The AdvOcate
December 2016
Queen Mary Winter Ball December 1st, The Octagon OPEN TO ALL STUDENTS Save the Date! __________________
A letter to Freshers: Advice to guide you through your first year! __________________ Karen Watton: Legal Careers __________________
US Presidential Elections: Does Trump’s presidency signify a new world order?
THE ADVOCATE DECEMBER 2016
ABOUT US Who We Are The Advocate is one online legal publica8on produced by the Queen Mary Pro Bono Society. Comprised of a team of passionate and dedicated students, The Advocate shares the voices of our fellow students by publishing wriDen and visual content pertaining to the law.
Editor’s Note Welcome to the December 2016 Issue of The Advocate. This issue includes a range of ar8cles wriDen by our regular journalists as well as external contributors. Noteworthy ar8cles include a special write-up on advice for first-year law students as well as an interview with careers consultant, Ms Karen WaDon. In our opinion sec8on, do look out for our students’ opinions on Donald Trump’s recent victory at the US presiden8al elec8ons, Italy’s landmark decision on theX and the defence of necessity, and more. The Advocate would like to specially thank Ms Karen WaDon for her valuable contribu8on to this issue as well as all student contributors. We hope you enjoy reading our publica8on. Ze-Eie Wong Editor-in -Chief
Our Aims We aim to encourage students to engage with current legal affairs and issues and express their opinions on them. Through the use of wriDen and visual mediums, we endeavour to increase the accessibility of our content, thereby allowing our students’ voices to be heard by a wider audience and encouraging them to be advocates in their own right. By sharing our students’ opinions, we hope to foster greater legal awareness amongst our student body and beyond.
What We Do The Advocate publishes ar8cles wriDen by students on current legal affairs and pressing legal issues. Emails will be sent out specifying submission deadlines to all law students each Isabel Tulloch quarter. We encourage interested par8es to Website and Layout Editor submit their ar8cles that require development Sub-Editor to our email theadvocate@qmprobono.org.
Contact us If you are interested in directly sponsoring The Advocate, or being featured here, please do contact president@qmprobono.org and theadvocate@qmprobono.org to arrange a mee8ng.
Frida P. Hoffmann Sub-Editor and Writer
Dorothy Tan Maria Carolina Magalhaes Centeno Sub-Editor and Writer Sub-Editor and Writer 2
THE ADVOCATE DECEMBER 2016
CONTENTS ACADEMIC
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A leGer to first-year law students Academic advice, regrets and how to conquer law school Dorothy Tan and Ze-Eie Wong
CAREERS
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A Chat with Careers Consultant, Ms Karen WaGon Naviga7ng the sea of career informa7on and advice for anyone who wants to pursue a legal career. Maria Carolina Magalhaes Centeno
OPINION
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Italy’s highest Court of Appeal, the Supreme Court of CassaPon, allows hungerstricken man to walk free from theR convicPon Hunger, the= and the defence of necessity. Daryl Old ‘Clinton, another Al-Gore? An echo of the 2000 PresidenPal ElecPon’ Does Trump’s presidency signify a new world order? Akshay Gohil Is ExecuPve power in relaPon to the making of secondary legislaPon rendered consPtuPonally acceptable by the presence of Parliamentary control? An analysis of the response of the House of Lords in October 2015 to the statutory instrument on tax credits, and the possibility of judicial oversight and its implica7ons on cons7tu7onal acceptability of execu7ve power to make secondary legisla7on. Maria Carolina Magalhaes Centeno Is Philip Hammond Our Knight in Shining Armour? Thoughts on the newly appointed Chancellor of Exchequer, Philip Hammond. Thao Thanh Truong
___________________________________________________________________________________________________________ Views expressed in this publica8on are expressed purely in a personal capacity. The author(s) of each ar8cle appearing in this publica8on is/are solely responsible for the content thereof; the publica8on of an ar8cle shall not cons8tute or be deemed to cons8tute any representa8on by the editors of The Advocate that the data presented therein are correct or sufficient to support the conclusions reached. Authors are responsible for their ci8ng of sources and the accuracy of their references. The editors cannot be held responsible for any lacks or possible viola8ons of third par8es’ rights.
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THE ADVOCATE DECEMBER 2016


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THE ADVOCATE DECEMBER 2016 pass for you to not do the work, but rather it is a reminder to focus on the end goal, which is to have complete understanding of a topic such that you are prepared for the exam. So when you are reading for a tutorial, think about what you are reading and try to formulate an opinion or an argument about it. What may be helpful is to u8lise the further reading sources which tend to be ar8cles or journals by academics. Read those first, as they tend to highlight key arguments or issues about the par8cular topic. Even if you just read the abstract, headings and conclusion, this will help you to gain an idea about what to focus on.
A leGer to first-year law students Academic advice, regrets and how to conquer law school By: Dorothy Tan and Ze-Eie Wong
Dear first-years,
It will also be helpful to note down ques8ons or doubts that you have and make it a point to clarify them. Clarifying your doubts is probably one of the best things that you can do to help yourself cement your understanding. No ques8on is a silly ques8on! Everyone has queries, and chances are someone else will have the same query and will be glad you asked!
You’re well into your first year of law school, and perhaps at this point, your nerves are frazzled and some of you might be feeling slightly worse for wear. Some of you might be ques8oning whether you are ‘doing it right’, and maybe you want some advice and sugges8ons about how to go about your studies to get the best grades you can. Well, fret not, for we’ve been through it too and we know how you feel. So, with the benefit of hindsight, here are some of the things we wish we had known in our first year.
