The Advocate - November 2015 Issue

The

ADVOCATE

November 2015

2 - November 2015

Who are we?

Editor’s Note

The Advocate is a student-run legal newspaprer that delivers legal news and comment to Queen Mary students. The publication is a platform for students to express their views on current issues, and our team works hard to ensure that students are actively engaged in our work.

Welcome to the November 2015 issue of The Advocate.

This issue includes a range of thrilling articles written by our regular journalists as well as external contributors.

The Advocate has kindly been sponsored by the Queen Mary Pro Bono Society since its The Advocate establishment in 2014. The publication crewould like to give ates a link between QMPBS and the commuspecial thanks to nity legal field, as it is distributed to several of our sponsor, Lexis the top Law Firms and Chambers in the city. Nexis, and to Paul Jacobs from the Copy Shop for all of his assitance.

Submissions for our next issue may be - Laura Yeo made to theadvocate@qmprobono.org. **The Advocate does not publish articles exceeding 1000 words, and reserves the right to edit all submissions. Please note that the views expressed in our publication are exclusively those of the contributing authors.** Charlie Jennings Writer

Laura James Deputy Editor-In-Chief/ Layout Manager

Sharon Ki Writer

Follow us on Social Media! @theadvocatenews /theadvocatelegalnews /theadvocatelegalnews

Jheeva Sivanathan Writer Ze Eie Wong Writer

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3 - November 2015

CONTENT SECRET TRIAL

The Secret Trial Sharon Ki

3

R v Incedal and Rarmoul-Bouhadjar was proposed to be the first ever British criminal trial to be held entirely in secret. The trial inHEAD TO HEAD volved suspected terrorists, which lay at the 5 core of national security. This would thereThe IP Aftermath as technology giants go fore garner widespread public interest. Why head to head to win the development race. then, this blanket of secrecy?

The application for blanket secrecy CAPITAL PUNISHMENT 7 was supported by Theresa May and William The death penalty, where are we now?

Hague, who argued for this on grounds of national security. They asserted that the efficacy HELP! of the operation of intelligence agencies jus8 tified the unprecedented shift away from the Learn a thing or two about law school from a traditional British principles democracy and couple of last years’ successful students. open justice.

“UBER” LARGE PROBLEM

This decision was however, later over11 turned by the Court of Appeal on 12th June Where does Uber fit in our increasingly 2014 in Guardian News and Media Ltd v AB technological world?

CD, following objections from the media, where Gross said: “We express grave concern HER MAJESTY SAYS... as to the cumulative effects of holding a trial 13 The Royal Prerogative, does it still hold in camera and anonymising the defendants. up in today’s world?

We find it difficult to conceive of a situation where both departures from open justice will TRUE OR FALSE? be justified … We are not persuaded of any 14 6 myths about Investor-State Dispute Settlement. such justification in the present case.”

A compromise was made, where the ON DEATH ROW veil of anonymity over the identity of the 15 defendants was to be lifted with part of the All about Amicus. case to be heard in open court and part in ICC BREAK-UP secret. A small number of accredited journal16 ists were also allowed to attend some of the S. Africa declares it will leave the ICC. proceedings but they were not permitted to reiterate what they heard as they could be SCRAPPING THE HRA held in contempt of court.

18 Taking stock 6 months after the election.

Incedal was charged under S.5(1) of the Terrorism Act 2006 while Ramoul BouWHO IS APPOINTED? hadjar was charged for the possession of 19 an improperly obtained passport under Should sex and ethnicity play a role the Identity Documents Act 2010. Both also in SC appointements?

Suspected terrorism, blanket secrecy, lack of transparency. Democracy?

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4 - November 2015

Credit: Katie Tegtmeyer via https://flic.kr/p/6ZQ9v

faced further charges under S.58 of the Terrorism Act.

Bouhadjar pleaded guilty to being in possession of a terrorist document and was sentenced to three years in jail. Incedal however, denied the Prosecution’s accusations that he was plotting an act of terrorism with others abroad. Incedal was convicted on the charge of possession of a terrorist document containing bomb-making information, which was found in his car together with a piece of paper which contained Tony Blair’s address.

The jury failed to reach a verdict on his other charge and Incedal was acquitted on the more severe charge of plotting an act of terrorism. Individuals remain in a quandary regarding the relevant justifications pertaining to Incedal’s acquittal. The only part of Incedal’s defence that was divulged was that he was planning an armed robbery and had good reasons for having terrorism-related documents in his possession.

Prima facie, the ruling in The Guardian News is a testament that the courts will adhere to their deep seated principles of open justice, democracy and accountability to the public and perhaps, may even be considered a glimmering victory for the people. However, beneath this veneer of simplicity lies the hard fact that in spite of the limits on secrecy, a main bulk of the trial still remains undisclosed to the public.

For this very reason, it is difficult to

evaluate the strengths of both the prosecution and the defence. This decision in Guardian News remains the very essence of this trial because it was but a façade – cloaking any inconsistencies with the principles of rule of law and democratic accountability. In actuality, it was simply an easy way for the courts to continue under the guise of secrecy, shielded by this publicly acceptable pretext.

What seems to be compromises on the sweeping ban in a bid to allow the public access to developments of the case may instead, further encumber the people with imperfect information, as they will only be able to rely on selective snippets of the case.

The bulk of the evidence in contention was held behind close doors, leaving it impossible for the public to validate the existence of justice. This may severely undermine public confidence in the competency of the judicial system, and should be confined as a one-off incident. Such a conclusion could also result in the occurrence of further secret trials, which will discommode any democratically accountable justice system.

In light of the publicised bits and pieces of the trial, it seems as though the tight censorship imposed in this case was unprecedented and only served to generate speculations that the secrecy was in fact a cover-up for mistakes by the government, who placated the masses with an impression of a compromise.

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5 - November 2015

Clash of the Titans: An Intellectual Property Aftermath Niall Rand

In recent years an increasingly visible subset of the legal profession has shifted its focus to intellectual property law. Traditionally relegated to the lesser known quadrants of the legal world, this area of law has undergone a renaissance of late; propelling ideas of intellectual ownership into the general consciousness. Intellectual property has always been important, especially within the traditional patent and copyright system’s, but with the advent of globalisation in the digital age the world’s innovators are often swept aside by the commoditization of their original ideas. When a glut of copycat content, ideas, or products inundates the masses who can blame them for disregarding the work that goes into something new and original?

