourse with her.

indirect interference with another person’s

another and the MR is dishonesty and an

body was held to be sufficient for the

intention to permanently deprive, per s. 1 of

Per s. 4(1)(a), I had indeed caused P to have

purposes of battery, indicating that directly

the TA. The AR is likely met; the prescription

sexual intercourse with her by getting him

spitting in another person’s face also will be.

and medication belong to the clinic and

to come over to her house and telling him

Further, the case in which the defendant was

pharmacy respectively, and Hinks affirms

that she was on the contraceptive pill.

held liable for spitting on another is authority

that even if the property was transferred

that the AR is met.

with the consent of the transferor in an

Per s. 4(1)(b), the activity is clearly by its

unimpeachable way, this could still be

nature sexual, per s. 78(a); it does not get

The

appropriation for the purposes of theft. Thus,

more sexual than sexual intercourse.

recklessness as to the physical touching. P had

even though Ingrid (I) and the pharmacy consented to the transfer, the AR is still met.

MR,

per

Venna,

is

intention

or

clearly intended to spit in her face. Therefore, Per s. 4(1)(c), it is unclear if P consents to the

sexual

intercourse.

Initially,

it

he is very likely to be guilty of battery.

is

Again, K is likely dishonest and she likely

possible that before I’s confession, he had

Finally, P may also be guilty of criminal

intended

the

expressed consent, but the consent may

damage, pursuant to s. 1 of the Criminal

pharmacy of the medicines and the clinic of

be vitiated. S. 76 does not apply as there

Damage Act 1971. Per s. 1(1) the defendant has

the prescription. Therefore, she is liable for

has been no deception as to the complete

to destroy or damage property belonging to

theft towards I’s clinic and the nearby

purpose of the act, as Devonald and

another being reckless as to whether any such

pharmacy.

Bingham indicate. S. 75 does not apply

property would be destroyed or damaged. P is

either as P falls under none of the stated

likely to be guilty of this, given that he had

I may be liable as an accessory to the

circumstances. As such, s. 74 has to be

indeed damaged I’s door by causing the door

offences of theft committed by K. The AR is

referred to, and it must be examined if I’s

handle to fall off. Further, G states that

an

the

deception as to the possession of the

recklessness is present when the defendant

commission of the principal offence, per

blood test results and I’s contraceptives

foresees a risk of damage but goes on to do

Jogee, and the MR is an intention to assist or

vitiated P’s consent. It is arguably likely

the

that

the

objectively unreasonable. Here, slamming a

knowledge of the essential elements that

contraceptives vitiated consent, given that

door closed with large force is certainly

make it a crime (Bainbridge: knowledge of

per

Prosecution

causing an unreasonable risk of damage, and

the type of offence; Maxwell: knowledge of a

Authority, deception as to D’s wearing of a

while P may claim that in his anger (“very

list of possible offences that includes the

condom was held to vitiate consent under

angry”) he did not foresee such a risk of

substantive offence).

s. 74. Thus, this may be an analogous

damage, Parker suggests that when the act

situation and P’s consent may be vitiated.

committed is one of obvious danger, the

act

to

permanently

that

encourage

assists

the

or

offence

deprive

encourages

(Jogee)

and

the

deception

Assange

v

as

Swedish

to

act

anyway,

and

the

risk

must

be

defendant cannot be willfully blind to the risk

The AR is clearly met as I, being in control of the dispensing of prescriptions, had assisted

However, it may be considered that P may

of danger. This situation is analogous to that in

in the theft of the prescription and medicine

not have minded that I was not in fact

Parker as the defendant there was also very

by giving the prescription. It was only with

taking the pill, as her confession, which

angry; as such, it is likely that P, in his furious

the prescription that K could collect the

sparked his anger, pertained only to the

anger, will still be liable under s. 1(1) of the

medicine.

lack of blood test results. The deception as

Criminal Damage Act 1971 as he had been

to

as

willfully blind to such an obvious danger. He is

suggested by the case in which consent

likely not liable for a s. 2 aggravated offence as

that

was held not to be vitiated on the basis

there is no sign that he intended or foresaw

foresight of a potential offence that would

that the defendant did not pay even

any endangerment of I’s life by an act of

be committed amounted to only evidence of

though agreement was predicated on this.

slamming a door, which does not tend to

intention. While I suspected that K would

The situation here (obtaining something

cause such harm to life.

use the prescription to commit theft of the

after

medicine, it is unlikely that this amounted to

suggests

an intention to assist her in committing the

However, it remains unlikely that P would

offence. Thus, accessorial liability under this

have consented even though he knew that

head is unlikely. The Tyrrell exception may

I

be briefly considered, as I may have been the

particular feelings for her, meaning that

victim of theft of the prescription herself, but

consent is likely to be vitiated.

