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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 Who is the judge of Climate Justice: a separation of powers analysis of environmental law
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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)
PER INCURIAM
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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)).
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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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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
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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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prevented from doing so because of its sovereign status.
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