Technology has created complexity and this in turn has resulted in time being an increasingly sought after resource. Very few people seem willing to devote their time to such trivial pursuits, yet protecting ideas is a big business. If recent court challenges are any indication they are extremely important to large corporations, whether it be to gain a competitive edge or to protect their existing market interests. Sometimes when corporate juggernaut’s clash the world takes the time to pay attention, and in 2012 Apple Inc. found out that this may not always be the best course of action.

The massive legal battle between Apple Inc. and Samsung Electronics has raged

since the birth of the original iPhone in 2007.

Apple’s late CEO Steve Jobs was often candid about his view of the competitions efforts to clone the iPhone’s breakout success.

His perspective was always that Google had stolen Apple’s long developed and carefully protected intellectual property to bolster the rise of its budding Android operating system.

As an Android licensee, Samsung was chief among the manufacturer’s trying to replicate the magic behind the iPhone, and evidently

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6 - November 2015 perceived as a softer target by Apple. However, the litigation between these parties’, still ongoing years later, is a vivid reminder that modern ideas are harder than ever to protect.

While gaining a trademark on a form factor such as an iPhone is legally possible, validating its original qualities has proven to be a challenge. Can you, or should you even be able to, protect a rounded rectangle shape?

Even if it has become so ubiquitous within the mobile phone world. Apple thought yes, and certainly there is tremendous support behind the view that the multi-touch display of the iPhone was truly unique, but the court was more reluctant to make such a broad judgment. It cannot be overlooked that Apple was initially awarded close to $1,000,000,000 US in damages, which has been slowly chipped away through various levels of appeal. This victory did not validate what Apple had created, nor its value. Samsung had clearly copied a number of software elements that were unheard of before 2007. ‘Slide to unlock’, for example, or that elastic bounce when you hit the end of a page, were unique and new ideas in user interface design. Samsung had also copied some elements of the iPhone’s design which it was argued had contributed to consumer confusion. Though an arduous fight ensued and the legal community benefited tremendously from a protracted process, Samsung sat back to watch their profits climb. Who cares about $1,000,000,000 US in damages when you have made countless billions more and have taken precious market share from your largest competitor? Samsung was lost, but won its place to compete with the king of the technology world.

Intellectual property law had been pushed to the front page, splashed across the news, yet consumers didn’t gasp at the revelations uncovered. Samsung had copied, it had been caught, but it was not vilified.

So what was the point? Did the intellectual property system actually achieve anything?

The answer is complicated. Apple certainly successfully enforced its ownership of certain key patents; forcing Android licensees and

Google itself to rework their software implementations to avoid future litigation. Meanwhile, Samsung saw a massive surge in its mobile phone business, placing it in a commanding lead against other Android licensees. Neither company has truly benefited or suffered as a direct result of these particular pieces of intellectual property. The war has continued to simmer in court, but once again the true battle has taken place on the sales floor. Samsung has faced increased competition, evidenced by six straight quarterly declines in revenue and plummeting profits, and has had to repel low-end Chinese manufacturers as well as Apple on the high-end.

Apple’s massive sales but stagnant growth has recently rebounded at Samsung’s expense when the flagship iPhone 6/6+ were released last fall. With larger screens, a direct result of competition from Samsung and others, consumers once again ignored who had what idea first, and simply chose what they saw was best. Samsung’s response to its own critics has been to try and match Apple’s level of detail and premium quality with the Galaxy S6/S6 edge+. As they say, if you can’t beat them – join them. Time will tell if the Korean electronics giant can dig their way out, as they once again peer longingly across the pacific to their Cupertino, California based rival. As profit share continues to shrink massive investments in protecting innovation will continue, but Silicon Valley, in particular, has learned a valuable lesson about the drawbacks a very public fight can have when nobody is interested in who was first, but rather who is best.

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7 - November 2015

The Death Penalty, Now Robbie Stern

This article was written on March 9th, 2015.

On 29th April, eight of the ‘Bali 9’ were executed by firing squad, their appeals for clemency having been rejected.

On 29th January 2015, the US State of Texas executed Robert Ladd by lethal injection.

Ladd was mentally impaired.

The state ruled, however, that he was capable of being executed, as his impairment did not extend to the degree depicted by John Steinbeck in the novella Of Mice and Men.

In February 2015, a Brazilian family appealed for clemency for their son, who has been languishing on death row in Indonesia for a decade. Rodrigo Gularte, one of the so-called ‘Bali nine’, was sentenced to death for drug smuggling in 2005. Gularte has been diagnosed as a paranoid schizophrenic. His execution is imminent.

Yesterday, on 10th March 2015, the Pakistani government took the decision to lift the country’s moratorium on the death penalty. 536 prisoners in Pakistan are at the final stages of their appeals, and could be put to death within days if their “mercy petitions” are rejected. Pakistan has the largest death row in

the world: 8,261 prisoners now face a very real prospect of execution. Amongst these prisoners are many sentenced for non-violent crimes, including blasphemy, apostasy and adultery.

This is what capital punishment looks like around the world today: material, ascendant and varied in scope. And it is intrinsically legal process: as the ultimate exercise of state punishment, the death penalty should be of interest to all students of law. Discussions about capital punishment inevitably give rise to the most fundamental questions as to why, and how far, the state should punish conduct it deems criminal. It is thus unsurprising that an institution’s stance towards the death penalty often becomes a rallying point: the EU, Council of Europe and UN are all staunchly abolitionist.

Yet while it is tempting to view the death penalty as the preserve of international law and far-away jurisdictions, its impact is often unsettlingly close. While the last hanging in the UK took place in 1964, and capital punishment was abolished in all circumstances in 1998, twenty-five British nationals currently face the death penalty abroad. Meanwhile, UK Government funding poured into anti-narcotics programmes in Pakistan and Iran

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fuels executions. Improved resources and intelligence sharing mean more arrests, and both countries impose mandatory death sentences for the possession of a specified volume of illegal drugs.

Supporters of the death penalty defend the practice on the grounds of just deserts: if punishment must be proportional to the crime, a murderer deserves death at the hands of the state. More common is the justification of deterrence, the idea that the existence of capital punishment averts would-be murderers. Both positions, however, seem difficult to maintain. Retributive justice is not generally premised on the notion that a perpetrator of violent crime is subjected to a similar act to that which s/he has committed (should arsonists have their property burned?) The anticipatory suffering of death row further calls into question the claims of proportionality and equivalence. And while deterrence remains a watchword for anxious retentionists, capital punishment’s effectiveness in preventing crime remains a matter of pure conjecture

Quite aside from these shaky intellectual foundations, capital punishment – with its intrinsic irreversibility – always risks the death of innocents.