“It is okay if you do not know everything at first glance” 2 How to Read Cases When we were first years, there was many a 8me where we felt like we were drowning in an ocean of cases, all of which seemed terribly important. You will soon gather that as a law student, it is not uncommon to be inundated with cases. But whilst we can’t save you from studying cases, we can, however, make your life a liDle easier by giving you some 8ps on how to get through them in a more efficient and painless manner.
1 How to work effecPvely Try not to fall into the trap of cramming or glossing over the reading in the desire to ‘finish the reading for the tutorial’. Understanding what you have read and engaging with it is far more important and produc8ve than skimming through the material. Tutorials are there to facilitate your learning. Your tutorials are not a test, so it is okay if you do not know everything at first glance. It is not, however, a free 5
THE ADVOCATE DECEMBER 2016 Your first ins8nct when you come across a case cita8on in your lecture slides is probably to Google it and go to www.elawresources.co.uk to get a nice succinct case summary. Whilst this is acceptable as a cursory star8ng point, do be cau8oned against relying solely on that. We would advise reading the judgments in full in order to fully appreciate the nuances of the judgments and the ra8onale of the judges’ decisions. If you find that the full judgments are simply too wordy and hard to follow, start with the casebooks. They pick out the relevant part of judgments which related to the important legal principles and present them in an easy-todigest manner. Moreover, casebooks oXen offer commentaries on the judgments, which is useful when formula8ng your own opinion about the case. Head notes, which are the italicised text at the top of the case judgments are also useful as they highlight the main points of the case. The head notes will refer to specific paragraphs for each legal principle, which you can quickly skip ahead to when you’re absolutely pressed for 8me.
LexisNexis to ensure that you’re reading the right case. 3 How to maximise your learning We know. You had a late night out, are suitably hungover and the last thing you want to do is aDend that 10 am lecture. Besides, there is always Q-Review right? Well, think again. While Q-Review is useful for unforeseen circumstances, skipping a lecture because you are hungover or too 8red deprives you of an opportunity to engage with the material, adds on to your ever-increasing list of ‘things to catch up on’, and is also disrespecpul to the lecturer. In addi8on to aDending your lectures, pay aDen8on. It is easy to get distracted behind our laptops but remember that lectures usually provide you with a useful skeleton outline to which you can later add to, so take notes when you aDend these lectures. This is especially helpful if you are someone who tends to get overwhelmed by the minu8ae of every single case or every page of the reading, because lecturers usually signpost key cases and explain key concepts or issues, effec8vely helping you to filter out material that might be unnecessary thus helping you to focus your learning. So, the next 8me you want to skip a lecture, ask yourself “Is it worth it?”. We unequivocally think not.
Do also take note of the case cita8ons. If you’re baffled with the acronyms ‘HL’, ‘SC’ or ‘CA’, they stand for ‘House of Lords’, ‘Supreme Court’ and ‘Court of Appeal’ respec8vely. Always make sure you’re reading the judgment from the correct court and that it has not been overruled by a higher court’s judgment. The last thing you’d want to do is to diligently plough through a full judgment and then realise that that was the judgment of a lower court and had been overruled by a higher court. To avoid this, one 8p is to input the case cita8on direct into Westlaw or
4 How to revise for and take exams For most students, their first port of call is usually their notes. So, throughout the year make it a point to have structured, clear and detailed notes, that are of course, accurate. A good star8ng point is to use the lecture handout or your lecture notes as your main framework. Then, add on the 6
THE ADVOCATE DECEMBER 2016 extra informa8on from the textbooks, casebooks and secondary sources onto that main framework. This will allow you to consolidate the important informa8on into a single document, making it easier to revise or find informa8on when you need it. To this resource, you should also add your tutorial ques8ons and answers since your tutorials usually focus on the key areas of understanding for each topic. Consistency is key to avoiding last-minute cramming so just keep at it.
The night before, or even the week before the exam, put revision to one side and have an early night. It is impera8ve to rest your brain so that your mind can func8on at its op8mum during the exam. But if you do have to pull an all-nighter (we don’t advise it but we know it happens), please do try to get at least a few hours of sleep lest you fall asleep during the exam. 5 Extracurricular AcPviPes Try to join a society. The School of Law has many different socie8es that cater to law students’ interests in the various aspects of law. Find out the area of law you feel most passionate about and join that society to further your interest in it. If you’re keen to contribute to the society, why not consider running for a commiDee posi8on? This will enable you to play a more ac8ve role in shaping the society. Do join non-law socie8es as well, if you like! You’ll be able to take a break from legal work, and you’ll be able to meet other people from other courses as well! It will be a truly refreshing experience. Take part in extra-curricular
Other than making revision notes, we cannot stress enough how important it is for you to do 8med prac8ce. The forma8ve coursework trains you to address key issues and formulate clear and analy8cal arguments but not under 8med condi8ons. It is impera8ve that before the exam, you sit down for three hours and complete an exam paper without referring to any of your notes. This is to train yourself to be able to iden8fy the main issues in a ques8on and formulate a coherent and well-argued answer within a specific 8me constraint. If you are looking for past year exam papers, they can usually be found on QMPlus under the Examina8ons tab of the relevant module page. Many students fall prey to exam anxiety or ‘blanking out’ during an exam but the more prac8ce you do, the beDer equipped you will be to sit for an exam.