However, it is doubtful that she meets the MR

requirement.

Jogee

affirmed

this

may

sex)

would

not

may that

be

vitiate

analogous,

consent

conceive

consent,

since

is

he

which

preserved.

has

no

Gnango suggests that it only applies to

offences that protect a specific class of

PER INCURIAM

26

Finally, per s. 4(1)(d), I arguably lacked a reasonable belief in consent as she had

EASTER 2020

Law Tripos 2017, Criminal Procedure and Evidence, Question 4.

CRIMINAL PROCEDURE AND EVIDENCE “The application of Article 6(2) [of the European Convention on Human Rights] to reverse burdens raises difficult moral and pragmatic questions about the nature of criminality, the operation of juridical proof and the relationship between the judiciary and the legislature.

These cannot be resolved mechanically, but require the weighing and balancing of competing considerations” (HAMER).

Discuss.

IRINA TUNCA PER INCURIAM

27

EASTER 2020

This

essay

will

competing

argue

that

considerations

the

in

what

concerns reverse burdens have been weighed up in an inconsistent and unprincipled fashion. In so arguing, this essay will critically analyse what these considerations are and how they have been applied, the underlying gist of my argument being that the weighing up should

almost

always

favour

the

defendant and thus we should be reluctant to conclude that the burden has been reversed.

First,

one

unlawful

conduct

and

ask

exercise”

what

this

amounts

somewhat artificial. Another example is

This raises the second point of this

consent” part of the offence itself or is it a

assessment, namely the way in which different

considerations

have

been

in Lambert and Sheldrake is the type of offence concerned: the dicta in these two cases seems to suggest that it is more justified to impose a reverse burden on D “quasi-criminal” offence) than in the case of

a

“truly

criminal”

offence.

Dennis

blameworthiness that we attach to the

and

offence, which is very relative. He is right,

Kebliene) and has been reinforced by

given that perceptions differ in what

the adoption of the HRA 1998. In addressing the issue of whether the burden has been reversed, the court

reasonable

belief

in

defence? This separation can be very relative, and thus applying it to guide the

submitted that we should always err on the

distinction is that it rests on the moral

Lambert

of

One such consideration mentioned both

test, which has taken shape in early as

“lack

has been imposed is problematic. It is

Essentially, it consists of a three stage (such

is

assessment of whether a reverse burden

suggests that the problem with this

law

rape:

applied in the balancing test.

to.

case

cause death/GBH) that the separation is

respecting the defendant’s art 6 rights?

in the case of a regulatory offence (or

should

“balancing

prohibiting

side of caution and give art 6 rights priority over the policy-driven decision to ease prosecution’s job.

A third (and in my opinion the most problematically deployed) consideration is the ease of proving whatever it is that needs to be proved. In Johnstone, the court suggested that it is easier for D to prove his own (lack of) knowledge, and therefore it would be justified to find a reverse burden.

There are 2 issues with this approach in

concerns how grave the offence is: some

Johnstone: first, as Dennis argues, it is a

people

fallacy

offences

would are

argue

“truly

that

pollution

criminal”,

whereas

to

claim

that

just

because

something is difficult for P to prove, it will

such

be easier for D to prove. Secondly, even if it

seriousness to the same offence. Dennis’

is easier for D to prove, it does not follow

argument can be taken even further: this

that D should, in fact, be required to prove

relativity means that the defendant is

it. It is submitted that there is a reason

unsure of his rights – he has no way of

behind requiring P to prove even difficult

knowing (in cases other that obvious ones

things – the more difficult an element is to

like

terrorism)

prove, the more is at stake in what

burden be a proportionate measure of

whether the offence he is being charged

concerns D. Surely it is difficult for P to

achieving such aim? The first two

with is a truly criminal one (in which case

prove that D “intends” to cause GBH or that

questions are concerned with what

it is more likely for a reverse burden not to

D “lacks reasonable belief in consent”, but

Hamer calls the “relationship between

be imposed) or a mere regulatory one (in

the reason why we place this difficult task

the judiciary and legislature” – they

which case the opposite will happen). It is

on P is that we don’t want people to be

submitted that the defendant’s art 6

found guilty of murder or rape too easily.