This is not a case of liberal speculation. As many as 39

8 - November 2015 prisoners were executed despite compelling evidence of innocence in the US from 1992 to 2004. DNA evidence, which prevented up to 15 death sentences in the same period, is only available in a fraction of capital cases. In reality, the likelihood of being sentenced to death is predicated not upon your guilt, but on your race, mental capacity and economic situation. And the myth of a painless, ‘humane’ execution, even for the guilty, is being rapidly debunked.

If you are concerned by these issues, or simply hold the view that the execution of citizens by the state represents a fundamental violation of the right to life, you may wish to consider a placement with one of two UK organisations.

Reprieve, where I interned for 6 months before starting at QMU, offers legal assistance to European nationals and others facing the death penalty across the world, and has lead the way in campaigning against the Lethal Injection.

Amicus-ALJ, which has hosted several events here in partnership with the Pro Bono Society, offers rolling internships in the often under-funded capital defence units in the US.

Capital punishment is costly, and brutalises the law as well as the individuals it should serve. In light of these failings, how is one to answer the question posed by Clive Stafford Smith, Director of Reprieve: “what’s right about the death penalty?”

Struggling with law school?

Don’t know what you don’t know?

Here’s some advice from our more-than-survivors!

Lauralisa Yeo

from the University of Calgary.

I am interested in the environ Anxiety comes in the ment, and hope to pursue a form of eighty pages of career where I can truly make tutorial reading lying caa difference.

sually on your desk, Mooting Competition prep untouched and a brain block the size of Africa in the middle of writing an essay that constitutes fifty-percent of your grade. Take a deep breath. Relax (it actually still exists in your dictionary). Law School was never going to be easy but it is not impossible. Let’s take a breather and learn a thing or two from the ones who not only handle it, but are successful at it.

How did you find the first year of Law School?

My first year of law school was extremely challenging, yet rewarding. I was initially quite overwhelmed by the course content and learning a new method of thinking.

It took until Christmas break for me to get my footing, but after that I found the process very enjoyable. For me, it was a very long road to get to law school in the first place, so I was happy to be able to parLaura James was one of our ticipate. top First Year Senior Status students for 2014/2015. You were one of the top Apart from her stellar aca- students in the First Year demic achievements, Laura Senior Status 2014/2015 is on the Executive Commit- programme, how do you tee of Women Working In feel?

The thing with exams Law and the Deputy Editor of this very newspaper as is that you never really know how you did once you finish. well.

I knew that I had passed, but Hi Laura! Please introduce had not idea what to expect in yourself to our readers terms of my level of success.

Last year was an exceptionbriefly.

I am a second year Se- ally humbling experience. Part nior Status student from Cal- of the process of becoming a gary, Alberta (Canada). I have lawyer is learning that you rea BA-COOP in Law & Society, ally know nothing. I was anx-

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9 - November 2015 ious (as we all are) while waiting for exam results. When the day finally came, I thought I would be sick as I went to see my outcome.

I was speechless and pleasantly surprised by my results. In fact, I thought it was a cruel joke and that my provisional results had been transcribed incorrectly. I was exceptionally proud of myself, as I never expected to do as well as I did.

streamline what you read?

My number one tip is that you should read more heavily into areas that you do not understand (as challenging as that is). This allows you to selectively read instead of reading everything, which is humanly impossible. If you already know it, don’t waste your time re-learning.

Time management is often an elusive concept to most students. How did you manage your workload and other commitments (societies etc.)?

To fund my last degree I had to undertake a full time job while studying.

That processed allowed me to develop many of the key skills that are required of law students. I am very organised, and I always plan FutUndBeidl via https://flic.kr/p/cdaEDL to have things done slightly in advance of the deadline to account for any catastrophes What are some of your best that may happen (and they exam preparation tips? definitely do happen).

You can never be too

Additionally, I am not prepared for exams, but you one of those students that have to make sure to take your stays up all night to finish pa- sanity into consideration. Take pers or study. I disengage at good notes, cut out irrelevant 8pm (latest) because I feel that bits, and focus your studies I am better off relaxing than more heavily on the bits that working myself half to death. - you don’t know to round yourPlan well, and work hard (until self out.

8pm).

Most importantly, DO NOT STUDY ALL NIGHT. Like Tutorial readings are often I said before, stop at 8pm. If 40-80 pages per module, you haven’t learned the matehow do you make notes to rial by 8pm the night before

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the exam, you just won’t learn it. There is no point in exhausting your brain, because it will hinder your performance the day of. You can always leverage what you do know – we can’t know everything anyway.

Do you have any other advice for us law students?

Law school is stressful.

It is meant to be to prepare you for a lifetime of challenges. The best advice I can give is to remind you to take time for yourself. Don’t compromise your well-being to study, it really won’t get you anywhere. Don’t be afraid to have fun and relax sometimes.

~

Saleh is one of our top First Year LLB students for 2014/2015, finishing the year with four First Classes.

How did you find the first year of Law School?

Interesting and Enjoyable. One of the reasons I did well was, I tried to enjoy the content we covered because that way the workload is not a burden but something you can actually look forward to.

I was also impressed by the quality of teaching in most of the modules, it really puts into perspective why the department has been ranked so highly in recent years and carries on to be.

10 - November 2015 You were one of the top students in the First Year LLB 2014/2015 programme, how do you feel?

I don’t see it like that, I didn’t even know I had done so well until the university had given me the prizes. I feel relieved because University is so different from A-levels where everyone could get a first as long as their quality of written work is of that standard. So if you put the hours in and work with the content, you’re guaranteed to do well whereas the system in place at A-levels is different.

Time management is often an elusive concept to most students. How did you manage your workload and other commitments (societies etc.)?

The key for me was being productive with the study time I had. I play semi-pro football so it takes up a lot of my evenings during the week. If I am not productive during the day, it eats into the next day’s work. Maintaining consistency and discipline from the onset is important because you can start by doing little at a time so when the examination approaches, you’re relaxed and all you’re really doing are past papers and going through your notes.

Additionally, I try not to do too many things at once but rather have a few extra curricular commitments and do them well. Especially in the first year, there are so many societies

and extra curricular activities we can get carried away with and forget why we’re really at University in the first place which is to get at least a 2:1 degree. In that regard, it’s important to stay focused on the main goal.