“If you’re keen to contribute to the society, why not consider running for a commiGee posiPon?” ac8vi8es like moo8ng, nego8a8on and client interviewing compe88ons etc. These compe88ons help you develop your advocacy skills and employers have expressed at law fairs and open days that these advocacy skills are very much highly valued. The procedural aspects may seem completely foreign to first-8mers and the phrases used may seem strange, like ‘my learned friend opposite’ or ‘my Lord’. 7
THE ADVOCATE DECEMBER 2016 However, don’t feel in8midated. No one is born with a knack for all this so keep trying and I guarantee you will get beDer with prac8ce!
go at it alone. Other than being a source of mo8va8on when 8mes get tough, your friends can double as a study group for you to discuss the material you’re studying, clarify doubts and even share notes. Law school can get compe88ve but isola8ng yourself for fear that they will surpass you is to deprive yourself of meaningful friendships and an opportunity to help each other out.
6 How to avoid a ‘melt-down’ and maximise your university experience As the saying goes ‘all work and no play makes Jack a dull boy’. Whilst your degree should be your primary focus, don’t forget to enjoy your university experience too. Take it from us, cherish these three years, because once they slip by, you can never get them back again. Work hard during the week and when the weekend comes, take 8me off to kick back and relax – go to the park or for a run, read a novel, have a pint with your friends (or a cheeky Nandos if that is more your milieu), do a day trip out of London. Reward yourself for your hard work, because you’ve earned it.
With these words of advice, we wish you good luck and great academic success. Go forth and conquer law school. Yours Sincerely, The Advocate Team
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A Chat with Careers Consultant, Ms Karen WaGon
Please take care of your health. Law school is stressful and the many late nights can take its toll, both physically and mentally. Even though it may be hard, try to make sure you are gewng enough rest, proper nutri8on and some exercise; because a healthy mind and body are linked to academic success. If you feel like you are struggling, please don’t suffer alone. Queen Mary’s Advice and Counselling Service offers a free and confiden8al service to all Queen Mary students and they can be helpful to you in your 8me of need. Whether it is for personal issues which are having an impact on your ability to study, or something quite serious that you’ve struggled with for many years, counselling is a good place to start. Another source of support, comes in the form of friends. No man is an island, and law school is certainly too overwhelming to
Naviga7ng the sea of career informa7on and advice for anyone who wants to pursue a legal career. By: Maria Carolina Magalhaes Centeno As law students, from the moment we start university, we are hit by a sea of informa8on about law firms, vaca8on schemes applica8on deadlines, open days, numerous careers events and workshops, and a whole lot more. We understand that being inundated with so much informa8on can be confusing and a tad overwhelming for some students. Thus, The Advocate thought it would be a good idea to seek some advice from Queen Mary’s Careers Consultant, Ms Karen WaDon, who was more than happy to answer our ques8ons. We hope that this ar8cle will provide some 8
THE ADVOCATE DECEMBER 2016 elucida8on to anyone who has burning ques8ons about naviga8ng the tricky law career minefield.
for law students on campus, plus news on external events, compe88ons, work experience and job opportuni8es. The slides from employer presenta8ons can also be accessed from this QMplus page. In person, students can have a 1:1 appointment with me and/or other members of the Careers & Enterprise team. We cover everything from helping students work out what they want to do, to going through CVs and job applica8ons, to prac8ce interviews and assessment day exercises. Basically, anything related to work! My appointments are on Monday aXernoon in G9 in the Laws Building. There are also appointments every day in the Careers & Enterprise Centre, found at room WG3 of the Queen’s Building. To book any of these appointments, you just need to call 0207 882 8533.
The Advocate: Does the University/Law Department offer any services to help students with careers maRers, for example how to write a CV, how to get work experience, what type of work experience are recruiters looking for and support with applica7ons? Ms Karen WaGon: Yes, lots, in person and online. The best place to start is the careers page on QMplus: www.qmplus.qmul.ac.uk/ course/view.php?id=5476. This includes links to loads of helpful advice and ‘how to’ guides in the ‘Knowledge Bank’. You can access QRecruit – to find volunteering projects, graduate roles and part-8me work opportuni8es – plus prac8ce psychometric tests, video interviewing, help for interna8onal students, and sewng up your own business.
T h e A d v o c a t e : T h e r e a r e m a n y opportuni7es for law graduates beyond the commercially-oriented legal career. This could be further study, non-commercial law, non-legal careers, etc. However, students some7mes struggle with finding the informa7on that will help them make a more educated decision. Are there any services within the University or even outside of it where students can find out more about the different doors a law degree can open?
Specifically, there is also a law careers page tailored for law students which you can find at: www.qmplus.qmul.ac.uk/course/ view.php?id=6025. This is where I post my weekly law career newsleDers which automa8cally generates an email with the link to every student. The newsleDers give details of the many employer visits, skills workshops and other events we organise
Ms Karen WaGon: I’m delighted you asked this ques8on as some8mes it seems that students get on a conveyor belt to a career in a City law firm. That could be a great op8on, but there are dozens of others to choose from and it’s important to consider what sort of working life will suit you best. 9
THE ADVOCATE DECEMBER 2016 Many students want to qualify as a solicitor, which, for the moment at least, usually means taking the LPC [Legal Prac8ce Course] and then a training contract. The larger commercial firms have more training contracts available, and tend to fund the student’s LPC year, which is why there is a greater focus on those firms. T h a t s a i d , I s e e s t u d e n t s i n 1 : 1 appointments who want to work in noncommercial areas of law. I would recommend students consider researching a wide range of prac8ce areas and law firms. Some useful websites to do this include www.chambersstudent.co.uk and www.lawcareers.net, amongst others. We can also look into alterna8ve ways to find a training contract and opportuni8es for funding.