rights should not depend on our relative

The presumption of innocence should not

conceptions of whether offences are truly

depend on how easy or difficult proving

criminal or quasi-criminal.

guilt is – rather, it should rest on the

asks itself three questions: (1) does the statute, by its language and purpose, seem to prima facie impose such a burden

on

D?

criminalising

(2)

the

is

the

aim

given

of

conduct

legitimate? (3) if so, would a reverse

require the courts to perform their constitutional role of interpreting the statute (question 1) and address the issue

of

judicial

separation

of

competence

powers

and

(question

2).

However, it is submitted that these two initial stages of the reverse burden inquiry

do

not

generally

pose

a

controversy. Dennis argues that courts will almost always practice deference and

accept

criminalizing

that the

the

aim

conduct

is

of a

others

would

those

not

attribute

concerned

with

principle that D is entitled to the benefit of Another consideration which has been

doubt, and any deviation from this should

mentioned in Lambert is the “element”

be principled and thoroughly justified.

that the burden attaches to: it is more likely for D to have a reverse burden when he has to prove a “exculpatory defence” than when he has to prove the very gist of the offence. It is submitted that although justified than the previous one, it is very

intention.

so

difficult to apply in practice without

conclude, given that most cases on the

falling into the same problem of moral

issue

relativity as mentioned above. This is

of

serious

is

reverse

offences,

right

burdens such

as

to

concern terrorism

(Kebliene and AG’s Reference 2 of 3002), trademark offences (Johnstone)

and drug offences (Lambert). Thus the question is not whether the conduct should be criminalized, but rather how should this be done. In other words, how does one strike a proportionate balance prohibiting

between

PER INCURIAM

effectively

28

weighing up in what concerns burdens should almost always seek to uphold art 6 rights as much as possible.

in theory this consideration is more

legitimate one, if this is Parliament’s Dennis

In conclusion, it is submitted that the

because

there

are

cases

where

the

defence is so closely connected to the gist of

the

offence,

the

central

criminal

element of it, that it is almost impossible to separate them. One example is murder: the

defence

of

self-defence

(which

requires D to prove that he was acting under the belief that he was defending himself) is so tightly connected to the mens rea element of murder (intention to

EASTER 2020

Law Tripos 2017, Law of Contract, Question 7.

LAW OF CONTRACT On 1 January 2016, Wadar, an importer of Brazilian coffee beans, agrees to sell to Kool, a hotel owner, ‘100 kilograms of Brazilian coffee beans at £14 per kilogram for use at Kool’s hotel’.

Analyse each of the following alternative scenarios: (i) The contract between Wadar and Kool includes the following additional terms: ‘(1) Wadar must supply the first lot of 50 kilograms of Brazilian coffee beans on 30 June 2016, and the second lot of 50 kilograms on 31 December 2016; (2) Condition: Wadar must ensure that each delivery is accompanied by a certificate that the Brazilian coffee beans have been grown organically.’ Although of satisfactory quality and grown organically, the first 50 kilograms of Brazilian coffee beans are delivered one week late with no accompanying certificate. Kool rejects the delivery and informs Wadar that he is terminating the contract. (ii) According to the contract, Wadar must supply all the Brazilian coffee beans by 31 December 2016. £700 is payable at the time of the contract, with the rest payable on the final delivery. Kool, however, only pays £500 at the time of the contract. In March 2016, Wadar supplies 50 kilograms of Brazilian coffee beans. In October 2016 a fire breaks out in Kool’s hotel, destroying the building. Kool informs Wadar that he no longer needs the remaining coffee beans and that their contract is terminated on the ground of frustration. (iii) According to the contract, Wadar must supply all the Brazilian coffee beans by 31 December 2016. Because of a failure in the crop of Wadar’s Brazilian suppliers, he only imports 150 kilograms of Brazilian coffee beans in total in 2016. He chooses to split the 150 kilograms equally among his three clients. This means that he can only provide Kool with 50 kilograms of Brazilian coffee beans. Kool learns this in early December. In a state of panic, Kool calls Lucas, another importer of Brazilian coffee beans, to ask if he can provide him with 50 kilograms of Brazilian coffee beans by 31 December 2016. Aware of the difficult position that Kool is in, Lucas asks for £28 per kilogram, twice his normal price. Reluctantly, Kool agrees. However, he later decides to cancel his order from Lucas. Consider the position of Kool both in respect of Wadar’s short-supply and Kool’s proposed cancellation of his order from Lucas.