Tutorial readings are often 40-80 pages per module, how do you make notes to streamline what you read?

The most important aspect to remember is that your lecturers and tutors set the exam, so forget the textbook and revision guides but start with the tutorials and lecture handouts. Once you master the cases and material surrounding that, you wouldn’t have to waste time reading the textbooks and information which you may not even be tested on.

Preparing well for tutorials and taking down the answers to the questions that you go through in tutorials is very valuable because then you can combine that with your lecture notes to have a perfect set of notes. The tutorials are so important because the exam content is broken down for you in each tutorial hence it is important to prepare above and beyond for tutorials.

What are some of your best exam preparation tips?

Prepare your notes for each topic throughout the year. Understanding your notes and putting them into practice will only get you a

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pass or 2:2. You will come to realize that if you haven’t practiced enough exam questions, you will struggle to get your answer across concisely within the very limited time your given for each question.

I would recommend, printing all the exam papers at the start of the year and begin to develop a picture of what sort of questions you will be asked from the topic you have begin studying.

Do you have any other advice for us law students?

The most important advice I can give to any first year law student is take your first year seriously. There is this notion that because it doesn’t count towards your final year, it has little value. First year grades actually get you a job.

You start applying for vacation schemes in the first year and if you have done really well, you can really stand out from the other applicants. Most of the time, you are offered your training contract through your vacation schemes. So in reality, your first year is the most important year.

It also develops the key skills of reading and answering questions that you’re going to need to excel in the second and third year, where the content starts to increase and the workload begins to pile. That’s not to say you can’t have fun. There are 24 hours in a day, enough to sleep, study and party.

11 - November 2015

TfL v. Uber Goh Ze Eie

Where does Uber fit in our increasingly technological advanced world?

The increasingly ubiquitous ride-sharing app, Uber, has been making the headlines in London lately. In the beginning of October 2015, the claimant, Transport for London (TfL) sought a declaration as to whether vehicles operated by the first defendant, Private Hire Vehicle (PHV) operator Uber London Limited, were equipped with a taximeter for the purposes of the Private Hire Vehicles (London) Act 1998 [PHV (L) A 1998]. Section 11(1) of the Act prohibits any vehicle to which a London PHV licence related from being equipped with a taximeter. The Administrative Court, in granting a declaration, held that a Smartphone with a Driver’s App did not fall within the definition of a taximeter. Accordingly, Uber’s PHVs were found not to be equipped with a taximeter, and were not in contravention of the PHV (L) A 1998.

Lord Justice Ouseley’s judgement fell on two elements. The first was that the primary purpose of the smartphone was not as a device for the calculation of fares. Signals were sent from the driver’s smartphone, providing GPS data and time details to one of two servers operated by Uber in the United States, which would then calculate the fare to be paid based on a software based algorithm. Hence, while the Smartphone with its Driver’s App was essential to enabling the calculation of the fare, “a taximeter did not include a device which received GPS signals in the course of a journey and forwarded GPS data to a server located outside of the vehicle, which then calculated a fare that was partially or wholly determined by the distance travelled and time taken, and sent the fare information back to the device”. The statute’s language was clear: the essence of a taximeter for the purpose of s.11 was that the device had to be for the calculation of the fare to be charged based on whatever inputs were appropriate. The smartphone was not a part of a single device with the server. There was nothing in the statute, the pur-

pose of which was to protect the public, to suggest that the PHV passenger was not to enjoy technological improvements in the speed and accuracy of their fare calculations and bill breakdown, so long the fare was not calculated by a taximeter

The second element fell on the meaning of the term “equipped” and whether the PHVs were equipped with a device for calculating fares. Lord Justice Ouseley concluded that the Uber PHV is not equipped with the driver’s Smartphone. Rather, the driver is equipped with it and not the vehicle. He reasoned that the term “equipped” focused on what was provided with the vehicle and not what the driver brought in and used. He also stated that there was nothing in the statute that prohibited the driver from carrying and using a device for fare calculation, or from providing information via device in order in order in order for the fares to be calculated elsewhere. According to the wording of section, the principal offender would be the vehicle’s owner and not the driver. Hence, the statutory focus was on something which the owner might have been expected to have knowledge of or control over rather than the driver. The owner who sought to license the vehicle had to present it for inspection in a state which would not lead anyone to believe that it was a London cab.

The requirement would be unlikely to be satisfied if the vehicle was equipped with a taximeter. Reflecting upon the intentions of Parliament, Lord Justice Ouseley added that it would have been strange for Parliament to have made the owner responsible for a device carried by the driver of which he had no knowledge or control.

What does this mean for Uber London Limited?

A preliminary view seems to be that PHV owners whose vehicles are affiliated to Uber are not in fact committing an offence. This translates to possibly fewer impediments to the continued expansion of Uber, within London at least. It should be noted that this ruling is only significant to Greater London as there is no prohibition on a PHV being equipped with a taximeter outside London. In addition, where England and Wales are concerned, it appears that any legal challenges to Uber are likely to be unsuccessful given that Uber seems to be in compliance with the law. Uber ap-

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12 - November 2015 plies for operators’ licences and then operates vehicles and drivers licensed by that authority. Since 1 October 2015, it has also been possible for private hire operators to subcontract a booking to an operator in a different district

However, one would be hasty to declare this matter closed. This is in part because of the clear intention of the hackney carriage and private hire trades in London, who are opposed to Uber, to challenge this judgement. Furthermore, TfL are proposing alterations to their private hire requirements and it remains to be seen if the possible introduction of significant changes to private hire requirements will impact Uber and other booking apps.

From a Broader Perspective

The rise of Uber and others like it has brought issues regarding disruptive technologies, (that is technologies that displace established technology, shaking up the industry or creating a new industry), to the forefront. In increasingly saturated markets, where high levels of regulation reduces barriers to entry for new service providers, the advancement of technology has stepped in to provide practical and simplistic solutions that utilise modern infrastructure (like Uber) to satisfy consumer demand disrupting otherwise closed markets, like that of the taxicab industry. Under-

standably, if the global legal battles against Uber are anything to go by, the advent and success of Uber has does not sit well with the incumbents. A key issue that is often raised by those who oppose companies like Uber is that they circumvent and create gaps in laws and regulations put in place for consumer protection and exploit the inability of the law to keep up with the rapidity of technological advancement to their benefit. The caveat to this argument is that companies entering saturated markets are not necessarily unaffected by regulations that are already in place. These companies acknowledge that consumers will have a widespread expectation as to a minimum level of protection or service and understand the need to demonstrate to consumers that they operate at the same, if not higher level than the regulations in order to cement user trust and thus market share.