The Advocate: Every day, students receive a considerable amount of emails with informa7on about events, placements, deadlines, opportuni7es, and so on. For first years, especially, it can become very difficult to keep track of all the emails and to filter out the what is relevant and what is not so relevant. What would your advice be on addressing this "issue"? Ms Karen WaGon: On the one hand, I sympathise with students, especially first years, who are expected to shiX up a gear from school and home life to University mode, then accelerate into protoprofessional mode preDy much as soon as they get on campus. The training and recruitment processes and deadlines for law mean you have to get up-to-speed right from the first year. AXer all, you may be making applica8ons to your future employer (for open days) in the first year, or for vaca8on schemes/training contracts in the first term of your second year. That doesn’t give a lot of scope for taking it easy! That said, as it’s such a compe88ve environment for legal and other graduate roles, it’s in students’ interests to get used to managing emails and informa8on. It’s a gentle introduc8on to what they will experience in professional life, and it shows a level of commitment and drive in those
“It’s important to consider what sort of working life will suit you best” I’m also keen to encourage students to consider both other legal and non-legal careers. A law degree from Queen Mary can open doors to a whole host of roles and sectors. Fancy being a journalist or a publisher? Work in marke8ng in the fashion sector? Set up your own venture? Teach? Develop policy in a government role? Management Consultancy, charitywork, you name it! There’s a brilliant set of ‘Gewng into…Guides’ to download from www.careers.qmul.ac.uk/op8ons/ industryguides/index.html and the Prospects quiz can be a fun introduc8on to possibili8es: www.prospects.ac.uk/planner. We have representa8ves from a wide range of employers coming onto campus and there will be an ‘alterna8ve careers for law students’ panel event next term. 10
THE ADVOCATE DECEMBER 2016 that can keep abreast of things. If you’re feeling overwhelmed, or need help priori8sing, book an appointment with us so we can help you develop a plan.
worth a mere €4.07, would walk free. The court concluded that as the man, Roman Ostriakov, took the food, “in the face of an immediate and essen8al need for nourishment” he was therefore jus8fied in doing so, as he was “in a state of necessity”.
The Advocate: Finally, are there any upcoming events students may want to keep an eye out for?
He was convicted at first instance of theX and handed a six month jail sentence and a €100 fine. However, on appeal, this was overturned, to the shock of many, and therefore the court allowed the defence of necessity of hunger to prevail over the right to personal property. To many in the United States, as noted by Massimo Gramellini in La Stampa, and quite likely in Britain too, this ruling “would be blasphemy”, due to the profound emphasis on the right to personal property.
Ms Karen WaGon: Of course, keep an eye out for the next Law Careers NewsleGer for further details, and for events on campus, keep a regular look out on: www.careers.qmul.ac.uk/events. And why not try branching out beyond law events! Our summary: While all of it may seem a bit daun8ng, there is no need to despair as there are people here at Queen Mary ready and willing to help us with whatever it is we may be struggling with. As this ar8cle illustrates, the key things one can do are:
Such a ruling seems to signal to the world that the Italian Supreme Court Jus8ces siwng on this case are not out-of-touch with society, and that they realise the need for some people to shopliX in the face of starva8on. One might eve posit that this is a sign of progress being made in tackling inequality within a western society. Indeed, it was noted by ItaliaGlobale that the ruling is “right and per8nent” and derives from a concept that “informed the Western world for centuries - it is called humanity”. For Mr. Ostriakov, who probably thought his fate was sealed, this ruling will come as a pleasant surprise, as it has for many Human Rights groups and associa8ons. It should be noted however, that there is no ‘Right to Food’ in the European Conven8on on Human Rights (ECHR). Therefore, for the 48 member states to the ECHR, there is no obliga8on put on them to provide food to their ci8zens. This means that a homeless man facing the threat of starva8on in any of these member states,
1. Stay up to date with the career pages 2. Make an appointment to seek advice from a careers consultant or advisor 3. Keep an eye out for careers events 4. Read the law careers newsleDer ___________________________________
Italy’s highest Court of Appeal, the Supreme Court of CassaPon, allows hunger-stricken man to walk free from theR convicPon Hunger, the= and the defence of necessity. By: Daryl Old In a landmark decision, Italy’s highest court ruled that a homeless man, who was caught stealing cheese and a sausage 11
THE ADVOCATE DECEMBER 2016 The defence of necessity is extremely narrow in England and Wales, and thus rarely succeeds. For a defence of necessity to be used in England, it must be shown that there is an urgent and immediate threat to life and therefore the defendant assumes that the only escape from this peril is to break the law. It could be suggested in the case of Mr. Ostriakov that instead of stealing the food, he could have sought help from charity, or the welfare state, and therefore commiwng theX was not actually out of ‘necessity’. For now, this is seen as good law in Italy, and it will be of much interest to see if other jurisdic8ons
could not sue their respec8ve government for the failure to provide them with food. Interes8ngly, both the United Kingdom and Italy are members to the Interna8onal Covenant on Economic, Social and Cultural Rights, Ar8cle 11(2) of which recognises the fundamental right of everyone to be free from hunger.