CLARA VON THÜNGEN-REICHENBACH i) An innocent party (IP) is entitled to elect to terminate a

IP to terminate, regardless of the triviality of breach. The House

contract in light of a repudiatory breach that “goes to the root of

of Lords in The Sea Flower, adopting Chitty, provided guidance

the contract” (Lord Upjohn in Hongkong Fir and repeated in

in determining whether a term was a condition or not,

The Nanfri). There are over eight tests to describe a serious

including where provided by statute, by judicial precedent (e.g.

enough breach of an innominate term, but it is submitted that

The Mikhalis Angelos), where stated expressly in the contract to

the one above is the most proportionate to entitling the IP to

be a “condition,” or where implied from the context. The key

terminate and sue for damages, as well as achieving coherence

example on these facts is the third, namely where the contract

amongst the various heads for breach of contract (Professor

uses the word “condition,” indicating the parties’ shared

Andrews). Instead a breach of a “condition” will always entitle an

intention that the other party may elect to terminate the

PER INCURIAM

contract

29

EASTER 2020

contract regardless of the seriousness of breach; this provides

analogy with Taylor v. Caldwell, the hotel catching fire – by no fault

very important certainty for the contracting commercial parties.

on Kool’s part (this is very important!) – constitutes a frustrating event, just as the fire destroying the musical hall in Taylor v.

As in this case, the word “condition” is explicitly used. However,

Caldwell was held to constitute a frustrating event (albeit

some commentators suggest that the Schuler v Wickman case

controversially based on the fiction of an implied term by

(especially Lord Reid’s statement) allows the court to interpret it

Blackburn LJ, which has been almost unanimously rejected as

in a non-technical way, as representing an innominate term,

unrealistic). Therefore, the contract has come automatically to an

where it would otherwise lead to an unreasonable result. It is

end and the Law Reform (Frustrated Contracts) Act 1943 applies

submitted that this is a fallacious interpretation of the case, as

with regards to the sums payable and paid beforehand. According

was emphasized recently in Personal Touch (2016), because the

to Gamerco, the court has absolute discretion. The justification

court in Schuler was unwilling to let the German company go

according to Goff LJ in BP v. Hunt was one of reversing unjust

free from the bad bargain it had made and it did not want to

enrichment. Instead according to Burrows, it is one of loss

allow it to disrespect the internal coherence of its own contract.

apportionment. It is unsatisfactory that there is no coherent basis

This is because Clause 11 required the serving of notice and a 60-

guiding the courts’ discretion. On these facts, Kool has paid £500

day period in which the other party could try to remedy their

and £200 pounds are still payable. The judge has discretion under

“material

breach.”

The

court

in

Personal

Touch

(2016)

s1(2) of the Act to apportion the £500 already paid and to either

emphasized that the clear intention of the parties in adopting

cancel or require the payment of the unpaid part (£200).

the word “condition” ought to be upheld and indeed was in that

Counterclaims for expenses are allowed but cannot exceed the

case, which distinguished Schuler as an exceptional case. It is

total amount owed or paid (i.e. £700).

therefore submitted that the court is likely to reach the same conclusion on these facts, meaning that Wadar breached the

iii) Wadar, as the vendor, bears the risk of the supplier defaulting

condition

an

(The Mary Nour) and hence cannot claim that the failure of the

accompanying certificate, which therefore entitled Kool to reject

crop is a frustrating event. Moreover, in any case, he would be

them and to elect to terminate the contract and sue for

prevented from pleading that argument because of the principle

damages.

from Ocean Trawlers and Super-Servant 2. He has exercised

by

delivering

a

week

late

and

without

choice in splitting the 150kg between the three clients and hence In the (unlikely) scenario that the “condition” word would not be

is guilty of self-induced frustration. This is because contractual

respected, it is unlikely that a one-week late delivery would

obligations are strict, and rightly so! Kool’s appeal to Lucas raises

constitute a repudiatory breach of the innominate term, based

the question of economic duress. Lucas is clearly taking advantage

on the recent case of Spa Draco (2016). The fact that “time is of

of Kool’s vulnerability by asking for double the normal price. The

the essence” was not made expressly clear on these facts (as in

question now whether this legal demand is illegitimate so as to

Spa Draco) and there was no repeated late delivery (it was

constitute economic duress. This is unlikely on the authority of CTN

through the repeated delays in payment in Spa Draco that the

Cash because Lucas is merely taking advantage of the market.