Where Does Uber Stand?

Perhaps then, the real question is whether there is a place for ridesharing apps like Uber in traditional taxicab regulations and more importantly, whether the world’s regulators are ready for dawn of disruptive modern technological solutions. One thing is clear though. Despite their many legal challenges, Uber continues to drive and thrive and it seems likely that they still have a long road ahead of them.

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13 - November 2015

The Royal Prerogative

A Veto of Protection Cameron McGrath

The Royal prerogative to veto parliament legislation is by now a well-established convention of ascent. As the United Kingdom has over the centuries grown more and more democratic; as the rule of parliamentary supremacy has grown ever stronger, the power of the Monarch has waned to nothing more than formality; allowing the elected democracy to flourish.

However, there may be situations when a Royal Veto is acceptable to the smooth running of the UK constitutional system. I assure readers that I in no way question the importance of our elected government, or it’s parliamentary supremacy; I merely propose a scenario, in our multifaceted political system, when the Monarch could say “No.”

The prerogative right is an ancient remnant of regal power.

Some of these rights are vested in the executive, for example the right to conduct diplomacy with nations, while some remain with the Monarch, such as the right to veto legislation. It has been argued that it has been so long since a veto that it has become obsolete, though lack of use does not void prerogative rights, however it could be a tool to be used in times of extreme circumstance where repeal is time sensitive. Nick Barber wrote in a blog post about the possibility to refuse assent “if advised to do so by [the Monarch’s] ministers” , this is a wholly credible scenario, last seen during the veto of the

Scottish Militia Bill.

The bill, passed in 1707, sought to arm Scotsmen as a defensive force; proposed shortly after the Union Acts of 1707, which brought the nation within the UK. The Militia bill passed through parliament, soon after which it was discovered French forces were sailing towards Scotland; it was supposed in government, that coupled with a military force and French support Scotland might be disloyal. In this case there was support in commons towards a veto, assuming it would assure stability; so Queen Anne vetoed the legislation.

No doubt at the time Queen Anne was advised by her ministers that a veto would not be frowned upon; there was, in a sense, a collective turning ‘the blind eye’. This is exactly such a scenario which provides good argument for the continuation of this prerogative right, as a final recourse beneficial to the security of the government. Political constitutionalists argue that the prerogative should be abolished altogether, as was proposed by a Labour backbencher in 1967; he was not supported, and as suggest by Brazier “when it is not necessary to change, it is not necessary to change” . With so few powers, why remove the Monarchy? Why scrap a useful tool such as the veto, already setup and in place?

Repeated now, even in our advanced democracy, it seems more than useful to have such a check in place for a fast, emergency repeal of a parliamentary act.

While there is ground to argue that with ministerial advice and support a Monarch could veto legislation, what would occur during a personal decision to veto? The scenario is changed, and such a public declaration

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is an affront to the elected representatives of Parliament, but Anne Twomey raises an interesting hypothetical where “…the effect of a Bill is to constrain or prevent the people from casting their judgment at the ballot box.”

This is an argument that holds interesting consequences; if the Monarch exercises a veto to preserve constitutional principles, is it still the same degree of “affront” to the elected system. In such a scenario we can no longer rely on people expressing themselves’ in an election, if a large swathe no longer have the possibility to vote. If parliament passed a law stating only men with stable jobs over the age of 25 could vote, as they have better judgement, it would be horribly undemocratic and unconstitutional.

The parliament has the supreme right to present and pass the bill, but could be halted by the Royal Veto, securing the constitution, and allowing people to go and vote on the ill-advised decisions of their government.

While it is clear that it would be undemocratic for an unelected person to have such a final decision on legislation; the overriding duty to, at ironic extremes, defend the nation’s democracy through Royal prerogative could be essential at checking the most powerful organ of the UK government. Any political constitutionalist would stand up, and rightly say; the power is with parliament, it can be checked via repeal, governments can be dissolved by vote, but the Monarch must ascent. I would reply, that a more stable government is one curtailed in a moment most extreme. To allow an organ of government to be completely unchecked, given the right circumstances, appears far more undemocratic.

14 - November 2015

6 Myths about InvestorState Dispute Settlement (ISDS) Ivana Dahl

Myth 1: ISDS is a new way to settle investment disputes

The EU and US are no strangers to suing each other. There have been roughly 500 WTO claims of which the US and the EU have brought about 200 together. The EU has often sued the US and vice versa, almost half of the EU WTO claims involve the US in some capacity.

The EU and US have been working in regulatory convergence for a long time. For example, civil aircrafts are certified for safety in the US by the Federal Aviation Authority and in the EU by the European Air Safety Authority, but both countries recognize each others certifications.

ISDS sits with a large body of international law that has produced enforceable rulings in numerous cases in the last 20 years, it represents an addition to this area of law rather than a departure.

Myth 2: ISDS allows investors to sue governments if they can show their profits have been reduced.

Fact: Investment Treaties do not guarantee a company any rights to profit. The key investment protections offered are usually (i) discrimination (ii) expropriation (iii) fair and equitable treatment and (iv) adequate compensation.

ISDS promotes fairness, not profits. Lost profits is merely a measure of damages, not a cause of action. Those damages must be predicated on a wrongful government act. The investor may get lost profits as a measure for damages, only if, they can show the government has breached the protections promised to the investor in the Treaty.

Myth 3: Arbitration under ISDS is conducted in smoked field rooms, by a group of secretive, semi-mafia type representatives.

Fact: There is no automatic confidentiality in investor state arbitration. Government and investors are free to give the public access to informa-

tion.

ISDS has welcomed the participation of non disputing parties, by allowing them to file amicus curiae briefs. The International Institute for Sustainable Development, the Center for International Environmental Law, the International Commission of Jurists have participated in cases.

Most US states and EU Member States have transparency. For those states that have been slower to embrace the concept of transparency, ANCESTRAL has prepared the ‘Mauritius Convention on Transparency’ open to signatory since 17 March 2015, whereby States can sign up and thereby retroactively make all their Bilateral Investment Treaties transparent.

Myth 4: ISDS limits government’s ability to regulate.