“They realise the need for some people to shopliR in the face of starvaPon”
Where the United Kingdom is concerned, this mul8lateral treaty has not been implemented, and therefore judges cannot enforce it. Although, prima facie, this ruling s e e m s l i ke a n ex t re m e l y s o c i a l l y progressive advancement, it does not come without problems. Now that necessity has been allowed for theX in Italy, many more might follow this somewhat dangerous p r e c e d e n t . A s L o r d D e n n i n g M R commented in Southwark London Borough Council v Williams, “necessity would open a door no man could shut”. He went on to state that, in his view, he thought that people would “imagine they were in need or would invent a need” and therefore, this could degrade other parts of law such as tort or the right to protec8on of personal property from the courts. In allowing the defence of necessity, Italy will have to 8ghtly constrain it to situa8ons of real necessity to avoid going beyond a reasonable standard, as this ruling could have wider implica8ons to other parts of Italian society. In terms of whether this would be allowed in the United Kingdom, it seems extremely unlikely.
follow the reasoning of this monumental case, or whether the Italian Supreme Court of Cassa8on is par8cularly liberal and progressive. The laDer here, could be the suggested theorem, due to the recent case of Pietro L, the 69 year old man, acquiDed of masturba8ng in a public place, showing Italy’s top court of being incredibly tolerant of infringements to public order and protec8on of private property. ___________________________________
‘Clinton, another Al-Gore? An echo of the 2000 PresidenPal ElecPon’ Does Trump’s presidency signify a new world order? By: Akshay Gohil This ar8cle will descrip8vely assess the extent to which America has entered a ‘new order of the ages’. It will examine the 12
THE ADVOCATE DECEMBER 2016 According to results data, the Republicans have retained the majority of seats in the Senate as well as in the US House of Representa8ves.
“Trump was rarely taken into full perspecPve in the general elecPon” It is posited that part of the reason for Trump’s victory was the break-up of the working class and their loyalty to the liberal leX. Collins draws parallels between Bill Clinton’s model of strategic electoral victory which served for Tony Blair too. In such case, the dwindling band of the working class meant it had no poli8cal home to rest, hence, there was an automa8c vote towards the Democrats. However, in Trump’s case, he managed to prove that when there is a plausible rightwing populist on the 8cket, they do have somewhere else to go.
reasons why Clinton failed to win the presiden8al elec8on despite winning the popular vote to a very divisive Donald Trump It will address the expecta8on requirement, growth of inequality and impact of globalised ci8es and shed light onto the Michigan case study to highlight the existen8al social inequality that pervades the American system. Finally, it will address the ques8on of Clinton’s trust in American poli8cs and how that led to her electoral demise.
Growth of inequality and impact of globalised ciPes Where the economy was concerned, many people did not feel that Clinton had a substan8ve arrangement of developing America’s capitalis8c economy. It is argued that she has a poor electoral strategy, and evidently failed to fully mobilise her party base, including young voters and African Americans. Indeed it was reported that there was a loss of 3% of the exit-poll vote from African Americans from 2012-2016.
Beyond ExpectaPons Firstly, the issue of expecta8on will be addressed. As Roberts astutely points out, Tr u m p ’s d e fi a n c e o f e x p e c t a 8 o n s established itself as a sort of ‘golden rule’ in American poli8cs in 2016. Supposedly wriDen off by the American people in the presiden8al primaries, he Trump was rarely taken into full perspec8ve in the general elec8on. This epitomises and echoes the an8-establishment sen8ment that arguably fuelled Britain to vote for Brexit. What makes this result singularly unique is the power Trump can poten8ally wield in light of the fact that the Congress is now completely Republican dominated.
This perhaps allowed Trump to maximise the number of blue collar, working class votes. Indeed, soaring inequality fuelled by stagnant wages paved the way for the 13
THE ADVOCATE DECEMBER 2016 GOP’s breakthrough of Clinton’s ‘blue wall’, which consisted of the State of Wisconsin, Michigan and Pennsylvania. However, it is argued that Trump’s victory can be aDributed less to his strategic outlook and more to Clinton’s failures to strike the key swing states. It was noted that had if 69,000 Democra8c voters had commuted from Pennsylvania rather than living in New York, or if even a 8ny frac8on of Los Angeles Democrats had chosen to live in Miami, Mrs Clinton would have won.
laDer being branded a ‘vast, criminal
“Trump won by the narrowest of margins” conspiracy’. This, has placed fundamental ques8ons vis-à-vis Clinton’s sincerity. Most importantly, the FBI’s inves8ga8on, though finding an absence of criminal wrongdoing into her emails, served to further tarnish her reputa8on and integrity. Furthermore, it was stated that 96% of Clinton’s charitable dona8ons went to the Clinton Founda8on. In her recent tax return of 2015-6, what was no8ceable in terms of the breakdown of Schedule A [– Itemised Deduc8ons], realising the extent of Clinton’s charity was that $1,000,000 was donated to the Clinton Founda8on, and $42,000 went ‘elsewhere’. This pays tribute to the adage that ‘charity begins at home’, where the Clintons have the ability to give to charity and family simultaneously, because their favourite charity is their family. This goes to show the murky dealings of the Clintons, once again ques8oning their integrity of the Clintons.