CA ultimately accepted it as a repudiatory breach). Instead, the

However, it could also be argued that it constitutes commercially

failure to provide the accompanying requirement for a certificate

reprehensible conduct on the authority of Progress Bulk. If so, then

is likely to constitute a breach going to the root of the contract,

the next requirements that have to be met to constitute economic

because Kool’s entire aim in contracting with Wadar was to

duress are the objective potency of the pressure (Kool indeed had

ensure that he would only be serving organically grown coffee

no other alternative; see B&S Exhibition case) and causally needs to

beans in his hotel. The importance of upholding the value of the

have been a “decisive influence” for Kool entering into the contract.

specific

test

If it is held that the economic duress claim is made out, then

of “depriving an IP of substantially the whole benefit” is too strict,

because it acts as a vitiating factor, Kool can apply for rescission. It

because arguably on these facts, the lack of a certificate did not

does not appear on these facts that any bars to rescission would

sufficiently deprive him; he still received satisfactory organic

apply, unless potentially restitutio in integrum if Kool has made use

coffee beans (upholding of the performance interest can also be

of the beans. However, the courts are flexible in awarding

seen in the development of “consumer surplus” damages in

countermeasures (e.g. O’Sullivan and Salt v. Stratstone). Instead, if

Ruxley and of “cost of cure” damages in Radford v. Froberville.

(as is more likely) economic duress is not made out, then Kool’s

Therefore, even if held to be an innominate term, Kool would

explicit renunciation of the contract entitles Lucas to perform and

have been entitled to elect to terminate.

claim debt on the principle of White & Carter, unless it is held that

contractual

terms

demonstrates

that

the

he has “no legitimate interest” in doing so. It has only been ii) This is a scenario that calls for the doctrine of frustration. It

successfully raised in The Alaskan Trader and at first instance in

ought to be noted at the outset that this is a very exceptional

MSC v. Cottonex by Leggatt LJ, but it is submitted that Professor

doctrine, as emphasized by the stringent test of “radically different” by Lord Radcliffe in Davis Contractors. In most cases, it is a mere matter of construction of the contract to determine the implied or expression allocation of risk (as highlighted by Rix LJ’s multi-factorial guidance in The Sea Angel), which leads most commentators like Smith and Swan to conclude that frustration

Morgan’s proposal of adopting the doctrine of mitigation in this field ought to be realized, because it is economically inefficient to saddle the other party with unwanted performance without even having to try to sell the beans to someone else in the market.

Moreover, it would allow for join-cost minimization, which is what rational commercial parties would want.

is an unnecessary doctrine, since the loss should simply lay where it falls. In light of this, it might be argued that the hotel owner bears the risk that the hotel is destroyed. However, it is by now well-established as a matter of precedent, that based on the analogy

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30

EASTER 2020

Law Tripos 2019, Constitutional Law, Question 4.

CONSTITUTIONAL LAW '[T]he rule... that an Act of Parliament in proper form had absolutely overriding effect, except that it could not fetter the corresponding power of future Parliaments[,]... is a rule of unique character, since only the judges can change it... if the judges recognise that there must be a change, ... this is a technical revolution... [T]he rule of recognition is itself a political fact which the judges themselves are able to change when they are confronted with a new situation which so demands... In Factortame [such a situation] arose from the creation of new ties with Europe.' (SIR WILLIAM WADE) 'The UK's entry into the [European Union] did not... alter its rule of recognition, and neither would its withdrawal... [EU law] derives its legal authority from a statute, which itself derives its authority from the rule of recognition identifying Parliamentary legislation as a source of law. The recognition of [EU law's] validity does not alter any fundamental principle of our constitution.' (LORD REED in R (Miller) v Secretary of State for Exiting the European Union (2017)).