Fact: Nothing in Investment Treaty requires States to change their domestic regulation. An arbitrator cannot tell a State how to regulate, all arbitrators can do is give damages to an investor if it has been harmed by the State’s action.

ISDS does not limit the ability of governments to issue regulations in very specific areas, such as; public health, environment, and public safety. The issue is about the promises you make before you regulate, it’s the manner of the execution rather than the regulation itself.

“Wait a minute! What about Churchill mining suing Indonesia for protecting the orangutans? What about Vatenfall suing Germany for its decision to phase out nuclear power? What about Philip Morris suing Australia for regulations aimed at reducing smoking?”

1) These are pending case. You can’t judge a system on hypothetical scenarios or cases that have not yet been decided, you have to wait until the awards are rendered.

2) The rule of law is blind, companies have rights, government have rights. The rule of law requires a system that can fairly adjudicate between the right of a State to regulate and the right of an investor to be free from treatment that is arbitrary or discriminatory. When a government has acted in a nondiscriminatory manner and affords investors due process, it always wins.

3) ISDS arbitration is strictly about securing adequate compensation for government action, the final decision to act rests squarely with the government.

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15 - November 2015 Myth 5: The Transatlantic Trade and Investment Partnership doesn’t need ISDS because the EU and US legal systems are perfectly perfect.

Fact: EU and US legal systems are far from uniform. It’s wrong to say that the EU is one and all its courts systems are reliable. Alternatively, it’s not a feasible option to differentiate between countries, for example, by trusting Norther Europe and only having ISDS for Eastern Europe.

offend. The Texas Court of Criminal Appeals rejected his appeal. A Texas court also ruled that while “the Constitution guarantees the right to an attorney...it doesn’t say the lawyer has to be awake.” In the case of Mose Young his lawyer came to court with an alcoholic beverage. Young was executed in 2001. It may seem that, in none of these cases, the defendants had a fair trial. However, the courts still assert that no injustice has occurred. This is where Amicus comes in.

Myth 6: ISDS only benefits the big bad corporations

Fact: Investment arbitrators are subject to obligations of independence and impartiality, that requires to make disclosures, policed by independent arbitrary institutions. Those who sit in investment arbitration are overwhelmingly; law professors, current sitting judges on the ICJ and lawyers who act for both States and for investors.

OECD has found that only 8% of all ISDS claims were brought by multinational corporations, the majority of cases are small business and individuals seeking to protect their right.

Investors win in 1 out of 3 cases and in those 33% of cases, often inevitably obtain substantially less than they initially planned. Investors loose in another 1 out of 3 cases. The State and investor agree consensually after arms length negotiations to resolve the dispute in 1 out of 3 all cases.

Image: Nicolas Raymond via https://flic.kr/p/gfJWZC

Judge, Jury, Executioner Isabella Marshall

In 2014, only 35 executions took place. Death sentences are at a 40-year low. There have been 10 years without an execution in California.

It is clear that a lot of progress has been made with respect to the death pentalty. However, there is still much work that needs to be done. The exonerated population on death row comprises only 1-in-10. It usually comes after decades on death row. Even now, defendants accused of killing a white person are 4.3 times more likely to be sentenced to death than those accused of killing a person of colour. State courts, especially in old slave states, are discriminatory. In 1997 Duane Buck was sentenced to death in Texas, at his trial a psychologist for him stated at cross examination that Buck being black meant he was prone to re-

Aapo Haapanen via https://flic.kr/p/38wBWq

Amicus was created after the death of Andrew Lee Jones to try and prevent such injustices from happening again. Jones was charged with murder on the basis that he knew the victim’s mother. The prosecution had no scientific evidence that linked him to the murder and withheld information about his mental health. His lawyer had never participated in a capital murder trial and failed to present helpful evidence. He was convicted by an all white jury in a trial that lasted less than a day. He was executed in 1991. Jane Officer was writing to Jones while he was on death row. After his death she set up the Andrew Lee Jones Fund which later developed into Amicus.

Amicus works to provide legal representation of quality to those facing the death penalty. The organisation sends 20-30 interns out every year to help with the high workload involved in capital cases.

Interns also assist with ‘The Missouri Project’: a project aiming to investigate the factors that have influenced capital cases in Missouri over the last 50 years.

Research has never before been carried out on this subject, and in the past courts have been receptive to data such as this. Amicus also provides the opportunity to get involved in casework in London. If you would like to find out more about these opportunities get in contact with admin@amicus-alj.org.uk and like Amicus at Queen Mary on Facebook to keep up to date with upcoming events.

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16 - November 2015

Departure Call – For Better or For Worse?

South Africa’s Plans To Leave The International Criminal Court Laura Yeo

The International Criminal Court (ICC) is a permanent, treaty-based international criminal court, seated in The Hague. The ICC is governed by the Rome Statute, and its primary purpose is to fight to end impunity for transgressors of the most severe international crimes.

Following the address of war crimes and crimes against peace and humanity committed during World War II in the Nuremberg and Tokyo trials, the international community took a giant leap in the fight against such crimes. 120 States adopted the Rome Statute, forming the legal basis for establishing the permanent International Criminal Court.

The Court is presided over by a panel of diversified international justices, appointed by a two-thirds majority of the Assembly of State Parties. There are three stages to prosecution including a pre-trial chamber of three judges where the evidence is evaluated to determine whether it is sufficient to issue an arrest warrant. This prevents prosecutors from bringing a vendetta to trial. If there is sufficient evidence, the accused has access to all the rights of a fair trial and is able to appeal against the verdict.

South Africa joined the ICC in 1998.

The country had just extricated itself from the heinous grip of apartheid and human rights were rightfully returned to the citizens. Seventeen progressive years later, the governing African National Congress (ANC) is calling for the departure of South Africa from the ICC, the first of its members to do so.

South Africa’s, albeit bold, but shocking proposal has been questioned by many, including fellow members of the ICC and its own apprehensive citizens. Mr Obed Bapela, chairman of ANC’s commission on international relations has said that the ICC has “lost direction”.

South African President Jacob Zuma voiced his discontent with the ICC in a speech in Johannesburg on Monday 12 October, claiming that “the ICC is biased” and is only concerned with “the Africans they are interested in.”

The announcement comes after a controversial conflict between South Africa and the ICC earlier this year. In June, the ICC issued an international arrest warrant for Sudanese President Hassan Ahmad al-Bashir for the alleged genocide, crimes against humanity and war crimes in Darfur.