Michigan case study The Michigan case study is indica8ve of Trump’s breakthrough of the ‘blue wall’. One reason for the drop in voter turnout was a popula8on shiX in Michigan. Detroit, in under 15 years noted a drop in its popula8on count by suffered from a loss of c.245,000 people. This was coupled with fact that the such state recently suffered the largest municipal bankruptcy in US history. This had a substan8al impact on the representa8on and subsequent vo8ng paDerns for the candidates. Namely, it contributed to opprobrium against Clinton and the establishment. Consequen8ally, Trump won by the narrowest of margins with the difference being less than 13,000 votes, equa8ng to less than less than 0.3% o f t h e s t a t e v o t e . T h i s w a s a n unprecedented outcome, as the state had not moved red or turned Republican since the days of Reagan. Trust The lack of trust was also important in determining the elec8on outcome. A recent WikiLeaks development highlighted ing Clinton’s ‘paid speeches’ to Goldman Sachs, controversies underpinning Clinton Cash and murky family founda8on, the
Concluding thoughts Overall however, since the birth or crea8on of the United States, presidents have only been military men or poli8cians. Now, the act of elec8ng the first ci8zen president is 14
THE ADVOCATE DECEMBER 2016 telling, albeit unsurprising considering the rela8ve uncertain8es and poli8cal apathy that dominate world poli8cs. ___________________________________
As will be discussed, the rule of law, separa8on of powers, and parliamentary sovereignty are not adequately protected in the current system of checks and balances. Secondary legislaPon Parliament delegates law-making powers to the Execu8ve through Enabling Acts. This decluDers the legisla8ve process promo8ng flexibility and efficiency. The nature and scope of the delegated powers are indicated by the Act so that ministers legislate in accordance with what Parliament originally intends.
Is ExecuPve power in relaPon to the making of secondary legislaPon rendered consPtuPonally acceptable by the presence of Parliamentary control? An analysis of the response of the House of Lords in October 2015 to the statutory instrument on tax credits, and the possibility of judicial oversight and its implica7ons on cons7tu7onal acceptability of execu7ve power to make secondary legisla7on.
Delegated legisla8on is generally made through statutory instruments (SIs). It may take the form of commencements, framework filling, ‘Henry VIII’ clauses, amongst others.
By: Maria Carolina Magalhaes Centeno
Secondary legisla8on may be reviewed by the courts on the grounds of judicial review, namely, illegality, procedural impropriety, irra8onality, where there is a conflict with EU law, and incompa8bility with the Human Rights Act 1998 (HRA).
IntroducPon Execu8ve power in rela8on to the making of secondary legisla8on is rendered cons8tu8onally acceptable by the presence of Parliamentary control, as illustrated most recently through the response of the House of Lords in October 2015 to the statutory instrument on tax credits and also the possibility of judicial oversight.
Originally designed to apply to ‘regula8on of administra8ve procedures and technical areas of opera8onal detail’ delegated powers have been expanding. Secondary legisla8on has in fact been described as ‘standard form of law-making’. Thus mechanisms must be in place so that conferred powers do not fall out of hand.
Secondary or delegated legisla8on has been consistently growing in number and widening in scope. It is also more complex and technical than ever before. This jeopardises judicial oversight of Execu8ve law-making powers, which is not as effec8ve as it ought to be. Parliament also lacks the appropriate means to control these powers, raising concerns regarding the ability to keep Execu8ve law-making powers within cons8tu8onal boundaries.
Controls on ExecuPve power in the making of secondary legislaPon RegreDably, that is not the case. The structure built to secure cons8tu8onal principles does not operate sa8sfactorily; both Parliamentary scru8ny and the 15
THE ADVOCATE DECEMBER 2016 possibility of judicial oversight reveal cri8cal deficiencies.
prayers. But compared with the total number of laid nega8ve SIs, the number of prayers is far too small. For example, in the 2013-14 session 882 nega8ve instruments were laid, yet just 10 prayers were tabled. Moreover, House of Lords annulment mo8ons under the nega8ve procedure are almost irrelevant; only one has ever succeeded.
Parliamentary ScruPny Many statutory instruments are subject to some level of scru8ny although some SIs are subject to none. Parliament may use nega8ve procedures through which SIs ‘become law without a debate or a vote but may be annulled by a resolu8on of either House’, affirma8ve procedures, or super-affirma8ve procedures. SIs ‘have to be preceded by proposals which are subject to consulta8on’ allowing for ‘a m e n d m e n t s t o b e p ro p o s e d b y Pa r l i a m e n t a r y c o m m i D e e s ' T h e corresponding Enabling Act determines which procedure is to be used in scru8nising the delegated legisla8on. SIs can be rejected or accepted, but not amended.
Second, whereas the nega8ve procedure does not necessarily involve Parliament’s approval, the affirma8ve procedure does. However, in prac8ce only 10% of the instruments undergoing Parliamentary procedure are subject to the affirma8ve procedure. Many of those instruments are ‘of no poli8cal interest and (…) en8rely uncontroversial’, and the 8me available for debate is markedly limited.
“Parliamentary scruPny and the possibility of judicial oversight reveal criPcal deficiencies”
Select CommiDees also scru8nise SIs. First, the House of Lords Secondary Legisla8on CommiDee ‘examines the policy merits [the substance] of any statutory instruments (SIs) laid before the House of Lords that are subject to parliamentary procedure’, assessing whether it requires further debate. The Joint CommiDee on Statutory Instruments complements the laDer CommiDee by ‘consider[ing] statutory instruments made in exercise of powers granted by Act of Parliament’ – it checks whether SIs are made within the scope provided by their Parent Act, rather than their merits or policy implica8ons.