Using these statements as a starting point, explain how, in your view, the relationship between the doctrines of parliamentary sovereignty and the primacy of EU law can best be understood.

KARL STEENSON PER INCURIAM

31

EASTER 2020

The relationship between the doctrine of Parliamentary Sovereignty

Manner and Form theory (Heuston and Jennings) would disagree

and the primacy of EU law is a complex one, not least because there

with Wade’s assertion. They believe that Parliament can bind itself in

is no consensus in respect of what Parliamentary Sovereignty

terms of removing the doctrine of implied repeal and they submit

actually is. In addition, there is a debate about the differences

that this is what happened when Parliament passed the 1972 Act.

between international law and domestic law vis-à-vis sovereignty

Thus they believe the Merchant Shipping Act 1988 (MSA) did not

and how and why EU law has primacy.

overrule an element of the ECA 1972 because it did not expressly do so. It could thus be held that Lord Bridge’s judgment acknowledged

AV Dicey held that Parliamentary Sovereignty was absolute and that

this. Tomkins believes not, though, stating that the MSA and ECA

it could not bind its successors. This is very much the traditional view

cover different areas and that the clash is between the Treaty of

– the outcome of the Ellen Street case, which declined to

Rome and the MSA. This logic seems tenuous because if there is such

acknowledge the accuracy of the Acquisition of Land Act 1919,

a clash it has only arisen from the UK’s membership of the EU, which

supports that (this Act tried to imposed a ‘no implied repeal’

arose from the ‘72 Act. Thus, presumably there would be a clash

obligation on Parliament). Wade and Hart have supported this

between the MSA and the ‘72 Act.

traditional view. However, Wade’s quote references the judicial ‘technical revolution’ which he believes took place in Factortame. His

Laws LJ in Thoburn put forward a different assessment, which had

view is that that case extinguished Parliamentary Sovereignty, rather

greater academic clarity than the somewhat sparse reasoning in Lord

than suspending it, and that even if the UK leaves the EU there is no

Bridge’s judgment. Laws held – obiter – that constitutional statutes

guarantee that the judges will transfer their ‘allegiance’ back to the

existed and that these were those that changed the relationship

Houses of Parliament. The problem with this statement is that Lord

between the individual and the state, and increased or decreased

Bridge himself, who gave the Factortame judgment, would not have

individuals’ rights. He believed that the ECA was such a statute but

described it in such terms. Rather, he held that EU law had primacy

held that it didn’t receive its elevated status because Parliament said

only because Parliament itself had said so – in passing the European

so, but because of the common law constitution, as determined by

Communities Act 1972 (ECA). This links to the dissent of Lord Reed in

the judges.

Miller, who said that the ‘recognition of [EU law’s] validity does not alter any fundamental principle of our constitution’.

He held Parliament could explicitly overrule or amend but not impliedly. Thus he believes that Parliament remains sovereign. The

In fact, the EU Act 2011 also confirms that EU law has primacy over

Manner and Form view and that of Laws thus hold that Parliament

UK law only because Parliament has granted it such status. The

can be bound, ruling out implied repeal, but where the former say

obvious reference to be drawn is that the UK could withdraw at any

Parliament itself can choose when, the latter places this in the

point (A50 of the Lisbon Treaty has been triggered) or could legislate

judges’ hands. In other words, there is no settled view of the

against EU law if it so chose. In respect of this latter point, the UK

definition or parameters of Parliamentary Sovereignty and the

would inevitably be in breach of its international law obligations vis-

standpoint taken necessarily affects people’s views. The view of Laws

à-vis the EU, but within the context of UK constitutional law,

is the better one: there are fundamental rights which are elevated

Parliament is and remains sovereign. This perhaps puts into context

and which prevent implied repeal. EU law has a higher status than

the judgment in Costa v ENEL (ECJ) in which it was held that

UK law for as long as Parliament chooses this to be the case, because

member states necessarily abrogated some of their sovereignty and

as Lord Reed has said the EU derives its status from a statute. If the

in doing so acknowledged the primacy of EU law.

UK remained in the EU and legislated contrary to EU law, it would create international law implications, but Parliament could not be

Turning back to Parliamentary Sovereignty, those proponents of the

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32

prevented from doing so because of its sovereign status.

EASTER 2020