Prosecution evidence showed that he had devised and implemented a plan to exterminate the Fur, Masalit and Zaghawa groups, on account of their ethnicity. These rebel groups were ‘challenging the marginalisation of the province’ and after failing to defeat the armed movements, al-Bashir started killing the people. “His motives were largely political. His alibi was a ‘counterinsurgency.’

His intent was genocide.” The Prosecutor said.

For over five years, al-Bashir has denied the crimes. He went as far as to say that rape does not exist in Sudan. His forces allegedly invade villages, kill the men and rape the women. The terror forces uproot them from lands they have occupied for centuries.

He did not need artillery or guns, instead he used silent weapons- rape, hunger and fear.

Al-Bashir has been nicknamed the ‘Hitler of Africa’, alluding his alleged crimes to

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17 - November 2015 the terrors the world witnessed during the Nazi occupation of Europe. Despite these allegations, South Africa allowed him to shirk arrest, letting him make a brusque departure from an airstrip outside Pretoria. This was considered an outright defiance by an ICC signatory, heavily dismantling the relationship between the country and the court. The Holocaust was over 50 years ago, but do the horrors of mass murder and discrimination continue even under the watchful eye of the ICC?

What exactly are the implications of the departure from the court? Will it lead to South Africa once more being engulfed in civil unrest and at the mercy of tyrannical leaders without the ICC policing them? Did the ICC even prove itself useful in promoting peace and justice in the country or has the court, as Zuma charges, simply been ‘unfairly targeting African leaders’?

The proposal followed the debaucle of al-Bashir’s escape from arrest and if South Africa chooses to depart from ICC, it may further propogate anti-Western sentiment.

A sentiment already strongly represented by President Zuma’s charge of ICC’s bias against Africa and the government’s plain disregard for ICC’s arrest warrant. Furthermore, this potential move will feed al-Bashir’s principal aims – preserving his personal impunity against trial for his alleged crimes. The man purportedly responsible for the terrors taking place in Darfur will never be brought to justice and this could manifest itself as an example to potential political deviants. A result that could prove detrimental to South Africa’s political and social well-being.

South Africa’s withdrawal from the ICC would require the domestic ICC Act be abolished from national law and this may prove to be unconstitutional. In the case brought by the South African Litigation Centre (SALC), the Constitutional Court found that South Africa is required, as part of domestic law, to investigate torture crimes as crimes against humanity. This immediately propels the crime to a level of high importance. Abolishing the ICC Act would therefore decrease the incentive on the part of the South African Police to investigate alleged crimes of torture. From the perspective of human rights, this would be a retrogressive step in South Africa’s fight against crimes against humanity.

Evidence has shown that since its establishment, the ICC has only prosecuted Africans. This, however, should not indicate that the ICC is in fact exhibiting a bias towards African nations. The withdrawal from the ICC may prove to be threatening to the citizens of South Africa as the foot of justice against severe crimes will be raised. Tyrants like al-Bashir will be free to carry out their own agendas which may result in the further death and oppression of the masses. South Africa would lose, what has proven to be, an instrumental part of keeping evil at bay.

Propogators of the departure argue that in place of their membership in the ICC, they will establish their own tripartite African Court of Human Rights. There will be one court dealing with international crimes, one dealing with inter-state crimes and one with human rights.

The creation of this court has been incentivised by two main factors. The first being the indictment of al-Bashir alerting the government to the lack of accountability for acts by heads of state. The second was the prosecution by European states of those involved in the genocide that took place in Rwanda under universal jurisdiction. However, there are arguments that the setting up of this court will take too long. Furthermore, the jurisdiction of the Court will only begin after its establishment. Do the current tyrants then walk free?

The proposal for depature has to be approved by Parliament – the process involving members of the lower and upper houses having to individually vote on the motion since the obligations of the ICC have been incorporated into national legislation. ANC currently holds the majority seat in the South African Parliament thus smoothening the road to approval. The last step to its achievement is the endorsement by the President.

The matter will be carefully considered when the ICC members reconvene at The Hague in November. Despite the various arguments against its withdrawal, South Africa seems to be on its way to be the first member state to withdraw from the ICC, relinquishing one of its strongest armours against terror and tyranny.

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18 - November 2015

Taking Stock 6 Months After the Election

One of the boldest manifesto pledges that the Conservative Party made during its electoral campaign this year was its promise to abolish the Human Rights Act 1998 (HRA), and to replace it with a ‘British Bill of Rights and Responsibilities’ (BBOR).

During the course of the hustings, legal academics, practitioners, and members of the judiciary, had spilt much ink (or rather, electronic print) inveighing against the Conservatives’ plans to scrap the HRA. A large part of these criticisms were aimed at how the Conservative Party’s proposals purportedly displayed a lack of understanding of the United Kingdom’s international legal obligations, the rule of law, and basic principles of human rights.

This article in no way intends to add to the cacophony of opinion about the Conservatives’ human rights agenda.

Instead, we shall look at what the Government has done over the past 6 months to fulfil this particular manifesto promise, and why the necessary legislative measures have not been forthcoming.

The Conservative Party achieved a resounding victory in this year’s General Election, claiming 36.9% of votes cast and winning an outright majority of seats in

The Conservative Party’s Proposal to Scrap the Human Rights Act (HRA) S. Jheevanesh Parliament (330 out of 650).

This emphatic result meant that the Conservative Party received a clear democratic mandate (notwithstanding that a 66.1% voter turnout meant that the Conservatives were elected to Government by only 24.4% of eligible voters) to implement their promise to repeal the HRA. Election Aftermath

In the immediate wake of the elections, the British media were briefed by Conservative party sources that the newly appointed Justice Secretary Michael Gove had been given 100 days to draft a bill to repeal the HRA.

However, any sort of fully fleshed-out legislation, to replace the HRA with a BBOR, was tellingly absent in the Queen’s Speech at the end of May. (The Queen’s Speech is traditionally made to mark the opening of a new Parliament, and usually sets out all of the legislative proposals that the newly elected Government intends to make in the year.) Instead, the Queen’s Speech only indicated that a public consultation on repealing the HRA was to be held this year.

The following month, senior Government sources

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informed the British press that Prime Minister David Cameron had ruled out the possibility of the UK withdrawing from the European Convention of Human Rights and Fundamental Freedoms (ECHR). Some of the criticism made earlier in the year of the Conservatives’ plans to repeal the HRA had centred precisely on the potential legal impediments to UK remaining a signatory to the ECHR whilst replacing the HRA with a BBORR that substantially reduced the protections afforded by the former. The Prime Minister’s insistence on the UK remaining party to the ECHR suggests that either the Conservatives were going to make a policy U-turn and legislate for a significantly watereddown version of their manifesto pledge, or worryingly, that the legal complexity surrounding their proposals had yet to be appreciated by the party’s leadership.