Finally, the House of Lords, the major protector of the cons8tu8on, cannot ensure that Execu8ve power in the making of secondary legisla8on is cons8tu8onally acceptable. One could aDempt to argue otherwise by saying that since the Lords can veto delegated legisla8on, the Execu8ve is ul8mately restrained in its use of delegated powers to cons8tu8onally acceptable limits by the House of Lords, the Tax Credits saga being the latest example. The SI on Tax Credits was an affirma8ve instrument that was part of the Government’s programme for cuts in welfare spending. The cuts made u n d e r i t w o u l d h av e h a d d ra s 8 c consequences on poverty levels but the
All these mechanisms are nevertheless not enough. Firstly, for a nega8ve SI to be debated, MPs must table annulment mo8ons known as 16
THE ADVOCATE DECEMBER 2016 Lords did not approve it and the SI was not enforced.
the system does not work, UK’s par8cular applica8on of the separa8on of powers principle might create tensions.
However, two aspects need clarifica8on. The first is that Lords’ veto over delegated legisla8on is granted to them – ‘[the House of Lords] has that power when, and only when, Parliament grants it in a Parent Act.’ The second is that the Lords’ rejec8on of the SI was an excep8on to the rule. The House has been quite reluctant to reject SIs - since 1950, only 6 instruments have been turned down. One reason might be to avoid impeding effec8ve governance. In a leDer to Lord ScoD of Foscote, Lord Strathclyde explains how the House opts for non-fatal “mo8ons of regret” to show that it does not agree with a par8cular instrument.’
Secondly, parliamentary sovereignty is also affected by inadequate scru8ny. According to Dicey, ‘no person or body is recognised by the law of England as having the right to override or set aside the legisla8on of Parliament’. Yet under-scru8nised ‘Henry VIII’ powers, for example, creates room for Ministers to interfere with primary legisla8on in a way that may go well beyond the original scope for amendment, thus going against the will of Parliament. This would cons8tute an obvious breach of this cons8tu8onal pillar. Former Lord Chief Jus8ce Igor Judge has openly cri8cised the increasing use of ‘Henry VIII’ powers saying they ‘should be confined to the dustbin of history’, and believing, as is argued, them to be undermining the sovereignty of Parliament.
So the response of the House to the SI on Tax Credit Instruments is not representa8ve of the actual posi8on it assumes in the vast majority of situa8ons. Its influence on scru8nising delegated legisla8on is withered by a reluctance to reject SIs.
For these reasons, parliamentary control does not render Execu8ve law-making powers cons8tu8onally acceptable.
The above shortcomings have several cons8tu8onal implica8ons. First, a lack of parliamentary scru8ny raises concerns with separa8on of powers. In the UK’s cons8tu8onal context, there is no strict separa8on of powers; compromise between the Legislature and the Execu8ve is accepted so that efficiency and the protec8on of liber8es may coexist – ‘[t]he efficient secret of the English Cons8tu8on may be described as the close union, the nearly complete fusion of the execu8ve and legisla8ve powers.’ This fusion of powers is meant to create a system of checks and balances preven8ng the overconcentra8on of power. If, as was shown,
Judicial Oversight Parliament’s policy is that when it delegates powers to ministers, it ‘accepts that it is the responsibility of ministers to determine how precisely they are used’ and that ‘a minister who used (…) [their] powers unreasonably would be open to challenge in the courts, by means of judicial review.’ As was men8oned, all grounds of judicial review apply to secondary legisla8on. If a court considers any of them to be applicable, it may quash the SI in ques8on, as happened in for example R (on the 17
THE ADVOCATE DECEMBER 2016 applica7on of Javed) v Secretary of State for the Home Department (in this case on the grounds of irra8onality). But judicial oversight has its limita8ons in maintaining Execu8ve legisla8ve powers within cons8tu8onal boundaries.
before them. If individuals cannot understand the law, they may not be aware of their legal rights and thus do not bring such claims as oXen as they could, and the courts cannot exert their control on Execu8ve power. The purpose of judicial oversight is in great part frustrated.
First, legisla8ve powers are oXen conferred through broad and ambiguously worded enabling provisions. And ministers, who some8mes seek to legislate beyond what the enabling Act allows, may make use of this ambiguity to grab hold of more, possibly unforeseen, powers. The Courts’ ability to control Execu8ve use of delegated powers is in this way strongly curtailed. This conflicts with one of the recognised 8 sub-rules to the defini8on of the rule of law provided by Lord Bingham:
These limita8ons prevent judicial oversight from rendering Execu8ve power in the m a k i n g o f d e l e g a t e d l e g i s l a 8 o n cons8tu8onally acceptable. Conclusion The controls on Execu8ve use of legisla8ve powers can only render it cons8tu8onally acceptable if the powers are clearly iden8fied and kept within reasonable boundaries. In the current arrangements, neither Parliamentary control nor judicial oversight succeeds in doing this.
‘That ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.’
Perhaps instead of focusing on reigning the use of delegated powers, Parliamentary debate should focus on restric8ng the delega8on of powers in the first place. And while there is a myriad of proposed reforms, there has been no significant change. ___________________________________
Furthermore, the on-going increase in the use of delegated legisla8on makes it difficult for individuals to properly know and understand the law. Whereas in 1970 there were less than 6000 pages of delegated legisla8on, by 1995 the number was already over 10,000, and by 2010 well over 14,000. Also, the terminology used in the context of delegated legisla8on (‘laid’, ‘made’, ‘nega8ve’, ‘affirma8ve’, ‘superaffirma8ve’, ‘prayers’, ‘Henry VIII powers’, etc.) precludes the understanding of secondary legisla8on. Addi8onally, in order for the courts to check delegated legisla8on individuals must bring claims
Is Philip Hammond Our Knight in Shining Armour? Thoughts on the newly appointed Chancellor of Exchequer, Philip Hammond. By: Thao Thanh Truong In the past couple of months, the newly appointed Chancellor of Exchequer, Philip Hammond, has given the media and businesses various things to discuss. 18
THE ADVOCATE DECEMBER 2016 Despite having only been in office for 3 months, he has raised many different plans to “improve” his predecessor’s, George Osborne, budget. Whilst Mr. Osborne had many elaborate plans to achieve his ul8mate goal to “balance the books” by 2020, there seems to be liDle evidence of any budget improvement aXer six years in office. George Osborne Two goals that Mr Osborne drew for the people in his budget in 2015 regarded the number of houses to be built and the selling of Lloyds’ share. With his aims to improve the standard of living and make houses more affordable, it was promised that more houses would be built. However, sta8s8cs seem to prove that the former Chancellor failed to fulfil this promise. In reality, fewer houses were built under George Osborne’s era as Chancellor of the Exchequer than any other peace8me government since 1920.