The Conservative Party had taken very little to no action in Parliament, between May and September, in terms of scrapping the HRA. Then, in September, Government ministers announced that they would publish their

19 - November 2015 plans to replace the HRA in the autumn of 2015. Subsequently, in October, the Government announced that a 12-week public consultation on a prospective British Bill of Rights would begin by the end of the year. Near the end of October, the EU Justice Sub-Committee of the House of Lords commenced an inquiry into the Conservatives’ proposals to replace the HRA with a BBOR, so as to inform public opinion before the forthcoming public consultation.

Why hasn’t the Government repealed the HRA? Several explanations can be proffered for this seemingly absurd scenario where a political party has made a bold electoral promise and has received an unambiguously decisive electoral victory, and yet has failed to implement the proposal into law. Some of the possible explanations are laid out in ascending order of plausibility.

1. A significant majority of those who voted Conservative do not support the repeal of the HRA, but voted Conservative for other reasons. Cognisant of this and sensitive to the wishes of its voters, the Government has no immediate plans to repeal the HRA. 2. The Government has taken note of the severe criticisms of their plans to replace the

HRA with a BBOR and are taking a “softly-softly” approach to sort out the problems of law in their original proposal without having to own up to the public for a poorly thought-out proposal.

3. The Government is waiting for the resolution of another politically contentious proposal, the EU in/out referendum, before going ahead with their plans to replace the HRA with a BBOR. Depending on the result of the in/out referendum, replacing the HRA with a BBOR, and the ramifications of such a move with respect to the ECHR, may raise even more complex legal issues with regard to EU law, since the Convention also has an indirect link with the latter.

Whatever the explanation, the six months that have passed since the General Election in May thus shed light on the possibility that the Conservatives’ manifesto pledge to repeal the HRA immediately, was made in the heat of electioneering to out-UKIP UKIP (the party notorious for its abhorrence of any kind of human rights protection afforded to ‘undesirable’ segments of society), rather than on any kind of understanding of the complex legal issues surrounding the state of human rights protection in the UK.

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‘What weight (if any) should be given to the sex or ethnicity of a candidate when making an appointment to the Supreme Court?’

S. Jheevanesh

The question of whether the sex or ethnicity of a candidate should be material considerations for their appointment to the United Kingdom Supreme Court (UKSC) is linked to the greater question of why it is important for the UKSC to be diverse in its gender and ethnic composition. In this essay, I will first argue that diversity in the UKSC is essential to improving the democratic legitimacy of its decisions. Subsequently, I will contend that increasing the diversity on the Bench also necessarily improves the meritorious nature of decisions made by the Bench. In doing so, I will consider objections – based on the principle that judicial appointment ought to be made on a meritocratic basis – to the idea that any weight should be given to the sex or ethnicity of a candidate when making an appointment to the UKSC. I will illustrate that these objections are misplaced because they operate under the assumption that a meritocratic and diverse Bench is a contradiction in terms. By explicating

20 - November 2015 both the importance of diversity and its coherence with the idea of meritocratic judicial appointments, I hope to have successfully established the claim that considerable weight ought to be given to the sex or ethnicity of a candidate in making a UKSC appointment.

Following the Human Rights Act 1998, the UKSC, the UK’s apex court, increasingly involves itself in “determining the nature and boundaries of human rights in the UK.” Malleson and Moules argue that this new competence of the UKSC requires determination of ethical and political – and not just legal – questions, thus ushering in a “judicialisation of politics.” Where previously ethically and politically contentious issues fell within the remit of Parliament, the UKSC is now increasingly tasked with making decisions on questions of law that “cannot be resolved without reference to policy questions.”

Whereas Parliament’s ability to make decisions on these issues is legitimised by their being popularly elected through free and fair elections, an equivalent legitimating device is unavailable for the unelected UKSC. Increasing the ethnic and gender diversity of the UKSC Bench, however, is one way of generating the democratic legitimacy necessary to buttress quasi-political judgments made by the Court. If the UKSC were seen to be ‘representative’ of the people, in the sense of being composed of people hailing

from a wide variety of backgrounds, just as the British citizenry is, this would go a long way in enhancing the UKSC’s democratic legitimacy. Quasipolitical and ethical decisions made by Supreme Court Justices who are of the same sex or ethnicity as the average citizen would appear more acceptable to these citizens.

However, democratic legitimisation is not the only justification made by proponents of diversity in the UKSC. As Rackley has argued, increasing diversity on the Bench has a substantial impact on the substance of judicial decisions. As Rackley contends, contrary to the ideal of the neutral judge dispassionately applying the law, extralegal factors such as social upbringing, cultural values, and political principles do sometimes in fact influence or affect the way judges make their decisions. While this does not occur in the majority of cases in the lower courts, in the UKSC, where complex legal issues are heard, “where the authorities leave the matter in doubt, where the law runs out or at least calls for the exercise of some sort of discretion”, judges are likely, in fact required, to make reference to their own ideas and principles that lie outside of the law.

Substantive judicial decisions in the UKSC are thus – more often than acknowledged – made by judges guided by their own personal inventory of “inarticulate premises” derived from their unique experiences. By appointing UKSC

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judges who are female, or from black or minority ethnic backgrounds, the value sets of non-white and non-male members of the UK will also play a role in influencing and shaping UKSC decisions. Following Etherton LJ, “the judiciary is stronger, and…justice dispensed better, the more varied the perspectives and experiences that are involved in its decision-making.” This therefore goes some way in addressing objections to the consideration of sex or ethnic background in the UKSC appointment process.

Section 27(5) of the Constitutional Reform Act 2005 requires the appointment of Supreme Court Justices to be based on merit.

Moreover, Sections 25 to 27, concerning appointments to the UKSC, make no reference to considerations of diversity in appointments of Supreme Court Justices. The fundamental idea behind these provisions is that, as the apex court, appointments to the UKSC ought only to be made on the basis of the merit of the candidate. If however, one accepts the foregoing arguments presented, it follows that a more diverse UKSC will make more just decisions as it broadens the sphere of “inarticulate premises” that lay behind every judicial decision, and thus foster a more meritorious UKSC.

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