in his budget announcement which will be made on 23rd November 2016. In regards to the first goal, to make housing prices more affordable, the Chancellor has said that there will be 15,000 more houses built under this government, through his “Accelerated Construc8on” scheme. This will require the Government to borrow £2 billion to support new developers to build houses on publicly-owned “Brownfield” land – sites. These sites were previously industrial land owned by the Government. The new developers will also be supported by the £3 billion Home Building Fund to encourage 25,000 homes to be built by 2020 and over 200,000 homes in the long run.
“This was funded by using money from UK taxpayers” In terms of his second goal to give money back to taxpayers, the Chancellor has abandoned his predecessor’s plan. He will release the Government’s remaining stake by selling it on the stock market. This is said to be done in the next 12 months at a reduced price of 53p per share as opposed to 73.6p per share.
In 2008, the Government bailed out Lloyds by purchasing 43% of total shares. This was funded by using money from UK taxpayers. Another goal of his was to return this money to taxpayers. AXer many years of selling those shares, there remained a 9% stake. Mr Osborne had plans to sell the rest of the shares at a cut price. Nonetheless, George Osborne leX office before this happened.
Consequences – More homes to be built Mr. Hammond’s plan to build 15,000 homes under the current government will adjust the current housing crisis and reduce the need for housing benefit. By building more homes, the housing prices will decrease. At first glance, more people will be able to afford homes. This will ul8mately allow Mr. Hammond to achieve his predecessor’s goal of a “high wage, low welfare” state because there will be an ini8al decrease in the need for housing benefits. Another advantage is that more
Philip Hammond AXer being appointed in mid-July, Mr. Hammond has given the media various plans in regards to the two goals set out above by his predecessor. One thing to bear in mind is that these plans are merely specula8ons. The set strategy will be seen 19
THE ADVOCATE DECEMBER 2016 jobs will be generated through the various construc8on projects.
investment experts, including Craig Yeaman, manager of the Saracen UK Growth fund, believe Lloyds costs have become easier to manage so their dividend p r o s p e c t s w i l l b e “e x c e p 8 o n a l .” Consequently, shares will eventually be more aDrac8ve thereby increasing the price. If the Chancellor insists on selling the shares on the stock market now, it could lead to a significant loss in the long term.
However, nega8ve impacts also surround the proposi8on. Consumers will see a loss in their main form of wealth and banks lose out when people default from their mortgage payments. As for the former, it will eventually provide the domino effect of decreased spending thereby leading to lower economic growth as consumers will be less confident to spend. This occurred during the financial crisis in 2008 - there was a sharp fall in housing prices in March 2008. Furthermore, the current genera8on favours ren8ng and mortgaging proper8es. Lower prices will damage the income of landlords. If mortgagees cannot afford their regular mortgage payments, banks will recover less as proper8es will have decreased in value.
Concluding Comments Whilst Mr. Hammond has been favoured by many businesses for ac8vely declaring plans to improve George Osbourne’s work, the plans may not prove too beneficial to “the country as a whole” aXer all. Despite the immediate benefits of his plans, the Chancellor has purported to detail how he will solve problems surrounding the bigger picture - the budget deficit. However, as men8oned, these are only specula8ons as to what the Chancellor of the Exchequer will do. Thus, consequences cannot be analysed un8l these plans are put into ac8on. Hence, whether Mr. Hammond will leave a beDer legacy than George Osborne is yet to be assessed aXer Wednesday 23rd November. ___________________________________
Consequences – Lloyds’ shares If Mr. Hammond places the shares on the stock market within the next twelve months, there will be an almost immediate return for taxpayers. Mr. Hammond sees this as taking into account the “interests of the bank, taxpayers and the country as a whole.” This is a tough approach to aDempt to sa8sfy the interested par8es. Many had cri8cised Mr. Hammond’s predecessor for remaining pa8ent and wai8ng for the market to stabilise. However, this would mean that the Government could poten8ally be selling the shares at a loss. In fact, they are already making a loss of 20.6p per share. This might seem less obvious due to Lloyds being hit with PPI claims and other regulatory maDers in the past few years but these maDers are ending. Many 20
THE ADVOCATE DECEMBER 2016 REFERENCES
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ArPcle 5: Is execuPve power.. R. Fox, J. Blackwell, ‘The Devil is in the Detail: Parliament and Delegated Legisla7on’, (2014) Hansard Society Report These Enabling Acts contain provisions that allow ministers to make law in the form of secondary legisla8on Adam Tucker, ‘Tax Credits, Delegated Legisla7on, and Execu7ve Power’ (2015), Cons8tu8onal Law Group <hDps://ukcons8tu8onallaw.org/2015/11/05/adam-
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